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HIGH COURT OF AUSTRALIA 17 August 2022 NATHANSON v MINISTER FOR HOME AFFAIRS & ANOR [2022] HCA 26 Today, the High Court unanimously allowed an appeal from the Full Court of the Federal Court of Australia. The appeal concerned the question of whether the Administrative Appeals Tribunal's denial of procedural fairness to the appellant was material, in that it deprived the appellant of a realistic possibility that the decision made by the Tribunal could have been different if a fair hearing had been provided, so as to give rise to jurisdictional error. In 2018, the appellant's visa was mandatorily cancelled by a delegate of the then Minister for Home Affairs pursuant to s 501(3A) of the Migration Act 1958 (Cth). Another delegate of the Minister made a decision, pursuant to s 501CA(4), not to revoke the cancellation of the visa. The appellant applied to the Tribunal for a review of the delegate's decision. The Tribunal affirmed the decision to refuse to revoke the visa cancellation. In making its decision, the Tribunal was required to comply with the Minister's direction known as "Ministerial Direction 79". That Direction prescribed as a factor for consideration (in assessing the "primary consideration" of the protection of the Australian community from criminal or other serious conduct) "[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed". It was not in dispute that the Tribunal denied the appellant procedural fairness in that the Tribunal misled the appellant in relation to the significance of certain changes brought about by Ministerial Direction 79 to the considerations applicable to the Tribunal's decision, and in that the appellant was not given an opportunity to give or adduce evidence or to make submissions on the way in which two domestic violence incidents should have affected the Tribunal's consideration of the primary consideration of the protection of the Australian community. In proceedings for judicial review of the Tribunal's decision, the Federal Court at first instance, and a majority of the Full Federal Court on appeal, found that the denial of procedural fairness affecting the Tribunal's decision was not material, and so did not constitute jurisdictional error. The High Court unanimously found that the denial of procedural fairness was material, and so did constitute jurisdictional error. In reaching that finding, a majority of the Court held that in many, if not most, cases where an applicant has been deprived of a chance to make submissions on a topic of relevance, reasonable conjecture from established facts about the decision-making process will readily show a reasonable possibility that the outcome would have been different. In the appellant's case, additional evidence and submissions directed to mitigating the significance of the evidence of domestic violence could realistically have affected the outcome of the Tribunal's review. There was no need for the appellant to establish the nature of any additional evidence or submissions that might have been presented at the Tribunal hearing, had that hearing been procedurally fair.
HIGH COURT OF AUSTRALIA Public Information Officer 18 May 2006 NICHOLAS TERRENCE FISH AND NISHA NOMINEES PTY LIMITED v SOLUTION 6 HOLDINGS LIMITED, SOLUTION 6 PTY LIMITED, NEVILLE BUCH, NEIL GAMBLE AND INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES The jurisdiction of the Industrial Relations Commission of New South Wales did not extend to a review of the terms of a share acquisition agreement, the High Court of Australia held today. Mr Fish controlled Nisha Nominees which owned FishTech and Partners, an information technology company. In 2000, Nisha sold FishTech to Solution 6 Holdings for $19 million in shares in Solution 6 at an issue price of $9.75 per share. The share purchase agreement also provided that Mr Fish would work for Solution 6 Holdings’ subsidiary, Solution 6 Pty Ltd, as executive manager – enterprise integration services. When the share purchase agreement was executed, Solution 6 shares were trading at $13.30, but by the time of completion the share price had dropped to about $3. In November 2001, Mr Fish’s employment was terminated. He and Nisha applied to the IRC seeking orders under Part 9 of Chapter 2 of the Industrial Relations Act declaring the share purchase agreement to have operated in an unfair, harsh and unconscionable manner and contrary to the public interest, and seeking orders varying that agreement to provide Mr Fish with the difference between the current price of the Solution 6 shares and the issue price of $9.75. The Solution 6 companies and Mr Buch and Mr Gamble, two directors of those companies, successfully applied to the NSW Court of Appeal for an order prohibiting the IRC from taking steps to exercise its powers regarding the share purchase agreement. Mr Fish and Nisha appealed to the High Court. The principal question for the Court was whether the Court of Appeal was right to hold that the share purchase agreement was not a contract of a kind in respect of which the IRC could exercise its powers under the IR Act. The High Court, by a 5-2 majority, upheld the Court of Appeal’s decision and dismissed the appeal. Section 106(1) of the Act provides that the IRC may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the IRC finds the contract is unfair. The agreement in question was not a contract whereby Mr Fish performed work in an industry.
HIGH COURT OF AUSTRALIA 6 September 2017 THE QUEEN v AARON JAMES HOLLIDAY [2017] HCA 35 Today the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of the Australian Capital Territory. The High Court held that it was not possible to convict the respondent, Holliday, of inciting another person to procure a third person to commit a criminal offence under the Criminal Code 2002 (ACT). Holliday was in custody pending sentence for sexual offences. The prosecution alleged that, while in custody, Holliday offered another inmate, Powell, a reward for organising people outside prison to kidnap two witnesses, to force the witnesses to adopt a statement prepared by Holliday that was designed to exculpate him of the offences, and then to kill the witnesses. Powell did not go through with the plan and reported Holliday. Holliday was tried on indictment before a judge and jury in the Supreme Court of the Australian Capital Territory on five counts. Counts 4 and 5 charged that Holliday "committed the offence of incitement in that he urged [Powell] to kidnap" each witness contrary to s 47 of the Criminal Code and s 38 of the Crimes Act 1900 (ACT). However, at trial, the prosecution did not allege that Holliday urged Powell to commit the kidnappings personally. The prosecution case was that Holliday urged Powell to procure a third person to commit the kidnappings. Holliday was convicted on these counts. He appealed to the Court of Appeal, which set aside the verdicts and entered verdicts of not guilty on counts 4 and 5. By grant of special leave, the prosecution appealed to the High Court. The High Court unanimously dismissed the prosecution's appeal. The principal issue was whether Holliday could be convicted of an offence – specifically, an offence of inciting the commission of an offence – by urging Powell to procure a third person to commit the substantive offence of kidnapping. The Court held that, at least in circumstances where no offence of kidnapping was committed, Holliday could not be convicted of urging Powell to commit the offence of kidnapping contrary to s 47 of the Criminal Code. A majority of the High Court reached that conclusion on the basis that in order for a person to be convicted of an offence of incitement under s 47 of the Criminal Code, that person must have urged the commission of a discrete offence. The majority concluded that procuring the commission of an offence is not a discrete offence under the Criminal Code.
HIGH COURT OF AUSTRALIA 9 March 2005 MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS v GRIBBLES RADIOLOGY PTY LTD AND HEALTH SERVICES UNION OF AUSTRALIA GRIBBLES RADIOLOGY PTY LTD v HEALTH SERVICES UNION OF AUSTRALIA AND MINISTER FOR EMPLOYMENT AND WORKPLACE RELATIONS Gribbles Radiology was not the successor to a business so was not bound to pay severance pay to employees of that other business, the High Court of Australia held today. Region Dell Pty Ltd operated a number of medical clinics including the Moorabbin Heritage Clinic in Melbourne. At some of those clinics it licensed part of the premises to radiology practices. Region Dell provided radiology equipment and the practice provided radiographers and consumables. At Moorabbin it licensed Gribbles in 1999 after the Melbourne Diagnostic Imaging Group licence ended. Gribbles obtained MDIG’s permission to contact its Moorabbin staff and four radiographers accepted its offer of continued employment on the same award conditions, but in 2000 Gribbles closed its practice at Moorabbin and terminated the radiographers’ employment. The Health Services Union claimed Gribbles owed severance pay to the radiographers based on their years of service with MDIG and its predecessor Southern Radiology. Both MDIG and Southern Radiology were parties to the Health Services Union of Australia (Private Radiology – Victoria) Award 1993, but Gribbles was not. If Gribbles were a successor to MDIG then section 149(1)(d) of the Workplace Relations Act provided that it was bound by the award. The union brought proceedings against Gribbles in the Federal Court of Australia for its alleged failure to pay severance pay in accordance with the award and claimed penalties for breaching the award. The Court ordered Gribbles to pay the severance pay plus interest and a $50 penalty to the union. The Full Court of the Federal Court dismissed the appeal. Gribbles and the Minister, who had intervened in the Federal Court proceedings, each appealed to the High Court. The High Court, by a 4-1 majority, allowed the appeals. It held that Gribbles was not a successor to any part of the MDIG business so was not bound by the award. Apart from contacting MDIG about recruiting staff, there was no evidence of any dealing between MDIG and Gribbles about Gribbles taking over the Moorabbin practice. No assets, tangible or intangible, were sold or transferred from MDIG to Gribbles. Gribbles did not negotiate with MDIG to take over the practice at Moorabbin but negotiated with Region Dell about the licence agreement. Both Gribbles and MDIG used Region Dell’s equipment and premises and each had a separate licence from Region Dell. The fact that both conducted the same business activity – operating radiology practices – was not enough to satisfy section 149(1)(d).
HIGH COURT OF AUSTRALIA 25 May 2005 PALGO HOLDINGS PTY LTD (trading as CASH COUNTERS BYRON) v KELVIN GOWANS, A PUBLIC OFFICER ON BEHALF OF DIRECTOR-GENERAL OF DEPARTMENT OF FAIR TRADING Lending money with goods provided as security was not necessarily pawnbroking, the High Court of Australia held today. Palgo was charged in the New South Wales Local Court at Lismore with carrying on business as a pawnbroker in Byron Bay without a licence in 2001 and was fined $6,000. It made short-term loans, usually for seven days, of small amounts. Loans were secured by the borrower transferring title in the goods to Palgo. The schedule of terms referred to in the bill of sale/goods mortgage document required the borrower to keep the mortgaged property in their possession and to have insurance. In eight cases in which evidence was given to the Lismore Local Court the goods were left with Palgo, except for one case where a car was provided as security. The documents recorded the location of the goods in seven cases as being in storage at the borrower’s request. Sometimes borrowers were told this was necessary and sometimes they assumed they had to leave their goods. Palgo said keeping the goods on its premises meant they were covered by its insurance policy. Its appeals to the Supreme Court and the Court of Appeal against the conviction and fine were dismissed. Both Courts held that mortgages of chattels could also be characterised as pawnbroking transactions. They held that if the meaning of pawned goods did not embrace all transactions in which a lender had possession of goods as security it would defeat the purposes of the Pawnbrokers and Second-had Dealers Act. Palgo appealed to the High Court. The Court held that pledges or pawns (the terms are interchangeable) could not include mortgages, and transactions cannot be a combined pledge and mortgage. Nothing in the Act allows scope for arguing that pawned goods include goods that are the subject of other forms of security transaction. Pawn and pledge refer to a bailment of personal property as security for a debt, distinct from a chattel mortgage, and one kind of transaction cannot be treated as being subsumed in the other. The Court held that because the transactions were mortgages of chattels they were bills of sale, regulated by the Bills of Sale Act rather than the Pawnbrokers Act. The Court held that there was no basis for reading the definition of pawnbroker as extending to a business embracing all kinds of transaction in which a lender of money takes possession or custody of goods. Palgo’s business fell outside the definition. The Pawnbrokers Act was one just one of several Acts regulating provision of credit. The presence of such other statutes reveals no reason to read the Pawnbrokers Act as designed to cover a field wider than its own words mark out. The Court, by a 4-1 majority, allowed the appeal.
HIGH COURT OF AUSTRALIA 15 November 2005 MICHAEL JOHN COVENTRY AND LYNETTE HELEN COVENTRY (AS TRUSTEES OF THE MIKE AND LYN COVENTRY FAMILY TRUST) AND ANDREW COVENTRY v CHARTER PACIFIC CORPORATION LIMITED AND BARRY TABE (AS TRUSTEE OF THE TABE FAMILY TRUST) A damages claim by Charter Pacific could be pursued against discharged bankrupts as the circumstances of the claim meant it was not a debt provable in bankruptcy, the High Court of Australia held today. The Coventrys were directors of Evtech Pty Ltd. Michael and Andrew Coventry made certain representations to Charter Pacific about the viability of a computer technology project. These induced Charter Pacific to enter into a deed in March 1993. Parties to the deed were Charter Pacific, Evtech, Barry Tabe as trustee of the Tabe Trust, Michael and Lynette Coventry as trustees of their family trust, and Belrida Enterprises Pty Ltd as trustee of the Quinn Family Trust. Andrew Coventry was not a party. Under the deed, Charter Pacific agreed to buy Evtech shares from the other parties and to lend money to Evtech. The Coventry brothers’ representations were found to have been misleading. The loan and some further money lent, totalling $604,634, were not repaid and the Evtech shares proved to be worthless. The brothers were made bankrupt in 1994 and were discharged from bankruptcy in 1997. In the Queensland Supreme Court, Charter Pacific brought proceedings for misleading and deceptive conduct contrary to the Corporations Law against the Coventrys and other parties. The Coventrys denied that any misrepresentation occurred or that Charter Pacific suffered loss but alleged that any claims were provable debts from which they had been discharged through bankruptcy. In August 2002, after a 157-day trial, the Court found that the Coventrys had contravened the Corporations Law and gave judgment in favour of Charter Pacific. It held that the claims were not invalidated by the Coventrys’ bankruptcy so could be pursued after their discharge. The Coventrys appealed unsuccessfully to the Queensland Court of Appeal, then appealed to the High Court. They contended that the Court of Appeal erred in its construction of the Bankruptcy Act, as section 82(2) provides that demands in the nature of unspecified damages arising other than by way of a contract, promise or breach of trust are not provable in bankruptcy. Just before the High Court appeal hearing in March 2005, Michael Coventry was again made bankrupt. Neither the Coventry trustees nor Michael Coventry’s trustee in bankruptcy appeared and neither provided written submissions. The Court ordered that the appeal of the Coventry trustees be dismissed for want of prosecution. Andrew Coventry was effectively the sole appellant. The High Court unanimously dismissed the appeal by Andrew Coventry with costs. It held that because the as yet unspecified damages claim arose through misleading conduct, rather than in breach of a promise in the deed, the damages are not provable debts in the Coventry brothers’ bankruptcies pursuant to section 82(2) and therefore remain recoverable after discharge from bankruptcy.
HIGH COURT OF AUSTRALIA Manager, Public Information 10 November 2009 ADEELS PALACE PTY LTD v ANTHONY MOUBARAK ADEELS PALACE PTY LTD v ANTOIN FAYEZ BOU NAJEM [2009] HCA 48 Adeels Palace should not be held liable for injuries arising from violent conduct, in the circumstances where the evidence did not establish there was action it could have taken which would, on the balance of probabilities, have prevented that conduct from occurring, the High Court held today. In the early hours of New Year’s Day 2003 a dispute arose on the dance floor of the Adeels Palace Restaurant, after a female patron accused another of brushing her hand with a lighted cigarette. Fighting erupted and became “more ferocious very quickly”. One of the patrons left the restaurant after he was struck in the face. He returned soon after with a gun. In an unprovoked act he shot Mr Bou Najem in the leg in the restaurant’s kitchen. He then went into the restaurant proper and found Mr Moubarak, the man who had struck him. He shot Mr Moubarak in the stomach. Mr Moubarak and Mr Bou Najem both sued Adeels Palace, alleging that they had suffered their injuries as a result of the negligence of Adeels Palace in failing to provide any or any sufficient security during the New Year’s Eve function. Both men were successful in the NSW District Court. The Court of Appeal for NSW dismissed appeals filed by Adeels Palace. The High Court granted Adeels Palace special leave to appeal. The High Court held that the issues in the case had to be determined in the light of the relevant provisions of the Liquor Act 1982 (NSW) and the Civil Liability Act 2002 (NSW). The High Court concluded that, concomitant with its responsibilities under the Liquor Act to not permit indecent, violent or quarrelsome behaviour on licensed premises and to eject persons who engaged in such behaviour, Adeels Palace owed a duty to all of its patrons (including Mr Moubarak and Mr Bou Najem) to take reasonable care to prevent injury arising from the violent, quarrelsome or disorderly conduct of other persons. However, the High Court held it was unnecessary to determine whether there had been a breach of the duty. That was because the evidence did not establish that the provision of greater security, to the level which Mr Moubarak and Mr Bou Najem argued should have been provided, would have either deterred or prevented the gunman from re-entering the restaurant. Section 5D of the Civil Liability Act required Mr Moubarak and Mr Bou Najem to establish that the restaurant’s negligence in failing to provide any or any sufficient security was a necessary cause of the damage they each suffered, but the evidence only went so far as to establish that if there had been more security in the restaurant on New Year’s Eve that might have prevented the damage caused by the gunman. It did not show that more security would, on the balance of probabilities, have prevented their injuries. The High Court allowed each appeal and ordered that the decisions of both the Court of Appeal and the District Court be set aside.
HIGH COURT OF AUSTRALIA 8 September 2005 PHILIP RUDDOCK, KAY PATTERSON AND COMMONWEALTH OF AUSTRALIA v The High Court of Australia today overturned an award of damages of $116,000 paid to Mr Taylor after he was put into immigration detention when his visa was cancelled on character grounds. British-born Mr Taylor, 45, came to Australia with his family in 1966. He is not an Australian citizen but has held a permanent transitional visa. In 1996, Mr Taylor pleaded guilty to a number of sexual offences and served three-and-a-half years in jail. Twice after his release in 1999 his visa was cancelled on character grounds under section 501 of the Migration Act due to his criminal record and he was taken into immigration detention. Both decisions cancelling his visa were quashed by the High Court, the first by Justice Callinan and the second by the Full Court. Mr Taylor’s periods in detention in 1999-2000 totalled 316 days. Mr Taylor sued the then Immigration Minister Mr Ruddock, the then Parliamentary Secretary Senator Patterson and the Commonwealth for damages for false imprisonment. The New South Wales District Court awarded him $116,000. The Ministers and the Commonwealth appealed unsuccessfully to the NSW Court of Appeal. They then appealed to the High Court. In 2003, between the Court of Appeal decision and today’s appeal, the High Court held in Shaw v Minister for Immigration and Multicultural Affairs that anyone born outside Australia to non-Australian parents, including British subjects, was, unless naturalised, an alien. The effect of the Shaw judgment was to support the legal basis upon which the authorities had acted in Mr Taylor’s case. Today’s appeal turned on section 189 of the Act which provides that if an officer knows or reasonably suspects that a person is an unlawful non-citizen the officer must detain the person. That section was held to apply to the present case. The High Court, by a 5-2 majority, allowed the appeal.