The Justices of the High Court returned from their winter break on 8 August, delivering three reserved judgments on Wednesday 10th.

Farm Transparency International Ltd v New South Wales [2022] HCA 23; (2022) 96 ALJR 655 considered whether provisions of the Surveillance Devices Act 2007 (NSW) inhibited the implied constitutional freedom of political communication.  The first plaintiff was a not-for-profit organisation with an interest in animal welfare.  Its director, the second plaintiff placed hidden cameras, in breach of the Act, on private property where farming and slaughter of animals were lawfully conducted.  Video footage of these practices was then published on the plaintiff’s website.  The plaintiffs sought declarations in the original jurisdiction of the court to the effect that ss 11 and 12 of the Act were invalid in their application to the plaintiff’s activities because the sections imposed an impermissible burden on the implied freedom.  The questions of validity were referred by Keane J for consideration by the full court, which held by a bare majority that the impugned provisions were not invalid in the circumstances.

O’Dea v Western Australia [2022] HCA 24; (2022) 96 ALJR 710, on appeal from the Western Australian Court of Appeal, concerned the criminal liability of an aider or enabler in the commission of an offence of grievous bodily harm with intent, contrary to the Criminal Code (WA), s 294(1)(a).  The appellant and his co-offender, Webb, intervened in an altercation taking place in the street outside their house, purportedly in defence of one of the participants whom they assumed was being attacked by the ultimate victim.  They kicked and beat the victim to the point where he suffered traumatic brain injury and several fractures.  Following a jury trial in the District Court of Western Australia the appellant was convicted of the charge, but the jury could not reach a verdict in respect of Webb.  The trial judge had directed the jury in terms of both s 7(a) and 7(c) of the Criminal Code, concerning the liability of offenders acting together or in concert.  The Court of Appeal held that the aiding provision in s 7(c) was inapplicable and the jury could not have returned a guilty verdict in respect of Mr O’Dea as an aider if it could not conclude that Mr Webb was criminally responsible for the charged offence.  Nevertheless, the court held that the jury could validly have reasoned to a verdict of guilt on the basis of s 7(a) “by amalgamating the acts of Mr O'Dea and Mr Webb without having concluded that Mr Webb's acts were unlawful and without having concluded that their acts were the result of an unlawful common purpose.”  The Court of Appeal therefore upheld Mr O’Dea’s conviction.  A five-member bench of the High Court allowed his appeal by majority and ordered a new trial on the basis that the s 7(a) direction given by the judge misstated the concept of “acting in concert” under the Code.

Dansie v The Queen [2022] HCA 25; 96 ALJR 728, was an appeal from South Australia against a verdict of guilty of murder following a trial by Lovell J sitting alone.  The appellant’s wife, who was confined to a wheelchair, drowned in a pond.  At trial the prosecution was required to prove that she was killed by the appellant and did not drown accidentally.  Inferences to be drawn from the established facts played a crucial part.  After drawing a number of inferences adverse to the appellant, Lovell J concluded that the only rational inference available on the evidence was that the appellant intentionally pushed the wheelchair into the pond with the intent of killing his wife.  That finding was upheld by a majority of the South Australian Court of Criminal Appeal.  Mr Dansie’s appeal to the High Court was heard by five-member bench, which unanimously held that the Court of Criminal Appeal had misinterpreted the relevant test, set out in M v The Queen (1994) 181 CLR 487.  That test required the appellate court to ask whether they were independently satisfied, as a result of the whole of the evidence adduced at trial, that the only rational inference available on that evidence was that the appellant pushed the wheelchair into the pond deliberately and with intention to kill; or if not, that the trial judge’s satisfaction as to guilt could be attributed to some identified advantage that his Honour had over the appellate court in assessing the evidence.  The case was remitted to the Court of Criminal Appeal for rehearing.

Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766 concerned Google’s position as a search engine in the publication of defamatory matter reached via hyperlinks embedded in search results, where the search is initiated by a user.  The respondent was a legal practitioner in Victoria who claimed to have been defamed by articles published in The Age newspaper in 2004 and accessible by means of a Google search of his name.  He asked Google to remove the search result, which it refused to do.  The respondent then commenced defamation proceedings against Google in the Supreme Court of Victoria, alleging that it was a publisher of the defamatory matter.  Richards J found that the matter was indeed defamatory and that Google had lent assistance to its publication.  Her Honour rejected Google’s defences of innocent dissemination and qualified privilege, awarding the respondent damages of $40,000.  The Victorian Court of Appeal affirmed Richards J’s decision in a unanimous joint judgment.  A majority of the High Court (Keane and Gordon JJ dissenting) allowed Google’s appeal, holding that the hyperlink merely facilitated access to the defamatory Age article and was not an act of participation in communicating that article to third parties, nor had Google played any other part in its writing or dissemination.  In those circumstances it was not necessary to consider the application of defences.  The court considered US and Canadian authority on the impact of the internet on defamation law but declined to follow it.  Gageler J in dissent noted that “[t]he ubiquity of the Internet and the centrality of hyperlinks to its operation make consistency in the characterisation of a hyperlink across common law jurisdictions especially desirable.”

In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 the plaintiff sought an extension of time pursuant to the Migration Act 1958 (Cth), s 477A(2) in which to apply for a Federal Court review of a visa cancellation.  Nicholas J refused the application, not being satisfied that the proposed substantive application had any merit.  The plaintiff then applied to the High Court for constitutional writs, alleging that Nicholas J misapprehended or misconceived the statutory power to extend time by going further than assessing the substantive application’s prospects of success and undertaking a more complete review of the merits.  Gageler J referred the plaintiff’s application for consideration by the full court, which unanimously dismissed the application.  In a joint judgment Kiefel CJ, Gageler, Keane and Gleeson JJ held that it was permissible and appropriate for the primary judge to assess whether the proposed ground of review had any merit in order to decide the extension of time application.  Gordon, Edelman and Steward JJ in a concurring joint judgment stated that even if the primary judge assessed the merits at more than a threshold or impressionistic level, his Honour did not fall into jurisdictional error by misconceiving the nature of the function he was performing.

Aristocrat Technologies Australia Pty Ltd v Commissioner of Patents [2022] HCA 29; (2002) 96 ALJR 837 examined the patentability of a new form of poker machine gaming involving feature games run by a software application.  The respondent Commissioner revoked Aristocrat’s innovation patents, taking the view that the software application was not patentable within the meaning of the Patents Act 1990 (Cth), s 18(1A) because it did not amount to a “manner of manufacture”.  Aristocrat successfully appealed the revocation to the Federal Court of Australia, but the primary judge’s decision was reversed by the Full Court.  Aristocrat’s further appeal to the High Court was unsuccessful in the absence of a clear majority in the six-member bench.  Kiefel CJ, Gageler and Keane JJ held that the claimed invention was no more than a claim for a new system or method of gaming, where the invention was only claimed to subsist in the feature game: it involved no more than an unpatentable game operated by a wholly conventional computer, using technology that had not been adapted in any way.  Gordon, Edelman and Steward JJ to the contrary stated that in the 21st century, a law such as s 18(1A) that is designed to encourage invention and innovation should not lead to a different conclusion where physical cogs, reels and motors are replaced by complex software that generates digital images.  At least at High Court level, the issue therefore remains unresolved.

Ceremonial Sitting

On 18 August the Court held a ceremonial sitting to honour the late Sir Gerard Brennan AC KBE QC, a member of the court for 17 years and its tenth Chief Justice from 1995 to 1998.  Kiefel CJ, after acknowledging the presence of numerous dignitaries including former members of the High Court and sitting members of State and Territory courts, gave a 15-minute tribute outlining Sir Gerard’s long and distinguished career in the law.  Summarising his contribution to the jurisprudence of the High Court, her Honour said:

Sir Gerard’s judgments in so many areas of the law reveal a depth of intellect and prescience.  I am spared the difficulty of having to identify the most important or memorable … because he referred to them himself in his interview for the oral history project, with the usual caveat that each case that comes before the Court is important.  He singled out as being particularly memorable the Tasmanian Dam Case, Waltons Stores v Maher, Street v Queensland Bar Association, Todorovic v Waller, Marion’s Case (which he described as the hardest judgment he ever wrote)and, of course, Mabo (No 2).  His judgments appear in 48 volumes of the Commonwealth Law Reports.