As the end of another year approaches and we start to wind down for the Christmas break, it is once again a good time to take a quick look back over the judgments handed down by the High Court this year. In 2016, the Court handed down a total of 53 judgments with a HCA media-neutral citation, which was the same number as 2015. Those 53 judgments are outlined in brief below.
As has been the case for many years, the High Court dealt with a number of criminal law cases in 2016. Miller v The Queen  HCA 30; 90 ALJR 918 was one of the most noteworthy of the criminal law judgments. In that decision, a majority of the Court held that the principle of extended joint criminal enterprise stated in McAuliffe v The Queen (1995) 183 CLR 108 remains part of the common law of Australia. Significantly, the Court declined to follow the decision of the Supreme Court of the United Kingdom and the Privy Council in R v Jogee  2 WLR 681, which held that the doctrine of extended joint criminal enterprise should no longer be a basis for the imposition of criminal liability.
R v Baden-Clay  HCA 35; 90 ALJR 1013, which related to the death of Allison Baden-Clay, was another case to attract significant interest in 2016. The Court held that the Court of Appeal of Queensland erred in concluding that the prosecution had failed to exclude the hypothesis that the respondent unintentionally killed his wife. The Court restored the murder conviction which had been set aside by the intermediate appellate court.
NH v Director of Public Prosecutions (SA)  HCA 33; 90 ALJR 978 was another interesting criminal law case in which the Court held that the Supreme Court of South Australia does not have inherent power to amend or set aside a verdict delivered by the jury foreperson in the sight and hearing of the other jurors, without any dissent or correction by them, which has been translated by the trial judge into a perfected judgment of acquittal or conviction. The jury foreperson had apparently made a mistake in that case when he had told the trial court that at least 10 jurors had agreed on a not guilty verdict for a murder charge. In another case relating to juries, the Court held, in Lyons v Queensland  HCA 38; 90 ALJR 1107, that the exclusion of a profoundly deaf person from jury service did not constitute unlawful discrimination.
In RP v The Queen  HCA 53, the Court considered the application of the principle of doli incapax in relation to an eleven-year-old boy who had been convicted of two counts of sexual intercourse with a child aged under 10 years. It held that the presumption of doli incapax had not been rebutted, there remaining a reasonable doubt about whether the appellant understood that the acts of intercourse were seriously wrong by adult standards. The Court also allowed appeals against conviction in Castle v The Queen  HCA 46; 91 ALJR 93, holding that a substantial miscarriage of justice had arisen from the way in which a statement by an accused had been characterised as an admission.
In Graham v The Queen  HCA 27; 90 ALJR 820, the Court held that directions given to the jury regarding self-defence were not erroneous, while in Sio v The Queen  HCA 32; 90 ALJR 963 it quashed a conviction for armed robbery with wounding, holding that the trial judge’s directions wrongly omitted an element of the offence.
Zaburoni v The Queen  HCA 12; 256 CLR 482; 90 ALJR 492 concerned an appellant who had been convicted of unlawfully transmitting a serious disease to another with intent to do so. The Court, in allowing an appeal against that conviction, held that where proof of intention to produce a particular result is made an element of liability for an offence, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. A majority of the Court distinguished between foresight of the risk of harm and intention to produce that harm.
In R v GW  HCA 6; 90 ALJR 407, the Court held that the uniform evidence legislation is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn, and that the trial judge was not required to warn the jury that the child complainant’s evidence may be unreliable because it was unsworn. In another decision involving the uniform evidence legislation, a majority in IMM v The Queen  HCA 14; 90 ALJR 529 held that in determining the probative value of evidence for the purposes of ss 97(1)(b) and 137, a trial judge should assume that the jury will accept the evidence and, therefore, should not have regard to the credibility or reliability of the evidence.
In Alqudsi v The Queen  HCA 24; 90 ALJR 711, the Court held (by majority) that an accused could not elect to be tried by judge alone under the procedural laws of a state where they were charged on indictment with a Commonwealth offence. The Constitution, s 80, is absolute in its terms and mandatory when it applies. In Mok v Director of Public Prosecutions (NSW)  HCA 13; 90 ALJR 506, the Court held that by operation of the Service and Execution of Process Act 1992 (Cth), s 89(4), the appellant could be found guilty of the offence of attempting to escape lawful custody under the Crimes Act 1900 (NSW), s 310D, in relation to an escape attempt at Melbourne Airport.
In Nguyen v The Queen  HCA 17; 256 CLR 656; 90 ALJR 595, the Court held that the Court of Criminal Appeal of New South Wales was correct to hold that a sentence of imprisonment for nine years and six months for an offence of manslaughter was manifestly inadequate. The facts of that case concerned the manslaughter of a police officer who was killed by a bullet fired by another police officer during a fire-fight which had been triggered by the appellant shooting and wounding the deceased officer. In Betts v The Queen  HCA 25; 90 ALJR 758, the Court considered in what circumstances new evidence bearing on the cause of an appellant’s offending may be taken into account by an intermediate appellate court in determining whether some other sentence is warranted by law.
In R v Kilic  HCA 48, the Court counselled sentencing courts against describing offences that do not warrant the maximum prescribed penalty as being “within the worst category”, as to do so is potentially confusing and likely to lead to error. That case concerned the sentence imposed on an offender who doused a pregnant woman in petrol and set her alight, causing critical injuries. The Court held that the Victorian Court of Appeal, in holding that a sentence of imprisonment for 15 years was manifestly inadequate, erred in their consideration of “current sentencing practices”. The Court restored the sentences imposed by the sentencing judge.
In R v Independent Broad-based Anti-corruption Commissioner  HCA 8; 256 CLR 459; 90 ALJR 433, the Court held that the “companion principle”, whereby an accused person is not compellable to assist the prosecution case, does not apply to examinations under the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic), where an examinee has not been charged and there is no prosecution pending against him or her. In addition, s 144 of that Act was held to abrogate the privilege against self-incrimination
Former New South Wales Minister Eddie Obeid, who was facing charges of wilfully misconducting himself in public office, was the source of two High Court judgments in 2016. In Obeid v The Queen  HCA 9; 90 ALJR 447, Gageler J (sitting alone) refused to stay the criminal proceedings pending the determination of an application for special leave to appeal against interlocutory rulings made by the trial judge. His Honour did, however, in Obeid v The Queen  HCA 10; 90 ALJR 452, make certain non-publication orders to prevent prejudice to the proper administration of justice. Eddie Obeid was subsequently convicted and sentenced to a term of imprisonment of five years, with a non-parole period of three years: see R v Obeid (No 12)  NSWSC 1815.
Justice Gageler also sat alone in Aristocrat Technologies Australia Pty Ltd v Allam  HCA 3; 90 ALJR 370, in which his Honour held that the Court had the power under the Judiciary Act 1903 (Cth), s 44(1), to order remitter to another court of the enforcement of a costs order made on an application for special leave to appeal. In another single Justice decision, Nettle J in Construction Forestry Mining and Energy Union v Director of the Fair Work Building Industry Inspectorate  HCA 41; 91 ALJR 1 dismissed an application for an order to show cause why writs of prohibition and mandamus should not be granted in relation to a decision that the Union had contravened the Fair Work Act 2009 (Cth).
Migration cases also featured heavily in the Court’s output in 2016. In Plaintiff M68/2015 v Minister for Immigration and Border Protection  HCA 1; 257 CLR 42; 90 ALJR 297, which was the first, and longest, judgment of the year, a majority of the Court held that the Commonwealth’s participation in the plaintiff’s detention at a regional processing centre in Nauru was not unlawful, it being authorised by the Migration Act 1958 (Cth), s 198AHA. In Minister for Immigration and Border Protection v SZSSJ  HCA 29; 90 ALJR 901 it held that the Department’s processes in response to an unauthorised release of personal information of two former protection visa applicants did not deny those applicants procedural fairness. In Maritime Union of Australia v Minister for Immigration and Border Protection  HCA 34; 90 ALJR 1004, the Court considered the extent of the Minister’s power to except non-citizens from relevant visa requirements. The Court held that a determination that had purported to negate certain visa requirements for non-citizens engaged in the offshore resources industry exceeded the limits of the power conferred on the Minister by the Migration Act 1958 (Cth), s 9A(6), and was for that reason invalid.
Three taxation cases were decided by the Court in 2016. In Blank v Federal Commissioner of Taxation  HCA 42; 91 ALJR 14, the Court held that a lump sum paid to a taxpayer in instalments pursuant to an incentive profit participation agreement after termination of his employment was income according to ordinary concepts. In Bywater Investments Ltd v Federal Commissioner of Taxation  HCA 45; 91 ALJR 59, the Court held that four companies were Australian residents for income tax purposes because the central management and control of each company was in Australia, while in ElectNet (Aust) Pty Ltd v Federal Commissioner of Taxation  HCA 51 it held that the Electrical Industry Severance Scheme was not a unit trust within the meaning of the Income Tax Assessment Act 1936 (Cth), Pt III, Div 6C, because any interest created by the deed in favour of employees could not be characterised as a “unit”.
The Court also handed down two decisions relating to the federal election in 2016. In Day v Australian Electoral Officer (SA)  HCA 20; 90 ALJR 639, the Court held that providing electors with a choice of voting either above or below the line in Senate elections did not create more than one method of voting contrary to the Constitution, s 9. Moreover, above-the-line voting did not infringe the requirement in s 7 that Senators be chosen “directly chosen by the people”. In Murphy v Electoral Commissioner  HCA 36; 90 ALJR 1027, the Court upheld the validity of laws that prevented a person’s claim for enrolment or transfer or enrolment from being processed until after the close of the poll for an election if the claim was received during the “suspension period”, which ran from 8pm on the day of the closing of the rolls (seven days after the issue of the writs) to the close of the poll. In another decision related to elected officials, the Court held, in Cunningham v Commonwealth  HCA 39; 90 ALJR 1138, that alterations to former parliamentarians’ retirement allowances and Gold Pass travel privileges did not amount to an acquisition of property otherwise than on just terms for the purposes of the Constitution, s 51(xxxi).
The long-running saga involving the Bell Group also made its way to the High Court in 2016, with the Court in Bell Group NV (in liq) v Western Australia  HCA 21; 90 ALJR 655 holding that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) was invalid in its entirety because of inconsistency between its provisions and Commonwealth taxation laws.
Paciocco v Australia and New Zealand Banking Group Ltd  HCA 28; 90 ALJR 835 was another case that attracted widespread interest in 2016. In that case, the Court held that late payment fees charged by the bank on consumer credit card accounts were not unenforceable as penalties; and that the imposition of late payment fees did not contravene statutory prohibitions against unconscionable conduct, unjust transactions and unfair contract terms.
In the Court’s only family law decision of 2016, it held, in Hall v Hall  HCA 23; 90 ALJR 695, that just cause had been shown to discharge an interim spousal maintenance order. In that case, the Court found that it was open to find that the wife would have received an annual payment from an interest in the estate of her late father had she asked for it, and that that interest was both a “financial resource” and a “fact or circumstance” relevant to whether she was able to support herself adequately.
Tabcorp Holdings Ltd v Victoria  HCA 4; 90 ALJR 376 and Victoria v Tatts Group Ltd  HCA 5; 90 ALJR 392 both concerned forms of gaming licences and entitlements. In the former case, the Court held that the allocation of new gaming machine entitlements under a new licensing regime did not amount to the “grant of new licences” within the meaning of a provision in the old regime. Accordingly, the appellant was not entitled to a terminal payment, which was payable under the old regime on the “grant of new licences”. Similarly, in the latter case, the Court held that the phrase “new gaming operator’s licence” in an agreement between the State and Tatts referred to a gaming operator’s licence under another particular regime; as no “new gaming operator’s licence” was issued upon the allocation of new gaming machine entitlements, the respondent was not entitled to a terminal payment under the agreement.
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd  HCA 26; 90 ALJR 770 concerned restaurant leases in the Melbourne Casino and Entertainment Complex. A majority of the Court held that a statement to the effect that the tenants would be looked after at renewal time was not capable of giving rise to a collateral contract or founding a claim for estoppel. In another case involving a claimed estoppel, the Court held, in Timbercorp Finance Pty Ltd (in liq) v Collins  HCA 44; 91 ALJR 37, that it was not unreasonable for the respondents not to have raised issues specific to them in a group proceeding and that the respondents, therefore, were not estopped from raising the issues in subsequent proceedings.
The characterisation of the “market” in which travel agents and airlines operate was considered in Australian Competition and Consumer Commission v Flight Centre Travel Group Ltd  HCA 49. In that decision, the Court held that Flight Centre was in competition with Singapore Airlines, Malaysia Airlines and Emirates in a market for the supply, to customers, of contractual rights to international air carriage via the sale of airline tickets. Accordingly, Flight Centre had engaged in restrictive trade practices contrary to the Trade Practices Act 1974 (Cth), s 45(2)(a)(ii), when it attempted to induce the airlines to agree not to discount the price at which they offered international airline tickets directly to customers.
Attwells v Jackson Lalic Lawyers Pty Ltd  HCA 16; 90 ALJR 572 was an important decision in relation to the extent and continued existence of the advocate’s immunity from suit. In that decision, the Court unanimously declined to reconsider its previous decisions which confirmed that the immunity extends to work done out of court which leads to a decision affecting the conduct of the case in court; however, a majority held that the immunity does not extend to negligent advice given by a lawyer which leads to the settlement of a case by agreement between the parties embodied in consent orders. In Badenach v Calvert  HCA 18; 90 ALJR 610, another important decision affecting legal practitioners, the Court held that, in the circumstances of that case, a solicitor did not owe a duty of care to a beneficiary under a will to advise the testator of the options available to the testator to avoid exposing his estate to a claim under the Testator’s Family Maintenance Act 1912 (Tas).
In Moreton Bay Regional Council v Mekpine Pty Ltd  HCA 7; 256 CLR 437; 90 ALJR 420, the Court held that the lessee of a retail shop was not entitled to compensation when part of an amalgamated lot on which a retail shopping centre stood was acquired by a local council. In that case, the resumed land had never been part of the former lot on which the shop leased by the respondent was situated. In Ainsworth v Albrecht  HCA 40; 90 ALJR 1118, it held that opposition to a motion which was required to be passed by a body corporate without dissent was not unreasonable in the circumstances where the proposal in question was apt to create a reasonable apprehension that it would affect adversely the interests of the opponents of the proposal, while in Coverdale v West Coast Council  HCA 15; 90 ALJR 562, the seabed and waters of Macquarie Harbour in Tasmania were held to be “Crown lands” with the consequence that several marine farming leases in the harbour were rateable. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act  HCA 50, the Court held that the former Berrima gaol site was not claimable under the Aboriginal Land Rights Act 1983 (NSW), s 36, because the land was lawfully occupied within the meaning of s 36(1)(b).
In Robinson Helicopter Company Inc v McDermott  HCA 22; 90 ALJR 679, the Court held that the Queensland Court of Appeal was wrong to overturn the primary’s judge’s findings of fact concerning the cause of a fatal helicopter crash. It had not been shown that the contents of a maintenance manual fell short of what was required for the appellant manufacturer to discharge its duty of care in the circumstances of the case. Deal v Father Pius Kodakkathanath  HCA 31; 90 ALJR 946 was another tort case and concerned a primary school teacher who injured her knee in the course of using a step ladder to remove papier mâché displays from a pin-board on a classroom wall. The Court held that the Court of Appeal of Victoria misconstrued the Occupational Health and Safety Regulations 2007 (Vic), reg 3.1.2, and was wrong to find that the primary judge was correct to remove from the jury’s consideration allegations that the respondent had breached its statutory duties under the Regulations. In Prince Alfred College Inc v ADC  HCA 37; 90 ALJR 1085, the Court held that the respondent should not have been granted an extension of time to bring proceedings against a school for alleged sexual abuse by a teacher.
In Military Rehabilitation and Compensation Commission v May  HCA 19; 90 ALJR 626, the Court discussed the important distinction between a “disease” and an “injury (other than a disease)” and held that the appellant in that case did not suffer an injury as a result of vaccinations that he received while he was employed by the Royal Australian Air Force. In Comcare v Martin  HCA 43; 91 ALJR 29, it held that the deterioration of the respondent’s mental condition was suffered as a result of reasonable administrative action undertaken by her employer and therefore was not a compensable injury. The Court considered the causal connection between a disease and administrative action and the meaning of “as a result of”.
In Fischer v Nemeske Pty Ltd  HCA 11; 90 ALJR 457, the Court held that a trustee had validly exercised a power to advance and apply trust capital or income by creating a debt reflecting the value of shares held by the trustee at the time the advance was made. In CGU Insurance Ltd v Blakeley  HCA 2; 90 ALJR 272, the Court held that the federal jurisdiction vested in the Supreme Court of Victoria authorised that court to grant a declaration in favour of a plaintiff against a defendant’s insurer that the insurer is liable to indemnify the defendant, while in Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd  HCA 52, it held that the existence of a reference date under a construction contract is a precondition to the making of a valid payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW), s 13(1).
Simic v New South Wales Land and Housing Corporation  HCA 47 concerned instruments and underlying finance applications that referred to a non-existent entity rather than to the New South Wales Land and Housing Corporation. The Court held that it was not possible to construe the reference to the non-existent “Department” as a reference to the Corporation, but that the undertakings and applications should be rectified to refer to the Corporation because it was the actual common intention of the parties.
2016 was a year in which there were no changes to the composition of the bench; however, it was a year in which upcoming appointments were announced. In early 2017, we’ll see Justice Susan Kiefel replace Chief Justice Robert French as head of the Court upon his Honour’s retirement. We’ll also see the Hon James Edelman take his position as a Justice of the Court, to fill the vacancy created by Justice Kiefel’s appointment as Chief Justice.
That concludes this overview of the High Court’s 2016 judgments. The Court returns from its summer recess on Monday 30 January 2017. 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 2017.