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Australian Securities & Investments Commission v Lewski [2018] HCA 63

Kiefel CJ, Bell, Gageler, Keane, Edelman JJ
Date: 13 Dec 2018 Case Number: M79/2018 M80/2018 M81/2018 M82/2018 M83/2018
Companies – Managed investment schemes – Officers – Duties – Where each first respondent director of second respondent responsible entity of managed investment scheme – Where four directors resolved to amend scheme's constitution to introduce new fees payable to responsible entity out of scheme's assets – Where all five directors resolved to lodge and lodged amended constitution with Australian Securities & Investments Commission ("ASIC") – Where all five directors resolved to pay fees and caused payments to be made – Where ASIC alleged contraventions of Corporations Act 2001 (Cth) by responsible entity and directors – Where proceedings alleging contraventions in relation to amendment resolution time-barred – Whether amendments to constitution adversely affected members' rights – Whether Full Court erred in holding amendments valid from lodgement until set aside – Whether Full Court erred in holding no breaches of duty occurred because of honest belief that constitution validly amended – Whether Full Court erred in holding directors not involved in contravention of s 208 of Corporations Act by responsible entity.

Words and phrases – "adversely affect", "breach of duty", "essential element of the contravention", "financial benefit", "honest belief", "improper use of a position", "interests", "interim validity", "invalid", "involved in a contravention", "listing fee payments", "lodgement", "loyalty", "member approval", "members' rights".

Corporations Act 2001 (Cth) – Pt 5C. 3, ss 9, 79, 136, 208, 209(2), 229, 601FC, 601FD, 601GA(2), 601GC, 601LC, 1317K, 1318, 1322.

Commissioner of Taxation v Tomaras [2018] HCA 62

Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ
Date: 13 Dec 2018 Case Number: B9/2018
Family law – Matrimonial cause – Proceedings to alter property interests – Where wife was indebted to Commissioner for certain taxation related liabilities plus general interest charge – Where wife applied for order that husband be substituted for wife as debtor and husband be solely liable to Commissioner for debt – Where s 90AE(1)(b) of Family Law Act 1975 (Cth) permitted court to make order directed to creditor of one party to marriage to substitute other party to marriage in relation to debt owed to creditor – Whether s 90AE bound Commissioner in relation to debt owed to Commonwealth – Whether s 90AE(1)-(2) of Family Law Act granted court power to make order sought by wife.

Practice and procedure – Question stated – Where question of law stated by Federal Circuit Court of Australia under s 94A(3) of Family Law Act for opinion of Full Court of Family Court of Australia – Where question concerned jurisdiction to make order – Where preconditions to making of order in s 90AE(3) of Family Law Act unlikely to be satisfied – Whether stated case procedure was appropriate.

Words and phrases – "bind the Crown", "case stated", "common probability of fact", "creditor", "Crown immunity", "debt of a party to a marriage", "party to a marriage", "person", "presumption", "property of the parties to a marriage", "property settlement proceedings", "question of law", "rights, liabilities or property interests of a third party", "tax debt", "third party".

Family Law Act 1975 (Cth) – ss 79, 80, 90AA, 90AC, 90ACA, 90AD, 90AE, 94A, Pts VIII, VIIIAA.

TTY167 v Republic of Nauru [2018] HCA 61

Gageler, Nettle, Edelman JJ
Date: 5 Dec 2018 Case Number: S46/2018
Immigration – Refugees – Nauru – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where appellant applied to Refugee Status Review Tribunal for merits review of Secretary's determination – Where Tribunal sent letter to "Team Leader" of claims assistance provider inviting appellant to attend hearing – Where appellant and his representatives failed to attend Tribunal hearing – Where Tribunal affirmed Secretary's determination in appellant's absence – Where Supreme Court affirmed Tribunal's decision – Whether invitation to attend Tribunal hearing given to appellant – Whether legally unreasonable for Tribunal to decide matter without taking further action to allow or enable appellant to appear.

Words and phrases – "authorised representative", "given", "invitation to appear", "jurisdictional requirement", "legally unreasonable".

Interpretation Act 2011 (Nr) – ss 100, 101.

Refugees Convention Act 2012 (Nr) – ss 40(3), 41(1).

The Republic of Nauru v WET040 [No 2] [2018] HCA 60

Gageler, Nettle, Edelman JJ
Date: 5 Dec 2018 Case Number: M154/2017
Immigration – Refugees – Nauru – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined respondent not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Supreme Court of Nauru allowed appeal because Tribunal found respondent's claims implausible without rational basis – Whether Tribunal's reasons adequate.

Words and phrases – "adequate reasons", "basic inconsistencies", "implausible", "independent country information", "probative material", "rational inference", "speculation or conjecture".

Migration Act 1958 (Cth) – s 430(1).

Refugees Convention Act 2012 (Nr) – s 34(4).

Commissioner of State Revenue v Placer Dome Inc [2018] HCA 59

P6/2018
Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 5 Dec 2018
Stamp duties – Land-holding corporations – Acquisition of controlling interest – Whether corporation a "listed land-holder corporation" within meaning of Pt IIIBA of Stamp Act 1921 (WA) – Whether value of land to which corporation entitled 60 per cent or more of value of property to which it was entitled – Valuation methodologies – Whether corporation had legal goodwill – Meaning of legal goodwill – "Added value" approach to goodwill considered – Going concern value and goodwill distinguished.

Words and phrases – "acquisition", "assessment", "controlling interest", "custom", "discounted cash flow methodology", "going concern value", "goodwill", "listed land-holder corporation", "net asset value multiple", "property", "sources of goodwill", "stamp duty", "synergies", "top down".

Stamp Act 1921 (WA) – Pt IIIBA.

Taxation Administration Act 2003 (WA) – ss 34, 37, 40.

State Administrative Tribunal Act 2004 (WA) – s 29.

AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 5 Nov 2018 Case Number: M73/2018 M74/2018
Criminal law – Prosecution's duty of disclosure – Public interest immunity – Where legal counsel for several accused ("EF") was enlisted as police informer – Where EF provided information to police that had potential to undermine each accused's defences to criminal charges – Where each accused convicted of criminal offences – Where first respondent proposed to disclose to each convicted person information about EF's conduct – Whether information subject to public interest immunity – Whether first respondent permitted to make proposed disclosures.

Practice and procedure – High Court – Special leave to appeal – Whether special leave to appeal ought to be revoked.

Words and phrases – "adequately protect", "disclosure", "police informer", "integrity of the criminal justice system", "public interest immunity", "witness protection".

Witness Protection Act 1991 (Vic) – s 3B(2)(b).

Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57

Gordon J
Date: 22 Nov 2018 Case Number: B59/2018
Interlocutory order – Application for stay or injunction – Where Parliamentary Joint Committee conducting inquiry – Where plaintiffs directed to appear before Committee – Where plaintiffs sought to restrain Committee's exercise of power – Whether plaintiffs established prima facie case for relief – Whether balance of convenience favoured relief.

Words and phrases – "compel", "joint committee", "parliamentary privileges".

Constitution – ss 49, 50.

Parliamentary Privileges Act 1987 (Cth) – ss 3, 16.

The Republic of Nauru v WET040 [2018] HCA 56

Gageler, Nettle, Edelman JJ
Date: 7 Nov 2018 Case Number: M154/2017
High Court – Practice and procedure – Original jurisdiction – Appeal from Supreme Court of Nauru – Where High Court had original jurisdiction under s 5 of Nauru (High Court Appeals) Act 1976 (Cth) to hear and determine appeals from Supreme Court of Nauru provided for in Agreement between Government of Australia and Government of Republic of Nauru – Where Agreement terminated on 13 March 2018 – Where termination of Agreement did not affect hearing and determination of appeals "instituted" in High Court before date of termination – Where appellant filed notice of appeal before date of termination but one day outside period fixed by r 42. 03 of High Court Rules 2004 (Cth) – Where appellant filed summons seeking order under r 4. 02 of High Court Rules enlarging time for filing of notice of appeal – Where affidavit accompanying summons explained delay in filing notice of appeal – Where notice of appeal, summons and affidavit served on solicitors who acted for respondent in Supreme Court of Nauru – Where notice of appeal, summons and affidavit later served personally on respondent – Where order enlarging time for filing of notice of appeal not made before date of termination of Agreement – Where respondent did not enter appearance and did not appear at hearing of High Court appeal – Whether appeal "instituted" before date of termination of Agreement – Whether, if appeal instituted, High Court should exercise jurisdiction to hear and determine appeal.

Words and phrases – "appeal", "institute", "irregularity", "jurisdiction", "notice of appeal", "rule-making power", "service", "with such variations as are necessary".

High Court Rules 2004 (Cth) – rr 2. 03. 1, 4. 02, 9. 01. 5, 42. 03, Pts 42, 43.

Judiciary Act 1903 (Cth) – ss 77T, 86.

Nauru (High Court Appeals) Act 1976 (Cth) – ss 5, 6, 10(3).

SAS Trustee Corporation v Miles [2018] HCA 55

Kiefel CJ, Bell, Gageler, Nettle, Edelman JJ
Date: 14 Nov 2018 Case Number: S260/2017
Superannuation and pensions – Police pension – Disabled member of police force – Entitlement to additional allowance – Where respondent certified by appellant as incapable of personally exercising functions of police officer due to specified infirmities determined by Commissioner of Police to have been caused by being hurt on duty – Where respondent received annual superannuation allowance as disabled member of police force – Where s 10(1A)(b)(ii) of Police Regulation (Superannuation) Act 1906 (NSW) provided that annual superannuation allowance might increase by additional amount commensurate with member's incapacity for work outside police force – Where respondent sought additional amount by reason of supervening infirmity increasing respondent's incapacity for work outside police force – Where supervening infirmity increasing respondent's incapacity for work outside police force not subject of certification by appellant or determination by Commissioner of Police – Whether respondent entitled to additional amount of annual superannuation allowance.

Statutes – Interpretation – Principles – Context – Cognate terms – Choice between textually available constructions – Where cognate terms "incapable", "incapacity" and "totally incapacitated" appearing in Act – Where alternative textual constructions as to whether infirmity increasing incapacity for work outside police force required to be caused by being hurt on duty – Whether cognate terms to be construed as bearing same meaning.

Words and phrases – "additional amount", "annual superannuation allowance", "certified", "commensurate", "disabled member of the police force", "hurt on duty", "incapable of personally exercising the functions of a police officer", "incapacity for work outside the police force", "infirmity of body or mind", "member of the police force", "specified infirmity", "supervening infirmity or incapacity".

Police Regulation (Superannuation) Act 1906 (NSW) – ss 1, 1A, 3, 4, 5, 5A, 7, 8, 10, 10B, 14, 21.

Superannuation Administration Act 1996 (NSW) – s 57.

Comptroller General of Customs v Zappia [2018] HCA 54

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 14 Nov 2018 Case Number: S91/2018
Customs and excise – Customs control – Dutiable goods – Possession, custody or control of dutiable goods – Where company held warehouse licence under Customs Act 1901 (Cth) – Where dutiable goods stolen from company's warehouse before goods entered for home consumption – Where respondent employed by company as general manager and warehouse manager – Where s 35A(1) of Customs Act relevantly provided that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control and who fails to keep goods safely shall, on demand by Collector, pay amount equal to customs duty which would have been payable if goods had been entered for home consumption on day of demand – Where respondent served with demand by Collector under s 35A(1) – Where respondent applied to Administrative Appeals Tribunal for review of Collector's demand – Where Tribunal found respondent directed what was to happen to goods on day-to-day basis – Whether respondent was person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control.

Words and phrases – "authority to deal with", "Collector", "customs control", "dutiable goods", "employee", "fails to keep the goods safely", "has, or has been entrusted with", "home consumption", "management or control", "operational control", "owner", "possession, custody or control", "power or authority", "warehouse licence".

Customs Act 1901 (Cth) – ss 30, 35A, 36, 37, Pt V.

Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 8 Nov 2018 Case Number: M168/2017 M174/2017 M175/2017 M176/2017
Criminal practice – Abuse of process – Where Australian Crime Commission ("ACC") received information concerning allegations that company involved in criminal activity – Where allegations referred to Australian Federal Police ("AFP") – Where appellants declined to participate in cautioned record of interview with AFP – Where appellants compulsorily examined by ACC – Where examiner aware that appellants were suspects who may be charged with an offence – Where examiner permitted AFP officers to watch examinations from nearby room without disclosing their presence to appellants – Where examiner permitted dissemination of examination material to AFP and Commonwealth Director of Public Prosecutions – Where appellants subsequently charged with Commonwealth and Victorian offences – Where appellants sought permanent stay of prosecutions for abuse of process – Where primary judge permanently stayed prosecutions – Where Court of Appeal of Supreme Court of Victoria allowed appeals from orders of primary judge – Whether ACC conducted special investigation under Australian Crime Commission Act 2002 (Cth) – Whether examinations unlawful – Whether prosecution derived forensic advantage from examinations – Whether appellants suffered forensic disadvantage as result of examinations – Whether examinations unlawful infringement upon appellants' right to silence – Whether examiner's conduct reckless – Whether permanent stay necessary to prevent administration of justice falling into disrepute.

Words and phrases – "abuse of process", "administration of justice", "coercive powers", "compulsive powers", "compulsory examination", "derivative use", "direct use", "dissemination of examination product", "fair trial", "forensic advantage", "forensic choice", "forensic disadvantage", "illegally obtained evidence", "improper purpose", "integrity of the court", "locked in", "may be charged", "non-publication directions", "permanent stay", "prejudice", "prosecution brief", "prosecutorial team", "reckless", "right to silence", "special investigation", "suspect", "trial directions", "unlawfully obtained evidence".

Australian Crime Commission Act 2002 (Cth) – ss 7C, 46A, Pt II Div 2.

McPhillamy v The Queen [2018] HCA 52

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 8 Nov 2018 Case Number: S121/2018
Evidence – Criminal trial – Sexual offences – Tendency evidence – Admissibility – Where appellant acolyte and complainant altar boy – Where appellant alleged to have followed complainant into church's public bathroom and committed offences – Where evidence that appellant, while working as an assistant housemaster, sexually offended against homesick boarding students who sought out appellant in private bedroom led as tendency evidence – Where tendency expressed as appellant having sexual interest in young teenage boys under his supervision and to act on that interest – Where tendency evidence of acts occurring ten years before offences charged – Where no evidence other than complainant's evidence that appellant had offended again in ten year period – Where tendency evidence unchallenged in cross-examination – Whether tendency evidence possessed significant probative value.

Words and phrases – "sexual interest", "significant probative value", "tendency evidence", "tendency expressed at a high level of generality", "tendency to act in a particular way", "tendency to have a particular state of mind".

Evidence Act 1995 (NSW) – ss 97, 101.

Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51

Edelman J
Date: 7 Nov 2018 Case Number: S229/2018
High Court – Appellate jurisdiction – Leave to appeal – Circumstances when leave necessary – Distinction between interlocutory and final judgment – Where Judiciary Act 1903 (Cth) s 34(2) requires leave to appeal from interlocutory judgment of High Court exercising original jurisdiction – Where single Justice dismissed application for order to show cause – Where appellant filed notice of appeal without seeking leave to appeal – Whether judgment appealed from interlocutory or final – Whether appeal incompetent.

Courts – Jurisdiction – Different dimensions of jurisdiction – Where respondent entered unconditional appearance to the appeal – Whether submission to personal dimension of jurisdiction precludes respondent from impugning competency of appeal based on lack of subject matter jurisdiction.

Words and phrases – "application for an order nisi", "application for an order to show cause", "finally determines", "incompetent", "interlocutory judgment", "leave to appeal", "personal dimension of jurisdiction", "subject matter dimension of jurisdiction".

Judiciary Act 1903 (Cth) – s 34(2).

High Court Rules 1952 (Cth) – O 55 r 1(2).

High Court Rules 2004 (Cth) – r 25. 03. 3(a).

Wehbe v Minister for Home Affairs [2018] HCA 50

Edelman J
Date: 7 Nov 2018 Case Number: S217/2018
Administrative law – Judicial review – Jurisdictional error – Usual requirement that error must be material – When error will be material – Where visa criterion that there is no evidence that plaintiff has given bogus document – Where delegate of Minister for Home Affairs refused visa application because plaintiff provided bogus document – Where plaintiff accepted that document is bogus – Where plaintiff's migration agent made errors in communications with delegate – Whether agent's errors fraudulent – Whether agent's errors material.

Words and phrases – "bogus document", "compassionate or compelling circumstances", "deprived the plaintiff of the possibility of a successful outcome", "false or misleading statement", "jurisdictional error", "material", "materiality", "privative clause decision".

Migration Regulations 1994 (Cth) – Sch 2, cl 820. 226, Sch 4, public interest criterion 4020.

Nobarani v Mariconte [No 2] [2018] HCA 49

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 17 Oct 2018 Case Number: S270/2017
Practice and procedure – Costs – Wills, probate, and administration – Where respondent sought and obtained grant of probate in solemn form – Where respondent resisted appeals to set aside grant of probate – Where grant of probate set aside on appeal – Where respondent applied for order that appellant's costs of trial and appeals be paid out of estate of deceased and on trustee basis – Where costs not shown to be other than properly and reasonably incurred by respondent in connection with administration of estate – Whether order sought by respondent should be made.

Words and phrases – "administration of the estate", "costs payable from the estate", "executor", "litigation expenses", "properly and reasonably incurred".

Johnson v The Queen [2018] HCA 48

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 17 Oct 2018 Case Number: A9/2018
Criminal law – Appeal against convictions − Where appellant convicted of five counts of sexual offending against single complainant being his sister − Where counts joined − Where s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − Where applications to have counts one and two tried separately and to prevent Crown from leading evidence of discreditable conduct against complainant dismissed − Where Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax and to show relationship between appellant and complainant − Where verdicts on counts one and three quashed on appeal − Whether evidence of appellant's other alleged sexual misconduct admissible on trial of each remaining count − Whether joinder occasioned miscarriage of justice.

Evidence – Criminal trial − Sexual offences − Propensity evidence − Admissibility − Where Crown relied on uncharged acts as relationship or context evidence − Where evidence of one uncharged act improperly admitted − Whether miscarriage of justice.

Words and phrases – "admissibility", "context evidence", "contextual use", "discreditable conduct evidence", "effluxion of time", "impermissible use", "non-propensity use", "other alleged sexual misconduct", "permissible use", "prejudicial effect", "probative value", "relationship evidence", "uncharged act".

Evidence Act 1929 (SA) – Pt 3 Div 3, s 34P.

WET052 v The Republic of Nauru [2018] HCA 47

Gageler, Keane, Edelman JJ
Date: 17 Oct 2018 Case Number: S267/2017
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal made adverse finding as to credibility of appellant – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether Tribunal's adverse finding made without logical foundation – Whether Tribunal failed to properly consider appellant's claims relating to treatment in Iran as a returned asylum seeker.

Words and phrases – "adverse credibility finding", "country information", "failed asylum seeker", "political profile", "well-founded fear of persecution".

Refugees Convention Act 2012 (Nr) – ss 3, 5, 6, 31.

ETA067 v The Republic of Nauru [2018] HCA 46

Bell, Keane, Gordon JJ
Date: 17 Oct 2018 Case Number: M167/2017
Immigration – Nauru – Refugees – Application for refugee status – Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Whether Tribunal failed to act according to principles of natural justice – Whether Tribunal failed to assess evidence provided by appellant in relation to his claim to have a well-founded fear of persecution by reason of his political opinion – Whether Tribunal failed to give appellant an opportunity to comment on evidence concerning membership of political party – Whether Supreme Court of Nauru erred in affirming Tribunal's determination.

Words and phrases – "evidence material to assessment", "principles of natural justice", "well-founded fear of persecution".

Refugees Convention Act 2012 (Nr) – ss 5, 22(b), 40(1).

UBS AG v Tyne [2018] HCA 45

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Oct 2018 Case Number: B54/2017
Practice and procedure – Permanent stay of proceedings – Abuse of process – Where respondent (in personal capacity) was controlling mind of former trustee and related company – Where respondent (in personal capacity), former trustee and related company commenced proceedings in Supreme Court of New South Wales – Where respondent (in personal capacity) and former trustee discontinued as parties in Supreme Court proceedings – Where Supreme Court proceedings permanently stayed – Where respondent (as trustee) pursued substantially same claims in Federal Court of Australia – Where primary judge permanently stayed proceedings for abuse of process – Whether on appeal Full Court erred in finding no abuse of process and setting aside permanent stay – Whether Full Court failed to consider overarching purpose of conduct of civil litigation.

Words and phrases – "abuse of process", "administration of justice", "conduct of civil litigation", "discontinue", "final determination", "just resolution", "overarching purpose of the conduct of civil litigation", "permanent stay", "related parties", "unconditional discontinuance", "unjustifiably oppressive".

Federal Court of Australia Act 1976 (Cth) – ss 23, 37M, 37N.

Federal Court Rules 2011 (Cth) – r 26. 14.

Uniform Civil Procedure Rules 2005 (NSW) – rr 12. 3(1), 12. 4.

Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018] HCA 43

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 10 Oct 2018 Case Number: A37/2017
Equity – Knowing assistance in breach of fiduciary duty – Remedies – Account of profits – Causation – Where employees of first respondent breached fiduciary duties to respondents by assisting appellant, and then joined appellant – Where appellant knowingly assisted in breaches of fiduciary duty – Where primary judge found profits of appellant's business not direct result of appellant's knowing assistance – Whether account of profits available.

Equity – Knowing assistance in breach of fiduciary duty – Remedies – Account of profits – Assessment of quantum – Whether knowing assistant obliged to account for entire capital value of business acquired – Whether account of profits may be ordered in respect of anticipated profits.

Words and phrases – "account of profits", "actual profits", "anticipated profits", "as a result of", "but for", "causation", "disgorgement" "knowing assistance", "material contribution".

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