High Court of Australia Judgment Summary Notes

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12

On 8 April 2015 the High Court unanimously upheld the validity of provisions of the Clean Energy Regulations 2011 (Cth) that provided for the free issue of carbon “units” to entities engaged in the production of nickel.

The Clean Energy Act 2011 (Cth), Clean Energy (Charges — Excise) Act 2011 (Cth), Clean Energy (Charges — Customs) Act 2011 (Cth) and Clean Energy (Unit Shortfall Charge — General) Act 2011 (Cth) established and imposed a tax on liable entities for certain greenhouse gas emissions in excess of a specified threshold volume. Entities could reduce their tax liability by surrendering “units” that were set-off against emissions in excess of the threshold. Schedule 1 to the Clean Energy Regulations 2011 (Cth), titled the “Jobs and Competitiveness Program” (“JCP”), provided for the issue of free units to entities engaged in “emissions-intensive trade-exposed” activities.

One such activity was the “production of nickel”, which was defined in Div 48 of Pt 3 of the JCP (“Div 48”). The number of free units issued to nickel producers was calculated by reference to the volume of nickel produced and industry averages for greenhouse gas emissions per unit volume of nickel production.

The plaintiff, Queensland Nickel Pty Limited, carried out the production of nickel at a refinery in Queensland. Its major competitors carried out the production of nickel in Western Australia. Due to differences in the kinds of ore processed, the production processes employed and the types of nickel products produced, the plaintiff’s refinery emitted more greenhouse gases per unit volume of nickel than its Western Australian competitors. The issue of free units under the JCP therefore effected a proportionately smaller reduction in the plaintiff’s overall tax liability than it did for the plaintiff’s competitors.

Section 99 of the Constitution prohibits the Commonwealth, by any law or regulation of trade, commerce, or revenue, giving preference to one State or any part thereof over another State or any part thereof. The plaintiff commenced proceedings in the High Court, claiming that Div 48 contravened s 99 because it made no allowance for the differences in inputs, production processes and outputs between the plaintiff and the Western Australian nickel producers. The plaintiff argued those differences were caused, at least to some extent, by differences in natural, business or other circumstances between Queensland and Western Australia.

The Court found that the differences between the plaintiff’s and the Western Australian producers’ inputs, production processes and outputs were not due to differences between Queensland and Western Australia in natural, business or other circumstances. As a matter of fact, therefore, the Court held that Div 48 did not give a preference to one State over other States and did not contravene s 99 of the Constitution.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors v Queensland Rail & Anor [2015] HCA 11

On 8 April 2015 the High Court unanimously held that Queensland Rail is a trading corporation within the meaning of s 51(xx) of the Constitution, with the consequence that the relations between Queensland Rail and its employees are governed by federal industrial relations law and not Queensland industrial relations law.

Queensland Rail operates as a labour hire company and provides labour used by a related entity, Queensland Rail Limited, in the operation of rail services in Queensland. Queensland Rail was established by the Queensland Rail Transit Authority Act 2013 (Q) and, by that Act, Queensland Rail “is not a body corporate” but it has all the powers of an individual to create and be made subject to legal rights and duties, and it may sue and be sued in its own name. The Act also provided for the relations between Queensland Rail and its employees to be governed by Queensland industrial relations law.

The plaintiffs, each an association or organisation of employees, brought a proceeding in the original jurisdiction of the High Court alleging that Queensland Rail and its employees are subject to federal industrial relations law. They alleged that Queensland Rail is a “trading corporation” within the meaning of s 51(xx) of the Constitution and therefore, by the terms of the Fair Work Act 2009 (Cth), an employer subject to the operation of that Act. The plaintiffs also alleged that provisions in the Queensland Rail Transit Authority Act 2013 (Q) and in the Industrial Relations Act 1999 (Q) which sought to apply Queensland industrial relations law to Queensland Rail and its employees were inconsistent with the Fair Work Act 2009 (Cth), and to that extent were invalid by operation of s 109 of the Constitution.

The High Court unanimously found that Queensland Rail is a trading corporation within the meaning of s 51(xx) of the Constitution and subject to the Fair Work Act 2009 (Cth). It followed that the provisions in the Queensland Acts which sought to apply Queensland industrial relations law to Queensland Rail and its employees were invalid.

Independent Commission Against Corruption v Cunneen & Ors [2015] HCA 14

On 15 April 2015 the High Court held, by majority, that the New South Wales Independent Commission Against Corruption (“ICAC”) has no power to conduct an inquiry into allegations that were made against the respondents, because the alleged conduct was not “corrupt conduct” as defined in s 8(2) of the Independent Commission Against Corruption Act 1988 (NSW) (“the ICAC Act”).

The first respondent is a Deputy Senior Crown Prosecutor of the State of New South Wales. In late 2014, ICAC summoned the respondents to give evidence at a public inquiry. The purpose of the inquiry was to investigate an allegation that the first and second respondents had, with the intention to pervert the course of justice, counselled the third respondent to pretend to have chest pains in order to prevent police officers from obtaining evidence of the third respondent’s blood alcohol level at the scene of a motor accident.

The respondents commenced proceedings in the Supreme Court of New South Wales seeking, amongst other orders, a declaration that ICAC did not have power to conduct the inquiry. The Supreme Court dismissed the proceedings. But the Court of Appeal allowed an appeal and declared that ICAC did not have power to conduct the inquiry because the alleged conduct was not “corrupt conduct” as defined in the ICAC Act. ICAC applied for special leave to appeal to the High Court, and the application was referred to a Full Court to be heard as on an appeal.

Section 8(2) of the ICAC Act relevantly provides that “corrupt conduct” is “any conduct of any person … that adversely affects, or that could adversely affect, either directly or indirectly, the exercise of official functions by any public official” and which could involve certain kinds of misconduct listed in the sub-section, including perverting the course of justice.

The alleged conduct did not concern the exercise of the first respondent’s official functions as a Crown Prosecutor. ICAC contended that the alleged conduct was corrupt conduct because it could adversely affect the exercise of official functions by the investigating police officers and by a court that would deal with any charges arising from the motor vehicle accident.

The High Court unanimously granted special leave but, by majority, dismissed the appeal. The majority held that the expression “adversely affect” in s 8(2) refers to conduct that adversely affects or could adversely affect the probity of the exercise of an official function by a public official. The definition of “corrupt conduct” does not extend to conduct that adversely affects or could adversely affect merely the efficacy of the exercise of an official function by a public official in the sense that the official could exercise the function in a different manner or make a different decision.

The alleged conduct was not conduct that could adversely affect the probity of the exercise of an official function by a public official. The alleged conduct was therefore not corrupt conduct within the meaning of s 8(2) of the ICAC Act and ICAC has no power to conduct the inquiry.

Duncan v State of New South Wales; Nucoal Resources Ltd v State of New South Wales; Cascade Coal Pty Ltd v State of New South Wales [2015] HCA 13

On 15 April 2015 the High Court unanimously upheld the validity of certain provisions of Sched 6A to the Mining Act 1992 (NSW), which cancelled, without compensation, three specified exploration licences issued under the Mining Act.

Schedule 6A was inserted into the Mining Act by the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) (“the Amendment Act”), which was enacted following consideration by both Houses of the New South Wales Parliament of reports prepared by the Independent Commission Against Corruption. Those reports contained findings that a number of individuals had engaged in corrupt conduct in relation to the grant of the exploration licences, and that the licences were so tainted by corruption that they should be cancelled.

By special case in three separate proceedings in the original jurisdiction of the High Court, the corporate licensees of two of the cancelled exploration licences and their parent company (“the Cascade proceedings”), a former director of that parent company (“the Duncan proceedings”) and the parent company of the corporate licensee of the other cancelled exploration licence (“the NuCoal proceedings”), challenged the validity of Sched 6A as inserted by the Amendment Act. In each proceeding, it was contended that the Amendment Act involved the legislative exercise of judicial power in the nature of, or akin to, a bill of pains and penalties, and that such an exercise of power contravened an implied limitation on State legislative power deriving either from Ch III of the Commonwealth Constitution or an historical limitation on colonial, and subsequently State, legislative power. In the Cascade and Duncan proceedings, it was contended that the Amendment Act is not a law within the meaning of s 5 of the Constitution Act 1902 (NSW). In the Cascade and NuCoal proceedings, it was contended that a provision of the Amendment Act, relating to the use and disclosure of information required to be provided by the licensees, is inconsistent with provisions of the Copyright Act 1968 (Cth) and was therefore inoperative to the extent of that inconsistency by force of s 109 of the Commonwealth Constitution.

The Court held that the Amendment Act is a law within the competence of the New South Wales Parliament because the grant of legislative power by s 5 of the Constitution Act 1902 (NSW) implied no relevant limitation as to the content of an enactment of that Parliament. It also held that the Amendment Act did not involve the exercise of judicial power and did not bear the characteristics of a bill of pains and penalties. The existence and scope of any implied limitation on the ability of a State Parliament to exercise judicial power did not, therefore, arise for consideration. It was unnecessary for the Court to address the contention concerning s 109 of the Commonwealth Constitution because it was not shown by the facts agreed in the special cases to be the subject of real controversy.

Lindsay v the Queen [2015] HCA 16

On 6 May 2015 the High Court unanimously allowed an appeal from the Court of Criminal Appeal of the Supreme Court of South Australia (“the CCA”), quashed the appellant’s conviction for murder and ordered a new trial.

The appellant, an Aboriginal man, was tried before a jury for the murder of Andrew Roger Negre. The appellant, his de facto wife and a friend met the deceased, who was not previously known to them, at a hotel. When they left the hotel, all four went to the appellant’s home to have some further drinks. It was open to the jury to find that the deceased made sexual advances towards the appellant at the appellant’s home and these culminated in an offer, made in the presence of the appellant’s de facto wife and others, to pay the appellant for sex. It was also open to find that the appellant killed the deceased in a state of loss of self-control following the making of that offer.

In South Australia, the partial defence of provocation under the common law operates to reduce murder to manslaughter. The trial judge directed the jury that it was incumbent on the prosecution to prove that the appellant was not acting under provocation at the time of the killing. The appellant was convicted of murder.

On appeal, a majority of the CCA held that the directions given to the jury on provocation were flawed in respects that amounted to a miscarriage of justice. However, the CCA concluded that the evidence taken at its highest could not satisfy the objective limb of the partial defence of provocation — that is, that no reasonable jury could fail to find that an ordinary person provoked to the degree that the appellant was provoked could not have so far lost his self-control as to form the intention to kill or inflict grievous bodily harm and to act as the appellant did. The CCA majority held that provocation should therefore not have been left for the jury’s consideration and it followed that the erroneous directions had not occasioned a substantial miscarriage of justice. The CCA dismissed the appeal under the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA).

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that the trial judge was right to leave provocation to the jury. The High Court said there is a need for caution before a court determines as a matter of law that contemporary attitudes to sexual relations are such that conduct is incapable of constituting provocation. The gravity of the provocation must be assessed from the standpoint of the accused. The High Court said it was open to a reasonable jury to consider that an offer of money for sex made by a Caucasian man to an Aboriginal man in the latter’s home and in the presence of his wife and family may have had a pungency that an unwelcome sexual advance made by one man toward another in other circumstances would not have. The assessment of the gravity of the provocation and its capacity to satisfy the objective limb of the test were issues for the jury. Accordingly, it was wrong for the CCA to dismiss the appeal under the proviso. The appropriate consequential order was for a new trial.

Uelese v Minister for Immigration and Border Protection & Anor [2015] HCA 15

On 6 May 2015 the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that the Administrative Appeals Tribunal (“the Tribunal”) erred in its application of s 500(6H) of the Migration Act 1958 (Cth) (“the Act”) by failing to consider information adduced during the cross ‑ examination of a witness.

The appellant is a Samoan ‑ born citizen of New Zealand, who has been living in Australia since 1998 on a visa tied to his New Zealand citizenship. The appellant has a “substantial criminal record” for the purposes of s 501(7)(c) of the Act. In 2012, on the basis of that criminal record, a delegate of the Minister made a decision under s 501(2) of the Act to cancel the appellant’s visa.

The appellant applied to the Tribunal for review of the delegate’s decision. Under a ministerial direction made pursuant to s 499 of the Act, the Tribunal was obliged to consider the best interests of any minor children in Australia affected by the cancellation of the appellant’s visa. The appellant made submissions about the best interests of three of his children. In the course of the hearing, during cross ‑ examination of the appellant’s partner, it emerged that the appellant has an additional two younger children from a different relationship.

Section 500(6H) of the Act provides that, in matters of this kind, the Tribunal must not have regard to any information presented orally in support of a person’s case unless it has been provided in a written statement to the Minister at least two days before the Tribunal holds a hearing. The Tribunal regarded s 500(6H) as precluding consideration by it of the position of the appellant’s two youngest children and affirmed the delegate’s decision to cancel the appellant’s visa. The appellant applied to the Federal Court for judicial review of the Tribunal’s decision. That application was dismissed. The appellant appealed from that decision to the Full Court of the Federal Court. That appeal was also dismissed. By special leave, the appellants appealed to the High Court.

The High Court unanimously allowed the appeal, holding that s 500(6H) does not preclude the Tribunal from considering information which is not presented by or on behalf of an applicant for review as part of his or her case. The Court held that by applying s 500(6H) in the way that it did, the Tribunal had truncated the review that it was required to undertake. The Court also held that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment to enable the applicant to give the required notice to the Minister, where this is necessary to ensure that a review is conducted thoroughly and fairly.

State of Queensland v Congoo & Ors [2015] HCA 17

On 13 May 2015 the High Court dismissed an appeal from a decision of the Full Court of the Federal Court of Australia, which held that military orders made under reg 54 of the National Security (General) Regulations 1939 (Cth) in relation to certain land did not extinguish the first respondents’ native title rights and interests that subsisted on the land.

Section 5(1)(b)(i) of the National Security Act 1939 (Cth) provided for the making of regulations for securing the public safety and the defence of the Commonwealth, and in particular for authorising the taking of possession or control, on behalf of the Commonwealth, of any property. The Regulations were enacted pursuant to that section. Regulation 54(1) of the Regulations provided that if it appeared to the Minister of State for the Army to be necessary or expedient to do so in the interests of public safety, the defence of the Commonwealth or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the Commonwealth, the Minister could, on behalf of the Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession.

Between 1943 and 1945, a delegate of the Minister made military orders under reg 54 with respect to land, which was thereafter used as an artillery range and a live fire manoeuvre range for the training of infantry and armoured units. The military orders directed a particular officer to occupy the land, authorised that officer to do anything in relation to the land that the holder of an estate in fee simple in the land could do by virtue of that interest, and prohibited all other persons from exercising “any right of way over the land or any other right relating thereto”. The military orders ceased to take effect no later than six months after the war finished.

The first respondents, the Bar-Barrum People, brought an application in the Federal Court for a determination of native title over land, part of which had been subject to the military orders. A Special Case was referred to the Full Court of the Federal Court setting out questions about the effect of the military orders on the native title rights and interests of the Bar-Barrum People. The parties accepted that, subject to the effect of the military orders, the Bar-Barrum People had native title rights and interests over the land. The Full Court of the Federal Court, by majority, held that the military orders did not have the effect of extinguishing the native title rights and interests.

By grant of special leave, the appellant appealed to the High Court. Three Justices would have dismissed the appeal, holding that the military orders did not have the effect of extinguishing the native title rights and interests. Three Justices would have allowed the appeal, holding that by taking exclusive possession of the land under the military orders, the Commonwealth asserted rights which were inconsistent with, and thereby extinguished, the native title rights and interests.

Where the High Court is equally divided in opinion, s 23(2)(a) of the Judiciary Act 1903 (Cth) provides that the decision appealed from shall be affirmed. Accordingly, the High Court ordered that the appeal be dismissed.

Selig v Wealthsure Pty Ltd [2015] HCA 18

On 13 May 2015, the High Court unanimously allowed an appeal against a decision of the Full Court of the Federal Court of Australia and held that the proportionate liability regime in Div 2A of Pt 7.10 (“Div 2A”) of the Corporations Act 2001 (Cth) (“the Act”) applies only to claims of misleading or deceptive conduct based upon a contravention of s 1041H of the Act. The Court also made a costs order against the first respondent’s professional indemnity insurer, a non-party to the proceedings.

The appellants made an investment on the advice of the second respondent, an authorised representative of the first respondent. The scheme invested in was, in effect, a “Ponzi scheme” and the appellants lost their initial investment and suffered consequential losses. The appellants claimed the first and second respondents had contravened a number of provisions of the Act and the Australian Securities and Investments Commission Act 2001 (Cth) (“the ASIC Act”), including s 1041H of the Act and its analogue in the ASIC Act, s 12DA. Section 1041H(1) prohibits conduct, in relation to a financial product or service, that is misleading or deceptive, or is likely to mislead or deceive. Section 1041L(1) in Div 2A defines an “apportionable claim” as a claim for loss or damage “caused by conduct that was done in a contravention of section 1041H”.

The first and second respondents submitted that Div 2A and the corresponding provisions of the ASIC Act applied to limit their liability to a proportion of the appellants’ loss and damage, having regard to the comparative responsibility of a number of other parties, including the company the appellants invested in and its directors.

The High Court held that an “apportionable claim” for the purposes of Div 2A is, relevantly, a claim based upon a contravention of s 1041H. The term does not extend to claims based upon conduct of a different kind, and therefore the proportionate liability regime established by Div 2A does not apply to other statutory or common law causes of action. The Court held that this reasoning applied equally to the analogue provisions of the ASIC Act.

The High Court further held that the circumstances justified an award of costs against a non ‑ party to the proceedings, the first respondent’s professional indemnity insurer. The insurer had the conduct of the defence at trial and made the decision to appeal to the Court below. As the first respondent’s cover under the policy was capped, the decision to appeal meant that monies which it would otherwise have been obliged to pay the appellants would be diverted to meet the insurer’s legal costs. The Court held that as the insurer was acting for itself in seeking to better its position by bringing the appeal, there was no reason it should be regarded as immune from a costs order.

Isbester v Knox City Council [2015] HCA 20

On 10 June 2015 the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria. The High Court held that the decision-making process used by the respondent’s delegate in exercising power under s 84P(e) of the Domestic Animals Act 1994 (Vic) (“the Act”) was contrary to natural justice because a fair-minded observer might reasonably apprehend that a person who took part in the decision-making might not have brought an impartial mind to the decision.

The appellant had been convicted in the Ringwood Magistrates’ Court of an offence under s 29(4) of the Act, on a charge that her Staffordshire terrier had attacked a person and caused serious injury. Following a hearing before a panel, a delegate of the respondent who had been a member of that panel made a decision under s 84P(e) of the Act that the appellant’s dog be destroyed. Another member of the panel, who had participated fully in the panel’s decision-making process following the hearing and drafted the reasons for the decision, was an employee of the respondent whose duties involved the regulation of domestic animals under the Act. She had been substantially involved in the prosecution of the charge in the Magistrates’ Court.

The appellant, unsuccessfully, sought judicial review of the respondent’s decision in the Supreme Court of Victoria. The appellant’s appeal to the Court of Appeal of the Supreme Court of Victoria was limited to the ground of apprehended bias. The Court of Appeal found that the ground was not made out and dismissed the appeal. By grant of special leave, the appellant appealed to the High Court.

The High Court unanimously allowed the appeal. The Court found that a fair-minded observer might reasonably apprehend that the respondent’s employee might not have brought an impartial mind to the decision to destroy the appellant’s dog, because her role in the Magistrates’ Court proceedings gave her an interest that was incompatible with her involvement in the decision ‑ making process of the panel. The Court found that, although another member of the panel was responsible for making the decision to order the destruction of the dog, there was still an apprehension that the involvement of the respondent’s employee in the Magistrates’ Court prosecution might affect not only her own decision-making, but also that of the other members of the panel. The Court found that natural justice required that she not participate in making the decision, and that the decision of the respondent’s delegate must therefore be quashed.

King v Philcox [2015] HCA 19

On 10 June 2015 the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia and held that while the Full Court did not err in finding that the appellant owed the respondent a duty of care under s 33 of the Civil Liability Act 1936 (SA), the respondent could not recover damages for mental harm because of the operation of s 53 of the Act.

Section 33(1) provides that it is a necessary condition for the establishment of a duty of care not to cause mental harm that “a reasonable person in the defendant’s position would have foreseen that a person of normal fortitude in the plaintiff’s position might, in the circumstances of the case, suffer a recognised psychiatric illness”. Section 33(2) lists circumstances to be considered in applying s 33(1), which, in the case of pure mental harm, include the nature of the relationship between the plaintiff and any person killed, injured or put in peril. Section 53(1) limits the circumstances in which a plaintiff may recover damages for mental harm caused by an accident. If the plaintiff is not a parent, spouse or child of a person killed, injured or endangered in the accident, he or she must have been physically injured in the accident or “present at the scene of the accident when the accident occurred” to recover damages.

On 12 April 2005, the respondent’s brother was a passenger in a motor vehicle driven by the appellant. Between 4.50pm and 4.55pm, as a result of the appellant’s negligence, the vehicle collided with another vehicle at an intersection in Campbelltown, Adelaide. The respondent’s brother died while trapped in the vehicle. After the collision, the respondent drove through or turned left at the intersection on five occasions. On the final occasion the accident scene had been cleared. The respondent was told later that evening that his brother had died in a traffic accident. He realised this was the accident at the intersection, the aftermath of which he had witnessed. He visited the accident scene the next day. Subsequently, he developed a major depressive disorder.

The respondent brought proceedings in the District Court of South Australia seeking damages for mental harm. The District Court found that the respondent owed the appellant a duty of care, but that the appellant could not recover damages because he had failed to establish causation and did not satisfy the requirements for recovery of damages under s 53. The Full Court of the Supreme Court of South Australia allowed an appeal from that decision and awarded damages. The Full Court held that the respondent satisfied the necessary requirements of duty, breach and causation, and that he was present at the scene of the accident “when the accident occurred”, within the meaning of s 53(1)(a). By grant of special leave, the appellant appealed to the High Court. The appellant submitted he did not owe the respondent a duty of care and that even if a duty of care existed, the respondent could not recover damages because of the operation of s 53.

The High Court allowed the appeal, holding that while the Full Court did not err in finding that a duty of care was owed to the respondent under s 33, the respondent was not present at the scene of the accident “when the accident occurred”, within the meaning of s 53(1)(a). As the respondent could not satisfy the requirements of s 53, he could not recover damages.

Gnych & Anor v Polish Club Limited [2015] HCA 23

On 17 June 2015 the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a lease granted in contravention of s 92(1)(d) of the Liquor Act 2007 (NSW) (“the Liquor Act”) was not void and unenforceable.

In 2012, the respondent leased part of its licensed premises to the appellants for the running of a restaurant. Section 92(1)(d) of the Liquor Act provides that a licensee must not lease certain parts of a licensed premises without the approval of the Independent Liquor and Gaming Authority (“the Authority”). The respondent did not obtain the approval of the Authority for the lease to the appellants and thereby contravened s 92(1)(d) of the Liquor Act.

Subsequently, relations between the parties deteriorated and, in 2013, the appellants were excluded from the premises. The appellants commenced proceedings in the Supreme Court of New South Wales seeking a declaration that they had a “retail shop lease”, which has a minimum term of five years, under the Retail Leases Act 1994 (NSW). The appellants also sought an injunction restraining the respondent from interfering with their possession of the leased premises. The respondent contended that the lease was unenforceable, having been granted in breach of the Liquor Act. At trial, the Supreme Court held that, although there had been a breach of s 92(1)(d), the lease was not unenforceable. The respondent’s appeal to the Court of Appeal was allowed on the basis that a lease granted in breach of s 92(1)(d) conflicts with the purpose and policy of the Liquor Act, in particular the responsibility of the licensee to supervise the conduct of the business on the licensed premises. By grant of special leave, the appellants appealed to the High Court.

The High Court allowed the appeal, holding that on the proper construction of the Liquor Act the respondent’s breach of s 92(1)(d) did not automatically render the lease void and unenforceable.

Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22

On 17 June 2015 the High Court unanimously allowed an appeal from the Federal Court of Australia in Minister for Immigration and Border Protection v WZAPN and unanimously dismissed an appeal from the Federal Court in WZARV v Minister for Immigration and Border Protection. The High Court held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself and without more, a threat to liberty within the meaning of s 91R(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

WZAPN and WZARV both claimed refugee status upon arrival in Australia. WZAPN is a stateless Faili Kurd whose former place of habitual residence is Iran. In 2010, he was denied refugee status by a refugee status assessment (“RSA”) officer. An Independent Merits Reviewer (“IMR”) reviewed the decision of the RSA officer and concluded, among other things, that the real chance of short periods of detention upon WZAPN’s return to Iran did not constitute serious harm for the purposes of the Act. The Federal Magistrates Court of Australia (as it then was) dismissed WZAPN’s application for judicial review of the IMR’s decision. WZAPN’s appeal to the Federal Court was allowed on the basis that the threat of a period of detention constitutes serious harm whatever the severity of the consequences for liberty. The Federal Court also held that the IMR’s decision was vitiated by a want of procedural fairness. The Minister was granted special leave to appeal to this Court from the decision of the Federal Court.

WZARV is a Sri Lankan citizen of Tamil ethnicity, who in 2011 was denied refugee status by an RSA officer. With respect to the possible detention of WZARV upon return to Sri Lanka, the IMR accepted that it was likely WZARV would be interviewed by Sri Lankan authorities upon arrival at the airport, but that it is usual for such questioning to be completed in a matter of hours. WZARV’s application for judicial review to the Federal Circuit Court of Australia and appeal to the Federal Court were dismissed. By grant of special leave, WZARV appealed to the High Court on the ground that, on the construction of s 91R(2)(a) of the Act adopted by the Federal Court in the WZAPN proceedings, the IMR had erroneously concluded that WZARV did not face serious harm upon return to Sri Lanka.

The High Court held that the question of whether a risk of the loss of liberty constitutes “serious harm” for the purposes of s 91R requires a qualitative evaluation of the nature and gravity of the apprehended loss of liberty. The Court also held that the IMR’s decision regarding WZAPN’s claims was not vitiated by a want of procedural fairness.

CFMEU v Boral Resources (Vic) Pty Ltd & Ors [2015] HCA 21

On 17 June 2015 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria and held that the appellant was amenable to an order under r 29.07(2) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”) to make discovery of particular documents in proceedings brought to punish it for contempt of court.

The first to sixth respondents (together, “Boral”) applied under r 75.06(2) of the Rules to punish the appellant for contempt of court, alleging that the appellant had disobeyed court orders by establishing a blockade of a construction site. The blockade was alleged to have been organised and implemented by an employee of the appellant. Boral sought an order under r 29.07(2) directing the appellant to make discovery of particular documents going to the question of whether the appellant had authorised its employee to establish the blockade. The appellant’s status as a corporation meant it could not invoke either the privilege against self ‑ incrimination or the privilege against self ‑ exposure to a penalty to resist the order sought by Boral.

In the Supreme Court of Victoria, Daly AsJ refused to make an order for discovery under r 29.07(2) on the basis that the contempt proceeding was properly characterised as a criminal proceeding, and so the Rules did not apply. Digby J allowed an appeal from that decision, holding that the contempt proceeding was a civil proceeding to which the Rules did apply, and that it was appropriate to order discovery in the circumstances. The Court of Appeal refused the appellant leave to appeal from that decision on the basis that there was insufficient reason to doubt its correctness and the appellant would suffer no substantial injustice if the order for discovery were permitted to stand.

By grant of special leave, the appellant appealed to the High Court. The appellant contended that it could not be ordered to make discovery under r 29.07(2) because to do so would conflict with the principle that a defendant to an accusatorial proceeding cannot be required to assist the prosecution to prove its case. The Court accepted that this principle applies to criminal proceedings but held that the contempt proceeding was a civil proceeding. Rule 29.07(2) applied to the contempt proceeding according to its tenor enabling an order for discovery to be made.