Recent Cases

High Court of Australia

  • Catchwords: Constitutional law (Cth) – Implied freedom of communication about governmental or political matters (“implied freedom”) – Where Foreign Influence Transparency Scheme Act 2018 (Cth) (“Act”) included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence – Where foreign principal defined to include foreign political organisation – Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity – Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom ­– Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance. Words and phrases – “adequate in its balance”, “burden”, “communications activity”, “compelling justification”, “disclosure”, “foreign influence”, “foreign interference”, “foreign political organisation”, “foreign principal”, “legitimate purpose”, “narrowly tailored”, “necessary”, “political or governmental influence”, “prior restraint”, “register”, “registration”, “scheme information”, “structured proportionality”, “suitable”, “transparency”, “undisclosed influence”.

  • Catchwords: Immigration – Visas – Application for special category visa – Where respondent’s special category visa purportedly cancelled and respondent required to depart Australia in 2018 – Where purported cancellation decision subsequently quashed – Where respondent returned to Australia and refused a special category visa on the basis she was a “behaviour concern non-citizen” as defined in s 5(1) of Migration Act 1958 (Cth) (“Act”) due to her removal in 2018 – Where s 5(1) of Act defined “behaviour concern non-citizen” in para (d) as a non-citizen who “has been removed or deported from Australia or removed or deported from another country” – Whether respondent was a “behaviour concern non-citizen” within meaning of para (d) – Whether “removed … from Australia” means removed in fact or removed in accordance with Act. Words and phrases – “behaviour concern non-citizen”, “harsh consequences”, “nullity”, “removed”, “removed or deported from”, “theory of the second actor”.

  • Catchwords: Immigration – Refugees – Application for protection visa – Where appellant applied to Refugee Review Tribunal (“Tribunal”) for review of first respondent’s decision to refuse protection visa under Migration Act 1958 (Cth) (“Act”) – Where s 438 notification issued under Act in relation to material including appellant’s criminal record – Where Tribunal did not disclose existence of s 438 notification to appellant – Where first respondent conceded failure to disclose amounted to breach of procedural fairness – Where information covered by s 438 notification not referred to in reasons for decision – Whether breach material – Whether Tribunal in fact took s 438 notification information into account in making decision – Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account – Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision – Whether appellant or first respondent bore onus of proof of materiality – Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences. Words and phrases – “counterfactual inquiry”, “credit”, “discharging the burden of proof”, “failure to disclose”, “judicial review”, “jurisdictional error”, “lost opportunity to present legal and factual argument”, “materiality”, “onus of proof”, “opportunity to be heard”, “practical injustice”, “presumption”, “procedural fairness”, “realistic possibility”, “reasonable conjecture”, “statutory interpretation”, “subconscious impact”, “threshold of materiality”.

  • Catchwords: Police – Search warrants – Validity of warrants – Validity of orders – Where officers of Australian Federal Police (“AFP”) searched premises in reliance on warrants – Where officers of AFP seized material they believed relevant to offences against s 92.3(1) and (2) of Criminal Code (Cth) – Where officers examined and copied data from electronic devices at searched premises – Where plaintiff compelled to provide passcodes to devices pursuant to orders under s 3LA of Crimes Act 1914 (Cth) – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Whether warrants identified the substance of offences against s 92.3(1) of Criminal Code with sufficient precision. Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Where plaintiff accepted various sub-paragraphs of s 92.3(1)(b), (c) and (d) capable of severance under s 15A of Acts Interpretation Act 1901 (Cth) – Whether appropriate to proceed to determine constitutional validity of s 92.3(1) of Criminal Code or construction of “covert”. Words and phrases – “covert”, “foreign government principal”, “foreign influence”, “foreign interference”, “foreign principal”, “implied freedom of political communication”, “necessary to decide”, “premature interpretation of statutes”, “prudential considerations”, “read down”, “search warrants”, “severable”, “severance”, “substance of the offences”, “sufficient precision”, “unnecessary and inappropriate to answer”.

  • Catchwords: Tort – Unlawful means conspiracy – Loss or damage – Loss of chance – Loss of value of rights or chose in action – Damages – Where conspiracy by unlawful means undertaken to deprive first to fifth respondents (“Respondents”) of value of chose in action arising from judgment in their favour – Where conspiracy involved agreements by which valuable properties in Czech Republic were transferred to impede recovery by Respondents of anticipated judgment debt (“Donation Agreement”) – Where Respondents commenced proceedings in Czech Republic against two conspirators to set aside Donation Agreement (“Donation Agreement Proceedings”) – Where Respondents had 20% prospect of successfully recovering through Donation Agreement Proceedings – Whether loss or damage proved such that unlawful means conspiracy was actionable – Whether damages for unlawful means conspiracy should be discounted to reflect 20% prospect of separate recovery through Donation Agreement Proceedings. Words and phrases – “actionable”, “chance of recovery”, “chose in action”, “contingent”, “damages”, “diminution in value”, “judgment debt”, “loss of chance”, “loss of opportunity”, “loss or damage”, “prospect of recovery”, “quantification of damages”, “unlawful means conspiracy”, “value of a plaintiff’s rights”.

Full Federal Court

  • Catchwords: PRACTICE AND PROCEDURE – interlocutory application – single judge exercising appellate jurisdiction of Court under Federal Court of Australia Act 1976 (Cth) to dismiss appeal by way of final orders for failure on part of appellant to provide security for costs – appeal dismissed for failure to provide security for costs

  • Catchwords: COSTS – indemnity costs – claim for indemnity costs based on offers to compromise made under rule 25.01 of the Federal Court Rules 2011 (Cth) – whether costs should be awarded on an indemnity basis – where offerees made application a month after judgment – where rejections of offers were not unreasonable – indemnity costs not awarded

  • Catchwords: INDUSTRIAL LAW – claims made under ss 340 and 358 of the Fair Work Act 2009 (Cth) – whether primary judge erred in dismissing claims CORPORATIONS LAW – claim made under s 232 of the Corporations Act 2001 (Cth) – whether primary judge erred in dismissing claim APPEALS – findings of fact – not shown to be glaringly improbable – role of appellate court in reviewing findings of fact

  • Catchwords: BANKRUPTCY – appeal from decision of the Federal Court of Australia – whether a single joint creditor has standing under s 90-20 of the Insolvency Practice Schedule (Bankruptcy), Schedule 2 of the Bankruptcy Act 1966 (Cth) to apply for an order to remove and replace a trustee pursuant to s 90-15 – whether proof of debt capable of being lodged by one only of joint creditors – proper characterisation of “creditor” in the Insolvency Practice Schedule – meaning of “creditor” derived from nature of the creditor’s obligation and statutory context in which that expression is used – appeal dismissed

  • Catchwords: MIGRATION – appeal from decision of primary judge to dismiss application for judicial review of Minister’s decision to cancel the applicant’s visa under s 501(3) of the Migration Act 1958 (Cth) – whether s 501(3) can be “re-exercised” by the Minister – whether Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117 (Makasa) can be applied by analogy – where the evidence showed that the Minister’s earlier decision was in reference to s 501(2) – whether s 501 ought to be construed as conferring but one visa cancellation power – held by the Court that there was no “re-exercise” of the power in s 501(3) – whether the Minister misunderstood the operation of s 501(3) by failing to appreciate that he was not precluded from giving effect to the rules of procedural fairness – where the primary judge did not have a special advantage at trial to make an evaluative decision – where Ministerial reasons and related submissions were neutral as to evidence of the misunderstanding – where the appellant bears the onus of establishing the factual premise – appeal dismissed PRACTICE AND PROCEDURE – application for leave to rely on grounds not raised in the original jurisdiction – where grounds raised as a result of the High Court Decision in Makasa handed down after final orders made in the original jurisdiction – leave granted

NSW Court of appeal

  • Orders: Vary the order made on 23 December 2020 in Hassan v Sydney Local Health District (No 2) [2020] NSWCA 356 to substitute “Notice of motion” for “Application for leave to appeal”

  • Catchwords: INSURANCE – claim by ex-police officer for total and permanent disability (“TPD”) payment – need to provide proof to satisfaction of insurer of TPD under policies – contractual obligations of insurer to assess claim in good faith and act fairly and reasonably – whether insurer breached contractual obligations – whether it was fair of insurer to rely on certain medical opinions as adverse to claimant – whether insurer took into account written submissions of claimant – cumulative effect demonstrated a lack of overall fairness COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise and Calderbank offers – assertion that appellant unreasonably failed to accept respondent’s Calderbank offer – whether primary judge erred in refusing to make a special costs order – primary judge did not err in the exercise of his costs discretion

  • Catchwords: APPEALS – procedure – Court of Appeal – motion seeking review of a decision of the Court dismissing application to review decision of a single judge – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address. CIVIL PROCEDURE – Court of Appeal – application to review a decision of the Court – where application brought by way of a notice of motion – where suggestion that not all of the evidence or submissions had been considered by the reviewing court – where evidence and submissions voluminous, unstructured and discursive – extent of obligation to consider and address

  • Catchwords: ESTOPPEL — estoppel by representation — detrimental reliance — whether terms of representation proved — whether claimant actually relied upon alleged representation SUCCESSION — family provision — claim by member of household for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether factors warranting —provision of household care to deceased — conscious misuse of special disadvantage of deceased — significance of reliance upon alleged agreement to leave real estate in will EQUITY — fiduciary duties — unauthorised profit — bank cards and personal identification number entrusted for certain purposes — retention of excess cash for fiduciary’s personal use EQUITY — unconscionable conduct — special disability or disadvantage — whether unconscientious advantage taken

  • Catchwords: SUCCESSION – appropriate substitute for specific devise – property subject of specific devise sold by administrator to pay debt – need to put specific devisees in materially the same position that they would have been in if the sale had not occurred – how rights of beneficiaries should be adjusted –whether substitution of specific property from residuary real estate appropriate – need for equivalence in value VALUATION – courts and tribunals – appeals – whether judge erred in discounting value of property for contingencies – acceptance of expert evidence required evaluative conclusions to be made – standard of appellate review analogous to that described in House v The King SUCCESSION – trusts and trustees – judicial advice, Trustee Act 1925 (NSW), s 63 – whether judicial advice given – parties concurred in primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made – broad powers of the Court under UCPR r 54.3