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High Court judgments

High Court judgments

By Andrew Yuile

Constitutions Judgment Taxation 


Tax law

Income tax – privileges and immunities of international organisation – holding an office

In Commissioner of Taxation v Jayasinghe [2017] HCA 26 (9 August 2017) the High Court held that the appellant did not “hold an office” for the purposes of the International Organisations (Privileges and Immunities) Act 1963 (Cth) and was not exempt from paying income tax. Section 6(1)(d)(i) of the Act relevantly exempted from taxation salaries and emoluments received by those holding an office, or performing the duties of an office, in particular organisations, of which the UN is one. The High Court held that s6(1)(d)(i) is concerned with the incidents of relationship between the person and the organisation, which depends on the substance of the terms of engagement. The structure of the organisation and the place of the person within it will be important, as will the duties and authorities associated with the person’s position. In this case, the appellant was engaged as an independent contractor to an arm of the UN in his individual capacity to perform a specific task or complete a specific piece of work. He had no authority or right to enter into legal or financial commitments or incur any obligations on behalf of the UN. He was responsible for paying any tax levied by Australia on his earnings and was solely responsible for any claims arising for any negligent acts performed by him. He was not an official of the UN for the purposes of the Convention on the Privileges and Immunities of the UN. He therefore did not hold an office for the purposes of s6(1)(d)(i). Kiefel CJ, Keane, Gordon and Edelman JJ jointly; Gageler J separately concurring. Appeal from the Full Federal Court allowed.

Criminal law

Joint criminal enterprise – murder and manslaughter

In IL v The Queen [2017] HCA 27 (9 August 2017) the appellant was relevantly tried on two charges: first, manufacturing a large commercial quantity of methylamphetamine; and second, murder, or alternatively manslaughter, pursuant to s18(1) of the Crimes Act 1900 (NSW). The deceased was killed when a gas ring burner was lit in a small and inadequately ventilated bathroom, causing a fire. Relevantly, on the second count, the Crown alleged that the appellant was guilty of “felony” or “constructive” murder (alternatively, manslaughter), because the act that caused the deceased’s death was committed in the course of the joint criminal enterprise. The Crown could not exclude the possibility that the deceased lit the gas burner himself and was accidentally killed by his own act. However, it was argued that because the appellant participated with the deceased in the joint criminal enterprise, the appellant was criminally liable for all acts committed in the course of carrying out that enterprise. The trial judge directed the jury to enter a verdict of acquittal on the second count. The Court of Criminal Appeal overturned that decision. The High Court allowed an appeal by majority, for differing reasons. Kiefel CJ, Keane and Edelman JJ held that s18 of the Crimes Act requires the killing of another. It is not engaged if a person kills himself or herself, whether intentionally or accidentally. Bell and Nettle JJ held that joint criminal enterprise only extends to attribute liability to participants in the enterprise for acts committed by others that are capable of comprising the actus reus of a crime. In this case, assuming it was the deceased’s act that caused his death, no actus reus of a crime was committed. The appellant also could not be “taken” to have lit the stove through the joint criminal enterprise – that confused liability of an act committed by an agent with the doing of the act itself. Gageler J and Gordon J dissented in separate judgments. Appeal from the Court of Criminal Appeal (NSW) allowed.


Creditor’s petition – whether Court can “go behind” judgment to investigate debt

In Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 (17 August 2017), Ramsay entered into an agreement with Compton Fellers Pty Ltd, trading as Medichoice. The respondent was a director of Compton Fellers. After the agreement expired and Medichoice went into liquidation, Ramsay started proceedings against the respondent, claiming $9,810,312.33 allegedly owed to it under the agreement. The respondent raised a defence disputing liability but not quantum, which was unsuccessful. Both parties were represented and there was no suggestion of fraud. The respondent then failed to comply with a bankruptcy notice served on him by Ramsay. Ramsay presented a creditor’s petition in reliance on the failure to comply. In those proceedings, the respondent adduced evidence to show that Ramsay owed money to Medichoice, not vice versa. At first instance, the judge declined to go behind the judgment establishing the debt noting that the respondent had chosen not to dispute quantum. That decision was reversed on appeal, the Court holding that the central issue was not how the respondent ran the earlier proceedings, but whether there was reason to question whether the debt was truly owing. The High Court held that while a judgment is usually sufficient evidence of a debt, the discretion of a Bankruptcy Court to go behind a judgment is not limited to cases of fraud, collusion or miscarriage of justice. The obligation of the Court is to be satisfied that the debt on which the petitioning creditor relies is still owing. In this case, the evidence gave rise to the possibility that the debt was not truly owing and the Court should have investigated the issue. Kiefel CJ, Keane and Nettle JJ jointly; Edelman J separately concurring; Gageler J dissenting. Appeal from the Full Federal Court dismissed.

Constitutional law

Chapter III – Kable principle – parole consideration conditions applying specifically to an individual

In Knight v Victoria [2017] HCA 29 (17 August 2017) the High Court held that legislation imposing conditions on the consideration of parole specifically for the appellant were valid. The plaintiff was sentenced to life imprisonment for each of seven murder counts and 10 years’ imprisonment for each of 46 attempted murder counts, with a non-parole period of 27 years. Just before the non-parole period ended, s74AA was inserted into the Corrections Act 1986 (Vic). It applied only to the plaintiff and prevented his release on parole unless the Parole Board was satisfied that he was “in imminent danger of dying or is seriously incapacitated and that, as a result, he no longer has the physical ability to do harm to any person”. The plaintiff argued, relying on Kable and limitations stemming from Ch III of the Constitution, that s74AA interferes with the sentences of the Supreme Court and impairs the institutional integrity of the Court; and that s74AA enlists judicial officers who are members of the Parole Board in a function that is incompatible with the Supreme Court’s exercise of federal jurisdiction. On the first point, the High Court held that s74AA did not interfere with the sentence as it concerns only the conditions for the plaintiff’s release on parole after the expiry of the minimum term. Those are matters outside the scope of the exercise of judicial power. On the second point, the Parole Board was not constituted by current judicial members in this case (and did not have to be). In those circumstances, there was no constitutional issue with the makeup of the Board. It was unnecessary and inappropriate to decide whether s74AA would be invalid if the Board did have a current judicial officer as a member. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Answers to questions in Special Case given.

Administrative law

Statutory interpretation – failure to comply with condition precedent – whether exercise of statutory power invalid

In Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30 (17 August 2017), the appellant held a pastoral lease over land the subject of an application for mining leases. The applications for the leases were not accompanied by, relevantly, a mineralisation report as required by s74(1)(ca)(ii) of the Mining Act 1978 (WA). A report was later lodged. The first respondent determined that he had jurisdiction to consider the contested applications and after doing so made a recommendation to the Minister to grant the leases. The appellant sought judicial review, arguing that the warden’s power to consider the applications was dependent on compliance with s74(1)(ca)(ii). The primary judge held there was no error. The Court of Appeal agreed, holding that s74(1)(ca)(ii) allowed for the report to be lodged later in time. Applying the principles in Project Blue Sky, the High Court held that s74(1)(ca)(ii) imposed an essential preliminary condition to the exercise of power, having regard to the language and structure of the statute, its subject matter and objects, and the consequences for the parties of holding void acts done in breach of the Act. This outcome was also consistent with authority that it is essential to comply with the requirements of a statutory regime conferring power to grant exclusive rights to exploit the resources of the State (subject to provision to the contrary). Kiefel CJ, Bell, Gageler and Keane JJ jointly; Nettle J dissenting. Appeal from the Court of Appeal (WA) allowed.

Migration law

Regional processing – legality of actions relating to regional processing in PNG

In Plaintiff S195-2016 v Minister for Immigration and Border Protection [2017] HCA 31 (17 August 2017) the High Court considered the effect on the legality of regional processing actions and arrangements in Papua New Guinea (PNG) of the PNG Supreme Court’s decision in Namah v Pato (2016) SC 1497, in which the detention of asylum seekers on PNG was ruled unconstitutional. The plaintiff argued that the decision in Namah rendered unlawful the Regional Resettlement Arrangement pursuant to which asylum seekers were taken to PNG for processing, a memorandum of understanding between Australia and PNG relating to the transfer and processing of asylum seekers in PNG, administrative arrangements made by the Australian government, an Australian domestic contract, and a Ministerial Designation and Direction. The High Court held that none of the impugned actions, arrangements or agreements were unlawful. Neither the legislative nor the executive power of the Commonwealth, pursuant to which the actions and arrangements were taken, is limited by the need to conform to the domestic law of another country (though it may have implications under that domestic law or under international law). The Namah decision did not hold actions of PNG officials to be beyond power, and the arrangements and agreements were within power on the proper construction of their terms. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Answers to questions in Special Case given.

Personal injury

Transport accident compensation – statutory compensation – Humphries v Poljak

In Transport Accident Commission v Katanas [2017] HCA 32 (17 August 2017) the respondent was involved in a car accident and sought to recover damages for serious injury, being psychological injury, under s93 of the Transport Accident Act 1986 (Vic). Humphries v Poljak [1992] 2 VR 129 set out the approach to the question of whether an injury was serious. It required that the consequences of the injury be serious to the plaintiff, and be “very considerable” or more than “significant” or “marked” when compared with other cases in the range of possible impairments or losses. The respondent relied on her continuing treatment with several doctors, her need for medication and her inability to undertake various common tasks to make out the severity of the injuries. The primary judge accepted some of the claimed symptoms and effects, but found them not to be as extreme as claimed and did not accept that the plaintiff’s mental trauma was “severe”. She had not been an inpatient in any psychiatric institution and had not suffered more extreme symptoms of psychological trauma. The Court of Appeal accepted that the primary judge erred in focusing solely on the extent of treatment and medication required. The extent of treatment may cast light on the severity of a condition, but was only one of a range of considerations. The High Court upheld that decision. The primary judge’s formulation was incomplete because it considered only one of many criteria of the comparative severity of a mental disorder, being the extent of treatment required. Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) dismissed.


Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email The full version of these judgments can be found at

Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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