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High Court of Australia – [HCA]

  • Commonwealth of Australia v AJL20 [2021] HCA 21 (23 June 2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)
    Catchwords:
    Constitutional law (Cth) – Immigration – Tort – False imprisonment – Where respondent "unlawful non-citizen" detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) – Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of "unlawful non-citizen" from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa – Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution – Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support.

    Words and phrases – "aliens", "deportation", "duty to remove", "exclusive vesting of the judicial power of the Commonwealth", "executive detention", "executive power", "executive purpose", "false imprisonment", "habeas corpus", "hedging duty", "judicial power", "lawful non-citizen", "legitimate non-punitive purposes", "Lim principle", "mandamus", "non-refoulement", "Parliamentary supremacy", "reading down", "removal", "remove as soon as reasonably practicable", "separation of powers", "statutory duty", "statutory purposes", "terminating events", "unlawful non-citizen", "visa".
  • Price v Spoor [2021] HCA 20 (23 June 2021) (Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ)
    Catchwords:
    Limitation of actions – Exclusion by agreement – Where mortgages over land secured loan – Where mortgagors failed to repay loan – Where mortgagees brought proceedings to recover monies owing and possession of land secured by mortgages – Where mortgagors contended mortgagees statute-barred from enforcing rights under mortgages as a result of expiry of relevant time period under Limitation of Actions Act 1974 (Qld) ("Act") – Where mortgagors contended mortgagees' title under mortgages extinguished by operation of s 24 of Act – Where mortgagees contended that mortgagors agreed not to plead any defence under Act by virtue of cl 24 of mortgages – Whether cl 24 effective to prevent mortgagors from pleading any defence under Act – Whether agreement not to plead any defence under Act unenforceable as contrary to public policy – Whether s 24 of Act operated automatically to extinguish mortgagees' title at expiry of relevant time period – Whether mortgagees' remedy confined to damages for mortgagors' breach of cl 24 of mortgages.

    Words and phrases – "action", "agreement", "agreement not to plead", "benefit", "breach of contract", "contracting out", "defeated", "defence", "defence of limitation", "expiry", "extinguishment of title", "finality of litigation", "jurisdiction of the court", "limitation period", "limitations defence", "plea", "public interest", "public policy", "reasonable business person", "remedy", "shall not be brought", "statute-barred", "statute of limitations", "statutory bar", "statutory right", "waiver".
  • Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19 (16 June 2021) (Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ)
    Catchwords:
    Immigration – Visas – Application for special category visa – Where respondent's special category visa purportedly cancelled and respondent required to depart Australia in 2018 – Where purported cancellation decision subsequently quashed – Where respondent returned to Australia and refused a special category visa on the basis she was a "behaviour concern non-citizen" as defined in s 5(1) of Migration Act 1958 (Cth) ("Act") due to her removal in 2018 – Where s 5(1) of Act defined "behaviour concern non-citizen" in para (d) as a non-citizen who "has been removed or deported from Australia or removed or deported from another country" – Whether respondent was a "behaviour concern non-citizen" within meaning of para (d) – Whether "removed ... from Australia" means removed in fact or removed in accordance with Act.

    Words and phrases – "behaviour concern non-citizen", "harsh consequences", "nullity", "removed", "removed or deported from", "theory of the second actor".
  • LibertyWorks Inc v Commonwealth of Australia [2021] HCA 18 (16 June 2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)
    Catchwords:
    Constitutional law (Cth) – Implied freedom of communication about governmental or political matters ("implied freedom") – Where Foreign Influence Transparency Scheme Act 2018 (Cth) ("Act") included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence – Where foreign principal defined to include foreign political organisation – Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity – Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom ­– Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

    Words and phrases – "adequate in its balance", "burden", "communications activity", "compelling justification", "disclosure", "foreign influence", "foreign interference", "foreign political organisation", "foreign principal", "legitimate purpose", "narrowly tailored", "necessary", "political or governmental influence", "prior restraint", "register", "registration", "scheme information", "structured proportionality", "suitable", "transparency", "undisclosed influence".
  • MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (19 May 2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)
    Catchwords:
    Immigration – Refugees – Application for protection visa – Where appellant applied to Refugee Review Tribunal ("Tribunal") for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) ("Act") – Where s 438 notification issued under Act in relation to material including appellant's criminal record – Where Tribunal did not disclose existence of s 438 notification to appellant – Where first respondent conceded failure to disclose amounted to breach of procedural fairness – Where information covered by s 438 notification not referred to in reasons for decision – Whether breach material – Whether Tribunal in fact took s 438 notification information into account in making decision – Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account – Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision – Whether appellant or first respondent bore onus of proof of materiality – Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences.

    Words and phrases – "counterfactual inquiry", "credit", "discharging the burden of proof", "failure to disclose", "judicial review", "jurisdictional error", "lost opportunity to present legal and factual argument", "materiality", "onus of proof", "opportunity to be heard", "practical injustice", "presumption", "procedural fairness", "realistic possibility", "reasonable conjecture", "statutory interpretation", "subconscious impact", "threshold of materiality".
  • Zhang v Commissioner of Police [2021] HCA 16 (12 May 2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)
    Catchwords:
    Police – Search warrants – Validity of warrants – Validity of orders – Where officers of Australian Federal Police ("AFP") searched premises in reliance on warrants – Where officers of AFP seized material they believed relevant to offences against s 92.3(1) and (2) of Criminal Code (Cth) – Where officers examined and copied data from electronic devices at searched premises – Where plaintiff compelled to provide passcodes to devices pursuant to orders under s 3LA of Crimes Act 1914 (Cth) – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Whether warrants identified the substance of offences against s 92.3(1) of Criminal Code with sufficient precision.

    Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Where plaintiff accepted various sub-paragraphs of s 92.3(1)(b), (c) and (d) capable of severance under s 15A of Acts Interpretation Act 1901 (Cth) – Whether appropriate to proceed to determine constitutional validity of s 92.3(1) of Criminal Code or construction of "covert".

    Words and phrases – "covert", "foreign government principal", "foreign influence", "foreign interference", "foreign principal", "implied freedom of political communication", "necessary to decide", "premature interpretation of statutes", "prudential considerations", "read down", "search warrants", "severable", "severance", "substance of the offences", "sufficient precision", "unnecessary and inappropriate to answer".
  • Talacko v Talacko [2021] HCA 15 (12 May 2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)
    Catchwords:
    Tort – Unlawful means conspiracy – Loss or damage – Loss of chance – Loss of value of rights or chose in action – Damages – Where conspiracy by unlawful means undertaken to deprive first to fifth respondents ("Respondents") of value of chose in action arising from judgment in their favour – Where conspiracy involved agreements by which valuable properties in Czech Republic were transferred to impede recovery by Respondents of anticipated judgment debt ("Donation Agreement") – Where Respondents commenced proceedings in Czech Republic against two conspirators to set aside Donation Agreement ("Donation Agreement Proceedings") – Where Respondents had 20% prospect of successfully recovering through Donation Agreement Proceedings – Whether loss or damage proved such that unlawful means conspiracy was actionable – Whether damages for unlawful means conspiracy should be discounted to reflect 20% prospect of separate recovery through Donation Agreement Proceedings.

    Words and phrases – "actionable", "chance of recovery", "chose in action", "contingent", "damages", "diminution in value", "judgment debt", "loss of chance", "loss of opportunity", "loss or damage", "prospect of recovery", "quantification of damages", "unlawful means conspiracy", "value of a plaintiff's rights".
  • Plaintiff M7/2021 v Minister for Home Affairs [2021] HCA 14 (15 April 2021) (Gordon J)
    Catchwords:
    Immigration – Refugees – Application for protection visa – Where plaintiff claimed protection on basis of feared persecution in Pakistan on account of homosexuality – Where delegate of defendant refused protection visa – Where delegate found evidence, including "open source social media", did not support view plaintiff was known homosexual in Pakistan – Where open source social media was "relevant information" within meaning of s 57(1) of Migration Act 1958 (Cth) – Where s 57(2) required defendant to give particulars of "relevant information" to plaintiff to ensure, as far as reasonably practicable, plaintiff understood why it was relevant, and invite plaintiff to comment – Whether defendant failed to comply with s 57(2) by failing to disclose open source social media or provide particulars to enable plaintiff to understand why information was relevant to protection visa application.

    Words and phrases – "active group of friends and family", "depends on the facts and circumstances of the case", "disclosure of the substance of the relevant information", "fabricated his claim to be a homosexual", "give particulars", "homosexuality", "open source social media", "opportunity to meaningfully respond", "relevant information", "sexual identity", "sufficient clarity or specificity".
  • Namoa v The Queen [2021] HCA 13 (14 April 2021) (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ)
    Catchwords:
    Criminal law (Cth) – Conspiracy – Where s 11.5(1) of Criminal Code (Cth) established offence of conspiracy – Where appellant charged with conspiring to do acts in preparation for terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code – Whether s 11.5 applies to spouses who agree between themselves, and no other person, to commit offence against Commonwealth law – Whether interpretation of s 11.5 of Criminal Code affected by any common law rule that spouses alone cannot conspire – Whether references in s 11.5 of Criminal Code to "person" and "another person" include two spouses – Whether meaning of "conspires" and "conspiracy" in s 11.5 of Criminal Code incorporates any common law rule that spouses alone cannot conspire.

    Words and phrases – "another person", "common law rule", "conspiracy", "conspires", "doctrine of unity", "person", "single legal personality of spouses".
  • DVO16 v Minister for Immigration and Border Protection [2021] HCA 12 (14 April 2021) (Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ)
    Catchwords:
    Immigration – Refugees – Application for protection visa – Where appellants each applied for protection visas – Where each appellant interviewed by delegate of Minister – Where each appellant assisted by interpreter in interview – Where interviews affected by translation errors in questions asked and responses given – Where Immigration Assessment Authority ("Authority") conducted review under Pt 7AA of Migration Act 1958 (Cth) – Where in case of DVO16, Authority not aware of translation errors – Where in case of BNB17, Authority aware of three translation errors – Where in each case Authority did not exercise powers to get new information under Pt 7AA – Where in each case Authority affirmed delegate's decision to refuse visa – Whether Authority's exercise of powers unreasonable – Whether Authority failed to comply with statutory duty to "review" decision under Pt 7AA.

    Words and phrases – "automatic merits review", "claims to protection in fact made", "de novo assessment of the merits", "failing to consider substance of claim", "fast track reviewable decision", "Immigration Assessment Authority", "interpretation", "interpretation error", "interpreter", "jurisdictional error", "mistranslation", "new information", "overriding duty", "reasonableness condition", "translation", "translation error".

Supreme Court of Tasmania – Full Court [TASFC]

Supreme Court of Tasmania – Court of Criminal Appeal [TASCCA]

Supreme Court of Tasmania – [TASSC]

  • Tasmania v Rattigan [2021] TASSC 28 (06 July 2021) (Pearce J)
    Catchwords:
    Workers Compensation – Proceedings to obtain compensation – Preliminary requirements – Interim payments

    – Reasonably arguable case for employer – Error in point of law to find arguable case not established.
  • Prestage v Barrett [2021] TASSC 27 (02 July 2021) (Estcourt J)
    Catchwords:
    Torts – Negligence – Damage and causation – Causation – At common law – Generally – Circumstantial case

    – Campfire lit in a tree stump and not fully extinguished – Bushfire spread to surrounding areas –

    Campfire cause of bushfire – Bushfire the cause of the plaintiffs' loss and damage.
  • Gadtech Materials Pty Ltd v Magistrates Court of Tasmania [2021] TASSC 29 (30 June 2021) (Blow CJ)
    Catchwords:
    Energy and Resources – Minerals – Courts or tribunals exercising jurisdiction in mining matters – Tasmania – Mining Tribunal – Application for determination of compensation payable to landowner – Standing of applicant – Proposed transferee of mining lease – Not "an applicant for a mineral tenement".
  • State of Tasmania v Stirling [2021] TASSC 25 (24 June 2021) (Blow CJ)
    Catchwords:
    Workers Compensation – Employment related injury, disability or disease – Employment "substantial or significant contributing factor" – "Contributing factor" in relation to disease or disease "due to nature of employment" – Particular cases – Adjustment disorder – Contributing factors incidental to
  • Borg Manufacturing Pty Ltd v Van't Sant [2021] TASSC 24 (23 June 2021) (Blow CJ)
    Catchwords:
    Guarantee and Indemnity – Contract of guarantee – Parties and capacity – Guarantee of company's debts by director – Director also trustee of family trust – Whether guarantee and equitable charge given both in
  • Triffitt v McTaggart [2021] TASSC 26 (11 June 2021) (Blow CJ)
    Catchwords:
    Magistrates – Coroners – Autopsy or post mortem – Application that autopsy not be performed – Religious beliefs – Foul play unable to be ruled out.
  • Tassal Operations Pty Ltd v Lese [2021] TASSC 22 (08 June 2021) (Pearce J)
    Catchwords:
    Workers Compensation – Entitlement to compensation – Injury, disease or disability – Disease – Aggravation
    or acceleration of pre-existing disease or condition – General principles – Causation – Employment
    major or most significant contributing factor to aggravation, acceleration, exacerbation or deterioration
    of pre-existing disease.
  • Wilkie v Barnaba [2021] TASSC 21 (31 May 2021) (Wood J)
    Catchwords:
    Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Breath analysis result of .151 – Driver did not elect blood sample because he mistakenly thought he could be charged with a second offence – Police officer unaware of misapprehension – Magistrate excluded evidence of breath analysis pursuant to s 138 of the Evidence Act because of unfairness to respondent – Error shown as evidence was not improperly obtained and s 138 not enlivened – Consideration given to 'general fairness discretion' at common law to exclude evidence.
  • Hansen Yuncken Pty Ltd v Parliament Square Hobart; Landowner Pty Ltd (No 2) [2021] TASSC 20 (31 May 2021) (Blow CJ)
    Catchwords:
    Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of court – Other matters – Stay

    pending appeal – Construction contract – Appeal from determination that proprietor entitled to have

    recourse to bond – Application for injunction to preserve status quo pending appeal – Injunction refused.
  • Content removed [2021] TASSC 19 (18 May 2021)