Recent Cases

High Court of Australia

  • Catchwords: Taxation – Administration – Goods and services tax – Taxable supply – Running Balance Accounts (“RBA”) – Commissioner’s obligation to pay interest – Where Commissioner lacked statutory authority to amend taxpayer’s GST return – Where net amount in GST return calculated in error – Where Commissioner purported to amend taxpayer’s GST return and credited taxpayer’s RBA – Whether mistaken balance in an RBA is efficacious in law to constitute an RBA surplus within meaning of Pt IIB of Taxation Administration Act 1953 (Cth) – Whether Commissioner obliged to pay interest under Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth). Words and phrases – “administration”, “allocation”, “amounts due to the Commonwealth under taxation laws”, “erroneous balances”, “goods and services tax”, “interest”, “RBA”, “RBA deficit debt”, “RBA surplus”, “refund”, “running balance account”, “taxation administration”.

  • Catchwords: Immigration – Cancellation of protection visa – Notice of cancellation – Where delegate of Minister cancelled respondent’s visa under s 501(3A) of Migration Act 1958 (Cth) – Where pursuant to duties in s 501CA(3) letter from delegate and enclosures sent explaining decision to cancel respondent’s visa and opportunity to make representations about revoking decision – Where letter and enclosures given to respondent by corrective services officer – Where letter incorrectly stated date on which respondent taken to have received notice – Whether Minister complied with duty to “give” written notice and particulars and “invite” representations under s 501CA(3) – Whether capacity of respondent to understand written notice, particulars, and invitation relevant to whether duties in s 501CA(3) were performed – Whether Minister or delegate required personally to perform duties in s 501CA(3) – Whether Minister failed to invite representations as letter did not specify period within which to make representations in accordance with Migration Regulations 1994 (Cth). Words and phrases – “capacity to understand”, “deliver”, “give”, “in the way that the Minister considers appropriate in the circumstances”, “incapacity”, “invite”, “method of delivery”, “notice”, “ordinary meaning”, “personally to perform”, “requesting formally”, “service”, “substantive content”, “within the period and in the manner ascertained in accordance with the regulations”.

  • Catchwords: Practice and procedure – Representative action – Stay – Where five open class representative actions commenced against same defendant in relation to same controversy – Where considerable overlap between claims made in proceedings – Where representative plaintiff in four proceedings filed notice of motion in Supreme Court of New South Wales seeking orders that each other proceeding be permanently stayed – Whether Supreme Court’s power to grant stay is confined by rule or presumption that representative proceeding issued first in time is to be preferred – Whether litigation funding arrangements can be relevant consideration under s 67 of Civil Procedure Act 2005 (NSW) – Whether Supreme Court erred in considering litigation funding arrangements. Words and phrases – “abuse of process”, “auction process”, “certification and carriage motion procedures”, “class actions”, “competing funding proposals, costs estimates and net hypothetical return to members”, “competing representative proceedings”, “conflicts of interest”, “contradictor”, “duplicative proceedings”, “equitable principles concerning test actions”, “first-in-time rule or presumption”, “funding model”, “litigation funding arrangements”, “multifactorial approach”, “multiplicity”, “one size fits all”, “power to grant a stay”, “prima facie vexatious and oppressive”, “representative proceedings”, “special referee”.

  • Catchwords: Immigration – Visas – Application for protection visa – Procedural fairness – Where delegate of Minister rejected first respondent’s application for protection visa – Where Administrative Appeals Tribunal affirmed delegate’s decision – Where first respondent sought judicial review of that decision in Federal Circuit Court – Where first respondent unrepresented before Circuit Court and obtained assistance of interpreter – Where Circuit Court dismissed application for judicial review and delivered ex tempore judgment – Where Circuit Court orders were translated to first respondent but ex tempore reasons were not – Where written reasons delivered by Circuit Court after first respondent filed notice of appeal in Federal Court of Australia – Where Federal Court held that failure of Circuit Court to have ex tempore reasons for judgment translated resulted in denial of procedural fairness – Whether Federal Court erred in holding that Circuit Court denied first respondent procedural fairness – Whether Federal Court erred in holding that setting aside Circuit Court’s judgment necessary to provide first respondent with practical justice. Words and phrases – “assistance of an interpreter”, “ex tempore reasons”, “failure to translate”, “judicial function”, “operative reasons”, “oral reasons”, “practical injustice”, “practical unfairness”, “procedural fairness”, “written reasons”.

  • 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”.

Full Federal Court

  • Catchwords: CRIMINAL LAW — appeal from an order of the primary judge that an order of a magistrate made pursuant to s 3LA of the Crimes Act 1914 (Cth) is invalid — where an order pursuant to s 3LA was made in respect of a smart phone seized during the execution of a warrant for the search of a person — whether natural justice attaches to an application under s 3LA and the appellant was entitled to a hearing before the s 3LA Order was made — statutory construction of s 3LA — whether the s 3LA Order requires details of the information or assistance to be provided by the person to whom the order is directed — whether the s 3LA Order requires information as to the place at which and the time within which the information or assistance must be provided — whether the s 3LA Order contains the required details of the particular computer or data storage device which is the subject of the order — whether smart phone is a “computer or data storage device” for the purposes of s 3LA — whether breaches of various statutory provisions result in invalidity — whether the legislature intended to abrogate or curtail the privilege against self-incrimination — appeal allowed

  • Catchwords: TAXATION – application for Coronavirus economic response payment (jobkeeper payment) – whether respondent eligible for jobkeeper payment – whether respondent “had an ABN on 12 March 2020” within the meaning of s 11(6) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (CERP Rules) – where respondent was not registered for an ABN on 12 March 2020 – where respondent was later registered for an ABN with a “date of effect” covering 12 March 2020 – held respondent did not have an ABN within the meaning of s 11(6) of the CERP Rules – whether the Commissioner’s decision not to exercise the discretion in s 11(6) of the CERP Rules to allow a later time for the respondent to have an ABN forms part of the reviewable decision – held Commissioner’s decision not to exercise the later time discretion was part of the reviewable decision – whether Tribunal erred in exercising the discretion to allow a later time in the respondent’s favour – held Tribunal did not err in exercising discretion – appeal dismissed

  • Catchwords: MIGRATION – where application for Safe Haven Enterprise Visa refused and decision affirmed by Immigration Assessment Authority (IAA) – whether IAA’s decision affected by reasonable apprehension of bias – whether IAA misapplied internal relocation principle – appeal dismissed

  • Catchwords: INDUSTRIAL LAW – appeal from a decision of the Industrial Relations Court of South Australia refusing an application to reopen proceedings – whether the IRCSA erred in the exercise of the discretion – Workplace Relations Act 1996 (Cth) ss 178 and 179 – appeal dismissed.

  • Catchwords: CONSUMER LAW – where company admitted to unconscionable conduct by a system or pattern of behaviour in contravention of s 21 Australian Consumer Law (ACL) – where penalties and declarations agreed with regulator – where primary judge found the majority in Australian Securities and Investments Commission v Kobelt [2019] HCA 18 considered s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) requires exploitation of some disadvantage or vulnerability by a stronger party and therefore s 21 of the ACL also requires those features to be present in the conduct – primary judge not satisfied investors, to whom the company’s conduct was directed, could be characterised as vulnerable or exploited – primary judge found no contravention of s 21 – whether judge found exploitation of a special disadvantage in the equitable sense is required under s 21 – whether Kobelt, precedent or statutory interpretation requires that exploitation or taking advantage of some pre-existing vulnerability, disadvantage, or disability is a necessary element of statutory unconscionability under s 21 ACL – appeal allowed.

NSW Court of appeal

  • Catchwords: WORKERS COMPENSATION – coal miners – whether employment was a contributing factor to aggravation, acceleration, exacerbation or deterioration of a disease – where worker suffered from a degenerative condition of osteoarthritis to his right knee – whether primary judge erred in point of law in finding work injury – Workers Compensation Act 1987 (NSW), s 4(b)(ii)

  • Catchwords: CONTRACT – contractual construction – whether promise in Binding Heads of Agreement (HOA) to enter into Business Sale Agreements was subject to a condition precedent, namely the approval of the Purchaser’s Board – whether consideration for HOA illusory – whether condition precedent permitted Purchaser’s Board to withhold approval capriciously – whether primary judge’s construction accorded with commercial common sense – whether primary judge erred in ordering specific performance of HOA.

  • Catchwords: CONTRACT – contractual construction – proper scope of jurisdiction agreement in employment contract – where jurisdiction clause elliptical as to its scope – where multiple agreements – where jurisdiction clause only contained in one agreement – whether jurisdiction clause in one agreement applied to claim in respect of alleged breach of post-employment restraints contained in a related agreement. EMPLOYMENT – restraints of trade – where senior executive employed pursuant to an Employment Agreement containing post-employment restraints of trade and an exclusive jurisdiction clause for courts of Singapore and a Singapore choice of law clause – where executive posted to Japan pursuant to a further contract but with his original contract continuing in effect – where executive also subject to a deed poll containing further post-employment restraints and governed by Japanese law – where employer sued to enforce only restraints contained in deed poll – whether proceedings caught by exclusive jurisdiction clause contained in original Employment Agreement – whether proceedings in New South Wales should be stayed. EQUITY – Injunctions – anti-anti-suit injunction – anti-suit injunction. PRIVATE INTERNATIONAL LAW – anti-anti-suit injunction – exclusive jurisdiction agreement – proper construction of scope of jurisdiction agreement – principles applicable to construction of jurisdiction agreements – relationship between jurisdiction agreement and choice of law clauses PRIVATE INTERNATIONAL LAW – concurrent proceedings in Singapore and New South Wales – whether New South Wales proceedings in relation to post employment restraints in a Deed Poll should be stayed by reason of an exclusive jurisdiction clause in a separate Employment Agreement.

  • Catchwords: LEGAL PRACTITIONERS – Court’s inherent jurisdiction to supervise and discipline legal practitioners – application for removal of barrister’s name from the roll of Australian lawyers maintained by the Supreme Court of New South Wales – where barrister practised principally in New South Wales for six years holding a practising certificate from Queensland – whether representations to the Queensland Bar Association as to the barrister’s principal place of practice were made dishonestly – whether barrister a fit and proper person to remain on the Supreme Court roll CONSTITUTIONAL LAW – challenge by barrister to validity of certain provisions governing the legal profession in Tasmania and Queensland – where disciplinary proceedings against the barrister did not involve any allegation of breach of any of the impugned provisions – whether there is any “matter” arising under the Constitution in respect of the impugned provisions CONSTITUTIONAL LAW – challenge to validity of certain provisions governing the legal profession in New South Wales or their application to the barrister – whether impugned provisions have any extra‑territorial effect – whether s 117 of the Constitution operates to render the impugned provisions inapplicable to the barrister – whether impugned provisions invalid as contrary to s 92 of the Constitution – whether impugned provisions inconsistent with various provisions of the Judiciary Act 1903 (Cth) – whether impugned provisions inconsistent with Chapter III of the Constitution as compromising the institutional integrity of Federal and State Courts

  • Catchwords: LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – re-categorisation by Council of farmland to mining land – relevance of impact of ongoing drought on cattle grazing – hiatus in activity on land different to abandonment – activity in rating years required to be considered in its context including what occurred previously on the land and what intended to occur after LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – easement burdening rateable land for benefit of adjacent mine – very small land area subject to easement and cattle grazing rights interrupted only to “trifling extent” – limited significance of easement to determination of dominant use of land LOCAL GOVERNMENT – powers, functions and duties – rates and charges – categorisation of land for rating purposes – relevance of source of requirement to use land for a particular purpose – reason for existence relevant but not determinative – use of land as Aboriginal Cultural Heritage Offset and Habitat Enhancement Offset areas the antithesis of mining – offset areas not used “for a coal mine” under s 517 Local Government Act – consideration of Peabody Pastoral Holdings 211 LGERA 337