Author Archives: Editor-in-Chief

About Editor-in-Chief

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JADE Recent Australian High Court Cases (HCA)

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2020] HCA 3 (11 February 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)

Available in JADE Professional Layout.

CitationLove v Commonwealth of Australia [2020] HCA 3
CatchwordsConstitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of “aliens” – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs’ visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co‑terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) can be “alien” within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test.

Words and phrases – “Aboriginal Australian”, “alienage”, “aliens”, “allegiance”, “body politic”, “citizen”, “connection to country”, “essential meaning”, “foreign citizen”, “indicia of alienage”, “nationality”, “non‑alien”, “non-alienage”, “non-citizen”, “obligation of protection”, “political community”, “polity”, “sovereignty”, “spiritual connection”, “subject”, “territory”, “traditional laws and customs”, “tripartite test”, “unlawful non-citizen”.
JudgeKIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
OrdersMatter No B43/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1. Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?
Answer: The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.
2. Who should pay the costs of this special case?
Answer: The defendant.
Matter No B64/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1. Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?
Answer: Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The plaintiff is an Aboriginal Australian and, therefore, the answer is “No”.
2. Who should pay the costs of this special case?
Answer: The defendant.
Decision Date11 February 2020
Legislation CitedConstitution, s 51(xix), (xxvii).
Australian Citizenship Act 2007 (Cth), ss 12, 13, 14, 15, 16.
Migration Act 1958 (Cth), ss 5, 14, 189, 196, 198, 200, 501.
FilenumberB43/2018 & B64/2018
PartiesDANIEL ALEXANDER LOVE PLAINTIFF
COMMONWEALTH OF AUSTRALIA DEFENDANT

BRENDAN CRAIG THOMS PLAINTIFF
COMMONWEALTH OF AUSTRALIA DEFENDANT
RepresentationS J Keim SC with K E Slack and A J Hartnett for the plaintiff in each matter (instructed by Maurice Blackburn Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, with N M Wood and J D Watson for the defendant in both matters (instructed by Australian Government Solicitor)
P G Willis SC with T B Goodwin for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor) at the hearing on 5 December 2019
Retrieved onTuesday, 11.02.2020 at 10:16 AM
BJS Number708192

Recent Victorian Reports (VR)

The latest from the team

Victorian Reports – Recently published (as at December 2019)

Administrative law
Garde J – 08 Feb 2019 – 11 pages

Administrative law – Judicial review – Domestic bodies – Registered Housing Association – Decision to give notice to vacate for no reason – Decision to restrict tenant’s contact with landlord’s staff – Whether decisions amenable to judicial review – Application of Datafin principle – Housing Act 1983 (Vic) – Residential Tenancies Act 1997 (Vic).

Maxwell P, McLeish JA and Almond AJA – 18 Dec 2018 – 15 pages

Administrative law – Sex offenders registration – Possession of child pornography – Possession by applicant as child continued as adult – Whether registrable offender – Particulars of charge included date of possession as adult – Whether guilty plea an admission to date in particulars – Whether offence durative – Sex Offenders Registration Act 2004 (Vic) s 6(3)(a).

Maxwell P, Beach and Niall JJA – 29 Aug 2018 – 26 pages

Administrative law – Procedural fairness – Practical content of fairness – Unrepresented litigant in person – Respondent charged on summons with road traffic offences – Respondent filed written objections to jurisdiction of Magistrates’ Court – Magistrate dismissed jurisdictional objection without hearing oral submissions from respondent – Whether respondent denied procedural fairness – Magistrates’ Court Act 1989 (Vic) s 1 – Magistrates’ Court Criminal Procedure Rules 2009 (Vic) r 5 – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(1).

Ierodiaconou AsJ – 20 Dec 2018 – 19 pages

Administrative law – Judicial review – Domestic body – Professional association created by Royal Charter – Refusal of readmission to membership – Whether decision amenable to judicial review – Whether Datafin principle applicable in Victoria – Civil Procedure Act 2010 (Vic) ss 62, 63, 64.

Arbitration
Croft J – 10 May 2018 – 19 pages

Arbitration – Jurisdiction – Competence – Review of arbitrator’s ruling on jurisdiction – Whether rehearing de novo or judicial review of arbitrator’s ruling – Commercial Arbitration Act 2011 (Vic) ss 16(9), 16(11).

Associations and clubs
Ierodiaconou AsJ – 20 Dec 2018 – 19 pages

Associations and clubs – Membership – Professional association of accountants created by Royal Charter – Refusal of readmission application – Whether decision amenable to judicial review.

Banks and banking
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Banks and banking – Bank and customer – Loan secured by mortgage – Preservation of mortgaged property – Costs and expenses – Bank paid customer’s unpaid owners corporation fees owing on mortgaged property – Bank debited customer’s loan account in those amounts – Customer ceased to make loan repayments – Whether bank required to make demand for payment before debiting account – Whether debit caused customer’s failure to make loan repayments.

Building contracts

Building contracts – Major domestic building contract – ‘No fault’ termination by owner – Builder’s entitlement to reasonable value of work performed – Liquidated damages – Owner’s claim for liquidated damages in respect of delay – Application by builder for extension of time in respect of delay – Whether owner could recover liquidated damages for delay where building contract terminated under ‘no fault’ regime – Whether liquidated damages claim defeated by builder’s extension application – Domestic Building Contracts Act 1995 (Vic) ss 41(5), 41(6).

Croft J – 10 May 2018 – 19 pages

Building contracts – Contract for plastering work – Dispute resolution – Whether arbitration prohibited – Whether domestic building work – Domestic Building Contracts Act 1995 (Vic), ss 3, 5, 6(2), 14, 54(1)(b) – Domestic Building Contracts Regulations 2017 (Vic), regs 7(e), (g).

Carriers and carriage of goods
Keogh J – 24 Aug 2018 – 12 pages

Carriers and carriage of goods – Aviation – Carriage of passengers – Federal jurisdiction – Personal injury claim under Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Operation of s 79 of the Judiciary Act 1903 (Cth) – Whether pt VBA of the Wrongs Act 1958 (Vic) applied – Whether Commonwealth law ‘otherwise provided’ – Wrongs Act 1958 (Vic) ss 28LB, 28LC, 28LE – Judiciary Act 1903 (Cth) s 79 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 9B, 9E, sch 1A, arts 17(1), 21, 29.

Companies

Companies – Winding-up – Liquidator’s power of sale of company property – Company’s claim of misleading or deceptive conduct – Whether liquidator empowered to sell non-assignable cause of action – Corporations Act 2001 (Cth), s 477(2)(c).

Whelan, McLeish and Hargrave JJA – 20 Mar 2019 – 11 pages

Companies – Liquidation – Costs of appeal by liquidators – Liquidators’ right of indemnity against company – Whether costs properly incurred – Risk of exhausting assets of company through appeals – Onus on liquidators to establish costs of appeal honestly and reasonably incurred.

Sloss J – 16 Nov 2018 – 61 pages

Companies – Winding up – Liquidators – Control of liquidators – Court’s statutory jurisdiction to inquire into conduct of liquidators – Application by creditor for inquiry into conduct of liquidators – Corporations Act 2001 (Cth) s 541(1)(b).

Costs
Tate, Whelan and Niall JJA – 17 Dec 2018 – 6 pages

Costs – Costs of appeal – Group proceeding – Appeal by group member – First respondent representative plaintiff in group proceeding – Where appellant achieved substantial success – Whether first respondent was proper party to appeal – Whether appellant’s costs should be paid out of settlement sum – Supreme Court Act 1986 (Vic) s 33ZC.

Costs – Self-represented litigant – Barrister representing self – Member of the Victorian Bar – Whether entitled to costs for work as counsel – Whether entitled to reasonable disbursements – Supreme Court Act 1986 (Vic) ss 3(1), 24(1).

Macaulay J – 21 Nov 2018 – 13 pages

Costs – Wasted costs – Application for personal costs orders against plaintiff’s legal advisers and expert accounting witnesses – Plaintiff awarded only nominal damages at trial – Jurisdiction to award personal costs orders – Allegations of serious impropriety – Notice requirement.

Whelan, McLeish and Hargrave JJA – 20 Mar 2019 – 11 pages

Costs – Liquidation – Liquidators’ application for directions and approval of compromise – Application refused – Appeal dismissed – Whether costs ordered against liquidator personally or from assets of company – Different position regarding costs at first instance and on appeal.

Courts
Maxwell P, McLeish JA and Almond AJA – 18 Dec 2018 – 15 pages

Courts – Anonymisation – Applicant sought to have name anonymised in published reasons – Pseudonym used in trial reasons – Legislative policy to restrict disclosure of register – Risk of chilling effect on review of registration – Sex Offenders Registration Act 2004 (Vic) s 63.

Criminal law
Kyrou and Weinberg JJA – 22 Feb 2019 – 14 pages

Criminal law – Sentencing – Delay – Lengthy interval between offending and sentence – Relevance of delay.

Maxwell ACJ, Priest and Kyrou JJA – 07 Jun 2018 – 49 pages

Criminal law – Charge – Sufficiency of particulars – Joint commission – Preparatory offences – Foreign incursion – Offence of engaging in conduct preparatory to entering foreign country with intention of engaging in hostile activity – Whether particulars provided reasonable information as to the nature of the charge – Criminal Procedure Act 2009 (Vic) s 159(3)(c), sch 1 – Criminal Code (Cth) ss 11.2A, 117.1(1), 119.1(1), 119.4(1).

Maxwell P and Taylor AJA – 07 Feb 2019 – 5 pages

Criminal law – Interlocutory appeal – Evidence – Tendency evidence – Admissibility – Function of certification for interlocutory appeal – Criminal Procedure Act 2009 (Vic) ss 295 and 296.

Weinberg JA – 07 Dec 2018 – 5 pages

Criminal law – Bail – Exceptional circumstances – Applicant subject to adjourned undertaking to be of good behavior – Whether undertaking to be of good behavior constituted ‘otherwise serving a sentence’ – Bail Act 1977 (Vic)s 4AA(2)(c)(v) – Sentencing Act 1991 (Vic) s 75.

Equity
Kyrou, McLeish and Hargrave JJA – 27 Nov 2018 – 38 pages

Equity – Estoppel – Equitable estoppel – Deed of release – Representations that all claims against respondents were compromised – Effect of release – Whether applicant’s lack of full knowledge of circumstances of breach of trust rendered release of equitable claims unenforceable – Clean hands.

Equity – Fiduciary duties – Partnership – Duty to avoid conflict of interest – Duty to avoid deriving unauthorised profits – Duty to disclose and offer commercial opportunity to fellow partners – Whether breach of duties – Accessorial liability – Whether knowing inducement or procurement of breach – Whether receipt of property derived from another person’s breach – Application of terms of partnership deed – Partnership Act 1958 (Vic) ss 32, 33(1).

Evidence
Priest JA – 20 Dec 2018 – 8 pages

Evidence – Admissibility – Hearsay – Witness deceased – Protected witness – Prosecution seeking to rely on statements and video-recorded re-enactments by deceased protected witness as exceptions to hearsay in criminal trials – Disclosure of information regarding protected witness – Considerations informing order for disclosure – Witness Protection Act 1991 (Vic) ss 1, 3AAA, 3AA, 10(1)(c) – Evidence Act 2008 (Vic), s 65(2).

Priest, Beach and Niall JJA – 23 Feb 2018 – 30 pages

Evidence – Admissibility – Reasons of medical panel – Members of medical panel not compellable as witnesses – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 272 – Evidence Act 2008 (Vic) ss 55, 79.

Human rights
Taylor J – 02 Nov 2018 – 25 pages

Human rights – Right to freedom of movement – Limitations – Loitering without reasonable excuse – Whether constructional choice as to meaning – Whether limitation reasonable and demonstrably justifiable – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 12, 25(1), 32(1).

Interest
Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Interest – Land compensation claim – Agreed quantum of debt on some heads of claim, with contested issues determined by Court after trial – Whether interest claimable on agreed quantum – Whether interest ‘on any sum for which judgment is entered or given by consent’ – Supreme Court Act 1986 (Vic) s 60(2)(d).

Legal practitioners
Keogh J – 23 Jan 2019 – 19 pages

Legal practitioners – Fees – Costs disclosure – Contract for legal services – Variation of engagement – Counsel retained by solicitor – Client to be responsible for counsel’s fee – Whether oral variation of engangement permitted – Whether costs disclosure made – Legal Profession Uniform Law cls 174, 175, 178, 180, 184, 185.

Tate, Kaye and Emerton JJA – 13 Feb 2019 – 52 pages

Legal practitioners – Unsatisfactory professional conduct – Dealings between practitioners – Requirement to take all reasonable care to maintain integrity and reputation of legal profession – Ensuring courteous communications – Avoidance of offensive or provocative language or conduct – Exception for communication made for legitimate pursuit of client interests and on reasonable basis – Whether exception applied – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15(2) – Legal Profession Act 2004 (Vic) s 4.4.4(a) – Professional Conduct and Practice Rules 2005 (Vic) r 21.

Negligence
John Dixon J – 06 Feb 2019 – 62 pages

Negligence – Duty of care – Statutory duties – Common law duty – Nuisance – Power supply company – Bushfire ignited after tree fell onto power conductor – Alleged statutory duty to maintain supply network to minimise risk to persons and property and to minimise risk of bushfire – Alleged common law duty to operate powerlines safely – Whether duties required clearance of non-hazardous vegetation outside of defined minimum clearance space – Electrical Safety Act 1998 (Vic) ss 84, 85, 86, 89, 98, 151 – Electricity Safety (Electric Line Clearance) Regulations 2015 (Vic) – Code of Practice for Electric Line Clearance cls 2, 3, 7, 8, 10 – Civil Procedure Act 2010 (Vic) ss 62, 63, 64 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01.

Partnership and partners

Partnership and partners – Formation – Partnership deed – Person signing partnership deed in capacity of director of corporate partner – Whether director personally bound – Whether director of partner a partner of partnership.

Police
Daly AsJ – 26 Nov 2018 – 42 pages

Police – Motor vehicles – Offence – Failure of driver to give information to police officer acting in the execution of duty – Proper construction of ‘execution of duty’ – Whether power of a police officer to request information restricted to circumstances where officer was investigating possible offences under the Act – Road Safety Act 1986 (Vic) s 60(1).

Practice and procedure
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Practice and procedure – Leave to appeal – Points in proposed grounds of appeal not raised before trial judge – Where success on proposed grounds would not impugn orders made by trial judge.

Tate, Whelan and Niall JJA – 01 Nov 2018 – 80 pages

Practice and procedure – Group proceeding – Settlement – Approval – Appeal by group member against approval of settlement – Separate proceeding brought by special purpose receivers – Settlement of two proceedings – Single sum to be paid in settlement of both proceedings – Whether settlement sum fair and reasonable – Group proceeding funded by litigation funder – Proposed distributions from settlement sum for litigation funder’s commission and legal costs – Overlap between issues raised in two proceedings – Whether judge had adequate regard to contribution of special purpose receivers’ proceeding in approving commission to funder of group proceeding – Whether judge erred in ordering confidentiality over expert costs report, affidavits and legal advices and submissions – Whether judge erred in failing to appoint contradictor – Whether open to Court to approve settlement but not approve proposed distributions for commission and legal costs – Supreme Court Act 1986 (Vic) ss 33V, 33ZC(5), 33ZF.

Macaulay J – 21 Nov 2018 – 13 pages

Practice and procedure – Overarching obligations – Legal professionals – Expert witnesses – Whether plaintiff’s legal advisers and expert accounting witnesses contravened overarching obligations by continuing to act once it became reasonably clear that subject property development would return a substantial loss – Civil Procedure Act 2010 (Vic) ss 17, 19, 21(b), 22, 23, 24 and 29.

Practice and procedure – Parties – Substitution of party – Assignment of cause of action – Claim of misleading or deceptive conduct – Whether assignable – Whether valid assignment made – Whether determination of valid assignment a necessary pre-condition to substitution of party – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.09(2)(a).

McMillan J – 26 Mar 2019 – 22 pages

Practice and procedure – Interest – Interest on sum recovered in proceeding – ‘Debt or sum certain’ – Sum paid into Court by way of compromise – Order recording compromise – Whether sum ‘recovered’ – Whether judgment for the sum required – Good cause why interest should not be allowed – Supreme Court Act 1986 (Vic), s 58(1).

Derham AsJ – 13 Feb 2019 – 34 pages

Practice and procedure – Freezing order – Undertaking as to damages – Whether Director of Consumer Affairs required to give undertaking as to damages – Circumstances in which the Crown or a statutory authority may be required to give an undertaking as to damages.

Stamp duty
Croft J – 29 Nov 2018 – 21 pages

Stamp duty – Exemptions – Charitable purpose – Other purposes beneficial to community – Service club – Whether purpose of raising ethical standards in business and the professions is charitable – Whether purpose of club directed to members or the community generally – Duties Act 2000 (Vic), s 45.

Summary offences
Taylor J – 02 Nov 2018 – 25 pages

Summary offences – Loitering without reasonable excuse – Elements of offence – Whether ‘loitering’ required proof of lack of purpose or unlawful purpose – Crimes Act 1958 (Vic) s 60B(2) – Criminal Procedure Act 2009 (Vic), s 272(1).

Tort
Maxwell P, Hargrave and Ashley JJA – 20 Dec 2018 – 27 pages

Tort – Conversion – Bailment – Unauthorised pledge of chattels by bailee – Chattels returned by pledgee to bailee – Whether pledgee liable in conversion – Elements of cause of action – Whether dealing with or exercise of acts of ownership over chattels required – Whether unauthorised possession sufficient – Whether conversion a strict or absolute liability tort – Possible need for law reform.

Town planning
Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Town planning – Valuation and compensation – Land reserved for public purpose – Compensation under pt 5 of Planning and Environment Act 1987 (Vic) – Claim for loss on sale, expenses and intangible non-financial disadvantage referred to Court – Interest on compensation – Quantum of compensation for loss on sale and expenses agreed before trial – Whether statute barred award of interest on agreed loss on sale and expenses – Planning and Environment Act 1987 (Vic), ss 98, 99, 100, 101, 105 and 106 – Land Acquisition and Compensation Act 1986 (Vic), pts 10 and 11 and s 37 – Supreme Court Act 1986 (Vic), s 60(2)(d).

Trusts
McMillan J – 26 Mar 2019 – 22 pages

Trusts – Discretionary trust – Resolutions recording allocation of income to beneficiary – Accounts of trust – Whether acknowledgement of debt – Whether beneficiary a creditor of the trustee.

Trusts and trustees
Kyrou, McLeish and Hargrave JJA – 27 Nov 2018 – 38 pages

Trusts and trustees – Trustee’s duties – Breach of trust – Unit trust established for property development – Discounted units issued to some investors in breach of trust – Deed of release – Effect of release – Whether applicant’s lack of full knowledge of circumstances of breach of trust rendered release of equitable claims unenforceable.

Unconscionable conduct
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Unconscionable conduct – Bank and customer – Bank paid unpaid owners corporation fees due on mortgaged property and debited customer without notice to customer – Whether breach of Code of Banking Practice 2013 – Whether bank acted unfairly in proceedings for debt and possession – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB.

Words and phrases
John Dixon J – 06 Feb 2019 – 62 pages

Words and phrases – ‘Maintain’ – ‘Hazard’.

Keogh J – 24 Aug 2018 – 12 pages

Words and phrases – ‘claim’ – ‘claimant’.

Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Words and phrases – ‘sum’.

Workers compensation
Priest, Beach and Niall JJA – 23 Feb 2018 – 30 pages

Workers compensation – Serious injury application – Economic loss – ‘Pecuniary loss damages’ – Whether worker suffered a permanent loss of earning capacity of 40% or more – Relevance and admissibility of medical panel reasons – Accident Compensation Act 1985 (Vic) ss 135AB(37), 135AB(38)(e).



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