The court began the year on 9 February with two appeal decisions concerning the relationship of employer and employee.  A majority of the court decided in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; 312 IR 1 that an employment relationship existed between an unskilled labourer and a labour hire company, despite a written agreement describing him as a “self-employed contractor”.  The terms of the agreement were modelled on the “Odco system”, a well-established practice deriving from a decision of the Full Federal Court in Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; 37 IR 380.  In a joint judgment, Kiefel CJ, Keane and Edelman JJ disapproved Odco, while Gageler and Gleeson JJ distinguished it.  Steward J in dissent considered that overturning the decision would greatly damage the businesses of many companies, including the respondent’s.  The court also overruled Personnel Contracting Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers [2004] WASCA 312; (2004) 141 IR 31, a decision of the Industrial Appeal Court of Western Australia, with the plurality finding error in the attribution of decisive significance to the parties’ description of their relationship in such a manner as to “remove ambiguity”.

ZG Operations Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144; 312 IR 74, concerned delivery drivers who had transitioned from employees to contractors in 1986.  In proceedings before the Federal Court they unsuccessfully sought long-service leave and employer superannuation contributions on the basis that they worked de facto exclusively for the appellant although their contracts did not bar them from carrying goods for others.  Applying Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd , the High Court held that the drivers were not employed by the company, having formed independent businesses in partnership with their wives, acquired, maintained and insured vehicles in the names of those partnerships and took advantage of tax benefits of operating their own businesses.  The relationship between the parties was governed by written agreements which made clear that the company was contracting with the partnerships and not engaging the personal services of the drivers.

As has been noticed elsewhere, Walton v ACN 004 410 833 Ltd (formerly Arrium Ltd) (in liq) [2022] HCA 3; (2022) 96 ALJR 166 concerned the examinability of company directors for a purpose potentially connected with a shareholder class action against the company’s officers and auditors.  A majority of the court held that the issue of an examination summons for that purpose was not, in the circumstances, an abuse of process.

In H Lundbeck A/S v Sandoz Pty Ltd [2022] HCA 4; (2022) 96 ALJR 208 the court considered whether damages for infringement of a pharmaceutical patent could be recovered during a period of time when an application to extend the patent’s term was awaiting decision and which when granted extended the patent retrospectively after its initial term had expired.  The court held that the combined effect of the Patents Act 1990 (Cth), s 79 and the Federal Court of Australia Act 1976 (Cth), s 51A(1)(a) was that a cause of action for damages and pre-judgment interest did not arise until all facts necessary to be proved in order to obtain judgment came into existence.  Consequently the facts underlying a claim for damages for infringement could not be ascertained until the extension was granted.

Hobart International Airport Pty Ltd v Clarence City Council; Australian Pacific Airports (Launceston) Pty Ltd v Northern Midlands Council [2022] HCA 5; (2022) 96 ALJR 234, delivered on 9 March, concerned the enforcement of certain terms in leases by parties not privy to them but having a potential benefit deriving from their enforcement.  The court held that to seek declaratory relief, the respondent Councils did not have to have an underlying cause of action or other entitlement at common law or in equity to enforce the relevant contractual obligations.  A majority of the court found that they had a “sufficient and real interest” as well as a commercial interest sufficient to give them standing to seek declaratory relief.

The court delivered three judgments on 16 March.  Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 96 ALJR 271 considered unconscionability, both in equity and under statute.  A vulnerable borrower who owned two tenanted properties wished to purchase a third in which to live.  He was introduced to an intermediary for a firm of solicitors that arranged asset-based financing, at high rates of interest and involving a structure intended to immunise loans from consumer protection legislation.  The borrower was never in a position to service these loans and defaulted almost immediately.  The court considered the appellant’s position of “special disadvantage” and the lender’s state of knowledge of his vulnerability, and unanimously held that the lenders’ conduct, via their solicitor, was unconscionable.  Gordon J held that it was unconscionable both in equity and under the Australian Securities and Investments Commission Act 2001 (Cth), s 12CB.

The sole issue in Commissioner of Police (NSW) v Cottle [2022] HCA 7; (2022) 96 ALJR 304, also decided on 16 March, was whether a non-executive police officer, who had been retired pursuant to the Police Act 1990 (NSW), s 72A, could validly make an unfair dismissal application in the New South Wales Industrial Commission under the Industrial Relations Act 1996 (NSW), s 84(1).  In separate judgments the court unanimously held, reversing the New South Wales Court of Appeal, that the Commission had jurisdiction to hear and determine the officer’s application.

The third judgment delivered on 16 March, Wells Fargo Trust Company National Association v VB Leaseco Pty Ltd (Administrators Appointed) [2022] HCA 8; (2022) 96 ALJR 304, was connected with the aftermath of the Virgin Airlines insolvency.  Wells Fargo was the legal owner of jet engines leased via VB Leaseco to airlines in the Virgin group.  The administrators of Virgin disclaimed the leases as onerous assets and an issue arose as to how the engines were to be redelivered.  Wells Fargo’s position was that they should be delivered to a location in Florida, on its interpretation of the Cape Town Convention on International Interests in Mobile Equipment.  The administrators’ position was that they were only obliged to make the engines available for collection in Australia.  The court agreed with them, holding that the Convention requires a creditor to exercise its rights in a “commercially reasonable” manner and this obliged Wells Fargo to take responsibility for the expense and effort of transporting the engines to Florida.

On 25 March, the court published its reasons in the matter of Ruddick v The Commonwealth [2022] HCA 9 (coming soon to ALJR!).  This case concerned the validity of amendments made to the Commonwealth Electoral Act 1918 (Cth) in 2021, which enabled registered political parties to object to the registration of other parties whose names or logos included similar elements.  The Liberal Party of Australia took advantage of these amendments to object to the registration of the Liberal Democratic Party, which had gained a boost in its primary vote, to the detriment of the Liberal Party, by its fortuitous positioning on the Senate ballot paper for the 2019 election.  Mr Ruddick, an endorsed LDP Senate candidate, challenged the amendments on the grounds that they were at odds with the Constitution, ss 7 and 24, which he argued precluded Parliament from making electoral laws imposing a “discriminatory burden on political parties with anti-competitive effect”. A second ground challenged the amendments as infringing the implied freedom of political communication.  By a 4/3 majority, Gordon, Edelman and Gleeson JJ, with whom Steward J agreed, held that the amendments were intended to avoid confusion and placed no burden on informed electoral choice, but rather improved the clarity, and therefore the quality of electoral choice and communication on government and political matters.  The plurality also held that they were “facially neutral in their effect” and did not infringe the implied freedom.

Federal Commissioner of Taxation v Carter [2022] HCA 10; (2022) 96 ALJR 325, delivered on 6 April, dealt with the liability to income tax of trust beneficiaries and the meaning of the term “presently entitled to a share of the income” in the Income Tax Assessment Act 1936 (Cth), s 97(1).  The trustee of a family trust failed to distribute or accumulate the trust’s income for the 2014 tax year.  Nevertheless the Commissioner of Taxation assessed the five beneficiaries on the basis that the trust deed’s default position was that undistributed income was held in trust for them in equal shares and that they were thus “presently entitled” to it.  The beneficiaries purported to disclaim their shares after the end of the relevant financial year.  In a joint judgment, Gageler, Gordon, Steward and Gleeson JJ, with whom Edelman J agreed, held that the phrase “presently entitled” is expressed in the present tense and directed to the position existing immediately before the end of the relevant year.  It is not to be construed as allowing events occurring within a “reasonable period” afterwards to disentitle beneficiaries who were entitled to the income immediately prior to year’s end.  Accordingly the disclaimers were not effective to expunge the Commissioner’s rights retrospectively.

The court also delivered judgment in Tapp v Australian Bushmen’s Campdraft and Rodeo Association Ltd [2022] HCA 11; 96 ALJR 337 on 6 April.  The case concerned breach of an event organiser’s duty of care towards participants in an inherently dangerous recreational activity.  Ms Tapp was a competitor in a “campdraft”, which involved herding cattle around a confined arena.  In the course of a day’s competition, the surface of the arena had deteriorated, resulting in several competitors falling from their mounts.  Ms Tapp was one of them.  She suffered catastrophic injuries.  A majority of the court held that the respondent had breached its duty of care towards her: a reasonable person in the respondent’s position would have foreseen the probability of harm if the competition was not stopped until the arena could be inspected for safety.  The deterioration of the surface had substantially elevated the risk, which was not obvious to a person in Ms Tapp’s position. While campdrafting is inherently dangerous, the harm was not the materialisation of an obvious risk. Consequently the respondent was liable in negligence.

In Kozarov v Victoria [2022] HCA 12, another negligence case decided on 13 April, the court considered the duty of employers to take reasonable care to prevent psychiatric injury to their employees.  The appellant was a solicitor employed in the Specialist Sexual Offences Unit of the Victorian Office of Public Prosecutions.  She suffered post-traumatic stress disorder and a major depressive disorder due to cumulative exposure to vicarious trauma in her casework.  The court considered and explained the effect of passages in Koehler v Cerebos (Australia) Pty Ltd [2005] HCA 15; (2005) 222 CLR 44; 79 ALJR 845 concerning “evident signs” that warned of possible psychiatric injury, in circumstances where the OPP had a vicarious trauma policy which the Specialist Sexual Offences Unit had failed to implement.  The court unanimously held that the respondent was on notice of Ms Kozarov’s vulnerability to psychiatric injury and a causal link existed between her injury and the respondent’s breach of duty towards her.

Australian Building and Construction Commissioner v Pattinson & Anor [2022] HCA 13, also decided on 13 April, concerned civil penalty provisions in the Fair Work Act 200 (Cth), Pt 4-1.  Mr Pattinson, a site delegate for the CFMMEU, made a representation to two subcontractor’s employees that they could not work on the site unless they were union members.  This representation was false and made in support of the union’s long-standing but unlawful policy of “no ticket no start”.  The appellant Commissioner instituted civil penalty proceedings in the Federal Court against the union and Mr Pattinson personally.  Snaden J at first instance gave consideration to the union’s persistent offending in pursuit of the “no ticket no start” policy and imposed the maximum prescribed penalty ($63,000).  Mr Pattinson was ordered to pay $4,000, notwithstanding that it was his first contravention and he had since retired.  The respondents appealed to the Full Court which set the original penalties aside and ordered payment of reduced amounts, holding that the maximum penalty was reserved for the most serious examples of contravention (importing criminal law sentencing principles).  The Commissioner appealed to the High Court which unanimously upheld Snaden J’s imposition of the maximum penalty on the union and by majority upheld the penalty imposed by his Honour on Mr Pattinson.  The court applied its earlier decision in Commonwealth v Director, Fair Work Building Industry Inspectorate (the “Agreed Penalties Case”) [2015] HCA 46; (2015) 258 CLR 482; 90 ALJR 113, holding that the civil penalty regime under the Fair Work Act is driven primarily, if not solely by deterrence and not by retribution or a “notion of proportionality” which would confine the maximum penalty to the worst category of case.  The union’s persistent adherence to the “no ticket no start” policy had not been deterred by previous impositions of lesser penalties, which were akin to an acceptable cost of doing business, so that the deterrent effect of imposing the maximum penalty was appropriate.

Hoang v The Queen [2022] HCA 14 concerned the mandatory discharge of a juror in a criminal trial after she conducted private research during the course of deliberations.  The appellant was charged with sexual offences committed while tutoring school students in mathematics.  It emerged that he had never undergone a “Working With Children” check.  One of the jurors, a former teacher who would not have been subject to such a requirement during her career, conducted an internet search to satisfy her own curiosity.  The jury foreperson became aware of this, and informed the trial judge at a point in deliberations where the jury had reached unanimous verdicts on some of the counts in the indictment but were still undecided on the others.  The judge proceeded to take the available verdicts before discharging the errant juror.  The High Court upheld Mr Hoang’s appeal, concluding that the Jury Act 1977 (NSW), s 53A(1)(c) required the judge to discharge the juror before taking verdicts and that the guilty verdicts delivered before the juror’s discharge should be set aside.

And finally Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15, a decision of Gordon J delivered on 21 April, held that it was legally unreasonable to refuse a protection visa in circumstances where a homeless applicant with mental health issues and limited access to email was confused by unclear communications from officers of the Department and failed to respond to a request for further information pursuant to the Migration Act 1958 (Cth), s 62.