As was the case in 2017, the High Court in 2018 dealt with a number of matters involving the Constitution, s 44, and the eligibility of a person to be chosen or sit as a Senator or a Member of the House of Representatives. Two of those judgments dealt with the “citizenship of a foreign power” disqualification in s 44(i). In Re Gallagher [2018] HCA 17; 92 ALJR 502 the Court considered the qualification implicit in s 44(i) that an Australian citizen not be irremediably prevented by foreign law from participation in representative government (the “constitutional imperative”). It held that Senator Gallagher, who had submitted documentation to renounce her British citizenship prior to nominating as a candidate but whose renunciation was not registered by British authorities until after election day, was incapable of being chosen or of sitting as a Senator. The constitutional imperative was not engaged merely because a foreign law presented an obstacle to a particular individual being able to nominate for a particular election.

Re Kakoschke-Moore [2018] HCA 10; 92 ALJR 364 concerned a South Australian Senator who resigned her position after receiving confirmation that she was a British citizen. The former Senator, who had also subsequently renounced her British citizenship, argued that the vacancy created by her resignation should be filled by the High Court declaring her to be elected; or, alternatively, that she should not be excluded from any special count, as she was no longer a British citizen. The High Court rejected both arguments, finding that a special count is part of the original electoral process, and not a separate, new electoral process. Ms Kakoschke-Moore, being incapable of being chosen at the election, was also incapable of being chosen by the special count. The High Court further held that a candidate in her ballot paper group remained eligible for inclusion in the special count notwithstanding that he had resigned his membership of that political party. Nothing in the Constitution required that a person qualified to be elected and duly elected must remain affiliated with the party that endorsed him or her before the completion of the election.

Re Lambie [2018] HCA 6; 92 ALJR 285 concerned the disqualification contained in s 44(iv) of persons who hold any office of profit under the Crown. The Court held that the offices of mayor and councillor of Devonport City Council were not offices of profit “under the Crown” and, accordingly, that Mr Steven Martin was not incapable of being chosen or of sitting as a Senator by reason of s 44(iv).

In Re Culleton [2018] HCA 33; 92 ALJR 775, Kiefel CJ refused an application to reopen Re Culleton (No 2) [2017] HCA 4; 91 ALJR 311. In that decision, the Court had declared Mr Culleton incapable of being chosen as a Senator and ordered that the ensuing vacancy be filled by a special recount of the Western Australian Senate ballot papers. Mr Culleton had sought to reopen the matter to argue that the Senate was inquorate when it resolved to refer the question of his eligibility to the High Court. The Chief Justice refused the application, noting that the applicant and his legal advisers were at all relevant times aware of the fact that the Senate was inquorate at the time the relevant reference was made; and that the principle of finality and steps taken on the basis of perfected orders weighed heavily against reopening the matter.

In another matter related to s 44, the Court, in Alley v Gillespie [2018] HCA 11; 92 ALJR 373, held that the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) does not confer jurisdiction upon the Court to decide whether a person is incapable of sitting as a Senator or a Member of the House of Representatives. The plaintiff in that matter had been seeking to recover a penalty from the defendant under the Constitution, s 46, on the basis that the defendant was incapable of sitting as a Member of the House of Representatives under s 44(v). The Court held that although s 46 allowed for the imposition and recovery of a penalty in a common informer action, the anterior question of liability was to be determined by the means provided by s 47.

Burns v Corbett [2018] HCA 15; 92 ALJR 423 was another constitutional law matter dealt with in 2018. The plaintiff in that matter, who was a resident of New South Wales, had made complaints under New South Wales anti-discrimination law in relation to conduct engaged in by residents of Victoria and Queensland that was said to vilify homosexuals. By reference to the requirements of the Constitution, Ch III, the Court held that certain provisions of New South Wales law were invalid to the extent that they purported to confer jurisdiction upon the New South Wales Civil and Administrative Tribunal in relation to matters between residents of different States.

In Alford v Parliamentary Joint Committee on Corporations and Financial Services [2018] HCA 57; 92 ALJR 1084, the plaintiffs, who had been directed by the respondent committee to appear before it, sought relief against that direction. Gordon J, sitting alone, considered the Parliament’s coercive powers to direct persons to attend as witnesses and held that the plaintiffs had not identified any reason why the exercise of power by the respondent committee should be reviewed by the Court; nor had they identified any basis for the Court to find the exercise of the power invalid.

Criminal law judgments again represented a significant proportion of the Court’s output in 2018. Following on from the Court’s split decision in Hughes v The Queen [2017] HCA 20; 92 ALJR 52, the admissibility of tendency evidence was revisited in R v Bauer [2018] HCA 40; 92 ALJR 846. In that latter decision, a joint judgment of all seven members of the Court observed that “previous decisions of this Court have left unclear when and if a complainant's evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences”. The Court “resolved to put aside differences of opinion and speak with one voice on the subject”:

Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM v The Queen [2016] HCA 14; 257 CLR 300; 90 ALJR 529 or exhibit a special, particular or unusual feature of the kind described in Hughes.

The admissibility of tendency evidence was also at issue in McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045. In quashing the appellant’s convictions and directing a new trial, the Court held that while the tendency evidence was capable of establishing that the appellant had an interest in young teenage boys, it did not meet the threshold requirement of significant probative value in circumstances in which there was no evidence that the asserted tendency had manifested itself in the decade prior to the alleged offending.

Johnson v The Queen [2018] HCA 48; 92 ALJR 1018 concerned the admissibility of certain evidence of alleged sexual misconduct on a trial of historical sexual offences. The appellant in that matter had been charged with committing sexual offences against his sister, starting from when he was himself a child. Most of the impugned evidence was held to be admissible context evidence, as it was relevant to understanding the highly dysfunctional family in which the appellant and complainant were raised. The wrongly admitted evidence in relation to one incident of sexual misconduct did not lead to a miscarriage of justice.

In R v Falzon [2018] HCA 29; 92 ALJR 701, the Court held that evidence of possession of a substantial amount of cash ($120,800) was admissible on a trial for trafficking cannabis. That evidence was admissible as an item of circumstantial evidence that, in conjunction with other evidence of other indicia of drug trafficking, was relevant to establishing an intent to sell and to countering the respondent’s claim that the cannabis was possessed for personal consumption.

Rodi v Western Australia [2018] HCA 44; 92 ALJR 960 was another case involving a charge of possession of cannabis with intent to sell or supply. In allowing an appeal against conviction, the Court held that the Court of Appeal of Western Australia had erred in finding that fresh evidence adduced on appeal did not give rise to a significant possibility of acquittal by the jury. The relevant fresh evidence related to the typical yield of a cannabis plant and the non-disclosure by the Crown of the fact that a Crown witness who was giving evidence on yield had given different evidence as to yield evidence at previous trials. The typical yield of a cannabis plant was critical to assessing the credibility of the appellant’s claim that the cannabis in possession had solely come from the two plants in his home and was for personal use only.

Kalbasi v Western Australia [2018] HCA 7; 92 ALJR 305 also concerned a drug offence, namely attempting to possess methylamphetamine with intent to sell or supply. The Court held that a misdirection concerning proof of the element of intention did not result in a substantial miscarriage of justice and that the Court of Appeal of Western Australia had therefore not erred in applying the proviso to dismiss the appeal. In Lane v The Queen [2018] HCA 28; 92 ALJR 689, on the other hand, the Court did find that the Court of Criminal Appeal of New South Wales had erred in applying the proviso. The error in that case was the failure by the trial judge to direct the jury that it must be unanimous in its deliberations as to the factual basis on which it might convict the appellant of manslaughter. In applying the proviso, the Court of Criminal appeal had disregarded the requirement of a unanimous verdict on the part of the jury and substituted trial by appeal court for trial by jury.

In another case involving the proviso, the Court held, in Collins v The Queen [2018] HCA 18; 62 ALJR 517, that the appellant had been denied procedural fairness when the Court of Appeal of Queensland dismissed his appeal without giving him an opportunity to be heard on the question of dismissal under the proviso. The Court found that it was not open to find that no substantial miscarriage actually occurred, and ordered that the convictions be quashed and a new trial had. Procedural fairness was also in issue in DL v The Queen [2018] HCA 32; 92 ALJR 764, in which the Court held that the Court of Criminal Appeal of New South Wales had denied the appellant procedural fairness in failing to put him on notice that it was minded to depart from the primary judge’s factual findings and give him an opportunity to deal with the matter by evidence or submissions.

Irwin v The Queen [2018] HCA 8; 92 ALJR 342 concerned the Criminal Code (Qld), s 23(1), which provides that a person is not criminally responsible for an event that the person does not intend or foresee as a possible consequence and that an ordinary person would not reasonably foresee as a possible consequence. In that matter, the Court of Appeal of Queensland had dismissed an appeal against conviction for unlawfully doing grievous bodily harm, stating that an ordinary person in the appellant’s position could have foreseen that a person might suffer serious injury from a push involving considerable force. After noting that there was a difference between what an ordinary person would and could foresee, the Court nonetheless upheld the appellant’s conviction. Notwithstanding the error in the Court of Appeal’s expression of the test, there was no reason to doubt that the jury had adhered to the trial judge’s proper directions and no cause to doubt the reasonableness of the verdict.

In DL v The Queen [2018] HCA 26; 92 ALJR 636, the Court dismissed an appeal against conviction for persistent sexual exploitation of a child. The appellant had been convicted after a trial by judge alone, and appealed on the ground of inadequate reasons. A majority of the Court concluded that the trial judge’s reasons were sufficient to identify, and to disclose the process of reasoning leading to the trial judge’s finding of, two or more acts of sexual exploitation upon which the conviction was based.

Craig v The Queen [2018] HCA 13; 92 ALJR 390 was an appeal brought by a man who had been convicted of murdering his partner. The appellant contended that his trial had miscarried because his decision not to give evidence was based on incorrect advice that this would lead to disclosure of, and cross-examination on, his criminal history. The Court held that there was no miscarriage of justice in circumstances in which the evidence did not establish that the appellant’s trial would have been conducted differently had the incorrect advice not been given.

In AB v CD [2018] HCA 58; 93 ALJR 59, the Court considered whether the identity of a police informant should be disclosed. The informant in that matter had purported to act as counsel for certain convicted persons while covertly informing against them in what the Court described as fundamental and appalling breaches of her obligations to her client and to the court. Although the anonymity of a police informer is ordinarily protected by public interest immunity, the Court held that there arises a greater public interest in disclosure where the agency of police informer has been so abused as to corrupt the criminal justice system. The danger in which the informant would be placed did not detract from the conclusion that it was essential in the public interest for the information to be disclosed.

In Minogue v Victoria [2018] HCA 27; 92 ALJR 668 the Court was asked to examine the Corrections Act 1986 (Vic), s 74AAA. That provision, which is similar in effect to the provision considered in Knight v The Queen [2017] HCA 29; 261 CLR 306; 91 ALJR 824, relevantly prevents the Adult Parole Board from releasing a prisoner who has murdered a police officer unless, among other things, the prisoner is in imminent danger of dying, or is seriously incapacitated, and as a result no longer has the physical ability to do harm to any person. The plaintiff in this case had been convicted of murdering a police constable after he was involved in the detonation of an explosive device outside the Russell Street Police Complex and Melbourne Magistrates’ Court in 1986. The Court held that, properly construed, s 74AAA applies to a prisoner who was sentenced on the basis that he or she knew, or was reckless as to whether, the person murdered was a police officer. As the plaintiff was not sentenced on that basis, s 74AAA did not apply to the plaintiff.

In Strickland v Director of Public Prosecutions (Cth) [2018] HCA 53; 93 ALJR 1, the Court ordered that certain criminal prosecutions be permanently stayed on the ground that there had been an abuse of process. In that matter, the Australian Crime Commission had used its coercive powers unlawfully as a facility for the Australian Federal Police to cross-examine the appellants under oath for the Australian Federal Police’s own purposes. In Commissioner of the Australian Federal Police v Hart [2018] HCA 1; 262 CLR 76; 92 ALJR 154 a number of companies associated with a convicted person were mostly unsuccessful in applications to recover forfeited property. In considering whether the property was used in, or in connection with, unlawful activity, the Court held that “use” does not require a causal link between the property and a relevant offence or that the property was necessary for or made a unique contribution to the offence; nor does the degree of use need to be proportionate to the forfeiture of the property.

The Court also considered five migration matters in 2018. In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 the Court held that the Immigration Assessment Authority had jurisdiction to review a delegate’s decision to refuse to grant a protection visa to a fast track applicant, even where the delegate had failed to comply with an obligation to provide relevant information to the applicant and invite the applicant to comment on it. The Authority’s jurisdiction is to review decisions that are made in fact, with no requirement that those decisions be legally effective.

The Court looked at what constitutes jurisdictional error in both Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 and Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; 92 ALJR 798. In the former case, the Court held that an error of law will not be jurisdictional in nature if the error does not materially affect the decision, while in the latter it held that the alleged error was not jurisdictional as the error could have had no impact on the Migration Review Tribunal’s decision.

In Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 92 ALJR 201, the Court held that the exercise of the Minister’s power to cancel the visa of a person who has a substantial criminal record does not involve any determination or punishment of criminal guilt and does not involve the exercise of judicial power. In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 92 ALJR 713, it was held that the Refugee Review Tribunal’s decision to proceed in the absence of the respondents was not unreasonable in circumstances where the respondents had failed to respond to the tribunal’s invitations.

Edelman J dealt with a further two cases relating to migration issues in November this year. In Wehbe v Minister for Home Affairs [2018] HCA 50; 92 ALJR 1033, his Honour found that a misstatement by the plaintiff’s migration agent as to the plaintiff’s marital status was immaterial to a delegate’s decision to refuse her application for a partner visa, and that there was no reasonable prospect of establishing that that misstatement was made fraudulently. Accordingly, there was no legal basis to quash the delegate’s decision. In Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51; 92 ALJR 1039, his Honour held that the act of filing an appearance in an appeal did not create an estoppel that precluded the defendant from making submissions about the scope of the Court’s subject matter jurisdiction.

Three taxation and revenue cases were dealt with by the High Court in 2018. In Federal Commissioner of Taxation v Thomas [2018] HCA 31; 92 ALJR 746, the Court held that directions given by the Supreme Court of Queensland to a trustee did not determine conclusively against the Commissioner the application of taxation law to certain franked distributions. The trustee in that case had sought to distribute franking credits between beneficiaries separately from and in different proportions to the income comprising the franked distributions.

Comptroller General of Customs v Zappia [2018] HCA 54; 92 ALJR 1053, concerned dutiable tobacco goods which were stolen from a warehouse. The appellant Comptroller sought to recover the amount of customs duty which would have been payable on the goods had they been entered for home consumption from the respondent, who was the general manager and warehouse manager of the warehouse licence holder. The Court held that such an employee was capable of being a person who “has, or has been entrusted with, the possession, custody or control” of dutiable goods and, accordingly, that the demand issued to the respondent by the Comptroller was valid.

In Commissioner of State Revenue (WA) v Placer Dome Inc [2018] HCA 59; 93 ALJR 65, the Court held that ad valorem duty was payable on the acquisition of a substantial gold mining enterprise. The acquired entity in that case was a land rich company which had no material property comprising legal goodwill, and the purchaser had failed to establish that the value of all of the acquired entity’s land did not meet or exceed 60% of the value of all of its property (which was the threshold for making the acquisition liable to duty).

Federal Commissioner of Taxation v Tomaras [2018] HCA 62 was a family law case with implications for taxation and revenue. The Court held that, in relation to a debt owed to the Commonwealth by a party to a marriage, the Family Law Act 1975 (Cth), s 90AE(1), confers power on the court to make an order that the Commissioner be directed to substitute the husband for the wife in relation to that debt.

Trkulja v Google LLC [2018] HCA 25; 92 ALJR 619 involved a defamation action brought by a plaintiff who claimed that he was defamed by certain results returned by the defendant’s search engine. The Court held that it was evident that at least some of the search results complained of had the capacity to convey to an ordinary reasonable person viewing the search results that the appellant was somehow associated with the Melbourne criminal underworld, and, therefore, that the search results had the capacity to convey one or more of the defamatory imputations alleged. The Victorian Court of Appeal had therefore erred in concluding that the proceeding had no real prospect of success.

In its only succession case of the year, the Court, in Nobarani v Mariconte [2018] HCA 36; 92 ALJR 806, held that the appellant had been denied procedural fairness in the conduct of a trial involving the respondent’s claim for probate of a will in solemn form. The denial or procedural fairness arose from the consequences, and effect on the appellant, of altering the hearing, at short notice, from a hearing of a caveat motion to a trial of the claim for probate. The Court ordered that the respondent’s costs of proceedings in the New South Wales Supreme Court and in the High Court be paid from the estate and on a trustee basis in Nobarani v Mariconte (No 2) [2018] HCA 49; 92 ALJR 1031.

Pike v Tighe [2018] HCA 9; 92 ALJR 355 was the Court’s sole planning law decision of 2018. In that case, the Court held that a successor in title to ownership of a parcel of land (created by the reconfiguration of a larger parcel) was obliged to comply with a condition of the approval for the reconfiguration that should have been, but was not, satisfied by the original owner prior to completion of the reconfiguration. The development approval was held to attach to all the land the subject of the development application.

The Court dealt with two cases related to building and construction industry security of payment legislation in 2018. In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 92 ALJR 248, the Court held that the New South Wales legislation ousted the jurisdiction of the Supreme Court to make an order in the nature of certiorari to quash a determination made by an adjudicator for a non-jurisdictional error on the face of the record. Consistently with that decision, the Court held, in Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5; 92 ALJR 277, that the South Australian legislation also ousted the equivalent jurisdiction in that State.

Pipikos v Trayans [2018] HCA 39; 92 ALJR 880 was another case involving contract law. In that decision, the Court held that the doctrine of part performance requires acts which are unequivocally referable to an agreement of the kind alleged, and that it would be inappropriate to relax that requirement.

The industrial law penalty regime was considered in Australian Building and Construction Commission v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157; 92 ALJR 219. The Court held that the power to make a pecuniary penalty order given by the Fair Work Act 2009 (Cth), s 546(1), carried with it an implied power to make the person the subject of the order pay the penalty personally.

Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; 92 ALJR 918 involved the knowing assistance by the appellant company in breaches of fiduciary duties by employees of another company that, like the appellant, was involved in the funeral products business. The Court ordered the appellant to account to the respondent in the sum of nearly $15,000,000, holding that there was no reason in principle to restrict the appellant’s obligation to disgorge to less than the entire capital value of the business it acquired in knowing assistance of the breach of fiduciary duties.

Two corporations law judgments were delivered by the Court in 2018. In Australian Securities and Investments Commission v Lewski [2018] HCA 63, the Court reinstated declarations that a number of directors had breached the Corporations Act 2001 (Cth), while in Mighty River International Ltd v Hughes [2018] HCA 38; 92 ALJR 822 it upheld the validity of a deed of company arrangement.

In Amaca Pty Ltd v Latz [2018] HCA 22; 92 ALJR 579, the Court held that an allowance for the loss of expectation of receiving the age pension should not have been included in an award of damages to a man who had been diagnosed with terminal malignant mesothelioma after being exposed to asbestos. The Court held that the age pension, unlike a superannuation pension, is not a capital asset and that it is not a result of, or intrinsically connected to, a person’s capacity to earn. In SAS Trustee Corporation v Miles [2018] HCA 55; 92 ALJR 1064, the Court held that a disabled member of the police force was not entitled to an additional amount of annual superannuation allowance under the relevant regulation unless the member’s incapacity for work outside the police force was attributable to a specified infirmity determined to have been caused by the member being hurt on duty.

Stays of proceedings were at issue in both Rozenblit v Vanier [2018] HCA 23; 92 ALJR 600 and UBS AG v Tyne [2018] HCA 45; 92 ALJR 968. In the former case, the Court held that the timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. It was an abuse of process warranting a permanent stay for the substituted trustee in that case to initiate fresh court proceedings for substantially the same claims as those alleged by the previous trustee before it discontinued its involvement in the court proceedings. In the latter case, the Court set aside a stay that had been ordered following an impecunious plaintiff’s failure to pay costs fixed pursuant to an interlocutory order for costs to be taxed immediately. The Court held that a stay under the relevant rule should be ordered against an impecunious plaintiff where it is the only practical way to ensure justice between the parties.

In another case about procedure, the Court examined the power to set aside a perfected judgment for fraud in Clone Pty Ltd v Players Pty Ltd (in liq) [2018] HCA 12; 92 ALJR 399. The Court held that the relevant equitable power was limited to cases of actual fraud, and that fraud must be clearly pleaded and proven (which had not occurred in these proceedings).

Finally, 2018 saw a significant increase in the number of appeals from the Supreme Court of Nauru heard by the High Court. Whereas the Court determined four such appeals in 2017, it finalised twelve Nauru appeals in 2018 and handed down an additional judgment on a related procedural matter.

In Republic of Nauru v WET040 [2018] HCA 56; (2018) 92 ALJR 1080, the Court held that an appeal to the High Court of Australia from the Supreme Court of Nauru is instituted simply by filing a notice of appeal, and that the time for filing such a notice could be enlarged. The date on which the appeal in that matter was instituted had significance due to the termination of the agreement between the Australian and Nauruan governments that provided for appeals from the Supreme Court of Nauru to the High Court of Australia. The Republic of Nauru was ultimately successful in this appeal, with the High Court, in Republic of Nauru v WET040 (No 2) [2018] HCA 60; 93 ALJR 102, holding that the Nauru Refugee Status Review Tribunal had provided sufficient reasons for why it found the respondent’s account of events to be implausible, and that the Tribunal’s conclusions were not speculative or matters of conjecture.

The remaining eleven Nauru appeals were each instituted by persons who had been denied complementary protection or who had had their claims for refugee status denied by Nauru. The applicants were successful in just three of those appeals, with the other eight appeals being dismissed by the High Court.

That concludes this year’s wrap-up of High Court decisions. The Court returns from its summer recess on Monday 4 February 2019. 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 2019.