Judgments, ordered by date

Browsing By Year (2019)

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Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 13 Mar 2019 Case Number: S141/2018
Criminal law – Appeal against conviction – Question of law referred to Court of Criminal Appeal – Case stated – Destroying or damaging property – Physical element of offence – Where appellant harnessed himself to ship loader – Where ship loader shut down due to safety concerns – Where ship loader inoperable until appellant removed – Where no alteration to physical integrity of ship loader – Whether property damaged.

Words and phrases – "destroys or damages", "impairment of value", "physical derangement", "temporary functional derangement".

Crimes Act 1900 (NSW) – s 195(1).

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 13 Mar 2019 Case Number: D1/2018 D2/2018 D3/2018
Aboriginals – Native title rights – Assessment of compensation – Where "previous exclusive possession act[s]" within meaning of s 23B in Div 2B of Pt 2 of Native Title Act 1993 (Cth) ("NTA") extinguished non-exclusive native title rights and interests held by Ngaliwurru and Nungali Peoples ("Claim Group") – Where Claim Group entitled to compensation under Div 5 of Pt 2 of NTA – Whether economic loss and cultural loss assessed separately – Principles of assessment for compensation for economic loss – Whether economic value of Claim Group's native title rights and interests equivalent to freehold value of affected land – Whether reduction from freehold value appropriate and how calculated – Whether inalienability of native title rights and interests a relevant discounting factor – Principles of assessment for compensation for cultural loss – Whether trial judge erred in assessment of cultural loss – Whether award manifestly excessive – Whether award met community standards.

Interest – Whether simple or compound interest payable on award for economic loss – Upon what basis simple interest payable.

Words and phrases – "compensable acts", "compensation", "compound interest", "compulsory acquisition", "cultural loss", "discount", "easement", "economic loss", "exclusive native title rights and interests", "extinguishing act", "inalienability", "just terms", "manifestly excessive", "native title", "non-economic loss", "non-exclusive native title rights and interests", "objective economic value", "percentage reduction from full exclusive native title", "previous exclusive possession act", "simple interest", "solatium".

Constitution – 51(xxxi).

Lands Acquisition Act (NT) – Sch 2.

Native Title Act 1993 (Cth) – Pts 1, 2, 15.

Racial Discrimination Act 1975 (Cth) – s 10.

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6

Nettle J
Date: 27 Feb 2019 Case Number: M73/2018 M74/2018
Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where risk of harm to persons associated with party to proceeding "acute" – Whether non-publication order necessary to protect safety of persons.

Words and phrases – "administration of justice", "necessary to protect the safety of any person", "non-publication order", "public interest in open justice".

Judiciary Act 1903 (Cth) – ss 77RE, 77RF(1)(c).

McKell v The Queen [2019] HCA 5

Bell, Gageler, Keane, Gordon, Edelman JJ
Date: 13 Feb 2019 Case Number: S223/2018
Criminal practice – Trial – Summing-up – Where appellant convicted of drug-related offences – Where trial judge made comments on evidence that went beyond arguments advanced by prosecution – Whether comments apt to create danger or substantial risk that jury might be persuaded of appellant's guilt – Whether comments so lacking in balance as to be exercise in persuading jury of appellant's guilt – Whether comments unfair to appellant – Whether comments resulted in miscarriage of justice.

Criminal practice – Trial – Summing-up – Whether trial judge may make comments which convey his or her opinion as to proper determination of disputed issue of fact to be determined by jury.

Words and phrases – "comment on the facts", "discretion to comment", "disputed issue of fact", "duty to give fair and accurate instructions", "fair trial", "fairness", "fundamental task of a trial judge", "lacking in balance", "miscarriage of justice", "overawing the jury", "right to comment", "strong Crown case", "summing-up".

Williams v Wreck Bay Aboriginal Community Council [2019] HCA 4

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 13 Feb 2019 Case Number: C5/2018
Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Council empowered under Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) ("Land Grant Act") to grant leases over certain land within Jervis Bay Territory ("JBT") – Where Land Grant Act does not affect application of other laws to extent other laws "capable of operating concurrently" with Land Grant Act – Where Residential Tenancies Act 1997 (ACT) applies in JBT as if JBT formed part of Australian Capital Territory – Where Residential Tenancies Act provides that all leases to which it applies include "standard residential tenancy terms" including term requiring lessor to maintain premises in reasonable state of repair – Whether, and to what extent, Residential Tenancies Act is law which is not capable of operating concurrently with Land Grant Act.

Words and phrases – "alter, impair or detract from", "anti-exclusivity provision", "capable of operating concurrently", "complete or exhaustive statement", "implicit negative proposition", "indirect inconsistency", "residential tenancy agreement", "standard residential tenancy terms", "statutory power".

Constitution – s 109.

Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) – ss 6, 7, 12, 38, 40, 41, 42, 46.

Australian Capital Territory (Self –Government) Act 1988 (Cth), s 28.

Jervis Bay Territory Acceptance Act 1915 (Cth) – s 4A.

Residential Tenancies Act 1997 (ACT) – ss 8, 9, 10, 54, 128, Sch 1.

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 13 Feb 2019 Case Number: S36/2018 M75/2018 S135/2018
Immigration – Refugees – Administrative Appeals Tribunal – Refugee Review Tribunal – Review by Tribunal under Pt 7 of Migration Act 1958 (Cth) – Where visa applicants sought review by Tribunal of decisions by delegates of Minister for Immigration and Border Protection to refuse visas – Where Secretary of Department of Immigration and Border Protection gave Tribunal documents considered relevant to Tribunal's review – Where Secretary or officer of Department purported to notify Tribunal that s 438 of Act applied to information contained in provided documents – Where s 438 applies if either of two preconditions concerning confidentiality or public interest in non-disclosure of documents or information met – Where s 438(3) conferred discretions on Tribunal, upon notification that s 438 applies to document or information, to have regard to matter in document or to information and to disclose such matter or information to applicant for review – Where fact of notification not disclosed to visa applicants during Tribunal's review – Where notifications incorrect and invalid – Whether procedural fairness required Tribunal to disclose fact of notification to visa applicants – Whether incorrect and invalid notification resulted in denial of procedural fairness.

Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Materiality – Where denial of procedural fairness occurred – Whether denial constitutes jurisdictional error if and only if denial was material in that denial deprived applicant for review of possibility of successful outcome – Whether Tribunal's review affected by jurisdictional error.

Words and phrases – "disclosure", "discretion to refuse relief", "document or information", "fact of notification", "incorrect and invalid notification", "jurisdictional error", "material", "onus of proof", "possibility of a successful outcome", "practical injustice", "procedural fairness", "s 438 certificate".

Migration Act 1958 (Cth) – Pt 7.

Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Feb 2019 Case Number: D4/2018
Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Commonwealth civil aviation law regulates matters preparatory to and subsequent to aircraft flight including embarkation and disembarkation of passengers – Where Commonwealth law implements and extends international obligations designed to achieve uniformity in regulation of civil aviation – Where Territory law regulates work health and safety – Whether Commonwealth law designed to operate within framework of other State, Territory and Commonwealth laws – Whether Commonwealth law contains implicit negative proposition that it is only law with respect to safety of persons affected by operations of aircraft including embarkation – Whether Territory law inconsistent with Commonwealth law.

Words and phrases – "alter, impair or detract from", "anti-exclusivity clause", "Chicago Convention", "civil aviation", "cover the field", "embarkation", "implicit negative proposition", "indirect inconsistency", "intention to deal completely, exhaustively or exclusively", "legislative intention", "nationally harmonised laws", "operations associated with aircraft", "rule of conduct", "safety standards", "subject matter".

Constitution – ss 109, 122.

Air Navigation Act 1920 (Cth).

Civil Aviation Act 1988 (Cth)
– ss 3, 3A, 9, 11, 20A, 27, 28BA, 28BD, 28BE, 29, 98. Civil Aviation Regulations 1988 (Cth), regs 2, 215, 235.

Crimes Act 1914 (Cth) – s 4C.

Northern Territory (Self –Government) Act 1978 (Cth), s 6.

Work Health and Safety Act 2011 (Cth).

Work Health and Safety (National Uniform Legislation) Act 2011 (NT)
– ss 19, 27, 32.

Unions NSW v New South Wales [2019] HCA 1

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 29 Jan 2019 Case Number: S204/2018
Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(10) of Electoral Funding Act 2018 (NSW) ("EF Act") substantially reduced cap on electoral expenditure applicable to third-party campaigners from cap applicable under previous legislation – Where third-party campaigners subject to substantially lower cap than political parties – Where s 35 of EF Act prohibits third-party campaigner from acting in concert with another person to incur electoral expenditure exceeding cap – Where preparatory materials to EF Act recommended reduction in cap for various reasons, including that third parties should not be able to "drown out" political parties, which should have a "privileged position" in election campaigns – Where subsequent parliamentary committee report recommended that, before reducing cap, government consider whether proposed reduced cap would enable third-party campaigners reasonably to present their case – Where no evidence that such consideration was undertaken – Whether s 29(10) enacted for purpose compatible with maintenance of constitutionally prescribed system of representative government – Whether s 29(10) necessary to achieve that purpose – Whether necessary to decide validity of s 35.

Words and phrases – "capped expenditure period", "compatible with maintenance of the constitutionally prescribed system of representative government", "deference to Parliament", "domain of selections", "domain of the legislative discretion", "effect of the law", "electoral expenditure", "expenditure cap", "justified", "legislative purpose", "legitimate purpose", "level playing field", "marginalise", "margin of appreciation", "necessity", "reasonably appropriate and adapted", "third-party campaigner".

Constitution – ss 7, 24.

Electoral Funding Act 2018 (NSW) – ss 3, 29, 33, 35.

Election Funding – Expenditure and Disclosures Act 1981 (NSW), ss 4, 4A, 95F.

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