Judgments, ordered by date

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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.

Commissioner of State Revenue v ACN 005 057 349 Pty Ltd [2017] HCA 6

Kiefel, Bell, Gageler, Keane, Gordon JJ
Date: 8 Feb 2017 Case Number: M88/2016 M89/2016
Taxation – Land tax – Where land tax assessments were paid – Where Commissioner did not amend assessments after error detected – Whether Commissioner under duty compellable by mandamus to amend and refund excess land tax – Whether Commissioner's refusal to amend amounted to conscious maladministration – Whether amended assessment had effect that excess tax was never land tax – Whether proceedings were barred under Land Tax Act 1958 (Vic).

Words and phrases – "amended assessment", "charged, levied and collected", "completeness and accuracy", "conscious maladministration", "land tax", "tax paid under, or purportedly paid under".

Land Tax Act 1958 (Vic) – ss 19, 90AA, 92A.

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.

Re Culleton [No 2] [2017] HCA 4

Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 3 Feb 2017 Case Number: C15/2016
Parliamentary elections (Cth) – Senate – Reference to Court of Disputed Returns – Where at date of nomination person convicted of offence punishable by term of imprisonment for one year or longer – Where person liable to be sentenced – Where person elected as Senator – Where conviction subsequently annulled – Whether annulment of conviction of retrospective effect – Whether person incapable of being chosen as Senator under s 44(ii) of Constitution – Whether vacancy should be filled by special count of ballot papers.

Words and phrases – "annulment", "convicted and is under sentence, or subject to be sentenced", "incapable of being chosen", "retrospective effect", "special count", "void ab initio".

Constitution – s 44(ii).

Commonwealth Electoral Act 1918 (Cth) – ss 364, 376.

Crimes Act 1900 (NSW) – s 117.

Crimes (Appeal and Review) Act 2001 (NSW) – ss 4, 8, 9, 10.

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 10, 25.

Re Culleton [2017] HCA 3

Gageler J
Date: 31 Jan 2017 Case Number: C15/2016
Constitutional law (Cth) – Judicial power – Election of Senator – Validity – Court of Disputed Returns – Power to hear petition – Whether non-judicial –Constitution, Ch III – Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div II.

Practice and procedure – High Court of Australia – Failure to raise argument at hearing – Principles applicable – Validity – Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div II. Constitution, ss 44(ii), 44(iii), 45, 47.

Commonwealth Electoral Act 1918 (Cth) – Pt XXII.
Re Day [2017] HCA 2
Date: 27 Jan 2017 Case Number: C14/2016

Mercanti v Mercanti [2017] HCA 1

Kiefel J
Date: 5 Jan 2017 Case Number: P63/2016
Practice and procedure – High Court – Application for interlocutory injunctions – Where injunctions in force since August 2013 – Where application for special leave to appeal pending – Where extension of injunctions sought until determination of application for special leave to appeal and any appeal should special leave be granted – Whether injunctive relief be granted.

Words and phrases – "injunction", "stay", "substantial prospect that special leave to appeal will be granted".

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