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High court judgments

Every Issue

Cite as: September 2015 89 (9) LIJ, p.54

Administrative law
Tribunals – bias – panel of municipal council considering destruction of dog – panel member involved in prosecution of dog owner

In Isbester v Knox City Council [2015] HCA 20 (10 June 15) H was an officer of the respondent council and responsible for coordinating local laws. H was responsible for prosecuting the appellant (I) in the Magistrates’ Court (Vic) under s29(4) of the Domestic Animals Act 1994 for owning a dog that had attacked a person. I was convicted on a plea of guilty. The Council had adopted a procedure of creating a panel to consider the separate question under s29(12) of whether the dog should be destroyed. H was a member of the three-person panel (who were all relevant delegates) and actively involved in its deliberations. The panel held a hearing and I was heard. After the hearing one panel member/delegate K decided the dog should be destroyed and H agreed to provide a statement of reasons. I sought judicial review claiming the decision was affected by bias. She failed before the primary judge in the Supreme Court of Victoria and before the Court of Appeal (Vic). Her appeal to the High Court was allowed by all members of the Court: Kiefel, Bell, Keane, Nettle JJ jointly; sim Gageler J. The members of the joint judgment concluded that H’s active interest as “prosecutor” made her membership of the panel “incompatible” with a fair hearing: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. Appeal allowed.

Corporation – order that corporation charged with contempt produce documents

In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21 (17 June 2015) Boral Resources and others commenced proceedings in the Supreme Court of Victoria alleging the appellant union/corporation had acted in contempt of orders made by the Court. In the proceedings Boral sought discovery of documents under SCR Ord 29.07(2) relating to the employment of certain persons. The primary Associate Justice dismissed the application for discovery on the basis proceedings for contempt were criminal proceedings. This was rejected on appeal to the primary judge who made orders for discovery. The Court of Appeal (Vic) refused the union leave to appeal but it was granted special leave to appeal this by the High Court. The High Court dismissed the appeal: French CJ, Kiefel, Bell, Gageler, Keane JJ jointly; sim Nettle J. The Court noted that a corporation did not have the privilege against self-incrimination. The Court rejected the CFMEU’s characterisation of a right to silence as being part of the criminal trial process. The Court noted that while contempt proceedings were “accusatory” they were not criminal proceedings and were subject to the civil rules of practice. Appeal dismissed.

Lease – contrary to statute – effect of illegality – Statutes – illegality

In Gnych v Polish Club Limited [2015] HCA 23 (17 June 2015) the Club leased certain parts of its premises (that were licensed to serve alcohol under the Liquor Act 2007 Act (NSW)) to G. Such a lease without the approval of the authority was prohibited by s92(1) of the Act. A dispute arose and G was excluded from the premises. In response to G’s claims for enforcement of the lease the Club asserted that because the lease had not been approved under s92(1)(d) of the Act the lease was illegal and void. This was generally rejected by the trial judge but accepted by the NSW Court of Appeal. The Club’s appeal to the High Court was allowed by all members: French CJ, Kiefel, Keane, Nettle JJ jointly; sim Gageler J. Consideration of when contracts are void for illegality. Appeal allowed.

Criminal law
Provocation – the “ordinary man”

In Lindsay v The Queen [2015] HCA 16 (6 May 2015) after a long session of drinking alcohol the deceased N made sexual advances to L (a male Aboriginal) at L’s home and in front of L’s family. L killed N. At trial where provocation was an issue, L was convicted of murder. On appeal the Court of Criminal Appeal SA concluded there were deficiencies in the directions as to provocation but in light of the Court’s firm view as to contemporary attitudes no ordinary person would have lost control as L had and the errors as to provocation had not resulted in an appealable error. L’s appeal to the High Court was allowed by all members: French CJ, Kiefel, Bell, Keane JJ; sim Nettle J. The High Court reviewed the functions of the trial judge and juries in applying the “ordinary man” test. Appeal allowed; retrial ordered.

Visas – cancellation on character grounds – review by AAT – applicant limited to evidence given two days before hearing – unexpected evidence of previously unknown children given at AAT hearing – whether AAT precluded from considering circumstances of these children

In Uelese v Minister for Immigration and Border Protection [2005] HCA15 (6 May 2015) Mr U’s visa was cancelled on character grounds in September 2012 under s500 of the Migration Act 1958 (Cth). The delegate was informed U had three children with his partner Ms F. Mr U sought review by the AAT. Provisions of the Migration Act provided Mr U was not able to rely on written or oral evidence unless notice of it had been given to the Minister two days before the hearing and the review was to be completed in 84 days. A direction under the Act required that the interests of all children must be taken into account. In cross-examination Ms F disclosed that there had been breaks in the relationship and that Mr U was the father of two other children by Ms V. The AAT concluded that as this evidence was given without the notice required by s500(6H) it would be disregarded and affirmed the decision. Mr U’s appeals to the Federal Court were dismissed but his appeal to the High Court was allowed by all members: French CJ, Kiefel, Bell, Keane JJ jointly; sim Nettle J. The Court observed that s500(6H) did not affect the power of the AAT to grant adjournments and a resumed hearing was a “hearing”. Appeal allowed; decisions of Full Court of the Federal Court and primary judge set aside; decision of AAT quashed.

Refugees – “threat to liberty” – any temporary detention

In Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 (17 June 2015) the High Court concluded the reference to “a threat to liberty” in s91R(2)(a) of the Migration Act 1958 (Cth) did not include the prospect of future episodes of temporary detention: French CJ, Kiefel, Bell, Keane JJ; sim Gageler J. Appeal allowed.

Native title
Effect of wartime occupation of land

In Queensland v Congoo [2015] HCA 17 (13 May 2015) the High Court concluded exclusive occupation of land in World War 2 by military officers (exercising power to do so under regulations made under the National Security Act 1939 (Cth)) to use the land for live firing exercises did not extinguish native title: French CJ with Keane J; sim Gageler J; contra Hayne; Kiefel; Bell JJ. Appeal from like conclusion of Full Court of the Federal Court dismissed.

Duty of care – motor vehicle accident – passenger deceased – passenger’s brother claiming damages for nervous shock on hearing of accident – whether driver owes duty to passenger’s brother for nervous shock

In King v Philcox [2015] HCA 19 (10 June 2015) a passenger was killed in a motor vehicle collision at an intersection. P (the passenger’s brother) passed through, or was diverted around, the intersection several times shortly after the collision but was unaware his brother was involved. On being told his brother had died, P suffered nervous shock from guilt that he had not stopped. P sued K for damages for nervous shock. The primary judge found P had suffered mental harm but was not entitled to damages for nervous shock as either he was not present at the time of the accident under s53(1)(a) of the Civil Liability Act 1936 (SA) or he suffered the injury when he was told of the death. P’s appeal was upheld by the Full Court of the Supreme Court (SA). K’s appeal to the High Court was allowed by all members: French CJ, Kiefel and Gageler JJ jointly; sim Keane and Nettle JJ. The High Court concluded the Full Court had erred in finding P was present at the scene and allowed the appeal. The joint judgment proceeded to consider whether a duty of care could be owed to siblings. Appeal allowed and decision of Full Court set aside (except as to costs orders).

Trade and commerce
Action against financial advisers – applicability of apportionment of liability provision

In Selig v Wealthsure Pty Ltd [2015] HCA18 (13 May 2015) the appellants succeeded in an action against financial advisers (the respondents) for involving the appellants in a “ponzi scheme” investment. The primary judge found the various respondents had breached provision of the ASIC Act 2001 (Cth) and the Corporations Act 2000 (Cth). The primary judge declined to apportion the loss between the respondents holding the apportionment provisions in Div 2A of Part 7 of the Corporations Act did not apply. This conclusion was reversed by a Full Court. The appellants’ appeal to the High Court succeeded: French CJ, Kiefel, Bell, Keane JJ; sim Gageler J. The High Court concluded that apportionable claims were limited to those under s1041H of the Corporations Act and not the other claims on which the appellants had succeeded. Appeal allowed.

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


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