Recent Cases

High Court of Australia

  • Catchwords: Constitutional law (Cth) – Freedom of interstate trade, commerce, and intercourse – Where s 56 of Emergency Management Act 2005 (WA) (“EM Act”) empowered Minister to declare state of emergency – Where s 67 empowered authorised officer to direct or prohibit movement of persons into emergency area – Where Minister for Emergency Services declared state of emergency in Western Australia in respect of COVID-19 pandemic – Where State Emergency Coordinator issued Quarantine (Closing the Border) Directions (WA) (“Directions”) – Where paras 4 and 5 of Directions prohibited persons from entering Western Australia unless exempt traveller – Whether EM Act or Directions impermissibly infringed constitutional limitation in s 92 of Constitution – Whether infringement determined by reference to authorising provisions of EM Act – Whether provisions of EM Act imposed impermissible burden on interstate trade, commerce or intercourse – Whether exercise of power to make Directions raised constitutional question. Words and phrases – “burden”, “COVID-19”, “differential”, “discrimination”, “emergency”, “emergency management”, “freedom of interstate trade, commerce, and intercourse”, “hazard”, “intercourse”, “interstate movement”, “plague or epidemic”, “protectionist”, “reasonable necessity”, “state of emergency”, “structured proportionality”, “trade and commerce”.

  • Catchwords: Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Where Div 105A of Criminal Code (Cth) empowered Supreme Court of State or Territory, on application of Minister for Home Affairs, to order that person convicted of terrorist offence be detained in prison for further period after expiration of sentence of imprisonment pursuant to continuing detention order (“CDO”) – Whether all or any part of Div 105A of Criminal Code invalid because power to make CDO not within judicial power of Commonwealth having been conferred, inter alia, on Supreme Court of Victoria contrary to Ch III of Constitution – Whether scheme for preventative detention of terrorist offender capable of falling within exception to principle articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 that involuntary detention of citizen in custody by the State is penal or punitive in character and exists only as incident of exclusively judicial function of adjudging and punishing criminal guilt – Whether Div 105A of Criminal Code directed to ensuring safety and protection of community from risk of harm posed by threat of terrorism. Words and phrases – “analogy”, “apprehended conduct”, “Ch III court”, “continuing detention order”, “exception to the Lim principle”, “involuntary detention”, “judicial function of adjudging and punishing criminal guilt”, “judicial power of the Commonwealth”, “less restrictive measure”, “non-punitive purpose”, “orthodox judicial process”, “preventative detention”, “protection of the community from harm”, “protective punishment”, “protective purpose”, “punitive purpose”, “restriction on liberty”, “separation of powers”, “serious Part 5.3 offence”, “Supreme Court of a

  • Catchwords: Corporations – Financial services – Where appellants had contacted members of superannuation funds of which they are trustees, advising each to accept offer to roll over their external superannuation accounts into their account with appellants – Where s 766B(3)(b) of Corporations Act 2001 (Cth) defines “personal advice” to include “financial product advice” given or directed to person in circumstances where a reasonable person might expect provider to have considered one or more of that person’s objectives, financial situation and needs – Whether financial product advice given by appellants to members personal advice within meaning of s 766B(3)(b). Words and phrases – “consideration”, “considered”, “financial adviser”, “financial product advice”, “general advice”, “one or more of the person’s objectives, financial situation and needs”, “personal advice”, “social proofing”, “superannuation”, “superannuation fund”.

  • Catchwords: Immigration – Visas – Visa cancellation – Character test – Substantial criminal record – Where delegate of Minister for Immigration and Border Protection (“Minister”) cancelled respondent’s visa on character grounds under s 501(2) of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal (“AAT”) made decision under s 43(1)(c)(i) of Administrative Appeals Tribunal Act 1975 (Cth) to set aside delegate’s decision and substitute a decision not to cancel visa – Where Minister purported to re‑exercise discretion to cancel visa – Whether Minister can re-exercise discretion on same factual basis in circumstances where AAT earlier decided not to cancel visa. Words and phrases – “Administrative Appeals Tribunal”, “character test”, “different factual basis”, “finality to the administrative decision-making process”, “from time to time as occasion requires”, “general power”, “ministerial override”, “nature of merits review”, “powers of AAT”, “reasonable suspicion”, “re-exercise of a power”, “special power”, “substantial criminal record”, “visa cancellation”.

  • Catchwords: Administrative law – Apprehended bias – Relief – Jurisdiction of inferior courts – Where first respondent applied for additional mining leases and amendment to existing environmental authority (“applications”) – Where appellant and others lodged objections to applications – Where first decision of Land Court of Queensland (“Land Court”) recommended that both applications be rejected – Where Supreme Court of Queensland rejected arguments by first respondent that recommendations made by Land Court affected by apprehended bias, but held recommendations involved errors of law and remitted certain matters to Land Court for reconsideration – Where second decision of Land Court constituted by different Member recommended applications be approved subject to conditions – Where amendment to environmental authority granted by delegate of second respondent – Where Court of Appeal allowed cross-appeal by first respondent and held that recommendations in Land Court’s first decision affected by apprehended bias – Whether open to Court of Appeal, after finding that recommendations in Land Court’s first decision affected by apprehended bias, not to refer matters to which recommendations related back to Land Court for full reconsideration, and instead to make consequential orders limited to declaration that procedural fairness not observed – Whether matters to which recommendations related should not be referred back to Land Court on basis of discretion to refuse relief. Words and phrases – “administrative decision”, “administrative function”, “apprehended bias”, “binding”, “declaration”, “discretion to refuse relief”, “environmental authority”, “error of law”, “inferior court”, “jurisdictional error”, “lacking in legal force”, “Land Court”, “mining lease”, “nullity”, 

Full Federal Court

  • Catchwords: COSTS – discretion to award costs – costs of hearing and determination of separate question concerning Environment Protection and Biodiversity Conservation Act 1999 (Cth) – whether to depart from usual costs rule – consideration of “public interest litigation” – particular circumstances of the case justified departure from the usual costs rule – each party to bear its own costs

  • Catchwords: MIGRATION — appeal from decision to dismiss an application for an order in the nature of certiorari to quash an order of the Federal Circuit Court refusing an application for an extension of time to seek judicial review under s 477(2) of Migration Act 1958 (Cth) — where judgment of the Federal Circuit Court reserved for nearly five years but delay had no operative effect on judgment, whether primary judge erred in failing to find that delay of this magnitude is sufficient to give rise to jurisdictional error — whether jurisdictional error because Federal Circuit Court judge failed to take into account his own delay in deciding he was not satisfied it was necessary in the interests of the administration of justice to make the order

  • Catchwords: ADMINISTRATIVE LAW – appeal from decision of Federal Court of Australia dismissing the appellant’s application for judicial review – where Minister entered into payment plan with appellant – whether decision-maker had authority to make the decision – where delegation made under the Public Governance, Performance and Accountability Act 2013 (Cth) – whether decision-maker failed to take into account a relevant consideration – whether decision was legally unreasonable – where matter is subject to inexcusable delay – appeal dismissed PRACTICE AND PROCEDURE – onus of proof – where appellant to prove occurrence of alleged jurisdictional error – where appellant could have delivered notice to admit under r 22.01 of Federal Court Rules 2011 (Cth) – where appellant did not discharge onus of proof

  • Catchwords: ADMINISTRATIVE LAW – appeal from decision of Federal Court of Australia dismissing the appellant’s application for judicial review – where Minister did not waive debt of appellant – whether decision was legally unreasonable – where AHRC recommended compensation – appeal dismissed PRACTICE AND PROCEDURE – where appellant granted leave at first instance to amend originating application to include additional grounds of review – where appellant did not include grounds in originating application – where appellant seeks to raise similar grounds in appeal – where appellant self-represented

  • Catchwords: COSTS – application for lump sum costs by successful respondent in proceedings brought under Fair Work Act 2009 (Cth) – whether applicant instituted proceedings “without reasonable cause” within meaning of s 570(2)(a) of Fair Work Act 2009 (Cth) – where no application for costs made or foreshadowed at or before hearing, whether application should be refused in any event in exercise of Court’s discretion — application dismissed

NSW Court of appeal

  • Catchwords: ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act 1999 (NSW), s 62 – application for further assessment – proper officer not to order further assessment unless additional relevant information capable of having a material effect on outcome of previous assessment – further medical opinions covering similar ground to opinions previously considered – further medical opinions accepted to be additional relevant information – whether judicially reviewable error in proper officer’s decision that further medical opinions not capable of having material effect – need for identification of jurisdictional error or error of law on face of record – primary judge erred in finding reviewable error – appeal allowed and decision of proper officer restored

  • Catchwords: APPEALS – leave to appeal – where primary judge refused leave to appeal to raise argument not dealt with by magistrate – whether argument made to magistrate – no error of primary judge in concluding not made

  • Catchwords: APPEAL – breach of development consent –construction certificate part of development consent – drainage line not constructed in location shown on construction certificate plan – construction of construction certificate plan – whether misconstruction – judicial notice – whether common knowledge – refusal of leave to reopen – whether denial of procedural fairness – whether incorrect factual or legal assumption – leave to appeal refused

  • Catchwords: CIVIL PROCEDURE – parties – removal of parties – where no cause of action pleaded or articulated in argument on behalf of second to fourth plaintiffs – whether to remove as parties under Uniform Civil Procedure Rules, r 6.29 CIVIL PROCEDURE – pleadings – striking out – where most pleaded particulars of negligence covered by advocate’s immunity – where some pleaded claims possibly maintainable – whether to address advocate’s immunity on pleadings – whether to strike out entire statement of claim with leave to replead

  • Catchwords: APPEAL – application for leave – challenge to interlocutory ruling on access to documents – misconceived allegation of bias – unsubstantiated allegations of perjury by solicitor – delay in giving judgment – no demonstration of prejudice – no arguable ground of error identified CIVIL PROCEDURE – production of documents – documents in custody of the court – application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.13 – files sought to support application under Vexatious Proceedings Act 2008 (NSW) – access to documents produced – parties to proceedings the subject of the filed notified – objection to access – grounds of objection