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High Court Year in Review 2017

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With 2017 nearly behind us, the time has once again come to look back over another year of High Court of Australia judgments. In total, the Court delivered 56 judgments with an HCA media-neutral citation in 2017, which was three more than 2016. 2017 saw the Hon Susan Mary Kiefel AC replace the Hon Robert Shenton French AC as Chief Justice of the Court, and the Hon James Edelman sworn in as a Justice of the Court, to fill the vacancy left by Kiefel CJ’s promotion.

Public interest in the work of the High Court was perhaps mostly dominated by two issues in 2017: the same-sex marriage postal survey; and the Constitution, s 44, which provides grounds of disqualification from being chosen or of sitting as a Senator or a Member of the House of Representatives. In particular, of all the s 44 matters, it was the ground of disqualification in s 44(i) — of any person who “is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power” — that attracted the most interest and perhaps created the most armchair constitutional experts.

Following some findings of fact made by Keane J in Re Roberts [2017] HCA 39; 91 ALJR 1018, the Full Court delivered substantive judgment concerning the eligibility under s 44(i) of six elected Senators and one elected Member of the House of Representatives in Re Canavan [2017] HCA 45; 91 ALJR 1209. Each of those seven persons was potentially ineligible to be a member of the Federal Parliament due to dual citizenship with another nation.

In Re Canavan, the Court held that s 44(i) should be given its ordinary textual meaning, subject only to the implicit qualification in s 44(i) that the foreign law conferring foreign citizenship must be consistent with the constitutional imperative underlying that provision, namely that an Australian citizen not be prevented from participation in representative government where it can be demonstrated that he or she took all steps reasonably required by foreign law to renounce his or her citizenship of a foreign power. Applying that test, it held that Scott Ludlam, Larissa Waters, Malcolm Roberts and Fiona Nash were disqualified from the Senate by s 44(i); and that Barnaby Joyce, who was Deputy Prime Minister, was also disqualified from being a Member of the House of Representatives. The Court also found that neither Senator Matthew Canavan nor Senator Nick Xenophon was disqualified by s 44(i).

The Court ordered special recounts of the New South Wales, Queensland and Western Australian Senate ballot papers to fill the Senate vacancies, and a by-election for the Division of New England to fill the vacancy created by the Deputy Prime Minister’s disqualification. After renouncing his foreign citizenship, Joyce went on to win the by-election and resume his seat in the House of Representatives.

In a post-script to Re Canavan, the Court held, in Re Nash (No 2) [2017] HCA 52; 92 ALJR 23, that Ms Hollie Hughes, who won the special recount, was also incapable of being chosen as a Senator because she held an office of profit under the Crown within the meaning of the Constitution, s 44(iv). Although Hughes was not appointed as a part-time member of the Administrative Appeals Tribunal until about one year after polling day, the process of being “chosen” as a Senator for the purposes of s 44 did not end on polling day; rather, the process was brought to an end only with the declaration of the result of the election and of the names of the candidates elected.

In another matter related to the foreign citizenship ground of disqualification, the Court, in Re Barrow [2017] HCA 47; 91 ALJR 1240, refused to grant leave to the applicant to issue a writ of summons for a declaration that steps he had taken to renounce his foreign citizenship in order to be eligible for election to the Commonwealth Parliament were “reasonable”. Edelman J, sitting alone, held that the declaration sought clearly fell within the concept of an advisory opinion which was not a justiciable matter.

Foreign citizenship was not the only disqualification ground considered by the Court in 2017. Following some fact-finding by Gordon J in Re Day [2017] HCA 2; 91 ALJR 262, the Full Court in Re Day (No 2) [2017] HCA 14; 91 ALJR 518 unanimously held that Robert John Day AO was incapable of being chosen or of sitting as a Senator by reason of the Constitution, s 44(v), because he was a person who had an “indirect pecuniary interest” in an agreement with the Public Service of the Commonwealth prior to and at the time of the 2016 Federal election. That “indirect pecuniary interest” arose as a result of a lease for an electoral office entered into between the Commonwealth and a corporate trustee, of which Day’s family company was a beneficiary. Although Day was neither director nor shareholder of that company, the Commonwealth was directed to pay rent into a bank account owned by Day. The Court ordered that the vacancy be filled by a special recount of the South Australian Senate ballot papers.

The disqualification ground in the Constitution, s 44(ii), was also considered by the Court in 2017. After some procedural issues were resolved by Gageler J in Re Culleton [2017] HCA 3; 91 ALJR 302, the Full Court in Re Culleton (No 2) [2017] HCA 4; 91 ALJR 311 unanimously held that Rodney Norman Culleton was a person who was convicted and subject to be sentenced for an offence punishable for imprisonment for one year or longer at the time of the 2016 Federal election, and who was therefore was incapable of being chosen as a Senator under s 44(ii). Although the conviction was annulled after the election date, Culleton was nonetheless disqualified from election. The Court ordered that the vacancy be filled by a special recount of the Western Australian Senate ballot papers.

The legality of a postal survey to collect public opinion on whether Australia’s marriage laws should be changed to allow same-sex couples to marry was another issue to attract widespread public attention in 2017. The legal issues in Wilkie v Commonwealth [2017] HCA 40; 91 ALJR 1035 were somewhat drier than the context in which they arose, however. In summary, the Court held that the appropriation by the Finance Minister to fund the survey was not unlawful and that the information to be gathered was “statistical information” that could be collected by the Australian Bureau of Statistics. In the end, the survey went ahead, with nearly 62% of received responses providing a “Yes” response. The Commonwealth Parliament subsequently passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), which, among other things, amended the Marriage Act 1961 (Cth), s 5(1), to define “marriage” as “the union of 2 people to the exclusion of all others, voluntarily entered into for life”.

Unsurprisingly, the High Court also determined a number of criminal appeals in 2017. One of the most high profile of those decisions was Hughes v The Queen [2017] HCA 20. Hughes concerned former Hey Dad..! actor Robert Hughes, who had been convicted of committing a number of sexual offences against underage girls. At issue was the admissibility of tendency evidence said to prove Hughes’ tendency to have “a sexual interest in female children under 16 years of age” and to use his “social and familial relationships … to obtain access to female children under 16 years of age so that he could engage in sexual activities with them”. The decision in Hughes arose in the context of a divergence between New South Wales and Victorian authorities as to the test of admissibility of tendency evidence and the meaning of “significant probative value” in those jurisdictions’ respective Evidence Acts. The Court held, contrary to the Victorian position, that for tendency evidence to have “significant probative value” for the purposes of the Evidence Act 1995 (NSW), s 97(1)(b), it is not necessary that it possesses sufficient common or similar features with the conduct in the charge in issue so as to demonstrate a pattern that cogently increases the likelihood of the occurrence of that conduct. The tendency evidence adduced against Hughes satisfied the test of “significant probative value” and was correctly admitted in relation to each count for which it was adduced.

Knight v Victoria [2017] HCA 29; 91 ALJR 824 was another criminal law decision involving a high-profile individual. That decision concerned the Corrections Act 1986 (Vic), s 74AA, which relevantly prevents the Adult Parole Board from releasing Julian Knight, the man responsible for the Hoddle Street Massacre, on parole unless the board is satisfied, among other things, that Knight is in imminent danger of dying, or is seriously incapacitated, and as a result he no longer has the physical ability to do harm to any person. The Court held that s 74AA was not invalid on the ground of inconsistency with the Constitution, Ch III, as the section does not, either in its legal form or in its substantial practical operation, interfere with the sentences imposed on Knight by the Supreme Court of Victoria. Moreover, because the board, in relation to Knight’s application for a parole order, was not and need not be constituted to include a judicial officer, it was unnecessary and inappropriate to determine whether the section would be invalid in circumstances in which the function conferred by the section might be sought to be exercised by a division of the board which included a judicial officer.

Van Beelen v The Queen [2017] HCA 48; 91 ALJR 1244 concerned an application for permission to appeal for a second time against a conviction for a 1971 murder. The application followed developments in the field of forensic pathology since the date of the murder which cast doubt on the accuracy of earlier methods for determining time of death by analysis of stomach contents. The High Court found that the fresh expert evidence was “compelling” within the meaning of the Criminal Law Consolidation Act 1935 (SA), s 353A, and that it was in the interests of justice for it to be considered on appeal; however, it further concluded that there was not a significant possibility that a properly instructed jury, acting reasonably, would have acquitted the appellant even if the pathologist’s erroneous opinion concerning the time of death had not been admitted.

In IL v The Queen [2017] HCA 27; 91 ALJR 764, a majority of the Court held that the appellant, who was a participant in a joint criminal enterprise to manufacture a large commercial quantity of methylamphetamine, could not be convicted of the constructive murder or manslaughter of another participant in the enterprise where the Crown could not exclude that the deceased himself had caused the fatal fire by lighting a gas ring burner in a small and inadequately ventilated bathroom. Kiefel CJ, Keane and Edelman JJ held that the Crimes Act 1900 (NSW), s 18(1), was not engaged where a person kills himself or herself, while Bell and Nettle JJ held that it was not open to attribute criminal liability to one participant in a joint criminal enterprise for an act committed by another participant in the course of carrying out the enterprise unless that act is, or is part of, the actus reus of a crime. Assuming the deceased lit the gas burner ring, that act was not the actus reus of the crime of murder or manslaughter.

In R v Holliday [2017] HCA 35; 91 ALJR 874, the Court held that the Criminal Code 2002 (ACT), s 45, does not create a discrete offence of aiding, abetting, counselling or procuring; rather, it extends criminal responsibility for a substantive offence. Accordingly, incitement to procure an offence was not itself an offence, and the respondent could not be convicted of urging the commission of the offence of kidnapping by urging another person to procure a third person to kidnap.

Chiro v The Queen [2017] HCA 37; 91 ALJR 974 and Hamra v The Queen [2017] HCA 38; 91 ALJR 1007 both concerned the offence of persistent sexual abuse of a child, contrary to the Criminal Law Consolidation Act 1935 (SA), s 50(1). In Chiro, the Court held that the appellant’s conviction was not uncertain, notwithstanding that it was not known which of the acts of sexual exploitation had been proved. The Court also held that, in circumstances where the trial judge had not asked the jury to specify which of the alleged acts they agreed had been proved, the appellant should have been sentenced on the view of the facts most favourable to him. In Hamra, the Court held that proof of the offence does not require evidence which allows acts of sexual exploitation to be delineated by reference to differentiating circumstances. It would, for example, be sufficient if the jury accepted that an act of sexual exploitation was committed every day over a two week period without any further differentiation of those occasions and deduced from that evidence that two or more acts must have occurred over a period of “not less than 3 days”.

In GAX v The Queen [2017] HCA 25; 91 ALJR 698, the Court allowed an appeal against conviction of an offence of aggravated indecent dealing with a child (who was the natural daughter of the appellant). The Court held that there was a real possibility that the complainant’s evidence was a reconstruction and not actual memory, and that the possibility of reconstruction had not been excluded beyond reasonable doubt. Accordingly, the guilty verdict was unreasonable having regard to the evidence.

In Aubrey v The Queen [2017] HCA 18; 91 ALJR 601, the Court held that the meaning of “inflicts” in the Crimes Act 1900 (NSW), s 35, does not require the infliction of force productive of immediate physical injury, but rather extends to the communication of disease or infection. Accordingly, the act of having unprotected sexual intercourse with another person and thereby causing that person to contract a grievous bodily disease was capable of amounting to the infliction of grievous bodily harm within the meaning of s 35(1)(b). In determining this appeal, the Court held that R v Clarence (1888) 22 QBD 23 should no longer be followed.

Smith v The Queen [2017] HCA 19; 259 CLR 291; 91 ALJR 621 concerned the basis on which intention to import a border controlled substance can be established by inferential reasoning. The Court held that where it is established that an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance.

In Rizeq v Western Australia [2017] HCA 23; 91 ALJR 707, the Court held that a New South Wales resident could be convicted by unanimous verdict in the District Court of Western Australia of offences under the Misuse of Drugs Act 1981 (WA). The Court dismissed the appellant’s contention that the Judiciary Act 1903 (Cth), s 79(1), picked up the text of the Misuse of Drugs Act, s 6(1)(a), and applied it as a law of the Commonwealth to which the Constitution, s 80, construed to require a unanimous jury verdict, would apply.

In Koani v The Queen [2017] HCA 42; 91 ALJR 1079, the Court held that the act causing death and the intention to kill or inflict grievous bodily harm must coincide for a person to be found guilty of murder under the Criminal Code (Qld),s 302(1)(a).

In R v Dookheea [2017] HCA 36; 91 ALJR 960, the Court held that while it is generally undesirable for a trial judge to contrast “reasonable doubt” with “any doubt”, in point of principle it is not wrong to notice the distinction. Accordingly, it is not necessarily determinative of an appeal against conviction that the trial judge directed the jury by reference to that distinction. The Court held that a reasonable doubt is what a reasonable jury considers to be a reasonable doubt.

In Director of Public Prosecutions (Vic) v Dalgliesh [2017] HCA 41; 91 ALJR 1063, the Court held that while current sentencing practices must be taken into account under the Sentencing Act 1991 (Vic), s 5(2)(b), they are just one factor, and not the controlling factor, in the fixing of a just sentence. The Court held that the Victorian Court of Appeal, having reached the conclusion that current incest sentences were so manifestly disproportionate to the gravity of the offending and the moral culpability of the offender as to bespeak an error of principle, should have corrected the effect of the error of principle which it recognised.

In R v Dickman [2017] HCA 24; 91 ALJR 686, the Court held that the admission of certain identification evidence at trial was not erroneous because the trial judge had correctly concluded that the danger of unfair prejudice was minimal and could be adequately addressed by directions to the jury. In that case, the complainant, who was beaten with a baseball bat at a Hell’s Angels clubroom, described his attackers as including an old man with a long beard and ponytail and wearing an army-style jacket. He initially identified a third person as his attacker from a photoboard before identifying the respondent from a second photoboard nearly two years later.

Pickering v The Queen [2017] HCA 17; 91 ALJR 590 concerned an appellant who was acquitted of murder but convicted of manslaughter after he fatally stabbed the deceased. The evidence at trial fairly raised the issue as to whether the appellant had stabbed the deceased in order to resist actual and unlawful violence; however, the Criminal Code (Qld), s 31(1)(c) was not left to the jury. The Court held that the protection afforded by s 31(1)(c) was not excluded by s 31(2) in relation to the offence of manslaughter, as grievous bodily harm is not an element of manslaughter. Accordingly, a miscarriage of justice arose from the failure to direct the jury on s 31(1)(c).

In Perara-Cathcart v The Queen [2017] HCA 9; 91 ALJR 411, the Court held that the trial judge’s directions were sufficient to identify the uses to which discreditable conduct evidence (possession of a small amount of cannabis) could and could not be put. The evidence could be used to counter the defence case that the appellant was attempting to purchase drugs from the complainant and her associates, but was not admissible to support a suggestion that the appellant was a dealer in methylamphetamine supplied to the complainant and others.

In Prior v Mole [2017] HCA 10; 91 ALJR 441, the Court held that a police officer’s prior policing experience may be brought to bear in forming the belief necessary to exercise the power in the Police Administration Act (NT), s 128(1), to take an intoxicated person into custody.

The Court also decided two bankruptcy related matters in 2017. In Talacko v Bennett [2017] HCA 15; 91 ALJR 564 it held that the use of the word “stay” in Commonwealth legislation is not confined to stays imposed by courts. Accordingly, the Bankruptcy Act 1966 (Cth), s 58(3), could effect a stay of enforcement within the meaning of the Foreign Judgments Act 1991 (Cth), s 15(2). In Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 91 ALJR 803, the Court held that, where a creditor’s petition is based upon a judgment debt resulting from a contested hearing, yet there are substantial reasons for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner, the Bankruptcy Court has a discretion to go behind the judgment to investigate whether the debt relied upon is truly owing.

A number of immigration appeals were also determined by the High Court in 2017. Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31; 91 ALJR 857 concerned the Manus Regional Processing Centre in Papua New Guinea. The Court held that the Constitution does not deny to the Commonwealth any legislative or executive power to authorise or take part in activity in another country which is unlawful to the domestic law of that country. Accordingly, the Commonwealth’s authority to undertake conduct in respect of regional processing arrangements in Papua New Guinea under the Migration Act 1958 (Cth), s 198AHA, was not dependent on whether those arrangements conformed with Papua New Guinea law.

In Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 91 ALJR 579, the Court held that the Migration Act 1958 (Cth), ss 189 and 196, validly authorised the detention of unlawful non-citizens who were brought to Australia from Nauru (a regional processing country) for a temporary purpose (medical treatment).

In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936, the Court held that the reference in the Migration Act 1958 (Cth) to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of “intends” and therefore to actual, subjective, intent. Accordingly, even if the appellants were likely to be detained for a brief period in overcrowded conditions with poor sanitary facilities and limited access to food if they were returned to Sri Lanka, that treatment did not amount to “cruel or inhuman treatment or punishment” in the absence of an intention on the part of a Sri Lankan official to inflict severe pain or suffering on the appellants or to cause them extreme humiliation by sending them to prison.

Graham v Minister for Immigration and Border Protection [2017] HCA 33; 91 ALJR 890 concerned the validity of the Migration Act 1958 (Cth), s 503A(2)(c), which prevents the Minister from being required to divulge or communicate information to a court or tribunal when reviewing a purported exercise of power by the Minister under ss 501, 501A, 501B or 501C, to which the information is relevant. The Court held that Parliament cannot enact a law which denies to the High Court when exercising jurisdiction under the Constitution, s 75(v), the ability to enforce the legislated limits of an officer’s power. Section 503A(2)(c) was held to be invalid to the extent that it operates to prevent the Minister from being required to provide confidential information under the section to a court exercising jurisdiction under or by reference to s 75(v).

In Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 91 ALJR 466, the Court held that provisions of the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) did not expressly or by necessary implication provide a “last day” for the applicant’s application for a vocational education and training sector to be made. Accordingly, the Acts Interpretation Act 1901 (Cth), s 36(2), which extends the time for doing a thing where the last day for doing the thing is a Saturday, a Sunday or a holiday, was not engaged.

The Court also considered four appeals from the Supreme Court of Nauru in 2017. In each of BRF038 v Republic of Nauru [2017] HCA 44; 91 ALJR 1197, HFM045 v Republic of Nauru [2017] HCA 50; 92 ALJR 1 and DWN042 v Republic of Nauru [2017] HCA 56 it found that the applicants for refugee status had been denied procedural fairness by either the Refugee Status Review Tribunal or the Supreme Court of Nauru. In Cecil v Director of Public Prosecutions (Nauru) [2017] HCA 46; 91 ALJR 1236 it held that the authority of the Supreme Court of Nauru to substitute a sentence is not enlivened simply by a view that it would have exercised the sentencing discretion differently. Rather, the Supreme Court’s power is only engaged if it expressed its satisfaction that the discretion given to the District Court had miscarried.

Three industrial law decisions were also delivered by the Court in the latter part of the year. In ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; 92 ALJR 33, the Court held that the Fair Work Commission could approve an enterprise agreement under the Fair Work Act 2009 (Cth), s 186(2)(a), for a new enterprise where the agreement is made with existing employees of an employer who have agreed, but have not yet started, to work as employees in the new enterprise. However, the Court also found that the Commission had fallen into jurisdictional error in being satisfied that the enterprise agreement in this case passed the “better off overall test” for the purposes of s 186(2)(d). A writ of mandamus was issued requiring the Full Bench of the Fair Work Commission to determine the appeal against the Commission’s decision according to law.

In Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54, the Court held that a person who contravenes an order that is in operation at the time of contravention but that thereafter ceases to operate, is a person who has contravened an order that applied to that person within the meaning of the Fair Work Act 2009 (Cth), s 413(5). Accordingly, by operation of s 413(5), the industrial action organised by the respondent union in relation to replacement enterprise agreements, subsequent to the respondent’s contravention of an order made by the Fair Work Commission under s 418(1) (requiring it to stop certain forms of “industrial activity”) was not protected industrial action.

In Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55, the Court held that an industrial association registered under the Fair Work (Registered Organisations) Act 2009 (Cth) is “entitled to represent the industrial interests” of a person within the meaning of the Fair Work Act 2009 (Cth), s 546(6)(b)(ii), where that person is eligible for membership of the industrial association pursuant to its eligibility rules but is not a member of the industrial association.

Brown v Tasmania [2017] HCA 43; 91 ALJR 1089 concerned the implied freedom of political communication. The Court held that laws that restricted the activities of protesters on forestry land and business access areas relating to forestry land impermissibly burdened the implied freedom. Although the laws pursued a legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities on business premises, the laws were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires.

In Palmer v Ayres [2017] HCA 5; 259 CLR 478; 91 ALJR 325, the Court held that the Corporations Act 2001 (Cth), s 596A, which provides for the mandatory examination of certain persons in relation to a corporation’s examinable affairs, did not confer non-judicial power on Federal courts or on courts exercising Federal jurisdiction. Accordingly, the provision was not invalid as contrary to the Constitution, Ch III.

In Federal Commissioner of Taxation v Jayasinghe [2017] HCA 26; 91 ALJR 749, the Court held that a civil engineer engaged by the United Nations Office for Project Services as a project manager to build a 190 kilometre gravel road in Sudan was not “a person who holds an office in an international organisation” in the International Organisations (Privileges and Immunities) Act 1963 (Cth), s 6(1)(d)(i). Accordingly, the Commissioner was not bound to exempt that person from taxation.

In Commissioner of State Revenue (Vic) v ACN 005 057 349 Pty Ltd [2017] HCA 6; 91 ALJR 349, the Court held that the Commissioner was under no liability to amend land tax assessments or to make a refund of excess land tax paid where no application for refund had been lodged within the required three-year time period, notwithstanding the discovery of a error that resulted in certain land being the subject of land tax twice.

In Kendirjian v Lepore [2017] HCA 13; 259 CLR 275; 91 ALJR 508, the Court held that advocates’ immunity from suit does not extend to negligent advice not to compromise a proceeding which then proceeds to a judicial decision.

In Air New Zealand Ltd v Australian Competition and Consumer Commission [2017] HCA 21; 91 ALJR 648, the Court held that there was a market “in Australia” for the air cargo services provided by the appellant airlines from Hong Kong, Singapore and Indonesia to destinations in Australia. Accordingly, the airlines’ price-fixing conduct in that market could constitute a contravention of the Trade Practices Act 1974 (Cth), s 45(2).

In Bondelmonte v Bondelmonte [2017] HCA 8; 91 ALJR 402, the Court held that parenting orders could be made in favour of strangers to the proceedings, namely, the mothers of the children’s respective friends, while in Thorne v Kennedy [2017] HCA 49; 91 ALJR 1260, it set aside pre-nuptial and post-nuptial financial agreements made under the Family Law Act 1975 (Cth), Pt VIIIA, for unconscionable conduct and undue influence. The Court in Thorne also held that the relationship of fiancé and fiancée of itself does not give rise of a presumption that either person is under the undue influence of the other.

The narrative test of “serious injury” under the Transport Accident Act 1986 (Vic), s 93(17), was considered by the Court in Transport Accident Commission v Katanas [2017] HCA 32; 91 ALJR 865. In that case, the possible range of impairment formulated by the primary judge was found to be incomplete because it had regard to only one criterion of the comparative severity of a mental disorder, namely, the extent of treatment. The Court held that the Victorian Court of Appeal was correct to emphasise that, in making an assessment of the severity of a mental disorder or disturbance by comparison to the range or spectrum of other cases, a judge must identify and bring to account all of the factors which emerge on the evidence as relevant to the assessment.

In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; 91 ALJR 486, a clause in a lease was held to oblige the lessee to pay all rates, taxes, assessments and outgoings in respect of the leased land, and not merely those imposts levied on the lessee in its capacity as tenant. The parties in that case had intended to recreate in the lease, as far as possible, the conditions which would have existed following a sale.

In Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7; 259 CLR 106; 91 ALJR 369, the Court held that, pursuant to the Planning and Development Act 2005 (WA), ss 173 and 177, compensation for injurious affection was payable only to the owner of the land at the date of reservation of the land under the planning scheme. Accordingly, the respondents, who purchased parcels of land which, prior to the purchases, had been reserved for the public purpose of regional open space, were not entitled to compensation.

In Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; 91 ALJR 833, the Court held that the requirement in the Mining Act 1978 (WA), s 74(1)(ca)(ii), that an application for a mining lease “shall be accompanied by” a mineralisation report, imposes a condition precedent to the exercise of the powers conferred on various statutory officers under ss 74A(1) and 75(4), and on the Minister under s 75(6), to progress the application through to a grant. A consideration of the language of the statute, its subject matter and objects, and the consequences for the parties of holding void acts done in breach of the Act conveyed an intention not to countenance any degree of non-compliance with s 74(1)(ca)(ii).

New South Wales v DC [2017] HCA 22; 91 ALJR 681 was an unusual case where special leave to appeal was revoked as a consequence of the Court holding that the case was not an appropriate vehicle for considering the scope or extent of the duty of care owed by New South Wales in the exercise of certain powers under child welfare legislation.

Finally, two single Justice decisions remain to be mentioned. In Mercanti v Mercanti [2017] HCA 1; 91 ALJR 258, Kiefel J (as her Honour then was) extended an injunction that was due to expire before an application for special leave to appeal to the High Court was likely to be heard, while in Dimitrov v Supreme Court of Victoria [2017] HCA 51; 92 ALJR 12, Edelman J held that a judge of a State court is not an “officer of the Commonwealth” when exercising federal jurisdiction.

That concludes the wrap-up of the High Court’s work for another year. The Court returns from its summer recess on Monday 5 February 2018. On behalf of the FirstPoint team, which also brings you headnotes for the Australian Law Journal Reports, I wish you a safe and happy holiday period. We look forward to continuing to report High Court judgments in 2018.

Adam Weir
By Adam Weir
Senior Case Law Specialist

Adam Weir is Senior Case Law Specialist in the Cases Team at Thomson Reuters. Adam has been working at Thomson Reuters since 2008 as part of the team providing content for FirstPoint, New Westlaw, the Australian Law Journal Reports and the Australian Digest suite of products.

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