High Court of Australia Judgment Summary Notes

The following summary notes of recent decisions of the High Court of Australia provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

The following Judgments are summarised in this issue. The summary notes follow after this list:

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

Macoun v Commissioner of Taxation [2015] HCA 44 

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

Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors; CFMEU v the Director & Ors [2015] HCA 46 

Allen v Chadwick [2015] HCA 47

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

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

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

Plaintiff M68/2015 v Minister for Immigration & Border Protection & Ors [2016] HCA 1

CGU Insurance Ltd v Blakely & Ors [2016] HCA 2

Tabcorp Holdings Ltd v State of Victoria [2016] HCA 4

State of Victoria v Tatts Group Ltd [2016] HCA 5  

R v GW [2016] HCA 6

Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7

R & Anor v Independent Broad-Based Anti-Corruption Commissioner [2016] HCA 8

Fischer & Ors v Nemeske Pty Ltd & Ors [2016] HCA 11

Zaburoni v The Queen [2016] HCA 12

Mok v Director of Public Prosecutions (NSW) [2016] HCA 13

IMM v The Queen [2016] HCA 14

Coverdale v West Coast Council [2016] HCA 15 

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

On 2 December 2015, the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales but, by a majority, varied the orders made by that Court. The Court of Appeal had dismissed an appeal against an order setting aside both the registration of a foreign judgment against the respondent (“Nauru”) and a consequential garnishee order relating to certain bank accounts Nauru held in Australia.

The appellant (“Firebird”) was the holder of bonds guaranteed by Nauru. After the issuer of the bonds defaulted, Firebird obtained judgment in the Tokyo District Court for Â¥1,300 million together with interest and costs (“the foreign judgment”) against Nauru as guarantor, and subsequently obtained an order from the Supreme Court of New South Wales that the foreign judgment be registered under the Foreign Judgments Act 1991 (Cth). The summons for the order for registration was not served on Nauru. Firebird then obtained a garnishee order against the Australian bank in which the accounts of Nauru were kept. Nauru filed motions seeking to set aside the registration of the foreign judgment and the garnishee order, and the Supreme Court made those orders. Firebird appealed to the Court of Appeal.

The Court of Appeal held that Nauru was entitled to the immunity from jurisdiction recognised in s 9 of the Foreign States Immunities Act 1985 (Cth) and that the exception in s 11(1) of that Act for “commercial transactions” did not apply to the proceedings for registration under the Foreign Judgments Act. The Court of Appeal rejected Firebird’s argument that there was an inconsistency in the operation of the two statutes. The Court of Appeal also agreed with Nauru’s contention that service of the summons for the order for registration should have been effected upon Nauru before the foreign judgment was registered. A majority of the Court of Appeal further held that the funds in the accounts of the Australian bank were immune from execution under the garnishee order by virtue of s 30 of the Foreign States Immunities Act, and that the exception for “commercial property” in s 32(1) did not apply. By grant of special leave, Firebird appealed to the High Court.

In dismissing the appeal, the High Court unanimously held that the proceedings for registration of the foreign judgment under the Foreign Judgments Act were proceedings to which s 9 of the Foreign States Immunities Act applied so that Nauru was immune from the jurisdiction of Australian courts, subject to the exceptions for which the Foreign States Immunities Act provides. There was no inconsistency in the operation of the two statutes. The exception stated in s 11(1) of the Foreign States Immunities Act applied to the proceedings for the registration of the foreign judgment in this case because they concerned a commercial transaction; namely, the guarantee upon which the foreign judgment was based. Nauru therefore lost its immunity from jurisdiction. However, Nauru was immune from execution against the bank accounts held in Australia under the Foreign States Immunities Act because the purposes for which these accounts were in use, or for which the monies in them were set aside, were not commercial purposes. By a majority, the Court also held that there was no requirement that the summons for registration of the foreign judgment under the Foreign Judgments Act be served on Nauru before the foreign judgment was registered.

Macoun v Commissioner of Taxation [2015] HCA 44

On 2 December 2015 the High Court unanimously dismissed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that a former officer of the International Bank for Reconstruction and Development (“the IBRD”) was not entitled to an exemption from taxation in respect of monthly pension payments he had received.

Section 6(1)(d)(i) of the International Organisations (Privileges and Immunities) Act 1963 (Cth) (“the IOPI Act”) and reg 8(1) of the Specialized Agencies (Privileges and Immunities) Regulations (Cth) (“the SAPI Regulations”) confer upon a person who holds an office in an international organisation to which the IOPI Act applies an exemption from taxation on salaries and emoluments received from the organisation. The exemption is set out in Item 2 of Pt 1 of the Fourth Schedule to the IOPI Act. The IBRD is an international organisation to which the IOPI Act applies.

The appellant, Mr Macoun, a former sanitary engineer with the IBRD, received monthly pension payments from a Retirement Fund established under the IBRD’s Staff Retirement Plan (“the SRP”) in the 2009 and 2010 income years, when he no longer held an office in the IBRD. The respondent (“the Commissioner”) included the monthly pension payments in Mr Macoun’s assessable income for the 2009 and 2010 income years.

Mr Macoun sought review of the Commissioner’s decision in the Administrative Appeals Tribunal (“the AAT”). The AAT set aside the decision and substituted the decision that the monthly pension payments did not form part of Mr Macoun’s assessable income and were exempt from Australian income tax.

The Commissioner appealed to the Full Court of the Federal Court of Australia. The Full Court allowed the appeal, holding that reg 8(1) of the SAPI Regulations confined the privileges specified in Pt 1 of the Fourth Schedule to the IOPI Act to persons currently holding an office in an international organisation to which the IOPI Act applied. As Mr Macoun did not hold such an office in the IBRD in the 2009 and 2010 income years, the exemption from taxation was not available to him. By grant of special leave, Mr Macoun appealed to the High Court.

The High Court unanimously held that Mr Macoun was not entitled to an exemption from taxation for the relevant part of his monthly pension payments because he had ceased to hold an office in the IBRD when he received them, and because he received them from the Retirement Fund established under the SRP rather than from the IBRD. The High Court also held that Mr Macoun’s monthly pension payments did not fall within the phrase “salaries and emoluments” in Item 2 of Pt 1 of the Fourth Schedule to the IOPI Act, and that Australia’s international obligations did not require Australia to exempt the monthly pension payments from taxation.

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

On 2 December 2015 the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The High Court held that s 357(1) of the Fair Work Act 2009 (Cth) prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor under a contract for services with a third party.

Quest South Perth Holdings Pty Ltd (“Quest”) operated a business of providing serviced apartments and employed Ms Margaret Best and Ms Carol Roden as housekeepers. Contracting Solutions Pty Ltd (“Contracting Solutions”) operated a labour hire business. Quest and Contracting Solutions purported to enter into a triangular contracting arrangement under which Contracting Solutions purported to engage Ms Best and Ms Roden as independent contractors under contracts for services, and then purported to provide the services of Ms Best and Ms Roden as housekeepers to Quest under a labour hire agreement. Quest represented to Ms Best and Ms Roden that they were performing housekeeping work as independent contractors of Contracting Solutions, despite the fact that they continued to perform that work for Quest under implied contracts of employment.

Section 357(1) provided that: “A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.”

The Fair Work Ombudsman commenced a proceeding in the Federal Court claiming, amongst other relief, pecuniary penalty orders against Quest for contraventions of s 357(1). The Federal Court ordered at first instance that the proceeding be dismissed so far as it related to that claim, and an appeal from that order was dismissed by the Full Court. The Full Court held that s 357(1) would only be contravened by an employer’s representation to an employee which mischaracterised the contract of employment that existed between the employee and the employer as a contract for services made between the employee and the employer, not between the employee and a third party.

By grant of special leave, the Fair Work Ombudsman appealed to the High Court. The High Court unanimously allowed the appeal, holding that s 357(1) prohibited the misrepresentation of an employment contract as a contract for services with a third party. The Court declared that Quest contravened s 357(1) by representing to Ms Best and Ms Roden that the contracts of employment under which they were employed by Quest were contracts for services under which they performed work as independent contractors.

Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors; CFMEU v the Director & Ors [2015] HCA 46

On 9 December 2015 the High Court unanimously held that, in civil penalty proceedings, courts are not precluded from considering and, if appropriate, imposing penalties that are agreed between the parties. The Court therefore allowed two appeals from a decision of the Full Court of the Federal Court of Australia (“the Full Court”).

The Director of the Fair Work Building Industry Inspectorate (“the Director”) commenced a proceeding in the Federal Court of Australia against the Construction, Forestry, Mining and Energy Union (“the CFMEU”) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) (together, “the Unions”). The Director alleged that the Unions had contravened s 38 of the Building and Construction Industry Improvement Act 2005 (Cth), a civil penalty provision which prohibited unlawful industrial action. The Unions admitted the contraventions and, in accordance with longstanding practice in civil penalty proceedings, agreed with the Director to seek from the Court declarations as to the contraventions and pecuniary penalties of $105,000 against the CFMEU and $45,000 against the CEPU.

At a pre-trial directions hearing, the primary judge raised a concern about whether the decision of the High Court in Barbaro v The Queen (2014) 253 CLR 58 applied to the proceedings. In Barbaro, a plurality of the High Court held that criminal prosecutors are not permitted to make a submission to a sentencing judge nominating a quantified range of sentences that the prosecution considers to be open. The proceeding was referred to the Full Court. The Commonwealth was granted leave to intervene.

The Full Court held that the principle in Barbaro applies to civil penalty proceedings, with the result that it was impermissible for parties to make joint submissions to a court seeking the imposition of an agreed penalty. The Full Court adjourned the proceeding for further hearing.

By grants of special leave, the Commonwealth and the Unions each appealed to the High Court. The Court unanimously held that the principle in Barbaro does not apply to civil penalty proceedings. The task of a court is to determine whether, in all the circumstances, the agreed penalty is an appropriate penalty. The court is not bound to accept the agreed penalty if it does not consider it appropriate. The High Court set aside the Full Court’s adjournment order and remitted the proceedings to the Federal Court.

Allen v Chadwick [2015] HCA 47

On 9 December 2015 the High Court delivered judgment in an appeal from the Full Court of the Supreme Court of South Australia, unanimously allowing the appeal in part and dismissing it in part. The Court held that the respondent, who suffered major injuries as a result of a motor vehicle accident, was not contributorily negligent under s 47 of the Civil Liability Act 1936 (SA) (“the Act”) for travelling in a car driven by an intoxicated driver, but that she was contributorily negligent under s 49 of the Act for failing to wear a seatbelt.

At approximately 2 am on 12 March 2007, the appellant, the respondent and the appellant’s friend went for a drive around Port Victoria, South Australia. The respondent was driving, and the appellant and his friend had been drinking alcohol. After about 15 minutes, the respondent stopped the car on the side of the road and went to urinate behind some bushes. When she returned to the car, the appellant was in the driver’s seat and insisted that she get in the car, which she did. The car was outside the township and approximately 500 metres from the Port Victoria Hotel, where the group was staying. It was dark, and the respondent gave evidence that she was disoriented and did not know how near she was to the hotel. The appellant drove erratically for several minutes, during which time the respondent did not fasten her seatbelt. The respondent was flung from the car when it collided with a tree, and sustained spinal injuries that rendered her paraplegic. The appellant’s blood alcohol level was estimated to have been 0.229 per cent at the time of the accident.

At trial, it was held that the appellant’s negligence caused the respondent’s injuries. The trial judge held that the respondent was not contributorily negligent under s 47 of the Act for relying on the care and skill of an intoxicated person because the exception in s 47(2)(b) of the Act applied such that the respondent could not reasonably be expected to have avoided the risk of travelling with the appellant in the circumstances. Failure to wear a seatbelt constitutes contributory negligence under s 49 of the Act and the trial judge rejected the respondent’s contention that the appellant’s erratic driving had prevented her from fastening her seatbelt.

On appeal, a majority of the Full Court dismissed the appellant’s appeal on the s 47(2)(b) issue. The Full Court unanimously allowed the respondent’s cross‑appeal on the s 49 issue, holding that her failure to fasten her seatbelt was a result of her direct and natural response to the appellant’s erratic driving.

By grant of special leave, the appellant appealed to the High Court on both issues. The High Court unanimously dismissed the appeal on the s 47(2)(b) issue and held that, given the facts of the case, the respondent could not reasonably be expected to have avoided the risk of travelling with the appellant. The Court allowed the appeal in respect of the s 49 issue, on the basis that there was no reason to interfere with the trial judge’s finding of fact that the appellant’s driving did not prevent the respondent from fastening her seatbelt.

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

On 10 December 2015, the High Court, by majority, dismissed appeals from the Full Court of the Federal Court of Australia. The High Court held that the retention obligation (as defined below) imposed on agents and trustees by s 254(1)(d) of the Income Tax Assessment Act 1936 (Cth) (“the 1936 Act”) only arises after the making of an assessment or deemed assessment in respect of the income, profits or gains.

Section 254(1)(d) of the 1936 Act requires every agent and every trustee “to retain from time to time out of any money which comes to him or her in his or her representative capacity so much as is sufficient to pay tax which is or will become due in respect of the income, profits or gains” (“the retention obligation”). The liquidators of Australian Building Systems Pty Ltd (“ABS”) caused the company to enter into a contract for the sale of a property, which gave rise to a capital gain pursuant to s 104-10 of the Income Tax Assessment Act 1997 (Cth). In a private ruling, the Commissioner of Taxation (“the Commissioner”) ruled that s 254(1)(d) of the 1936 Act required the liquidators to retain sufficient monies out of the proceeds of the sale to cover any capital gains tax liability from the time the capital gain crystallised.

ABS objected to the ruling but the Commissioner disallowed the objection. ABS appealed that decision and the liquidators also sought declaratory relief in the Federal Court of Australia. Hearing both matters concurrently, the primary judge held that s 254(1)(d) did not require the liquidators to retain money from the proceeds of the sale until an assessment had issued. The primary judge considered that s 254(1)(d) should be construed consistently with the High Court’s construction of the phrase “is or will become due” in s 255(1)(b) of the 1936 Act in Bluebottle UK Ltd v Deputy Commissioner of Taxation (2007) 232 CLR 598. The Full Court of the Federal Court dismissed the Commissioner’s appeals. Unlike the primary judge, the majority of the Full Court relied on the proposition that ABS was “presently entitled” to the proceeds of the sale and that any capital gains tax would be assessed to ABS, and not to the liquidators as trustees, as a result of Div 6 of Pt III of the 1936 Act. By grant of special leave, the Commissioner appealed to the High Court. The part of the appeals relating to the Full Court’s reasoning with respect to Div 6 of Pt III was not contested by the respondents.

The High Court dismissed the Commissioner’s appeals. The majority held that the retention obligation in s 254(1)(d), similar to the retention obligation in s 255(1)(b), only arises after an assessment or deemed assessment has been made in respect of the relevant income, profits or gains. The High Court also held that the majority of the Full Court had erred in finding that the liquidator was a “trustee of a trust estate” for the purposes of Div 6 of Pt III. A majority of the High Court further held that the majority of the Full Court erred in construing s 254 as a collecting provision which only operates where the agent or trustee is otherwise assessable.

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

On 17 December 2015, the High Court unanimously held that a decision by a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant Refugee and Humanitarian (Class XB) (Subclass 202) visas (“Subclass 202 visas”) to the plaintiff’s family was not affected by jurisdictional error.

On 29 May 2010, the plaintiff arrived in Australia and became an “unlawful non-citizen” within the meaning of the Migration Act 1958 (Cth) (“the Act”). The plaintiff was granted a protection visa by the Minister. The plaintiff’s family subsequently applied for Subclass 202 visas under the Australian Government’s Special Humanitarian Programme. Subclass 202 visas are directed to the immigration of people who are subject to substantial discrimination in their home country and who are members of the immediate family of a person in Australia who has already been granted a protection visa. The plaintiff proposed his family’s visa application in accordance with the Migration Regulations 1994 (Cth) (“the Regulations”). The application was refused by a delegate of the Minister. In a letter to the plaintiff’s family, the delegate wrote that, in deciding to refuse the application, he had considered that Australia does not have the capacity to resettle all humanitarian visa applicants, and that only the highest priority applications can be successful.

The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking an order to quash the delegate’s decision to refuse to grant the Subclass 202 visas and an order requiring the Minister to determine the application according to law. The plaintiff argued that the delegate misconstrued and misapplied cl 202.222(2) of Schedule 2 to the Regulations, which provides for the grant of a visa if the Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a visa. The plaintiff also argued that the delegate unlawfully applied a policy of the Department for Immigration and Border Protection that required that the lowest priority be accorded to the plaintiff’s family’s application on the basis of the type of visa that the plaintiff had been granted and the circumstance that he arrived in Australia as an “irregular maritime arrival”.

In refusing the plaintiff’s application, the High Court held that the delegate’s decision was not affected by jurisdictional error. The Court held that cl 202.222(2) raises only one criterion for the grant of a visa: namely, that the Minister is satisfied that there are compelling reasons for giving special consideration to granting that visa. The capacity of the Australian community to provide for the permanent settlement of an applicant in Australia and the number of places in Australia’s Special Humanitarian Programme are considerations that may inform the Minister’s state of satisfaction. The Court also held that the departmental policy was not inconsistent with the Act or Regulations and that it had not been applied inflexibly.

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

On 17 December 2015 the High Court unanimously held that a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to cancel the plaintiff’s student visa under s 116(1)(b) of the Migration Act 1958 (Cth) for failure to comply with a condition of his visa was affected by jurisdictional error.

The plaintiff, a citizen of the People’s Republic of China, held a student visa. It was a condition of his visa that he be enrolled in a “registered course” provided by a “registered provider” under the Education Services for Overseas Students Act 2000 (Cth) (“the ESOS Act”). Section 19 of the ESOS Act requires registered providers to give information about student visa holders to the Secretary of the Department of Education and Training, including information confirming their enrolment. The information is stored on an electronic database known as “PRISMS” and can be accessed by officers of the Department of Immigration and Border Protection (“the Department”).

Between June 2013 and June 2014, the plaintiff was enrolled in a registered course provided by a registered provider. However, confirmation of the plaintiff’s enrolment was not recorded in PRISMS. On the basis of outdated information in PRISMS, officers of the Department formed the view in early 2014 that the plaintiff was not enrolled in a registered course. The officers formally complied with statutory requirements to notify the plaintiff that consideration was being given to cancelling his visa, but the plaintiff did not receive notice of that consideration. The plaintiff’s visa was cancelled by a delegate of the Minister on 20 March 2014. The plaintiff discovered that his visa had been cancelled on 2 October 2014 and sought review of the cancellation decision in the Migration Review Tribunal. The Tribunal determined that it did not have jurisdiction to review the decision.

The plaintiff filed an application for an order to show cause in the original jurisdiction of the High Court, seeking writs of certiorari and prohibition to quash the decision of the delegate and to prevent the Minister from giving effect to the delegate’s decision. The Court unanimously held that the delegate’s decision to cancel the plaintiff’s visa was affected by jurisdictional error. By majority, the Court held that the delegate’s satisfaction that the plaintiff was in breach of a visa condition was formed by a process of fact-finding tainted by the registered provider’s failure to perform its imperative statutory duty to upload onto PRISMS confirmation of the plaintiff’s enrolment. The Court granted the relief sought by the plaintiff.

Plaintiff M68/2015 v Minister for Immigration & Border Protection & Ors [2016] HCA 1

On 3 February 2016, the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff’s past detention at the Nauru Regional Processing Centre (“the Centre”) was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) (“the Act”) authorised the Commonwealth’s participation, to the extent that the Commonwealth did participate, in the plaintiff’s detention.

The plaintiff is a Bangladeshi national who was an “unauthorised maritime arrival” as defined by s 5AA of the Act upon entering Australia’s migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a “regional processing country” under s 198AB(1) of the Act.

On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru (“the second MOU”). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) (“the Administrative Arrangements”), Nauru undertook to allow transferees to remain on its territory whilst the transferees’ claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide “garrison and welfare services” (“the Transfield Contract”).

Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments.

The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth’s conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff’s liberty, including her detention, or the Commonwealth’s entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by s 198AHA of the Act, which is a valid law of the Commonwealth.

CGU Insurance Ltd v Blakely & Ors [2016] HCA 2

On 11 February 2016 the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the federal jurisdiction invested in the Supreme Court of Victoria authorised that Court to grant a declaration in favour of a plaintiff against a defendant’s insurer that the insurer is liable to indemnify the defendant.

The first respondents are liquidators of the second respondent, Akron Roads Pty Ltd (“the company”). They commenced proceedings in the Supreme Court seeking an order under s 588M(2) of the Corporations Act 2001 (Cth) (“the Act”) that the directors of the company, including Mr Trevor Crewe and Crewe Sharp Pty Ltd (“the directors”), pay to them as a debt due to the company, an amount equal to the amount of loss or damage suffered by creditors of the company due to alleged insolvent trading in breach of s 588G of the Act. Crewe Sharp made a claim on a professional indemnity policy with the appellant, CGU Insurance Ltd (“CGU”). Mr Crewe was also insured under that policy. CGU denied the claim on the basis that the insurance policy did not cover the liability asserted by the directors as a result of various exceptions in the policy. The directors were not in a position to challenge CGU’s denial of liability.

In the interlocutory stages of the proceedings, the liquidators sought an order to join CGU as a defendant and for leave to file and serve amended points of claim seeking a declaration that CGU was liable to indemnify the directors under the policy. In contending that they had a sufficient interest in the determination of CGU’s liability to support their claim for a declaration and joinder, the liquidators relied on s 562 of the Act. Section 562 afforded the liquidators a priority in respect of any insurance proceeds payable by CGU to Crewe Sharp. Section 117 of the Bankruptcy Act 1966 (Cth) would have imposed a similar priority, if Mr Crewe were to become bankrupt.

The primary judge in the Supreme Court made the orders sought, and the Court of Appeal dismissed CGU’s appeal. By grant of special leave, CGU appealed to the High Court, submitting that the Supreme Court lacked jurisdiction to join CGU and to grant declaratory relief at the suit of the liquidators regarding the effect of the private insurance contract between CGU and the directors, where the directors were not in a position to pursue any claim against CGU. In relation to federal jurisdiction, CGU’s argument reduced to the proposition that there was no justiciable controversy between the liquidators and CGU and therefore no “matter” on which to found federal jurisdiction.

The High Court dismissed the appeal, holding that the liquidator’s claim for relief was within the subject matter area of federal jurisdiction and constituted a justiciable controversy between the liquidators and CGU. It was confirmed that the Supreme Court had federal jurisdiction to entertain the liquidators’ claim and grant the declaration sought.

Tabcorp Holdings Ltd v State of Victoria [2016] HCA 4 

On 2 March 2016 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that Tabcorp Holdings Limited (“Tabcorp”) was not entitled to payment by the State of Victoria (“the State”) under s 4.3.12(1) of the Gambling Regulation Act 2003 (Vic) (“the 2003 Act”) because there was no “grant of new licences”. The appeal was heard concurrently with the appeal in Victoria v Tatts Group Ltd [2016] HCA 5. 

Tabcorp relevantly held conjoined licences — a wagering licence and a gaming licence — under the 2003 Act. Those licences were to expire in 2012. The gaming licence authorised Tabcorp to conduct gaming on gaming machines at approved venues in Victoria until that time. The licences were dealt with in Pt 3 of Ch 4 of the 2003 Act which included s 4.3.12(1). That section contained what was known as the “terminal payment provision” and relevantly provided that “[o]n the grant of new licences”, the holder of the former licences would be entitled to be paid a certain amount by the State. 

In 2008, the Premier of Victoria announced that Tabcorp’s licences would not be renewed upon their expiry and the 2003 Act was amended so that no further wagering licence or gaming licence could be granted. In 2009, further amendments to the 2003 Act provided for a new authority called a “gaming machine entitlement” (“GME”). A GME permitted its holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. They came into effect on 16 August 2012, being the day after Tabcorp’s wagering licence and gaming licence expired. The result was that the gaming operations which Tabcorp conducted under its gaming licence ceased and were then carried on by the holders of GMEs. 

Tabcorp claimed it was entitled to payment under the terminal payment provision. Before the primary judge, it contended that the allocation of the GMEs was the “grant of new licences” within the meaning of s 4.3.12(1) of the 2003 Act because the GMEs were “substantially similar” to the licences held by Tabcorp. The primary judge dismissed Tabcorp’s claim on the basis that the “grant of new licences” in s 4.3.12 was confined to new licences granted under Pt 3 of Ch 4 of the 2003 Act. The Court of Appeal dismissed Tabcorp’s appeal from that decision. By grant of special leave, Tabcorp appealed to the High Court. 

The High Court unanimously held that the phrase “grant of new licences” in s 4.3.12(1) of the 2003 Act meant the grant of a new wagering licence and a new gaming licence under Pt 3 of Ch 4 of the 2003 Act. As no new wagering licence and gaming licence were issued under Pt 3 of Ch 4 of the 2003 Act, Tabcorp was not entitled to payment under the terminal payment provision.  

State of Victoria v Tatts Group Ltd [2016] HCA 5

On 2 March 2016, the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that Tatts Group Limited (“Tatts”) was not entitled to payment by the State of Victoria (“the State”) under an agreement between them because a “new gaming operator’s licence” was never issued. The appeal was heard concurrently with the appeal in Tabcorp Holdings Ltd v Victoria [2016] HCA 4.

In 1992, Tatts was granted a “gaming operator’s licence” under Pt 3 of the Gaming Machine Control Act 1991 (Vic) (“the 1991 Act”). That licence was to expire in 2012 and authorised Tatts to conduct gaming on gaming machines at approved venues in Victoria until that time. In 1995, the State and Tatts entered into an agreement (“the 1995 Agreement”). Clause 7 provided for a terminal payment to be paid to Tatts “[i]f the Gaming Operator’s Licence expires without a new gaming operator’s licence having issued to [Tatts]” but for no amount to be payable if a new gaming operator’s licence was not issued at all, or was issued to Tatts or a related entity of Tatts.

In 2003, multiple pieces of legislation in Victoria regulating gambling in its various forms, including the 1991 Act, were re-enacted and consolidated into the Gambling Regulation Act 2003 (Vic) (“the 2003 Act”). Tatts retained the authority to carry on gaming operations under its gaming operator’s licence on substantially the same terms as under the 1991 Act. In 2008, the Premier of Victoria announced that Tatts’ gaming operator’s licence would not be renewed upon its expiry. In 2009, the 2003 Act was amended so that no further gaming operator’s licences could be issued. The amendments also provided for a new authority called a “gaming machine entitlement” (“GME”). A GME permitted the holder to conduct gaming on an approved gaming machine. 27,500 GMEs were created. They came into effect on 16 August 2012, being the day after Tatts’ gaming operator’s licence expired. Tatts did not apply for, or receive, any GMEs. The result was that the gaming operations which Tatts conducted under its gaming operator’s licence ceased and were then carried on by the holders of GMEs.

Tatts claimed it was entitled to payment under cl 7 of the 1995 Agreement. The primary judge found in Tatts’ favour, concluding that the reference in cl 7 of the 1995 Agreement to the issue of a “new gaming operator’s licence” would have been understood by a reasonable businessperson as the issue of any licence or authority of substantially the same kind as Tatts’ existing gaming operator’s licence. The Court of Appeal upheld that conclusion. By grant of special leave, the State appealed to the High Court.

The High Court allowed the State’s appeal and unanimously held that the phrase “new gaming operator’s licence” in cl 7 of the 1995 Agreement referred to a gaming operator’s licence granted under Pt 3 of the 1991 Act (as it might be amended, re-enacted or replaced from time to time). As a “new gaming operator’s licence” was never issued, Tatts was not entitled to payment under cl 7 of the 1995 Agreement.

R v GW [2016] HCA 6 

On 2 March 2016, the High Court unanimously allowed an appeal by the Director of Public Prosecutions for the Australian Capital Territory (“the DPP”) from a decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory. The High Court held that the Uniform Evidence legislation (“the UEL”) is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn. 

GW was convicted of committing an act of indecency in the presence of his five-year-old daughter, R. At the age of six, R gave evidence at a pre-trial hearing before a single judge of the Supreme Court. There was no dispute that R was competent to give evidence. R’s competence to give sworn evidence was in issue. Under the UEL, a person is not competent to give sworn evidence if the person does not have the capacity to understand that, in giving evidence, the person is under an obligation to give truthful evidence. A person who is competent to give evidence, but not sworn evidence, may give unsworn evidence provided the court tells the person of the importance of telling the truth and certain other matters. The pre-trial judge examined R to determine whether she was competent to give sworn evidence. His Honour ruled that he was not satisfied that R had the capacity to give sworn evidence and proposed that R’s evidence be taken unsworn. Defence counsel did not oppose that proposal. 

At GW’s trial, an audiovisual recording of R’s unsworn evidence was played to the jury over defence counsel’s objection. Defence counsel asked the trial judge to direct the jury that R’s evidence was unsworn because it had been found that R did not comprehend the obligation to tell the truth. The trial judge declined to give the direction sought. 

The Court of Appeal allowed GW’s appeal, set aside his conviction and ordered a new trial. The Court held that the pre-trial judge failed to comply with the UEL because his Honour had remarked at the conclusion of R’s examination that he was “not satisfied that [R] has the capacity” to give sworn evidence when the UEL required satisfaction that R did not have the capacity. The Court inferred that the pre-trial judge had, wrongly, treated the reception of unsworn evidence as the “default” position under the UEL. The Court also held that the trial judge should have instructed the jury on the differences between sworn and unsworn evidence and to take those differences into account in assessing the reliability of R’s evidence. By grant of special leave, the DPP appealed to the High Court. 

The High Court held that the pre-trial judge’s failure to express his conclusion about R’s capacity to give sworn evidence in the terms of the UEL did not support a finding that his Honour was not satisfied that R was not competent to give sworn evidence. The question of whether the pre-trial judge was satisfied that R lacked the capacity to give sworn evidence turned on a consideration of all the circumstances, including that the pre-trial judge took into account that R was a six-year-old child and examined R to determine her competence to give sworn evidence, allaying concerns about his Honour’s misapprehension of the “default” position. 

The High Court further held that the UEL is neutral in its treatment of the weight that may be accorded to sworn and unsworn evidence. Accordingly, the trial judge was not required to direct the jury as defence counsel sought. The fact that R did not give sworn evidence was not material to the jury’s assessment of the reliability of her evidence. No direction was required by the UEL or the common law.  

Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7

On 9 March 2016 the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Queensland. The High Court held that the respondent (“Mekpine”), the holder of a retail lease in a shopping centre on certain land (“former Lot 6”) that was later amalgamated with an adjacent lot of land (“former Lot 1”), did not acquire an interest over the entire amalgamated lot (“new Lot 1”). Accordingly, the High Court held that Mekpine was not entitled to compensation under the Acquisition of Land Act 1967 (Q) when part of new Lot 1 that was previously part of former Lot 1 was resumed by the appellant (“the Council”).

Mekpine entered into a retail lease in a shopping centre. The terms of the lease relevantly gave Mekpine an entitlement to use the “Common Areas” of the “Land”. “Land” was defined in the lease as former Lot 6. The lessor later purchased former Lot 1. In accordance with planning approval to extend the shopping centre, former Lot 6 was amalgamated with former Lot 1 by the registration of a plan of subdivision that created new Lot 1. Subsequently, the Council resumed a strip of vacant land from part of new Lot 1 that was previously part of former Lot 1 (“the Resumed Land”). The Resumed Land was never part of former Lot 6.

Mekpine brought proceedings in the Land Court of Queensland seeking compensation on the basis that it gained an interest in the Resumed Land upon registration of the plan of subdivision that created new Lot 1. In the alternative, Mekpine claimed it had an interest in the Resumed Land because the definition of “Common Areas” in the lease was inconsistent with, and should be substituted by, the broader definition of “common areas” in the Retail Shop Leases Act 1994 (Q) (“the RSLA”).

The Land Court upheld Mekpine’s claim for compensation. The Land Appeal Court of Queensland allowed the Council’s appeal from the Land Court’s judgment, concluding that the amalgamation of former Lot 1 with former Lot 6 did not confer on Mekpine any interest beyond the land previously comprised in former Lot 6. Mekpine appealed to the Court of Appeal of the Supreme Court of Queensland and the appeal was allowed. The Court of Appeal held that Mekpine had an interest in the Resumed Land because, on registration of the plan of subdivision that created new Lot 1, the reference to “Land” in the lease became a reference to new Lot 1. It also held that the RSLA, in effect, amended the lease so that the “Common Areas” as defined in the lease became the “common areas” in new Lot 1.

By grant of special leave, the Council appealed to the High Court. The High Court unanimously allowed the appeal, holding that, despite the registration of the plan of subdivision that created new Lot 1, the terms of the lease confined Mekpine’s interest to so much of new Lot 1 as had previously been comprised in former Lot 6. The Court also held that the RSLA definition of “common areas” did not supplant the definition of “Common Areas” in the lease to give Mekpine a compensable interest in the Resumed Land.

R & Anor v Independent Broad-Based Anti-Corruption Commissioner [2016] HCA 8

On 10 March 2016 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the power of the Independent Broad‑based Anti‑corruption Commission (“the IBAC”) to hold an examination under Pt 6 of the Independent Broad‑based Anti‑corruption Commission Act 2011 (Vic) (“the IBAC Act”) can be exercised in relation to persons who have not been, but might subsequently be, charged and put on trial for an offence relating to the subject matter of the examination.

On 20 March 2015, the IBAC commenced an investigation into the conduct of certain members of Victoria Police stationed at Ballarat police station. The investigation, named “Operation Ross”, was concerned with whether the appellants, two officers of Victoria Police, assaulted a woman in a cell at the Ballarat police station on 15 January 2015 as well as with a number of other incidents alleged to have occurred at the Ballarat police station in recent years which might have involved human rights violations in respect of other women.

On 1 April 2015, the IBAC issued a witness summons to each of the appellants, requiring them to give evidence in a public examination of their knowledge of matters falling within the scope of Operation Ross. The appellants each delivered written submissions to the IBAC Commissioner submitting that the examinations should be held in private. The first appellant also submitted that the first appellant could not be compelled to give evidence. The Commissioner rejected the appellants’ submissions.

On 16 April 2015, the appellants commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing the IBAC from examining them. The primary judge dismissed the claim. His Honour held that because the appellants had not yet been charged with an offence, the process of criminal justice had not commenced and the principle whereby an accused person cannot be compelled to assist the prosecution to make its case (“the companion principle”) had not been engaged. The primary judge also held that the IBAC Act had abrogated each appellant’s privilege against self‑incrimination. The Court of Appeal refused the appellants leave to appeal against the primary judge’s decision.

By grant of special leave, the appellants appealed to the High Court. The Court held that the companion principle was not engaged, and so could not prevent the IBAC’s examination, because the appellants had not been charged with any offence and there was no prosecution pending. There was no reason to extend the principle to the circumstances of the present case and to do so would fetter the pursuit and exposure of a lack of probity within the police force contrary to the object of the IBAC Act. The Court also held that the privilege against self‑incrimination was abrogated by s 144 of the IBAC Act.

Fischer & Ors v Nemeske Pty Ltd & Ors [2016] HCA 11

On 6 April 2016 the High Court, by majority, dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that a trustee had validly exercised a power to “advance” and “apply” trust capital or income by creating a debt reflecting the value of shares held by the trustee at the time the advance was made.

The appellants are beneficiaries of the Nemes Family Trust (“the Trust”), of which the first respondent, Nemeske Pty Ltd, is trustee (“the Trustee”). The Trust’s principal assets are shares in a second company, Aladdin Ltd (“Aladdin”). In July 1994, the value of those shares, $3,904,300, was recorded in an “asset revaluation reserve”. In September 1994, the Trustee passed a resolution which distributed the whole of the asset revaluation reserve to two other beneficiaries of the Trust, Mr Emery Nemes and Mrs Madeleine Nemes. In August 1995, the Trustee executed a deed purportedly charging the shares in Aladdin in Mr and Mrs Nemes’ favour (“the Deed of Charge”). In the Deed of Charge, the Trustee recited that it was indebted to Mr and Mrs Nemes in the sum of $3,904,300, and covenanted that it would pay the amount of that debt upon their demand. Mr and Mrs Nemes both died before any demand was made. Mr Nemes bequeathed all the shares in the Trustee and in Aladdin to the appellants. The residuary estate was left to other persons.

The appellants commenced proceedings against the Trustee, the executors of Mr Nemes’ estate (“the executors”) and other beneficiaries of the Trust, seeking declarations including that the distribution made from the Trust was of no effect or void. The executors cross-claimed, seeking payment of the amount allegedly owing to Mr Nemes’ estate.

The primary judge in the Supreme Court of New South Wales held that the resolution was a valid exercise of the Trustee’s power to advance and apply trust capital or income under the terms of the trust deed. That conclusion was upheld by the Court of Appeal, which also held that although there was no power to charge the shares, the covenant in the Deed of Charge confirmed that the debt owing to Mr and Mrs Nemes was payable on demand. By grant of special leave, the appellants appealed to the High Court.

The majority of the High Court dismissed the appeal, holding that the resolution was an effective exercise of the Trustee’s power to advance and apply trust capital or income, notwithstanding that there was no change in the beneficial ownership of the shares. The majority held that the resolution created a creditor/debtor relationship, enforceable at law, between Mr and Mrs Nemes and the Trustee. Further, the covenant in the Deed of Charge supported the advance and application made by the Trustee’s resolution.

Zaburoni v The Queen [2016] HCA 12

On 6 April 2016, the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that where proof of intention to produce a particular result is made an element of liability for an offence, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. The majority reasoned that knowledge or foresight of result, whether possible, probable or certain, is not a substitute for proof of specific intent.

The appellant was convicted by a jury in the District Court of Queensland of unlawfully transmitting a serious disease to another with intent to do so under s 317(b) of the Criminal Code (Q). The serious disease that he transmitted to the complainant was the human immunodeficiency virus (“HIV”). The appellant was diagnosed with HIV in 1998 and was informed then that there was a risk of transmission of the disease through unprotected sexual intercourse. He commenced a relationship with the complainant in 2007 but did not disclose to her that he was HIV positive. They engaged in frequent unprotected sexual intercourse during their relationship, which lasted until September 2008. The complainant was diagnosed as HIV positive a year after their relationship ended. The appellant lied to the complainant about his HIV status several times during and after their relationship.

The appellant appealed against his conviction to the Court of Appeal contending, that the verdict was unreasonable as the evidence did not establish that he intended to transmit HIV to the complainant. The Court of Appeal dismissed the appeal. The majority held that it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to transmit HIV to the complainant, in circumstances in which he had engaged in frequent acts of unprotected sexual intercourse with her, knowing that he was HIV positive.

By grant of special leave, the appellant appealed to the High Court. The High Court held that where liability for an offence requires proof of intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct. Purpose is not to be equated with motive and a person may engage in conduct having more than one purpose. A person’s awareness of the risk that his or her conduct may result in harm does not, without more, support the inference that the person intended to produce the harm.

The High Court held that, apart from the evidence that the appellant engaged in frequent unprotected sexual intercourse with the complainant, there was no evidence to support the inference that the appellant had the intention to transmit HIV to her. It followed that the conviction must be quashed. The Court set aside the orders of the Court of Appeal and substituted for the verdict of the jury a verdict of guilty of unlawfully doing grievous bodily harm to the complainant, to which the appellant had pleaded guilty. The proceedings were remitted to the District Court of Queensland for sentence.

Mok v Director of Public Prosecutions (NSW) [2016] HCA 13

On 6 April 2016, the High Court dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that by operation of s 89(4) of the Service and Execution of Process Act 1992 (Cth) (“SEPA”) the appellant could be found guilty of the offence of attempting to escape lawful custody under s 310D of the Crimes Act 1900 (NSW) (“Crimes Act”).

SEPA provides for the execution throughout Australia of warrants authorising the apprehension of persons under State laws. Under SEPA, a person named in a warrant issued in one State may be apprehended in another State and taken before a magistrate in that State. On production of the warrant, the magistrate in the second State must make an order under s 83(8) of SEPA for the person to be remanded on bail to appear in, or be taken in custody to, the State in which the warrant was issued. Section 89(4) of SEPA relevantly provides that the law relating to the liability of a person who escapes from lawful custody which is in force in the place of issue of the warrant will apply to a person taken to the place of issue of the warrant in compliance with an order under s 83(8).

In 2003, the appellant was arrested and charged in New South Wales with fraud offences to which he pleaded guilty. He was committed to the District Court of New South Wales for sentence on 13 April 2006 but did not appear. A warrant was issued for his apprehension (“the NSW warrant”). Several years later the appellant was arrested in Victoria and charged with separate offences. After being sentenced for those offences, the appellant was arrested by a Victorian police officer pursuant to the NSW warrant. The following day a Victorian magistrate made an order under s 83(8)(b) of SEPA requiring the appellant be taken in custody to New South Wales. While in custody at Tullamarine Airport, the appellant escaped and was re-arrested a short time later. Once in New South Wales, he was charged under s 310D of the Crimes Act, which makes it an offence for an “inmate” to escape or attempt to escape from lawful custody.

At first instance the magistrate dismissed the charge against the appellant, finding that while s 310D was applicable by virtue of s 89(4) of SEPA, the appellant was not an “inmate” within the meaning of that term in s 310D of the Crimes Act. The Supreme Court of New South Wales overturned the magistrate’s decision. The appellant appealed to the Court of Appeal. In dismissing the appeal, the Court of Appeal held that s 89(4) of SEPA acted on s 310D of the Crimes Act to create a new federal offence which applied to all persons being taken to New South Wales in compliance with a relevant order under SEPA. Section 89(4) applied s 310D of the Crimes Act in an altered form, meaning it was not relevant whether the appellant was an “inmate” within the scope of s 310D in its ordinary operation as an offence under State law.

By grant of special leave, the appellant appealed to the High Court. The High Court dismissed the appeal, holding that s 89(4) of SEPA applied s 310D of the Crimes Act as federal law and, by majority, that it was not a requirement of the federal offence that the appellant answer the description of “inmate”.

IMM v The Queen [2016] HCA 14

On 14 April 2016, the High Court unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Northern Territory. The Court held, by majority, that in determining the probative value of evidence for the purposes of ss 97(1)(b) and 137 of the Evidence (National Uniform Legislation) Act (NT) (“the Evidence Act”), a trial judge should assume that the jury will accept the evidence and, thus, should not have regard to the credibility or the reliability of the evidence.

The appellant was convicted by a jury in the Supreme Court of the Northern Territory of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years. The complainant was the appellant’s step-granddaughter. The prosecution was permitted to adduce “tendency evidence”, given by the complainant, that while the complainant and another girl were giving the appellant a back massage, the appellant ran his hand up the complainant’s leg. Section 97(1)(b) of the Evidence Act provides that evidence that has “significant probative value” be excepted from the “tendency rule”, which would otherwise render the evidence inadmissible. The prosecution was also permitted to adduce “complaint evidence”, which was evidence of complaints made by the complainant to other persons concerning the appellant’s conduct. The trial judge refused to exclude the complaint evidence under s 137 of the Evidence Act, which provides that evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice to the defendant. The trial judge approached the task of assessing the probative value of both the tendency evidence and the complaint evidence on the assumption that the jury would accept the evidence.

The appellant appealed against his conviction to the Court of Criminal Appeal contending, relevantly, that the trial judge erred in admitting the tendency evidence and the complaint evidence. The Court of Criminal Appeal unanimously dismissed the appeal.

By grant of special leave, the appellant appealed to the High Court. The High Court held, by majority, that, in determining the “probative value” of evidence under the Evidence Act, a trial judge must proceed on the assumption that the jury will accept the evidence, and as such it follows that no question as to credibility or reliability of the evidence can arise.

The High Court held, by majority, that the probative value of the complaint evidence was potentially significant. Further, the evidence did not create the prejudice to which s 137 of the Evidence Act referred, and as such the evidence was admissible. However the Court also held, by majority, that evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, probative value. Accordingly, the tendency evidence was not admissible under s 97(1)(b). It followed that the trial miscarried. The Court set aside the order of the Court of Criminal Appeal and ordered that the appeal be allowed, that the appellant’s conviction be quashed and that there be a new trial of the offences of which the appellant was convicted.

Coverdale v West Coast Council [2016] HCA 15

On 14 April 2016, the High Court unanimously dismissed an appeal from a decision of the Full Court of the Supreme Court of Tasmania (“the Full Court”). The High Court held that the seabed and waters of Macquarie Harbour on the west coast of Tasmania are “Crown lands” within the meaning of s 11(1) of the Valuation of Land Act 2001 (Tas) (“the VLA”).

The respondent (“the Council”) sought to levy rates on eight marine farming leases over parts of the seabed and waters within Macquarie Harbour. To that end, it requested the appellant (“the Valuer-General”) to value the leases in accordance with s 11(1) of the VLA. In substance, s 11(1) of the VLA provides that the Valuer-General must value all lands within each valuation district, including certain Crown lands that are liable to be rated. The Valuer‑General declined to value the leases on the basis that, in the Valuer-General’s opinion, the leases were not over “lands” or “Crown lands” within the meaning of s 11(1) because those terms did not include the seabed and waters above it.

The Council instituted proceedings in the Supreme Court of Tasmania for, among other relief, a declaration that the Valuer-General was obliged to value the marine farming leases. At first instance, the Council’s action was dismissed on the basis that the leases were not over lands within the meaning of s 11(1) of the VLA and, therefore, were not liable to be rated. The Council appealed to the Full Court and a majority of the Full Court allowed the appeal. It held that the leases were over Crown lands that were liable to be rated.

By grant of special leave, the Valuer-General appealed to the High Court. The High Court unanimously dismissed the appeal, holding that “Crown lands” in s 11(1) of the VLA had the same meaning as that ascribed to it in s 2 of the Crown Lands Act 1976 (Tas). Accordingly, “Crown lands” in s 11(1) of the VLA included the seabed and so much of the sea as lies above it.