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Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] [2015] HCA 53

French CJ, Kiefel, Nettle, Gordon JJ
Date: 23 Dec 2015 Case Number: S29/2015
Civil procedure – Costs – Where appellant succeeded on certain issues on appeal but unsuccessful in overall outcome – Whether costs order apportioning costs between parties or order that each party bear their own costs appropriate.

Words and phrases – "costs follow the event".

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52

French CJ J
Date: 17 Dec 2015 Case Number: S417/2011 S418/2011 S419/2011
Slip rule – Costs order – Special leave undertaking that insurer bear costs of application and appeal to High Court – Insurer successful in appeal – Whether costs order in orders of court appealed from should have been set aside.

Words and phrases – "accidental slip or omission", "test case".

High Court Rules 2004 (Cth) – r 3. 01. 2.

Wei v Minister for Immigration and Border Protection [2015] HCA 51

Gageler, Keane, Nettle JJ
Date: 17 Dec 2015 Case Number: S9/2015
Migration – Visa cancellation – Migration Act 1958 (Cth), s 116(1)(b) provides that Minister may cancel visa if satisfied that visa holder has not complied with condition of visa – Where delegate cancelled plaintiff's visa on satisfaction that plaintiff had breached visa condition – Where delegate's satisfaction formed by process of fact-finding tainted by non-compliance of third party with imperative statutory duty – Whether delegate failed to make obvious inquiry as to critical fact – Whether decision affected by jurisdictional error.

Migration – Original jurisdiction of High Court – Where plaintiff's application for remedy made outside time limit in Migration Act 1958 (Cth), s 486A(1) – Operation of s 486A.

Words and phrases – "extension of time", "imperative duty", "jurisdictional error".

Constitution – s 75(v).

Education Services for Overseas Students Act 2000 (Cth) – s 19.

Migration Act 1958 (Cth) – ss 116(1)(b), 119(1), 486A.

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50

French CJ, Bell, Gageler, Keane, Gordon JJ
Date: 17 Dec 2015 Case Number: M64/2015
Migration – Visa application – Clause 202. 222(2) of Sched 2 to Migration Regulations 1994 (Cth) provides for grant of Refugee and Humanitarian (Class XB) (Subclass 202) visa if Minister satisfied there are compelling reasons for giving special consideration to granting visa – Where applications for Subclass 202 visas refused by delegate of Minister – Where delegate considered capacity of Australian community to permanently settle visa applicants – Where delegate considered departmental policy that established priorities to be accorded to visa applications – Construction of cl 202. 222(2) – Whether decision affected by jurisdictional error.

Words and phrases – "capacity", "compelling reasons", "irrelevant considerations", "jurisdictional error", "priorities policy", "special consideration".

Migration Regulations 1994 (Cth) – Sched 2, cl 202. 222(2).

Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation) [2015] HCA 48

French CJ, Kiefel, Gageler, Keane, Gordon JJ
Date: 10 Dec 2015 Case Number: B19/2015 B20/2015
Taxes and duties – Income tax and related legislation – Obligations of agents and trustees – Where liquidators caused company to sell property resulting in a capital gain – Whether retention obligation in s 254(1)(d) of Income Tax Assessment Act 1936 (Cth) arises before assessment – Whether liquidators are trustees of trust estate for the purposes of Div 6 of Pt III of Act.

Statutes – Construction – Same or similar phrases within a statute – Whether construction of a phrase in one provision controls construction of the same or similar phrase in another provision – Relevance of context and purpose.

Words and phrases – "agent", "answerable as taxpayer", "assessment", "capital gain", "collecting provision", "due", "due and payable", "income, profits or gains", "is or will become due", "owing", "sufficient", "trustee".

Income Tax Assessment Act 1936 (Cth) – ss 6(1), 254, 255, Pt III, Div 6.

Income Tax Assessment Act 1997 (Cth) – ss 5-5, 104-10.

Allen v Chadwick [2015] HCA 47

French CJ, Kiefel, Bell, Keane, Gordon JJ
Date: 9 Dec 2015 Case Number: A14/2015
Torts – Negligence – Contributory negligence – Section 47 of Civil Liability Act 1936 (SA) ("Act") presumes contributory negligence of injured person who relied on care and skill of intoxicated person and who was aware or ought to have been aware that other person was intoxicated – Section 47(2)(b) of Act establishes exception where injured person could not reasonably be expected to have avoided risk – Where respondent travelled in car with intoxicated driver and suffered serious injuries – Whether respondent could reasonably be expected to have avoided risk – Proper construction of s 47(2)(b) of Act – Relevance of respondent's capacity to make reasonable assessment of relative risks – Relevance of subjective characteristics.

Torts – Negligence – Contributory negligence – Section 49 of Act presumes contributory negligence where person injured in motor vehicle accident not wearing seatbelt – Where respondent was not wearing seatbelt and suffered serious injuries in motor vehicle accident – Whether appellant's erratic driving prevented respondent from fastening seatbelt – Whether factual findings overturned on appeal – Relevance of "act of a stranger" defence.

Words and phrases – "act of a stranger", "could not reasonably be expected to have avoided the risk", "reasonable assessment of risk".

Civil Liability Act 1936 (SA) – ss 3, 44(1), 47, 49.

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 9 Dec 2015 Case Number: B36/2015 B45/2015
Practice and procedure – Civil penalties – Whether submissions as to agreed penalty permissible – Whether Barbaro v The Queen (2014) 253 CLR 58 applies to civil penalty proceedings.

Words and phrases – "agreed penalty", "appropriate penalty", "civil penalty".

Building and Construction Industry Improvement Act 2005 (Cth) – ss 38, 49.

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45

French CJ, Kiefel, Bell, Gageler, Nettle JJ
Date: 2 Dec 2015 Case Number: P38/2015
Employment law – Employer and employee – Independent contractor – Sham arrangements – Fair Work Act 2009 (Cth), s 357(1) prohibits representation by employer to employee that contract of employment under which individual is employed is contract for services – First respondent represented that employees performed work as independent contractors under contracts for services with second respondent – Whether first respondent contravened s 357(1).

Words and phrases – "contract for services", "independent contractor", "sham arrangement".

Fair Work Act 2009 (Cth) – s 357.

Macoun v Commissioner of Taxation [2015] HCA 44

French CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 2 Dec 2015 Case Number: S100/2015
Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Exemption from taxation on salaries and emoluments received from certain international organisations – Whether monthly pension payments exempt from taxation.

International law – Treaty interpretation – Privileges and immunities of specialized agencies – Whether Convention on the Privileges and Immunities of the Specialized Agencies requires Australia not to tax monthly pension payments received by former officer of specialized agency.

Words and phrases – "emolument", "pension", "salary".

International Organisations (Privileges and Immunities) Act 1963 (Cth) – s 6(1)(d)(i), Fourth Schedule.

Specialized Agencies (Privileges and Immunities) Regulations (Cth) – reg 8(1).

Convention on the Privileges and Immunities of the Specialized Agencies [1988] ATS 41 – Sections 18-19, 22.

Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43

French CJ, Kiefel, Gageler, Nettle, Gordon JJ
Date: 2 Dec 2015 Case Number: S29/2015
Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for registration of a foreign judgment – Where appellant obtained judgment in Tokyo District Court against first respondent as guarantor of certain bonds – Where appellant obtained order from Supreme Court of New South Wales that the foreign judgment be registered under Foreign Judgments Act 1991 (Cth) – Whether first respondent entitled to foreign State immunity from jurisdiction under s 9 of Foreign States Immunities Act 1985 (Cth) – Whether exception in s 11(1) of Foreign States Immunities Act for proceedings concerning "commercial transactions" applies.

Public international law – Foreign State immunity – Immunity from execution – Where appellant obtained garnishee order against Australian bank where first respondent held bank accounts – Whether first respondent entitled to foreign State immunity from execution under s 30 of Foreign States Immunities Act – Whether property "in use" or "set aside" – Whether exception in s 32(1) of Foreign States Immunities Act for "commercial property" applies.

Statutory interpretation – Implied repeal – Where Foreign States Immunities Act provides for foreign State immunity from jurisdiction in certain proceedings and Foreign Judgments Act requires a foreign judgment be registered on satisfaction of applicable criteria – Whether the operations of the two statutes are inconsistent such that the earlier statute is impliedly repealed to the extent of inconsistency.

Procedure – Service – Registration of foreign judgments – Where judgment debtor in registration proceedings is a foreign State – Whether Pt III of Foreign States Immunities Act requires service of summons prior to registration order being made under Foreign Judgments Act.

Words and phrases – "commercial property", "commercial purposes", "commercial transactions", "concerns", "in use", "proceeding", "restrictive doctrine", "set aside".

Foreign Judgments Act 1991 (Cth) – ss 6, 7, 17.

Foreign States Immunities Act 1985 (Cth) – ss 9, 11(1), 11(3), 27(1), 30, 32(1), 32(3), 38, 41, Pt III.

Uniform Civil Procedure Rules 2005 (NSW) – Pt 53.

Vella v Minister for Immigration and Border Protection [2015] HCA 42

Gageler J
Date: 30 Nov 2015 Case Number: S233/2015
Practice and procedure – High Court of Australia – Extension of time – Migration law – Migration Act 1958 (Cth), s 486A imposes 35 day limit on application for remedy in High Court's original jurisdiction in relation to migration decision – High Court may extend 35 day period if necessary in the interests of the administration of justice – Application for order to show cause in relation to migration decision made 16 months out of time – Whether order extending 35 day period should be made – Whether case for extension of time exceptional.

Words and phrases – "interests of the administration of justice".

Migration Act 1958 (Cth) – s 486A.

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41

M45/2015
French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 11 Nov 2015
Statutory interpretation – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

Constitutional law (Cth) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution.

Constitutional law (Cth) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts.

Words and phrases – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction".

Constitution – Ch III, s 122.

Bail Act (NT) – ss 16, 33.

Fines and Penalties (Recovery) Act (NT) – ss 9, 12B, 13, 21, 22.

Police Administration Act (NT) – Pt VII, Div 4AA; ss 123, 137, 138.

Police Administration Regulations (NT) – reg 19A.

Minister for Immigration and Border Protection v WZARH [2015] HCA 40

Kiefel, Bell, Gageler, Keane, Gordon JJ
Date: 4 Nov 2015 Case Number: S85/2015
Administrative law – Procedural fairness – Refugee Status Assessment – Independent Merits Review ("IMR") – Where first reviewer conducted interview with first respondent but did not complete IMR – Where second reviewer completed IMR without interview but with regard to transcript and audio recording of first reviewer's interview – Where first respondent not informed of change in identity of reviewer – Where second reviewer formed adverse view of first respondent's credibility – Whether first respondent denied procedural fairness.

Words and phrases – "legitimate expectation", "opportunity to be heard", "oral hearing", "procedural fairness", "unfairness".

The Queen v Pham [2015] HCA 39

French CJ, Bell, Gageler, Keane, Nettle JJ
Date: 4 Nov 2015 Case Number: M82/2015
Criminal law – Sentencing – Federal offences – Consistency – Current sentencing practices – Whether sentencing courts to have regard to current sentencing practices throughout Commonwealth.

Criminal law – Appeals against sentence – Manifest excess or inadequacy – Sentencing statistics – Drug importation offences – Whether permissible to assess current sentencing practices by statistical analysis of correlation between sentence and quantity of drug imported.

Precedent – Intermediate appellate courts – Use of sentencing decisions of intermediate appellate courts.

Words and phrases – "consistency", "courier", "current sentencing practices", "statistics", "yardstick".

Crimes Act 1914 (Cth) – Pt IB.

Criminal Code (Cth) – s 307. 2.

Judiciary Act 1903 (Cth) – s 68.

Sentencing Act 1991 (Vic) – s 5(2)(b).

The Queen v Beckett [2015] HCA 38

French CJ, Kiefel, Bell, Keane, Nettle JJ
Date: 23 Oct 2015 Case Number: S94/2015
Criminal law – Attempt to pervert the course of justice – Where respondent questioned in compelled interview about property transfer she stamped for which no duty paid – Where respondent allegedly altered photocopies of cheques – Where respondent allegedly gave false evidence under oath – Where respondent charged with perverting the course of justice under s 319 of Crimes Act 1900 (NSW) – Whether offence of perverting the course of justice only applies to conduct committed after judicial proceedings commence – Whether "course of justice" within meaning of s 319 requires jurisdiction of court or competent judicial tribunal to have been invoked.

Words and phrases – "contemplated proceedings", "course of justice", "intention", "judicial proceedings", "pervert the course of justice", "tendency".

Crimes Act 1900 (NSW) – s 319.

Taxation Administration Act 1996 (NSW) – Pt 6, Div 2, s 72.

Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 14 Oct 2015 Case Number: S99/2015 S102/2015
Contract – Construction of terms – Where contract concerned acquisition of rights in relation to temporary reserves and payment of royalties in respect of iron ore mined – Where royalty payable in respect of iron ore mined from "MBM area" – Whether "MBM area" refers to physical area of land or rights in relation to that land – Meaning of phrase "deriving title through or under".

Contract – Construction of terms – Recourse to background or surrounding circumstances.

High Court – Appellate jurisdiction of High Court – Precedential value of special leave reasons.

Words and phrases – "commercial purpose", "deriving title through or under", "MBM area", "surrounding circumstances", "temporary reserves".

Mining Act 1904 (WA) – ss 48, 50, 53, 276, 277.

PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 14 Oct 2015 Case Number: P14/2015
Procedure – Freezing orders – Power of Supreme Court of Western Australia to make freezing order in relation to prospective judgment of foreign court which would be registrable under Foreign Judgments Act 1991 (Cth) – First respondent commenced proceeding against appellant in High Court of Singapore – Proceeding remains pending – First respondent applied to Supreme Court for freezing order under O 52A of Rules of the Supreme Court 1971 (WA) against appellant's assets – Freezing order made – Whether freezing order in relation to prospective foreign judgment within inherent power of Supreme Court.

Words and phrases – "federal jurisdiction", "freezing order", "inherent jurisdiction", "inherent power", "prospective enforcement".

Foreign Judgments Act 1991 (Cth) – Pt 2, s 17.

Judiciary Act 1903 (Cth) – ss 39(2), 79.

Supreme Court Act 1935 (WA) – s 167(1)(a).

Rules of the Supreme Court 1971 (WA) – O 52A.

D'Arcy v Myriad Genetics Inc [2015] HCA 35

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 7 Oct 2015 Case Number: S28/2015
Intellectual property – Patents – Patents Act 1990 (Cth) – Patentable subject matter – Patent claimed isolated nucleic acid coding for BRCA1 protein with specified mutations or polymorphisms indicative of susceptibility to cancer – Whether invention claimed is a patentable invention under s 18(1)(a) of Patents Act 1990 (Cth) – Whether invention claimed is a "manner of manufacture" within meaning of s 6 of Statute of Monopolies – Whether sufficient that invention claimed is artificially created state of affairs of economic significance – Utility of "artificially created state of affairs" criterion – Factors relevant to whether new class of claim falls within concept of manner of manufacture.

Words and phrases – "artificially created state of affairs", "isolated nucleic acid", "manner of manufacture", "naturally occurring", "patentable invention", "product of nature".

Patents Act 1990 (Cth) – ss 18(1)(a), 40(2)(b).

Statute of Monopolies (21 Jac I c 3) – s 6.

McCloy v New South Wales [2015] HCA 34

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 7 Oct 2015 Case Number: S211/2014
Constitutional law – Implied freedom of communication on governmental and political matters – Provisions of Election Funding, Expenditure and Disclosures Act 1981 (NSW) impose cap on political donations, prohibit property developers from making such donations, and restrict indirect campaign contributions – Whether provisions impermissibly burden implied freedom of political communication.

Words and phrases – "appropriate and adapted", "deference", "implied freedom of communication on governmental and political matters", "margin of appreciation", "proportionality".

Constitution – ss 7, 24, 62, 64, 128.

Election Funding – Expenditure and Disclosures Act 1981 (NSW), Pt 6, Divs 2A, 4A, s 96E.

Alcan Gove Pty Ltd v Zabic [2015] HCA 33

French CJ, Kiefel, Bell, Keane, Nettle JJ
Date: 7 Oct 2015 Case Number: D5/2015
Limitation of actions – When cause of action accrues – Negligence – Damage – Statute abolished cause of action unless accrued before 1 January 1987 – Whether compensable damage suffered upon changes to mesothelial cells following exposure to asbestos – Whether mesothelioma inevitable – Relevance of hindsight – Whether "trigger" for development of disease endogenous or exogenous.

Torts – Negligence – Damage – Dust diseases – Mesothelioma – Whether changes to mesothelial cells compensable damage.

Words and phrases – "compensable damage", "endogenous", "exogenous", "hindsight", "mesothelial cell changes", "trigger".

Workers Rehabilitation and Compensation Act (NT) – ss 52(1), 189(1).

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