In the first of these, CCIG Investments Pty Ltd v Schokman [2023] HCA 21; (2023) 97 ALJR 551; 324 IR 452, the court considered a question of employer’s vicarious liability for the tortious act of an employee occurring in employer-provided accommodation outside working hours.  Identifying the pivotal issue as being whether the tortious act occurred in the course or scope of employment – and not whether a duty of care to protect the injured employee existed – the court concluded that an injury caused by a drunken co-worker at night had no real connection with the employment and held that the appellant employer was not vicariously liable.

As part of a strategy to curb outlaw motorcycle gangs and other “criminal organisations”, South Australia’s Criminal Law Consolidation Act 1935, s 83GD(1) makes it an offence for a participant in a criminal organisation to enter a “prescribed place” or attempt to do so. The process of “prescribing” a place was left to a general power in s 370 to make regulations “such as are contemplated by, or are necessary or expedient” for the purposes of the Act.  This general power was scrutinised by the High Court in Disorganised Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 97 ALJR 575.  The first appellant owned two parcels of land in Cowirra, east of Adelaide.  The second and third appellants, members of the Hell’s Angels Motorcycle Club, were directors and shareholders of the first appellant and lived on the Cowirra land in two cabins.  In 2020 the State’s Governor made regulations purporting to make the Cowirra land a “prescribed place” for the purposes of s 83GD, but by design those regulations did not explicitly identify the particular parcels. The court unanimously held that the regulations were invalid for “lack of efficacy”.  A majority further held that the impugned regulations were made in breach of a duty to afford procedural fairness to the appellants as owners and occupiers of the land.

R v Jacobs Group (Australia) Pty Ltd (formerly Sinclair Knight Merz) [2023] HCA 23; 97 (2023) ALJR 595 looked at quantification of the statutory penalty prescribed by the Criminal Code (Cth), s 70.25 for bribing a foreign public official.  SKM pleaded guilty in the Supreme Court of New South Wales to three counts of conspiracy to cause offers of bribes to be made to foreign officials in relation to construction projects in the Philippines and Vietnam. On the question of penalty for the third count, SKM submitted that since the project in question netted $2.68 million, the maximum penalty for which it could be liable was 100,000 penalty units ($11m), as provided for in s 70.2(5)(a).  The Crown contended (successfully on appeal) that s 70.25(b) – which prescribes a multiple of the “value of the benefit obtained” – applied, because “benefit” should be calculable on the gross sum received under the tainted contract.  On the facts of the case, that was $10,130,154 which when multiplied by the factor in s 70.25(b), significantly exceeded the $11 million penalty prescribed in the previous paragraph.  The case goes back to the Supreme Court for the quantum of penalty to be redetermined.

Vunilagi v The Queen, [2023] HCA 24; (2023) 97 ALJR 627 held that temporary legislative measures suspending criminal jury trials in the ACT and allowing trials to proceed by judge alone during a prescribed “COVID emergency period” did not infringe the Constitution, s 80 or the Kable Principle because since the grant of self-government, ACT courts are not in federal jurisdiction and ACT statutes are not Commonwealth legislation enacted under the Constitution, s 122.  Therefore jury trials were not mandatory in criminal matters under Territory law.

In AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674, decided on 6 September, the appellant, an unauthorised maritime arrival was ordered to be removed to Nauru but permitted to stay in home detention until removal could be effected.  The Nauru government refused to accept the appellant and the respondent Minister, exercising discretionary power under the Migration Act 1958 (Cth), s 198AE, determined that the duty to remove did not apply to the appellant, thereby nullifying a Federal Court declaration to the contrary.  The full Federal Court allowed an appeal brought by the Commonwealth despite noting that the s 198AE decision had quelled the controversy between the parties.  A majority of the High Court then held that the Full Court had no jurisdiction to hear the intermediate appeal because there was no “matter” requiring determination.  The requirement – that there be some immediate right, duty or liability to be established by determination of a court, whereby a genuine controversy between the parties is quelled – applies in both original and appellate jurisdictions.

In Crime and Corruption Commission v Carne [2023] HCA 28; (2023) 97 ALJR 737, the respondent was under investigation for alleged corrupt conduct and maladministration while holding the office of Public Trustee in Queensland.  Nothing came of the investigation but the respondent Commission nevertheless produced a draft report which was submitted in an incomplete form to a Parliamentary committee with oversight of the Crime and Corruption Act 2001 (Qld).  The committee in turn directed that the document be given to the Speaker of the House of Assembly.  Mr Carne’s attempt to get declaratory or other relief in the Supreme Court of Queensland failed because the primary judge held that the document had by then become subject to Parliamentary privilege.  The Queensland Court of Appeal held otherwise and made a declaration that the document was not a “report” for the purposes of the Crime and Corruption Act, s 69.  The High Court unanimously agreed, holding that the Commission prepared the document not for the purposes of the Act, but for its own purpose of making it public via tabling in Parliament.

The rise in popularity of electric and hybrid cars seems to be making a dent in fuel excise revenue, with the consequent loss of funds for road maintenance across the country.  Victoria sought to recoup some of the loss by passing the Zero and Low Emission Vehicle Distance-based Charge Act 2021, section 7 of which imposed a charge on electric and hybrid car owners based on annual distances travelled, as evidenced by odometer readings reported by the owners.  The charge applied to use of the cars anywhere in Australia.  In Vanderstock v Victoria [2023] HCA 30; (2023) 98 ALJR 208, two green car owners brought proceedings in the High Court’s original jurisdiction, seeking to strike the levy down.  In its judgment handed down on 18 October, a 4/3 majority of the court held that the levy was invalid as it amounted to a duty of excise contrary to the Constitution, s 90.  This caused something of a shock, as it was the first time the court stated explicitly that a duty of excise could potentially be imposed on the consumption of goods, rather than at a point in the supply chain before goods reached the consumer.  The idea that s 90 might extend to consumption of goods was mooted as early as 1904 in Peterswald v Bartley (1904) 1 CLR 497 and cropped up in a host of cases throughout the 20th century, but it was never necessary to decide – until Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177; 48 ALJR 96, when the court held that a short-lived Tasmanian state tax on tobacco consumption was outside the scope of s 90.  That decision must now be taken to have been overruled by the majority in Vanderstock.

In Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 97 ALJR 480 delivered on 1 November, the court allowed an appeal from the Northern Territory Court of Appeal which had denied compensation for distress and disappointment under the Residential Tenancies Act 1999 (NT), s 122 to a tenant in Aboriginal housing, which for 68 months had no back door.  Under the relevant tenancy agreement the respondent was required to take reasonable steps to provide and maintain such devices as were necessary to ensure that the premises were reasonably secure.  The Territory’s Civil and Administrative Tribunal was held to have power under s 122 to order a landlord to compensate a tenant for distress or disappointment suffered as a normal healthy reaction to the landlord’s failure to comply with that obligation.

Abdul Nacer Benbrika was once again the subject of a High Court decision in Benbrika v Minister for Home Affairs [2023] HCA 33; (2023) 97 ALJR 899, handed down on 1 November.  After completing his sentence for terrorism offences, Mr Benbrika’s Australian citizenship was revoked by the Minister pursuant to the Australian Citizenship Act 2007 (Cth), s 36D.  He sought relief in the court’s original jurisdiction, claiming that s 36D amounted to extrajudicial punishment.  A majority of the court held that the effect of s 36D is not materially different from that of s 36B, which was recently struck down in Alexander v Minister for Home Affairs [2022] HCA 19; (2022) 96 ALJR 560.  Section 36D was accordingly invalid as an encroachment on the judicial power of the Commonwealth.

Conversely, in Jones v Commonwealth [2023] HCA 34; (2023) 97 ALJR 936, a majority held that the denaturalisation process contained in the Australian Citizenship Act, s 34(2)(b)(ii) was valid in its application to a dual citizen who had been convicted of serious offences.  The process under s 34(2)(b)(ii) was held to be supported by the naturalisation and aliens power in the Constitution, s 51(xix) as being reasonably capable of being necessary to protect the integrity of the naturalisation process.

HCF v The Queen [2023] HCA 35; (2023) 97 ALJR 978, handed down on 15 November held by majority that certain juror misconduct in the course of a trial for sexual offences did not vitiate the appellant’s conviction.  The majority found that despite the misconduct and irregularity of disobeying the trial judge’s instructions not to undertake separate research, the objective nature and extent of the misconduct provided no basis to conclude that a fair-minded and informed member of the public might reasonably apprehend that the particular jury might not have discharged its function according to law, on the evidence and in accordance with the judge’s directions.  The appellant’s convictions were not demonstrated to have involved a miscarriage of justice.

On 8 November the court delivered reasons for what was probably the year’s most widely reported decision, NZYQ v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] HCA 37; (2023) 97 ALJR 1005.  The case was brought in the original jurisdiction on behalf of a stateless Rohingya Muslim who was returned to immigration detention after serving a prison sentence for a sexual offence committed in 2016.  Unable to be deported, NZYQ faced detention for an indefinite period.  He argued that continuing detention was either unconstitutional or alternatively not authorised on the proper construction of the Migration Act 1958 (Cth), ss 189(1) and 196(1).  The court unanimously held that detention is penal or punitive unless otherwise justified.  While a statutory scheme of immigration detention was justified in normal circumstances, the constitutionally permitted detention period for an alien who has failed to obtain permission to remain in Australia must come to an end, the court held, when there is no real prospect of practicable removal in the reasonably foreseeable future.  Consequently NZYQ and quite a number of others could no longer be held in indefinite detention.  In reaching its conclusion the court reopened Al-Kateb v Godwin (2004) 219 CLR 562; 78 ALJR 1099 and overruled it in part.

An outbreak of COVID-19 aboard the cruise ship Ruby Princess in March 2020 sparked off a class action by affected passengers in the Federal Court.  At an interlocutory stage the cruise line sought a stay, relying on terms of its contract of passage under which passengers were required to waive the right to participate in class actions and submit to the exclusive jurisdiction of certain US courts.  In Karpic v Carnival plc [2023] HCA 39; 98 ALJR 45, handed down on 6 December, the High Court unanimously held that norm of conduct in the Australian Consumer Law, s 23 extended to foreign corporations carrying on business in Australia, meaning that the class action waiver clause was unfair and void.  The court further held that enforcement of the exclusive jurisdiction clause would “fracture” the litigation and exercised a discretion not to do so.

In Huxley v The Queen [2023] HCA 40; (2023) 98 ALJR 62, also handed down on 6 December, a bench of five justices was narrowly divided as to whether there was a misdirection to the jury in a joint criminal trial of three co-accused on separate charges. The direction concerned the jury’s assessment of the credibility and reliability of a witness who had been consuming drugs and alcohol around the time of the alleged offences, had only partial recollection of events and was a reluctant witness.  There was no dispute that the impugned direction was appropriate to be given in the case against one co-accused, however had the impugned direction been understood by the jury to have been relevant to their assessment of the appellant’s defence, it would have been wrong.

And finally, Mitsubishi Motors Australia Ltd v Begovic, [2023] HCA 43; (2023) 98 ALJR 155, decided on 13 December considered the interrelationship of the Australian Consumer Law, ss 18 and 106.  Mr Begovic bought a Mitsubishi vehicle which, in compliance with the Motor Vehicle Standards Act 1989 (Cth) (since repealed) bore a sticker containing a representation as to the car’s expected fuel consumption.  In fact the car was a lemon that consumed more fuel than the sticker would have one believe.  Mr Begovic sued Mitsubishi and the dealership from which the car was purchased, claiming that the sticker contained a misleading or deceptive representation contrary to s 18.  Applying R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545; 51 ALJR 612, the High Court held that compliance with the Motor Vehicle Standards Act compelled certain conduct that trumped s 18.  By virtue of s 41 of the repealed Act, the fuel consumption standard shown on the sticker was deemed a “safety standard” for the purposes of the Australian Consumer Law, s 106.

Briefly Noted

Zurich Insurance Co Ltd v Koper 8 August, [2023] HCA 25; (2023) 97 ALJR 614 upheld the validity of the Trans-Tasman Proceedings Act 2010 (Cth) in respect of proceedings within State jurisdiction.

Qantas Airways Ltd v Transport Workers Union, 13 September, [2023] HCA 27; (2023) 97 ALJR 711, held that the airline’s controversial decision to outsource baggage handlers breached the Fair Work Act 2009 (Cth), s 340(1)(b).

Lang v The Queen, 11 October, [2023] HCA 29; (2023) 97 ALJR 758: A jury’s guilty verdict in a circumstantial case of murder was not unreasonable and (by majority) evidence from a forensic pathologist to the effect that fatal stab wounds were not self-inflicted, was admissible.

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, 1 November, [2023] HCA 32; (2023) 97 ALJR 857: A 3/2 majority of the court allowed an appeal against the grant of a permanent stay of proceedings to obtain compensation for child abuse 52 years after the events complained of.

McNamara v The King, 15 November, [2023] HCA 36; (2023) 98 ALJR 1: A judge’s general discretion pursuant to the Evidence Act 1995 (NSW), s 135(a) to exclude evidence that is unfairly prejudicial to “a party” to proceedings extends to, and includes a co-accused in a joint criminal trial.

Real Estate Toolbox Pty Ltd v Campaigntrack Pty Ltd, 6 December, [2023] HCA 38; (2023) 98 ALJR 27: copyright infringement in source code was not authorised “by indifference” once notice of the infringement was received.

Potts v National Australia Bank Ltd, 6 December, [2023] HCA 41; (2023) 98 ALJR 81: Special leave to appeal from NSW Court of Appeal rescinded after argument which turned on facts where no legal principle was left to be adjudicated.

Bromley v The King, 13 December, [2023] HCA 42; (2023) 98 ALJR 84: Special leave to appeal from Supreme Court of South Australia (Court of Criminal Appeal) refused.  The court below had refused permission to appeal for the second time against conviction for a murder in 1984 based on “fresh and compelling” evidence.  The evidence sought to be relied on failed to meet the “compelling” criterion.