Judgments, ordered by date

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GAX v The Queen [2017] HCA 25

Bell, Gageler, Nettle, Gordon, Edelman JJ
Date: 21 Jun 2017 Case Number: B72/2016
Criminal law – Appeal – Verdict unreasonable or insupportable having regard to evidence – Where appellant convicted on one count of aggravated indecent dealing with child and acquitted on two counts of aggravated indecent dealing with same child – Where appellant appealed conviction as unreasonable and inconsistent with acquittals – Whether Court of Appeal made independent assessment of sufficiency and quality of evidence in determining whether verdict unreasonable – Whether verdict unreasonable.

Words and phrases – "unreasonable verdict".

The Queen v Dickman [2017] HCA 24

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 21 Jun 2017 Case Number: M162/2016
Criminal law – Appeal against conviction – Identification evidence – Where victim's identification of accused on photoboard admitted at trial – Where police conveyed to victim that photograph of suspect would be on photoboard – Where victim had made erroneous previous identification – Whether probative value of identification evidence outweighed by unfair prejudice to accused – Whether evidence should have been excluded under s 137 of Evidence Act 2008 (Vic) – Whether admission of identification evidence occasioned substantial miscarriage of justice.

Words and phrases – "identification evidence", "probative value", "substantial miscarriage of justice", "unfair prejudice".

Evidence Act 2008 (Vic) – s 137.

Rizeq v Western Australia [2017] HCA 23

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 21 Jun 2017 Case Number: P55/2016
Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).

Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).

Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".

Constitution – ss 75(iv), 80.

Criminal Procedure Act 2004 (WA) – s 114(2).

Judiciary Act 1903 (Cth) – ss 39(2), 79, 80.

Misuse of Drugs Act 1981 (WA) – s 6(1)(a).

New South Wales v DC [2017] HCA 22

Kiefel CJ, Bell, Gageler, Keane, Gordon JJ
Date: 14 Jun 2017 Case Number: S35/2017
Negligence – Duty of care – Statutory power to report abuse of child to police – Where duty of care in exercise of statutory powers conceded – Where scope or extent of duty disputed – Where primary judge found that no authority acting reasonably could regard failure to report abuse to police as reasonable exercise of statutory powers in present case – Where State conceded that only reasonable exercise of statutory powers in some cases may be to report abuse to police – Whether appropriate in light of concessions to consider scope or extent of duty – Special leave to appeal revoked.

Tort – Vicarious liability – Where State conceded vicarious liability for breach of duty of care – Where statute providing for vicarious liability of Crown not in force – Where concession may not have reflected applicable law at relevant times – Special leave to appeal revoked.

Words and phrases – "duty of care", "scope or extent of duty", "statutory discretionary power", "vicarious liability".

Child Welfare Act 1939 (NSW) – Pt XIV, s 148B(5).

Civil Liability Act 2002 (NSW) – s 43A.

Law Reform (Vicarious Liability) Act 1983 (NSW) – s 8.

Air New Zealand Ltd v Australian Competition and Consumer Commission; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2017] HCA 21

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 14 Jun 2017 Case Number: S245/2016 S248/2016
Trade practices – Restrictive trade practices – Price fixing – Market identification – Location of market – Meaning of market "in Australia" – Where airlines competed to supply unidirectional air cargo services from ports of origin outside Australia to destination ports within Australia – Where airlines arrived at understanding to impose various surcharges and fees for supply of air cargo services – Whether market for air cargo services "in Australia" for purposes of Trade Practices Act 1974 (Cth).

Trade practices – Restrictive trade practices – Price fixing – Foreign state compulsion – Where airlines contravened s 45 of Trade Practices Act 1974 (Cth) – Whether conduct compelled by foreign law or foreign regulator's administrative practices.

Statutory interpretation – Inconsistency – Where s 13(b) of Air Navigation Act 1920 (Cth) required airlines to comply with "agreement or arrangement" – Where Australia-Indonesia Air Services Agreement "agreement or arrangement" within meaning of ss 12(2) and 13(b) of Air Navigation Act – Where Australia-Indonesia Air Services Agreement required agreement between international airlines on minimum tariffs – Where ss 45 and 45A of Trade Practices Act 1974 (Cth) prohibited arriving at understandings concerning prices with competitors – Whether ss 12 and 13 of Air Navigation Act inconsistent with ss 45 and 45A of Trade Practices Act such that latter did not apply to contravening conduct.

Words and phrases – "competition", "foreign state compulsion", "market identification", "market in Australia", "otherwise competitive with", "practically and operatively inconsistent", "price fixing", "rivalrous behaviour", "substitutability", "supply and demand".

Air Navigation Act 1920 (Cth) – ss 12, 13.

Trade Practices Act 1974 (Cth) – ss 4, 4E, 45(2), 45(3), 45A.

Hughes v The Queen [2017] HCA 20

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Jun 2017 Case Number: S226/2016
Evidence – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where appellant charged with 11 sexual offences against five female children aged under 16 years – Where prosecution permitted to adduce evidence of each complainant and other witnesses as tendency evidence – Where alleged tendencies identified as having sexual interest in underage girls and as using relationships to gain access to underage girls in order to engage in sexual activities with them – Whether tendency evidence required to display features of similarity with facts in issue in order to have "significant probative value" – Whether tendency evidence had "significant probative value".

Words and phrases – "modus operandi", "pattern of conduct", "probative value", "significant probative value", "tendency evidence", "underlying unity".

Evidence Act 1995 (NSW) – s 97(1)(b).

Smith v The Queen [2017] HCA 19

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 10 May 2017 Case Number: S249/2016 M144/2016
Criminal law – Fault element – Intent – Inferential reasoning – Importation of commercial quantity of border controlled drug – Where accused persons brought substance into Australia – Where substance concealed in items – Where accused persons denied intent to import substance – Where accused persons perceived real or significant chance of presence of substance when entering Australia – Whether permissible to infer intent for purposes of Criminal Code (Cth) from awareness of real or significant chance of presence of substance – Whether process of inferential reasoning identified in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 applicable – Whether jury directions conflated intent with recklessness.

Words and phrases – "inferential reasoning", "intent to import", "intention", "jury directions", "real or significant chance", "reckless", "unsafe verdict".

Criminal Code (Cth) – ss 5. 2, 5. 4, 5. 6, 307. 1.

Aubrey v The Queen [2017] HCA 18

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 10 May 2017 Case Number: S274/2016
Criminal law – Infliction of grievous bodily harm – Meaning of "inflicts" – Where appellant caused complainant to contract human immunodeficiency virus – Whether infliction requires force and immediate physical injury – Whether communication of infection or disease amounts to infliction – Consideration of R v Clarence (1888) 22 QBD 23 and R v Dica [2004] QB 1257.

Criminal law – Fault element – Recklessness – Foresight of risk – Where appellant diagnosed with human immunodeficiency virus – Where appellant knew of possibility of transmitting virus through unprotected sexual intercourse – Whether foresight of possibility of risk sufficient to establish recklessness.

Words and phrases – "always speaking", "contemporary ideas and understanding", "grievous bodily harm", "inflicts", "maliciously", "recklessly".

Crimes Act 1900 (NSW) – ss 5, 35(1)(b), 36.

Pickering v The Queen [2017] HCA 17

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 3 May 2017 Case Number: B68/2016
Criminal law – Justification and excuse – Resisting actual and unlawful violence threatened to person – Where appellant stabbed deceased – Where appellant acquitted of murder but convicted of manslaughter – Where s 31(1) of Criminal Code (Q) not left to jury – Whether appellant able to rely on s 31(1) to deny criminal responsibility in relation to offence of manslaughter – Whether s 31(2) renders s 31(1) unavailable wherever evidence discloses that act of accused constitutes offence described in s 31(2) regardless of charge.

Words and phrases – "act", "criminally responsible", "liable to punishment", "offence".

Criminal Code (Q) – s 31.

Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 3 May 2017 Case Number: M96/2016
Migration – Unlawful non-citizens – Power to detain – Where plaintiffs unauthorised maritime arrivals – Where plaintiffs brought to Australia from regional processing country for temporary purpose of medical treatment – Where plaintiffs detained under ss 189 and 196 of Migration Act 1958 (Cth) until removal from Australia – Whether ss 189 and 196 validly authorise detention while in Australia for temporary purpose – Whether plaintiffs detained for lawful purpose – Whether duration of detention capable of objective determination.

Words and phrases – "detention of non-citizen", "duration of detention", "opinion, satisfaction or belief of officer", "purpose of detention", "temporary purpose", "transitory person", "unauthorised maritime arrival", "unlawful non-citizen".

Constitution – s 51(xix).

Migration Act 1958 (Cth) – ss 189, 196, 198, 198AD, 198AH, 198B.

Talacko v Bennett [2017] HCA 15

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 3 May 2017 Case Number: M154/2016
Procedure – Enforcement of Australian judgment debt in foreign jurisdiction – Where respondents obtained certificate under s 15(1) of Foreign Judgments Act 1991 (Cth) certifying finality of Australian judgment – Where application for such certificate may not be made until expiration of any stay of enforcement of judgment in question – Where judgment debtor bankrupt – Whether certificate valid – Whether s 58(3) of Bankruptcy Act 1966 (Cth) operated to impose a stay of enforcement for purposes of Foreign Judgments Act 1991 (Cth).

Words and phrases – "enforcement by execution", "stay of enforcement of the judgment".

Bankruptcy Act 1966 (Cth) – ss 58(3), 60(1)(b), 60(2).

Foreign Judgments Act 1991 (Cth) – ss 3(1), 15.

Re Day [No 2] [2017] HCA 14

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 5 Apr 2017 Case Number: C14/2016
Constitutional law – Parliamentary elections (Cth) – Senate – Reference to Court of Disputed Returns – Where person elected and re-elected as senator – Where person stood to gain financially from Commonwealth paying rent under lease of person's electorate office – Where person's bank account nominated by lessor as bank account for payment of rent by Commonwealth – Where payment of rent reduced person's contingent liability as guarantor under loan facilities – Where person had prospect of receiving distribution of rent proceeds as beneficiary of discretionary trust – Whether person had indirect pecuniary interest in lease agreement with Commonwealth – Whether person incapable of being chosen or of sitting as senator under s 44(v) of Constitution – Whether vacancy should be filled by special count of ballot papers – Whether special count would distort voters' real intentions.

Words and phrases – "distortion of the voters' real intentions", "expectation of pecuniary benefit", "incapable of being chosen", "indirect pecuniary interest", "special count", "true legal intent of the voters".

Constitution – s 44(v).

Commonwealth Electoral Act 1918 (Cth) – ss 168(1), 272(2), 273(27), 360, 376.

Parliamentary Entitlements Act 1990 (Cth) – s 4(1), Item 7 of Pt 1 of Sched 1.

Kendirjian v Lepore [2017] HCA 13

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 29 Mar 2017 Case Number: S170/2016
Legal practitioners – Negligence – Advocates' immunity from suit – Where settlement offer made and rejected on first day of trial – Where rejection of settlement offer followed by judicial decision – Where damages awarded lower than settlement offer – Where solicitor and barrister alleged to have given negligent advice in relation to settlement offer – Whether advice affected conduct of case in court by bearing upon court's determination of case – Whether advocate immune from suit.

High Court – Stare decisis – Whether Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16 should be reopened.

Words and phrases – "advocates' immunity", "affecting the conduct of the case", "finality", "functional connection", "intimately connected", "judicial determination", "possibility of challenge to findings".

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12

Kiefel, Bell, Gageler, Nettle, Gordon JJ
Date: 29 Mar 2017 Case Number: M143/2016
Contract – Construction and interpretation of contracts – Long-term lease – Standard form contract – Where parties entered lease because unable to effect sale and purchase of land due to planning restrictions – Where standard form lease amended by parties – Where clause pertaining to payment of rates, taxes, assessments and other outgoings ambiguous – Whether parties intended lease to resemble sale and purchase of land – Whether lessee liable to pay all rates, taxes, assessments and other outgoings or only liable to pay those payable in lessee's capacity as tenant.

Words and phrases – "commercial purpose and objects", "commercial sense", "deletions from standard form contract", "in respect of the said premises", "payable by the tenant", "reasonable businessperson".

Minister for Immigration and Border Protection v Kumar [2017] HCA 11

Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 8 Mar 2017 Case Number: P49/2016
Statutes – Interpretation – Acts Interpretation Act 1901 (Cth), s 36(2) – Where first respondent's application for visa received and taken to be made on Monday 13 January – Where first respondent able to meet visa criteria in Migration Regulations 1994 (Cth) if first respondent held valid second visa at time of application – Where first respondent's second visa expired on Sunday 12 January – Whether s 36(2) of Acts Interpretation Act allowed application to be assessed as if it had been made before expiry of first respondent's second visa.

Words and phrases – "an Act requires or allows", "last day", "prescribed or allowed by an Act", "state of affairs", "thing to be done", "time of application".

Acts Interpretation Act 1901 (Cth) – s 36(2).

Migration Act 1958 (Cth) – ss 31, 45, 46, 47, 65.

Migration Regulations 1994 (Cth) – Sched 2, cl 572. 211.

Prior v Mole [2017] HCA 10

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 8 Mar 2017 Case Number: D5/2016
Criminal law – Procedure – Apprehension and detention – Reasonable grounds – Where appellant drinking alcohol in public place near shops selling alcohol – Where appellant intoxicated and behaving belligerently towards police – Where appellant apprehended on basis of police officer's belief that appellant would commit offence of drinking liquor in regulated place – Whether belief held on reasonable grounds – Whether policing experience valid basis for reasonable grounds for forming belief.

Criminal law – Procedure – Apprehension and detention – Statutory powers of apprehension – Where appellant apprehended on basis of police officer's belief that appellant would commit offence of drinking liquor in regulated place – Where maximum penalty for offence forfeiture of liquor and issue of contravention notice – Whether decision to apprehend exceeded limits of apprehension power.

Words and phrases – "likely to commit an offence", "policing experience", "reasonable grounds".

Liquor Act (NT) – s 101U(1).

Police Administration Act (NT) – s 128(1).

Perara-Cathcart v The Queen [2017] HCA 9

Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 1 Mar 2017 Case Number: A39/2016
Criminal law – Appeal against conviction – Directions to jury – Where discreditable conduct evidence admitted under s 34P of Evidence Act 1929 (SA) – Relevance of discreditable conduct evidence – Whether trial judge adequately directed jury as to permissible and impermissible uses of discreditable conduct evidence in accordance with s 34R.

Criminal law – Appeal against conviction – Application of proviso – Criminal Law Consolidation Act 1935 (SA), s 353(1) – Where majority of Full Court found miscarriage of justice occasioned by misdirection to jury – Where majority of Full Court divided as to whether misdirection occasioned substantial miscarriage of justice for purposes of applying proviso – Whether appeal could be dismissed pursuant to proviso.

Words and phrases – "discreditable conduct evidence", "error of law", "opinion of majority", "permissible and impermissible use", "proviso", "substantial miscarriage of justice", "sufficiency of direction".

Criminal Law Consolidation Act 1935 (SA) – ss 349, 353(1).

Evidence Act 1929 (SA) – ss 34P, 34R.

Bondelmonte v Bondelmonte [2017] HCA 8

Kiefel, Bell, Keane, Nettle, Gordon JJ
Date: 1 Mar 2017 Case Number: S247/2016
Family law – Family Law Act 1975 (Cth) – Parenting orders – Where children taken overseas by father – Where children stayed with father overseas in breach of parenting orders – Where mother applied for order for return of children – Where children expressed preference to stay with father overseas – Where primary judge made interim orders for return of children to Australia and for living arrangements upon return – Whether erroneous to discount weight given to views expressed by children – Whether father's breach of parenting orders relevant to children's best interests – Whether necessary to ascertain children's views as to living arrangements – Whether parenting orders could be made in favour of strangers to proceedings.

Words and phrases – "best interests of the child", "judicial discretion", "parenting orders", "views expressed by the child".

Family Law Act 1975 (Cth) – ss 60CA, 60CC, 60CD, 60CE, 64C, 65C, 65D, 68L, 68LA.

Western Australian Planning Commission v Southregal Pty Ltd [2017] HCA 7

Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 8 Feb 2017 Case Number: P47/2016 P48/2016
Town planning (WA) – Compensation – Where land reserved for public purpose under planning scheme – Where s 173 of Planning and Development Act 2005 (WA) makes provision for landowner to be compensated where land injuriously affected by making or amendment of planning scheme – Where, under s 177, compensation not payable until land first sold after reservation or responsible authority refuses development application or grants application on unacceptable conditions – Where landowners purchased land affected by planning scheme after date of reservation – Where purchasers applied to develop land and were refused – Whether purchasers entitled to compensation.

Words and phrases – "compensation", "injurious affection", "planning scheme", "reservation".

Metropolitan Region Town Planning Scheme Act 1959 (WA) – s 36.

Planning and Development Act 2005 (WA) – ss 171, 173, 174, 176, 177.

Town Planning and Development Act 1928 (WA) – ss 11, 12.

Palmer v Ayres [2017] HCA 5

Kiefel, Gageler, Keane, Nettle, Gordon JJ
Date: 8 Feb 2017 Case Number: B52/2016 B55/2016
Constitutional law (Cth) – Judicial power – Mandatory examination of persons about corporation's examinable affairs – Where plaintiffs former directors of corporation in voluntary liquidation – Where liquidators applied for and obtained order for issue of summons under s 596A of Corporations Act 2001 (Cth) requiring plaintiffs to attend for examination about corporation's examinable affairs – Whether s 596A invalid as contrary to Ch III of Constitution – Whether s 596A gives rise to "matter" that engages judicial power of Commonwealth – Whether power conferred by s 596A incompatible with or outside judicial power of Commonwealth.

Words and phrases – "examinable affairs", "federal jurisdiction", "judicial power", "matter".

Constitution – Ch III.

Corporations Act 2001 (Cth) – ss 596A, 597.

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