Judgments, ordered by date

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Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Feb 2018 Case Number: A17/2017
Administrative law – Judicial review – Building and Construction Industry Security of Payment Act 2009 (SA) – Where subcontract provided for sum to be paid to subcontractor after issue of certificate of occupancy – Where issue of certificate of occupancy required certification from builder that building work performed in accordance with head contract – Where adjudicator appointed to determine disputed payment claim – Where adjudicator determined provisions of subcontract ineffective because pay when paid provisions – Whether adjudicator's determination involved error of law – Whether adjudicator's determination should be quashed.

Administrative law – Judicial review – Availability of certiorari – Error of law on face of record – Whether Building and Construction Industry Security of Payment Act 2009 (SA) ousts jurisdiction of Supreme Court of South Australia to make order in nature of certiorari to quash adjudicator's determination for non-jurisdictional error of law on face of record.

Words and phrases – "contingent or dependent on the operation of", "error of law on the face of the record", "order in the nature of certiorari", "pay when paid provision", "retention provisions".

Building and Construction Industry Security of Payment Act 2009 (SA) – Pts 2, 3.

Development Act 1993 (SA) – s 67.

Development Regulations 2008 (SA) – reg 83, Sched 19A.

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Feb 2018 Case Number: S145/2017
Administrative law – Judicial review – Availability of certiorari – Error of law on face of record – Non-jurisdictional error – Building and Construction Industry Security of Payment Act 1999 (NSW) – Where Act confers entitlement to "progress payment" on persons who undertake to carry out construction work under construction contracts and provides scheme for determining disputed claims – Where first respondent made claim for progress payment – Where claim referred to adjudicator for determination – Where adjudicator made error of law in reasons for determination – Where reasons form part of record – Whether Act ousts jurisdiction of Supreme Court of New South Wales to make order in nature of certiorari to quash determination for non-jurisdictional error of law on face of record.

Words and phrases – "clear legislative intention", "error of law on the face of the record", "interim entitlement", "jurisdictional error", "non-jurisdictional error", "order in the nature of certiorari".

Building and Construction Industry Security of Payment Act 1999 (NSW) – Pts 2, 3.

Supreme Court Act 1970 (NSW) – ss 22, 69.

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3

Kiefel CJ, Gageler, Keane, Nettle, Gordon JJ
Date: 14 Feb 2018 Case Number: M65/2017
Industrial law – Pecuniary penalties – Where union official contravened civil remedy provision of Fair Work Act 2009 (Cth) – Where union contravened civil remedy provision through union official's conduct – Where s 546 of Fair Work Act provides court can order person to pay pecuniary penalty – Where s 545(1) of Fair Work Act provides court can make any order it considers appropriate if satisfied person contravened, or proposes to contravene, civil remedy provision – Where pecuniary penalties imposed on both union official and union – Whether s 545(1) or s 546 of Fair Work Act or s 23 of Federal Court of Australia Act 1976 (Cth) empowers court to order that union not indemnify union official against pecuniary penalty – Whether s 545(1) or s 546 of Fair Work Act or s 23 of Federal Court of Australia Act empowers court to order that union official not seek or accept indemnity or contribution from union in respect of pecuniary penalty.

Words and phrases – "appropriate", "Bragdon order", "civil remedy provision", "deterrence", "implied power", "legally ancillary", "non-indemnification order", "pecuniary penalty", "penal outcome", "penal purpose", "person other than the contravener", "personal payment order", "reasonably required".

Fair Work Act 2009 (Cth) – ss 545, 546, 564.

Federal Court of Australia Act 1976 (Cth) – s 23.

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 7 Feb 2018 Case Number: S31/2017
Constitutional law (Cth) – Judicial power – Ch III – Where plaintiff holder of Absorbed Person Visa and Class BF Transitional (Permanent) Visa – Where plaintiff convicted of trafficking large commercial quantity of cannabis and sentenced to 11 years' imprisonment – Where s 501(3A) of Migration Act 1958 (Cth) requires Minister for Immigration and Border Protection to cancel visa where visa holder has substantial criminal record and is serving sentence of imprisonment on full-time basis – Where plaintiff's visas cancelled under s 501(3A) – Where plaintiff held in immigration detention pending deportation – Whether s 501(3A) authorises or requires detention – Whether purpose of s 501(3A) is to punish – Whether s 501(3A) confers judicial power on Minister – Whether s 501(3A) invalid as contrary to Ch III of Constitution.

Words and phrases – "aliens", "character test", "immigration detention", "judicial power", "protection of society", "punishment", "punitive purpose", "substantial criminal record", "unlawful non-citizen".

Constitution – Ch III, s 51(xix).

Migration Act 1958 (Cth) – ss 34, 189, 196, 198, 501, 501CA.

Commissioner of the Australian Federal Police v Hart [2018] HCA 1

Kiefel CJ, Bell, Gageler, Gordon, Edelman JJ
Date: 7 Feb 2018 Case Number: B21/2017 B22/2017 B23/2017
Criminal law – Forfeiture of property – Where restraining orders made in respect of certain property suspected of being under effective control of person suspected of certain offences – Where person convicted of offences – Where property automatically forfeited to Commonwealth under s 92 of Proceeds of Crime Act 2002 (Cth) – Where companies associated with convicted person applied for orders under s 102 of Proceeds of Crime Act for recovery of interests, or amounts equal to value of interests, in forfeited property – Whether forfeited property "not used in, or in connection with, any unlawful activity" within s 102(3)(a) of Proceeds of Crime Act – Whether "use" requires that property be necessary for or have made unique contribution to unlawful activity – Whether degree of use must be proportionate to forfeiture of property – Whether forfeited property "not derived or realised, directly or indirectly, by any person from any unlawful activity" within s 102(3)(a) of Proceeds of Crime Act – Whether property "derived" if wholly or partly derived from unlawful activity – Whether degree of derivation must be substantial – Whether forfeited property "acquired . . . lawfully" within s 102(3)(b) of Proceeds of Crime Act – Whether applicant must prove each step in process of acquisition lawful – Whether applicant must prove all consideration paid for property lawfully acquired.

Criminal law – Forfeiture of property – Application under s 141 of Proceeds of Crime Act 2002 (Cth) for order that forfeited property be available to satisfy pecuniary penalty order against convicted person – Where court must be satisfied property subject to effective control of convicted person – Whether effective control determined as at date of restraining order in respect of property or as at date of determination of application under s 141.

Words and phrases – "acquired the property lawfully", "derived", "directly or indirectly", "effective control", "forfeiture", "interest", "lawfully acquired", "partly derived", "proceeds of an offence", "proceeds of crime", "realised", "unlawful activity", "used in, or in connection with", "wholly derived".

Proceeds of Crime Act 2002 (Cth) – ss 5, 6, 16, 17, 18, 24, 24A, 25, 26(4), 29, 42, 44, 66, 67, 92, 102, 104, 116, 141, 314, 315, 317, 329, 330, 337, 338.

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