Criminal law – Crown appeal against sentence – procedural fairness

HT v The Queen [2019] HCA 40 (13 November 2019) concerned whether the appellant had been denied procedural fairness in the Court of Criminal Appeal and, if so, whether that denial was justified. The appellant had been convicted and sentenced in the District Court of New South Wales. She was a registered police informer who had provided assistance to law enforcement authorities. The sentencing judge was required, by statute, to take that assistance into account as a mitigating factor. Confidential evidence of the appellant’s assistance was given to the sentencing judge and was seen by the Crown prosecutor. It was not, however, given to the appellant’s counsel.

The Commissioner of Police had opposed making the confidential information available to the appellant or her legal representatives even with the imposition of conditions. The basis given for this was public interest immunity. The Crown supported that stance. The Court of Criminal Appeal upheld the commissioner’s objection on the ground that the confidential information was subject to public interest immunity.

The High Court said the appellant, having been denied access to the confidential evidence, and therefore an opportunity to test and respond to it, was denied procedural fairness. The doctrine of public interest immunity did not provide a basis for keeping the confidential evidence from the appellant. The Court of Criminal Appeal was wrong to exercise its residual discretion.

Kiefel CJ, Bell and Keane JJ jointly. Nettle and Edelman JJ jointly concurring. Gordon J separately concurring. Appeal from the Supreme Court of New South Wales allowed.

Immigration – administrative law – judicial review – jurisdictional error

In EBT16 v Minister for Home Affairs [2019] HCA 44 (13 November 2019) the plaintiff applied for a constitutional or other writ in the original jurisdiction of the High Court under s75(v) of the Constitution. The plaintiff sought a writ of certiorari quashing two orders of the Federal Circuit Court. By the first order, the Federal Circuit Court refused an application by the plaintiff for an extension of time under s477(1) of the Migration Act 1958 (Cth) for the filing of an application for judicial review of a decision of the Administrative Appeals Tribunal. The second order dismissed the application for judicial review in respect of which the extension of time was sought. The plaintiff also sought a writ of mandamus requiring the Federal Circuit Court to determine his application for an extension of time according to law.

The High Court did not consider that the plaintiff’s
application raised an arguable basis for the relief
sought by the plaintiff.


Gageler J. Application dismissed under r25.09.1
of the High Court Rules 2004 (Cth).

Income tax – appeal against objection decision

In Bosanac v Commissioner of Taxation [2019] HCA 41 (22 November 2019) the plaintiff sought a writ of certiorari to quash a judgment and orders of the Full Court of the Federal Court, a writ of certiorari to quash the primary judge’s judgment, and other orders including a writ of mandamus to compel the Commissioner of Taxation to excise $600,000 from the plaintiff’s assessable income for the year ended 30 June 2009.

In March 2014, the commissioner commenced an audit into the plaintiff’s tax affairs. Before the completion of the audit, the plaintiff lodged tax returns for the years ended 30 June 2006 to 30 June 2013 for the first time. On completion of the audit, the commissioner issued notices of amended assessments that substantially increased the plaintiff’s taxable income. The plaintiff objected. The commissioner then issued notices of further amended assessments. The plaintiff commenced an appeal in the Federal Court against those assessments pursuant to s14ZZ of the Taxation Administration Act 1953 (Cth).

The onus was on the plaintiff to prove on the balance of probabilities the extent to which the impugned assessments were excessive. The plaintiff failed to do so before the primary judge. He then appealed to the Full Court, which dismissed the appeal. The High Court said there was no error in the reasoning of the Full Court and no basis for compelling the commissioner to reduce the further amended assessment in respect of the 2009 year of income by the amount of $600,000.

Nettle J. Application dismissed.

Representative proceedings – power to make common fund orders

BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall [2019] HCA 45 (4 December 2019) concerned whether, in representative proceedings, s33ZF of the Federal Court of Australia Act 1976 (Cth) (FCA) and s183 of the Civil Procedure Act 2005 (NSW) (CPA) empower the Federal Court and the Supreme Court of New South Wales to make a “common fund order”. Such an order is usually made early in representative proceedings and provides for the quantum of a litigation funder’s remuneration to be fixed as a proportion of any money ultimately recovered in the proceedings, for all group members to bear a proportionate share of that liability, and for that liability to be discharged as a first priority from any money so recovered.


The issue was resolved in the affirmative against the appellants – in the Westpac appeal by the Full Court of the Federal Court of Australia, and in the BMW appeal by the Court of Appeal of the Supreme Court of New South Wales.

By majority, the High Court said that properly construed, neither s33ZF of the FCA nor s183 of the CPA empowers a court to make a common fund order. Those sections provide that, in a representative proceeding, the court may make any order the court thinks appropriate or necessary to ensure that justice is done in the proceeding. While the power conferred is wide, it does not extend to the making of a common fund order. The sections empower the making of orders as to how an action should proceed in order to do justice. They are not concerned with the different question of whether an action can proceed at all.

It was not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the
proceeding in order to enable it to be heard and determined by that court. The making of an order at the outset of a representative proceeding, in order to assure a potential funder of the litigation of a sufficient level of return on its investment to secure its support for the proceeding, was beyond the purpose of the legislation.

Kiefel CJ, Bell and Keane JJ jointly. Nettle and Gordon JJ each separately concurring. Gageler and Edelman JJ each separately dissenting.
Appeal from the Court of Appeal of the Supreme Court of New South Wales allowed in the BMW appeal. Appeal from the Full Court of the Federal
Court of Australia allowed in the Westpac appeal.

The full version of these judgements can be found at

David Kelsey-Sugg is a Victorian barrister, ph 03 9225 6286, email


This story was originally published in Proctor April 2020.

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