Hearsay ... the Journal of the Bar Association of Queensland
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Issue 74 - Dec 2015
High Court of Australia Judgment Summary Notes Print E-mail

highcourtintro.jpgThe following summary notes of recent decisions of the High Court of Australia provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

The following Judgments are summarised in this issue. The summary notes follow after this list:


Ausnet Transmission Group Pty Ltd v Commissioner of Taxation [2015] HCA 25

On 5 August 2015 the High Court, by majority, dismissed an appeal from a decision of a Full Court of the Federal Court of Australia, which held that certain charges paid by the appellant were outgoings of a capital nature and therefore not tax deductible.

The appellant purchased the assets of a State-owned electricity transmission business, Power Net Victoria ("PNV"). The assets included an electricity transmission licence held by PNV which had been issued pursuant to Pt 12 of the Electricity Industry Act 1993 (Vic) ("the transmission licence").

The Victorian Governor in Council, by Order made pursuant to s 163AA(1) of the Act, had imposed specified charges on the holder of the transmission licence. When the appellant became the holder of the transmission licence, it became liable to pay the charges by force of the Act. In addition, the relevant asset sale agreement expressly required that the appellant pay the charges to the State of Victoria and refrain from contesting their validity. Separately, it required the appellant to pay a specified "total purchase price" to PNV for its assets.

Section 8-1(2)(a) of the Income Tax Assessment Act 1997 (Cth) provides that a loss or outgoing of capital, or of a capital nature, is not tax deductible under that section. Relevantly, the appellant claimed that the payments of the specified charges were deductible from its assessable income. The respondent, the Commissioner of Taxation of the Commonwealth of Australia, disallowed the deductions claimed and the appellant's subsequent objection.

At first instance, the Federal Court affirmed the Commissioner's position. On appeal to a Full Court, the majority held that the specified charges were not deductible because they were of a capital nature and dismissed the appeal.

By grant of special leave, the appellant appealed to the High Court. By majority, the Court held that, from a practical and business point of view, the appellant assumed the liability to make the payments in order to acquire the transmission licence and the other assets of PNV. The payments of the charges were outgoings of a capital nature and were therefore not tax deductible.

HCA26.jpgPolice v Dunstall [2015] HCA 26

On 5 August 2015 the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia. The High Court held that, in dismissing a charge of drink-driving against the respondent, the Magistrates Court of South Australia had erroneously excluded evidence of the respondent's breath analysis reading, and the Supreme Court of South Australia and the Full Court had erred in upholding that decision on appeal.

Section 47B(1)(a) of the Road Traffic Act 1961 (SA) makes it an offence for a person to drive a motor vehicle while the prescribed concentration of alcohol is present in his or her blood. Under certain conditions, the Act creates a presumption that the concentration of alcohol indicated by a breath analysing instrument as being present in the driver's blood was the concentration of alcohol in the driver's blood at the time of the breath analysis ("the presumption"). The presumption may only be rebutted if the defendant arranges for a sample of his or her blood to be taken by a medical practitioner in accordance with prescribed procedures and adduces evidence that analysis of the blood demonstrates that the breath analysing instrument gave an exaggerated reading.

The respondent was stopped by police while driving a motor vehicle. A breath analysing instrument recorded that the concentration of alcohol in his blood was 0.155 grams of alcohol per 100 millilitres, which was above the prescribed concentration. The respondent was supplied with a blood test kit and arranged for a sample of his blood to be taken by a medical practitioner. It was not possible to analyse the sample because the medical practitioner failed to take a sufficient quantity of blood.

The respondent was charged with an offence against s 47B(1)(a) of the Act, to which he pleaded not guilty in the Magistrates Court. The magistrate held that the breath analysis reading should be disregarded because the respondent, through no fault of his own, had lost his only opportunity to adduce evidence which may have rebutted the presumption. His Honour dismissed the charge.

The police appealed unsuccessfully to the Supreme Court and subsequently, by leave, to the Full Court. Both Courts held that it had been open to the magistrate to exclude the evidence of the breath analysis reading in the exercise of a "general unfairness discretion" to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the defendant in that it would make the trial unfair.

By grant of special leave, the police appealed to the High Court. In unanimously allowing the appeal, the Court held that admission of the evidence of the breath analysis reading would not make the respondent's trial unfair in the relevant sense. The respondent did not have a statutory right to have a sample of blood taken and dealt with in accordance with the prescribed procedures; rather, the onus was upon him to bring himself within the confines of the rule allowing for rebuttal of the presumption. Having determined that the magistrate erred in excluding the evidence of the breath analysis reading, the Court held the appropriate course was to remit the matter for further hearing before the Magistrates Court.

Smith v the Queen [2015] HCA 27

On 5 August 2015 the High Court unanimously held that the appellant was not denied procedural fairness when the trial judge who had been informed of a jury’s interim votes for and against conviction did not disclose those votes or the voting pattern to counsel.

The appellant was tried on one count of rape in the District Court of Queensland in February 2014. During its deliberations, the jury sent three notes to the trial judge. The trial judge disclosed to counsel the precise contents of the first two notes.

The jury’s third note indicated that the jury could not agree on a unanimous verdict. It also stated two iterations of the jury's interim votes for and against conviction. The trial judge informed counsel that the jury could not agree and that the note contained the jury’s interim voting patterns, but decided not to disclose the interim votes or voting patterns to counsel. Neither counsel objected.

At this point, the judge proposed to permit the jury to consider a majority verdict. Under s 59A of the Jury Act 1995 (Q) (“the Jury Act”), a trial judge has a discretion to permit a jury to return a majority verdict if, after a prescribed period of deliberation, the judge is satisfied that the jury is unlikely to reach a unanimous verdict. A trial judge also has a discretion to discharge a jury at any time under s 60 of the Jury Act.

The trial judge asked the jury if further time for deliberation would assist the jury to return a majority verdict. The jury indicated that it might. Accordingly, the trial judge permitted the jury to retire to consider a majority verdict. Neither counsel objected. The jury subsequently returned a guilty verdict by a majority of 11 to 1.

The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland. He contended that he was denied procedural fairness when the judge failed to disclose the precise contents of the jury's third note. He argued that the jury's interim voting patterns were relevant to the trial judge’s discretion either to allow a majority verdict or to discharge the jury, and so ought to have been disclosed to counsel. The Court of Appeal dismissed the appellant's appeal. By grant of special leave, the appellant appealed to the High Court.

The High Court unanimously dismissed the appeal, holding that there was no denial of procedural fairness. Procedural fairness requires that a trial judge disclose to counsel all information available to the trial judge but not available to counsel, where that information is relevant to an issue before the court. However, the jury’s interim votes and voting patterns were not and could not be relevant to an issue before the court because of the protean and changeable character of the jury's deliberations. Nothing in the Jury Act otherwise made the interim votes and voting patterns relevant.

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28

On 12 August 2015 the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that declarations and orders made by the Federal Court of Australia in proceedings commenced by the Fair Work Ombudsman ("the Ombudsman") against the respondent did not create an issue estoppel precluding the appellant from asserting that the respondent was not his employer in a subsequent proceeding.

The appellant was employed by the respondent to work in its abattoir. The appellant was later informed that his employment was at an end and that he would be employed by Tempus Holdings Pty Ltd, which would provide labour services to the respondent. The appellant was subsequently made redundant. He complained to the Ombudsman that certain statutory entitlements had not been paid to him and the Ombudsman commenced proceedings against the respondent in the Federal Court. The principal issue in those proceedings was whether the respondent or Tempus had been the appellant's employer. The Federal Court declared that the respondent had been the appellant's employer and ordered the respondent to pay the appellant's entitlements.

The appellant subsequently commenced proceedings against the respondent in the District Court of New South Wales claiming damages in negligence for a personal injury he sustained while working at the abattoir. He contended that Tempus had been his employer, but that the respondent, as the party in control of the workplace, owed him a duty of care akin to that owed by an employer. If the respondent had been the appellant's employer, the appellant would have been prevented from bringing the claim, or from recovering damages, by New South Wales legislation governing the management of, and limiting recovery for, workplace injuries. The respondent argued that the appellant was estopped by the declarations and orders made in the Federal Court proceedings from denying that the respondent was his employer or, alternatively, that the respondent was in fact the appellant's employer.

The District Court rejected the respondent's issue estoppel argument and found on the evidence that Tempus had been the appellant's employer. On appeal, the Court of Appeal determined that the declarations and orders of the Federal Court created an estoppel binding on the appellant by reason of the appellant having been "privy" in interest with the Ombudsman in the Federal Court proceedings according to the principle stated by this Court in Ramsay v Pigram (1968) 118 CLR 271.

The High Court held that the Court of Appeal erred in concluding that the Ombudsman was the appellant's privy in the Federal Court proceedings, as the Ombudsman was not enforcing payment of the appellant's entitlements "under or through", or "on behalf of", the appellant. In commencing proceedings against the respondent, the Ombudsman was acting pursuant to his statutory power to enforce the Workplace Relations Act 1996 (Cth) and awards made under that Act. That power was not derived from the appellant or his entitlements, and, in exercising it, the Ombudsman was not representing the appellant's legal interests. By majority, the High Court remitted the matter to the Court of Appeal for determination of an outstanding issue.

Filippou v the Queen [2015] HCA 29

On 12 August 2015 the High Court unanimously dismissed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") against the convictions and sentence imposed upon the appellant, Christopher Angelo Filippou, for two counts of murder.

In 2010, the appellant shot and killed two brothers, Sam and Luke Willis. During a dispute, the brothers confronted the appellant outside his house. The appellant shot them at close range. The next day, the appellant admitted to police that he had killed the brothers. But he claimed that Luke Willis had pulled out the gun, and that he had taken the gun from Luke before shooting the brothers.

The appellant was charged with two counts of murder. To each count, he pleaded not guilty of murder but guilty of manslaughter by reason of provocation. He was tried before a judge of the Supreme Court of New South Wales, sitting without a jury. The sole issue at trial was provocation. The prosecution alleged that the appellant, not one of the brothers, brought the gun. The judge found that the allegation was not proved beyond reasonable doubt. Nevertheless, the judge found that there was no reasonable possibility that the appellant had lost self-control before he shot the brothers, and therefore the partial defence of provocation failed. The appellant was found guilty and convicted of both counts of murder.

In sentencing, the trial judge was neither satisfied beyond reasonable doubt that the appellant brought the gun nor satisfied on the balance of probabilities that one of the brothers brought the gun. The origin of the gun was, therefore, not proved to the standard required of either an aggravating factor or a mitigating factor in sentencing. Accordingly, the trial judge sentenced the appellant on the basis that the origin of the gun was unknown.

On appeal, the CCA held that the trial judge erred in fact as to the sequence of events before the killings, and possibly erred in law in directing herself as to the requirements of the partial defence of provocation, but that there was no miscarriage of justice because the appellant had been proved guilty beyond reasonable doubt of murder. The CCA found no error in the appellant's sentence.

By grant of special leave, the appellant appealed to the High Court against his convictions and sentence. The Court unanimously dismissed the appeal. In relation to the appeal against conviction, the plurality held that the alleged errors of the trial judge were either not made out or of no consequence, and therefore there was no miscarriage of justice that would warrant allowing the appeal and remitting the matter to the CCA. On the appeal against sentence, the Court held that the judge was not bound to adopt the view of the facts most favourable to the appellant, and was therefore correct in sentencing on the basis that the origin of the gun was unknown.

HCA30.jpgAstraZeneca AB v Apotex Pty Ltd & Ors [2015] HCA 30

On 2 September 2015 the High Court unanimously held that a patent which disclosed a method of treatment for hypercholesterolemia was invalid because it lacked an inventive step within the meaning of s 7(2) and 7(3) of the Patents Act 1990 (Cth) ("the Act").

Section 18(1)(b)(ii) of the Act provided as a requirement for a patentable invention that the invention must involve an inventive step. Sections 7(2) and 7(3) defined the condition on satisfaction of which an invention would not be taken to involve an inventive step. Relevantly, that condition was satisfied if the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge considered separately or together with prior art information publicly available in a single document before the priority date of the patent. The single document had to contain prior art information which could reasonably be expected to have been ascertained, understood and regarded by the skilled person, before the priority date, as relevant to work in the relevant art in the patent area.

The first appellant in each appeal is the registered proprietor of Australian Patent Number AU200023051 ("the Patent"). The second appellant is the exclusive licensee of the Patent. The Patent disclosed as a method of treatment for hypercholesterolemia the administration of rosuvastatin and its pharmaceutically acceptable salts at a starting dosage of 5-10 milligrams per day. The respondents supplied generic compounds using rosuvastatin at like dosages.

The appellants commenced proceedings in the Federal Court of Australia claiming infringement of the Patent by that supply and obtained interlocutory injunctions. The respondents sought revocation of the Patent. The primary judge found the Patent invalid on three grounds: that the appellants were not entitled to the Patent; that the invention disclosed in the Patent was not novel in light of two prior art publications; and that the invention disclosed in the Patent did not involve an inventive step and was obvious within the meaning of s 7(2) of the Act. The Full Court of the Federal Court of Australia overturned only the finding of lack of novelty and dismissed the appeals from the primary judge's decision. On its appeals to the High Court, the appellants sought to agitate all grounds of invalidity which had been upheld by the Full Court. The respondents raised other issues by notice of contention.

The High Court unanimously dismissed the appeals on the basis that the invention claimed lacked an inventive step and was obvious in light of the common general knowledge together with either of the two prior art publications considered separately. It was unnecessary for the Court to consider the other ground of invalidity and issues raised in the notice of contention.

Fuller-Lyons v New South Wales [2015] HCA 31

On 2 September 2015 the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales and restored the primary judge's award of damages to the appellant.

In 2001, the appellant, who was then aged eight, suffered severe injuries when he fell from a train about two minutes after it departed from Morisset Station. By his representative, the appellant brought proceedings in the Supreme Court of New South Wales, claiming damages in negligence against the State of New South Wales ("the State"), the legal entity operating the rail network.

There was no direct evidence of how the appellant fell from the train. It was common ground that the appellant must have fallen through the front doors of the carriage in which he was travelling. The doors were fitted with electro-pneumatic locking motors which were centrally operated by the guard on the train. When the doors were locked, they could not be prised open. It followed that when the appellant fell, the doors could not have been locked, despite the guard having engaged the locking system before the train left Morisset Station.

The primary judge found that the only realistic means by which the appellant could have generated sufficient force against the pneumatic power of the locking motors to open the doors far enough to fall out was if he had his back to one door and he pushed with his arms or a leg against the other. The primary judge considered the most likely explanation for how the appellant came to be in this position was that he had been caught between the doors as they closed at Morisset Station, leaving part of his torso and at least one of his arms and legs outside the train. The primary judge held the State vicariously liable for the negligent failure of a railway employee to keep a proper lookout before signalling for the train to depart. The appellant was awarded $1,536,954.55 in damages.

The State successfully appealed against the finding of liability. The Court of Appeal accepted the primary judge's inferential finding that, immediately before the fall, the appellant must have been positioned with his back to one door such that he could push against the opposing door. However, the Court of Appeal considered there were equally probable alternative hypotheses available to explain how the appellant came to be in that position which did not entail negligence on the part of railway staff.

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, finding that the Court of Appeal erred in overturning the primary judge's ultimate factual finding. The Court of Appeal's acceptance of the primary judge's anterior factual findings left his Honour's ultimate finding as the most likely inference "by a large measure". It was a correct finding notwithstanding that other possible explanations could not be excluded. The Court also held that it was an error to reject the primary judge's finding on the basis that the appellant had failed to exclude one alternative hypothesis that had not been explored in evidence.

Duncan v Independent Commission Against Corruption [2015] HCA 32

On 9 September 2015 the High Court unanimously dismissed an application seeking a declaration that Pt 13 of Sched 4 to the Independent Commission Against Corruption Act 1988 (NSW) ("the ICAC Act") is invalid.

In July 2013, the respondent published a report containing findings that the applicant had engaged in "corrupt conduct" within the meaning of s 8(2) of the ICAC Act. The applicant commenced proceedings in the Supreme Court of New South Wales challenging the validity of those findings. His claim was dismissed by the primary judge. The applicant appealed to the Court of Appeal against that decision.

On 15 April 2015, prior to the determination of the Court of Appeal proceedings, the High Court delivered its judgment in Independent Commission Against Corruption v Cunneen [2015] HCA 14, holding that "corrupt conduct" within the respondent's investigative jurisdiction under the ICAC Act does not encompass conduct which does not adversely affect the probity, even if it adversely affects the efficacy, of the exercise of the functions of a public official. It was common ground that the applicant's conduct the subject of the respondent's findings in the report did not affect the probity of the exercise of the functions of a public official. As a result, the applicant added to the grounds of his appeal the contention that the respondent lacked jurisdiction to make findings of corrupt conduct against him.

On 6 May 2015, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sched 4 to the ICAC Act. Pt 13 purports to ensure the validity of the respondent's activities before 15 April 2015, notwithstanding the decision in Cunneen. The applicant sought a declaration from the Court of Appeal that Pt 13 is invalid. The applicant's challenge to the validity of Pt 13 was removed to the High Court.

The High Court unanimously dismissed the application. The Court held that cll 34 and 35 of Pt 13 deem those acts done by the respondent before 15 April 2015 to be valid to the extent that they would have been valid if the definition of corrupt conduct in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. A majority of the Court held that cll 34 and 35 of Pt 13 operate to effect an alteration in the substantive law as to what constitutes corrupt conduct, and the whole Court held that cll 34 and 35 of Pt 13 retrospectively confer jurisdiction upon the respondent. In doing so, the provisions attach new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status.

Alcan Gove Pty Ltd v Zabic [2015] HCA 33

On 7 October 2015 the High Court published its reasons for dismissing an appeal from a decision of the Court of Appeal of the Northern Territory of Australia. The High Court unanimously held that the respondent was not statute-barred from suing the appellant in negligence in respect of mesothelioma he contracted as a result of inhaling asbestos fibres during his employment with the appellant.

The respondent was employed as a labourer at the appellant's alumina refinery from 1974 to 1977. Around late 2013 or early 2014, he began to experience symptoms of mesothelioma.

The Workers Rehabilitation and Compensation Act (NT) ("the Act") abolished common law actions in negligence with respect to certain workplace injuries and provided for limited statutory rights to compensation for injured workers. Sections 52(1) and 189(1) of the Act provided, in effect, that the respondent could not sue the appellant for damages in negligence unless his cause of action accrued before 1 January 1987.

The respondent commenced proceedings in the Supreme Court of the Northern Territory of Australia. The main issue in dispute was whether the respondent had suffered compensable damage before 1 January 1987. The evidence at trial was that the asbestos fibres that the respondent inhaled while working at the refinery caused changes to his mesothelial cells soon after the inhalation, which ultimately culminated in malignant mesothelioma. The changes to the cells were likely to have lain dormant until one to five years before the first manifestation of symptoms. At that point, an unknown "trigger" set off the development of abnormal genetic switches in the respondent's mesothelial cells that resulted in malignancy.

The respondent's claim was dismissed at trial, but the Court of Appeal allowed the respondent's appeal. The Court of Appeal held that, with the benefit of hindsight, it was possible to infer that the mesothelial cell changes that occurred soon after exposure to asbestos between 1974 and 1977 led inevitably and inexorably to the onset of mesothelioma. The respondent's cause of action therefore arose before 1 January 1987.

By grant of special leave, the appellant appealed to the High Court. On 12 August 2015, the High Court published an order dismissing the appeal. In its reasons published today, the Court unanimously held that, on the evidence given at trial, it could be inferred that the "trigger" which led to mesothelioma was present in the respondent's mesothelial cells when the initial changes to the cells occurred. It followed that, because the mesothelial cell changes were bound to lead to mesothelioma, the respondent had suffered compensable damage at the time of the cell changes. His cause of action in negligence therefore arose before 1 January 1987 and his claim against the appellant was not barred by the Act.

McCloy & Ors v State of New South Wales & Anor [2015] HCA 34

On 7 October 2015 the High Court upheld the validity of certain provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("the EFED Act"), which impose caps on political donations, prohibit property developers from making such donations, and restrict indirect campaign contributions.

Division 2A of Pt 6 of the EFED Act ("Div 2A") provides for general caps on the amount of political donations which a person can make to or for the benefit of a particular political party, elected member, group, candidate or third-party campaigner. Division 4A of Pt 6 ("Div 4A") prohibits the making or acceptance, directly or indirectly, of a political donation by a "prohibited donor" or the soliciting of a person by or on behalf of a "prohibited donor" to make a political donation. "Prohibited donor" is defined to include "a property developer". Section 96E prohibits the making or acceptance of "indirect campaign contributions". Div 4A and s 96E apply in New South Wales to State and local government elections and to elected members of Parliament and councils. Div 2A applies only to State elections and elected members of Parliament.

The first and third plaintiffs are "property developers" and the second plaintiff made an "indirect campaign contribution" within the meaning of each expression in the EFED Act. Each of the plaintiffs intended, if permitted by law, to make donations in excess of the caps imposed by Div 2A. The plaintiffs brought proceedings in the original jurisdiction of the High Court, challenging the validity of Div 2A, Div 4A (as it applied to "property developers") and s 96E on the basis that these provisions impermissibly burden the implied constitutional freedom of communication on governmental and political matters. They submitted that the impugned provisions burden the freedom of political communication by restricting the funds available to political parties and candidates to meet the costs of political communication, and further that the restrictions imposed upon the plaintiffs' ability to gain access and make representations to politicians and political parties were also such a burden.

The High Court accepted that the impugned provisions indirectly burden political communication by restricting the funds available to political parties and candidates. However, the Court unanimously held that the burden imposed by the donation caps in Div 2A is not impermissible and the provisions are a legitimate means of pursuing the legitimate objective of removing the risk and perception of corruption and undue influence in New South Wales politics. The Court held that the provisions in fact enhance the system of representative government which the implied freedom of political communication protects. Section 96E was also held to be valid, on the basis that as an anti-avoidance provision its validity depends on that of Div 2A. By majority the Court held, taking note of a history of corruption in New South Wales, that the prohibition on donations by property developers in Div 4A is also valid.

D'Arcy v Myriad Genetics Inc [2015] HCA 35

On 7 October 2015 the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that an isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm that are indicative of susceptibility to breast cancer and ovarian cancer, was not a "patentable invention" within the meaning of s 18(1)(a) of the Patents Act 1990 (Cth) ("the Act").

The term "nucleic acid" includes two kinds of molecules, deoxyribonucleic acid (DNA) and ribonucleic acid (RNA), which are found inside a human cell. A gene is a functional unit of DNA which encodes a particular protein produced by the cell. The protein produced depends on the sequence of nucleotides. The BRCA1 gene codes for the production of a protein called BRCA1.

The first respondent filed a patent which contained 30 claims. Relevantly, Claims 1 to 3 concerned a nucleic acid coding for a BRCA1 protein, and with one or more specified variations from the norm in its nucleotide sequence, isolated from its cellular environment. Those specified variations, characterised as mutations or polymorphisms, are indicative of susceptibility to breast cancer and ovarian cancer.

Section 18(1)(a) of the Act requires that, for an invention to be patentable, it must be "a manner of manufacture" within the meaning of s 6 of the Statute of Monopolies. The appellant commenced proceedings in the Federal Court of Australia challenging the validity of Claims 1 to 3 on the basis that the invention claimed did not meet the requirement of s 18(1)(a).

The primary judge dismissed the appellant's challenge, holding that the invention fell within the concept of a "manner of manufacture". The Full Court dismissed an appeal from that decision. The Full Court held that an isolated nucleic acid was chemically, structurally and functionally different from a nucleic acid inside a human cell. The invention was a manner of manufacture because an isolated nucleic acid with the characteristics specified in Claims 1 to 3 resulted in an artificially created state of affairs for economic benefit.

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that the invention claimed did not fall within the concept of a manner of manufacture. The Court held that, having regard to the relevant factors, an isolated nucleic acid, coding for the BRCA1 protein, with specified variations, is not a manner of manufacture. While the invention claimed might be, in a formal sense, a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed. A plurality of the Court considered that to attribute patentability to the invention as claimed would involve an extension of the concept of a manner of manufacture which was not appropriate for judicial determination.

PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36

On 14 October 2015 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The High Court held that it is within the inherent power of the Supreme Court of Western Australia to make a freezing order in relation to an anticipated judgment of a foreign court which, when delivered, would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth) ("the Act").

The appellant, a company incorporated in Indonesia, owns shares in the second respondent, a company incorporated in Australia. The first respondent is a company incorporated in Singapore. The appellant and the first respondent are parties to a joint venture agreement which is governed by the law of Singapore. The first respondent commenced a proceeding against the appellant in the High Court of Singapore, claiming, amongst other things, damages for breach of that agreement. That proceeding remains pending.

After commencing the Singaporean proceeding, the first respondent applied ex parte to the Supreme Court of Western Australia for freezing orders against the appellant and the second respondent in respect of the appellant's shares in the second respondent. The application was made pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) ("the Rules"). The Supreme Court made interim freezing orders. The appellant and the second respondent then commenced a separate proceeding in the original jurisdiction of the High Court seeking declaratory relief on the basis that the interim freezing orders were beyond power. That proceeding was remitted to the Supreme Court and determined concurrently with the first respondent's application for continuation of the interim freezing orders. The primary judge dismissed the remitted proceeding, discharged the interim freezing order against the second respondent and continued the freezing order against the appellant. The primary judge made detailed findings of fact in relation to the continuation of the freezing order against the appellant, including that there was a real and sensible risk that any judgment by the High Court of Singapore in favour of the first respondent would remain unsatisfied. The Court of Appeal unanimously dismissed an appeal by the appellant from the orders of the primary judge.

On appeal to the High Court, the appellant accepted that the findings of the primary judge established a factual foundation for the continuation of the freezing order in accordance with the criteria set out in O 52A r 5 of the Rules, but contended that the Supreme Court lacked power to make a freezing order in accordance with those criteria. The High Court unanimously held that the power to make a freezing order in relation to an anticipated judgment of a foreign court, which when delivered would be registrable by order of the Supreme Court under the Act, is within the inherent power of the Supreme Court. The Court so held because the making of the freezing order is to protect a process of registration and enforcement in the Supreme Court which is in prospect of being invoked. The Court determined that the criteria set out in O 52A r 5 of the Rules are appropriately tailored to the exercise of that inherent power.

HCA37.jpgMount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37

On 14 October 2015 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales ("NSWCA") in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited and unanimously allowed an appeal from the NSWCA in Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited. The High Court held that Mount Bruce Mining Pty Limited ("MBM") is liable to pay royalties to Wright Prospecting Pty Limited and Hancock Prospecting Pty Limited (together, "Hanwright") in respect of iron ore mined in two areas of the Pilbara region of Western Australia known as "Eastern Range" and "Channar".

Hanwright, MBM and Hamersley Iron Pty Limited entered into an agreement dated 5 May 1970, which, among other things, concerned the payment of royalties by MBM in relation to iron ore mined from areas of land the subject of the agreement ("the 1970 Agreement"). Pursuant to cl 2.2 of the 1970 Agreement, MBM acquired from Hanwright the "entire rights" to the "MBM area", a term defined by reference to certain "temporary reserves" granted under the Mining Act 1904 (WA). Under cl 3.1 of the 1970 Agreement, royalties were payable to Hanwright on "[o]re won by MBM from the MBM area". The obligation to pay royalties extended to "all persons or corporations deriving title through or under" MBM to the "MBM area".

MBM claimed that the term "MBM area" did not refer to an area of land to which rights of occupancy had been transferred to MBM; rather, it referred to the rights themselves. The consequence of this construction would be that Eastern Range and Channar did not fall within the "MBM area" and royalties would not be payable on iron ore extracted therefrom. If MBM’s construction of the term "MBM area" was incorrect, MBM claimed that royalties were, in any event, not payable in respect of iron ore extracted from a part of Channar (referred to as "Channar A") because such ore was not extracted by entities "deriving title through or under" MBM.

The Supreme Court of New South Wales rejected MBM’s claims and held that royalties were payable in respect of iron ore extracted from both Eastern Range and Channar. On appeal, the NSWCA held that royalties were payable in respect of Eastern Range but not Channar A. By grant of special leave, each of the parties appealed to the High Court.

The High Court held that the term "MBM area" referred to the physical area of land that had been transferred to MBM and was not limited to the rights under the tenements that affected that land at the time of the 1970 Agreement. The Court further held that iron ore was being won from Channar A by entities "deriving title through or under" MBM. The exploitation of Channar A was carried on under a title the derivation of which was facilitated by the deployment by MBM of its own title.

The Queen v Beckett [2015] HCA 38

On 23 October 2015 the High Court unanimously allowed an appeal against orders of the Court of Criminal Appeal of the Supreme Court of New South Wales ("the CCA") that permanently stayed the prosecution of the respondent for an offence under s 319 of the Crimes Act 1900 (NSW) ("the Act"). The High Court set aside the orders of the CCA, enabling the prosecution of the respondent to proceed.

The respondent is a solicitor who was approved by the Chief Commissioner of State Revenue to electronically lodge certain tax returns and payments, including stamp duty. She was authorised to stamp transfers of real property using accountable stamps on the condition that the duty payable in respect of a transfer was available to her prior to processing the relevant transaction online. On 11 June 2010, the respondent stamped a transfer and completed an online assessment of duty payable for the conveyance of a unit. The duty was not paid to the Office of State Revenue ("OSR"), to which it was payable.

As part of the OSR's investigation into the outstanding duty, the respondent attended a compelled interview conducted by investigators from the OSR. It is alleged that, during the interview, the respondent produced photocopies of two forged bank cheques and made false statements to the investigators, with a view to concealing the true facts and thereby preventing her prosecution for one or more offences under taxation law.

Section 319 of the Act makes it an offence for a person to do any act, or make any omission, intending in any way to pervert the course of justice. The respondent was arraigned in the District Court of New South Wales on an indictment which charged her with an offence under s 319. By notice of motion dated 4 December 2013, the respondent sought to quash the indictment or to stay the proceedings against her permanently. The respondent contended that there was no "course of justice" in existence at the time of the impugned conduct, that is, during the interview. Sweeney DCJ dismissed the respondent's motion. Her Honour held that a prosecution for an offence under s 319 could be maintained notwithstanding that no judicial proceedings had been commenced at the time of the impugned conduct.

The respondent appealed to the CCA on numerous grounds. The CCA determined that Sweeney DCJ was wrong to conclude that the s 319 prosecution could proceed. Their Honours held that the impugned conduct occurred before the jurisdiction of a court or competent judicial tribunal was invoked and was, therefore, incapable of constituting an offence under s 319. The prosecution for the s 319 offence was permanently stayed and the respondent's other grounds of appeal were dismissed.

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that an act done before the commencement of judicial proceedings may constitute an offence contrary to s 319 where it is done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may possibly be instituted. Liability for the offence hinges on the intention to pervert the course of justice and not upon the perversion of a course of justice already in existence.

North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia [2015] HCA 41

On 11 December 2015, the High Court, by majority, dismissed an application for a declaration that Div 4AA of Pt VII of the Police Administration Act (NT) ("the Act") is invalid.

Section 133AB(1) of the Act, which appears in Div 4AA, provides that the section applies if a member of the Police Force has arrested a person without a warrant in accordance with s 123 because the member believed on reasonable grounds that the person had committed, was committing or was about to commit an infringement notice offence. Section 133AB(2) provides that the member may take the person into custody and hold him or her for a period of up to four hours or, if the person is intoxicated, until the member reasonably believes that the person is no longer intoxicated. Section 133AB(3) provides that at the expiry of the relevant period in sub-s (2), the member may release the person unconditionally, with an infringement notice or on bail, or may bring the person before a justice of the peace or court.
The first plaintiff provides legal services to Aboriginal and Torres Strait Islander persons in the Northern Territory. The second plaintiff, an Aboriginal person resident in the Northern Territory, was arrested by members of the Northern Territory Police Force in Katherine on 19 March 2015 and was detained pursuant to Div 4AA for a period of close to 12 hours.
The first plaintiff commenced proceedings in the original jurisdiction of the High Court, joined by the second plaintiff. The plaintiffs sought a declaration that Div 4AA is invalid. The plaintiffs contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which are penal or punitive in character, and that this is beyond the legislative power of the Northern Territory because that power is subject to the same doctrine of the separation of judicial power which limits the legislative power of the Commonwealth. The plaintiffs also contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which undermine or interfere with the institutional integrity of the Northern Territory courts. The parties agreed a special case which asked the Court to determine whether Div 4AA of Pt VII is invalid.

The High Court, by majority, held that Div 4AA is valid. A majority of the Court held that, upon the proper construction of Div 4AA, the powers it confers on members of the Police Force are not penal or punitive in character and do not impair, undermine or detract from the institutional integrity of the Northern Territory courts. Div 4AA, properly construed, does not authorise members of the Police Force to detain a person for longer than is reasonably practicable for them to make a determination about which one of the options under s 133AB(3) is to be exercised. The Court ordered that the matter be referred to a single Justice for further directions.


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