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Burns v Corbett [2018] HCA 15

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 18 Apr 2018 Case Number: S183/2017 S185/2017 S186/2017 S187/2017 S188/2017
Constitutional law (Cth) – Chapter III – Where complaints made under Anti-Discrimination Act 1977 (NSW) came before Civil and Administrative Tribunal of New South Wales ("NCAT") – Where parties to disputes residents of different States – Where common ground that NCAT exercised State judicial power in hearing and determining disputes – Where common ground that NCAT not a "court of a State" – Whether Ch III of Constitution contains implication preventing any party to federal compact from conferring adjudicative authority in respect of matters listed in ss 75 and 76 of Constitution on organ of government, federal or State, other than a court referred to in Ch III.

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Where Civil and Administrative Tribunal Act 2013 (NSW) purports to confer jurisdiction on NCAT to determine disputes between residents of different States – Whether State law alters, impairs or detracts from operation of Judiciary Act 1903 (Cth), s 39(2).

Words and phrases – "adjudicative authority", "administrative tribunal", "alter, impair or detract", "belongs to or is invested in", "constitutional implication", "court", "court of a State", "diversity jurisdiction", "federal Judicature", "federal jurisdiction", "inconsistency", "integrated national court system", "judicial power", "jurisdiction", "matter", "negative implication", "residents of different States", "State jurisdiction".

Constitution – Ch III, ss 51(xxxix), 71, 73(ii), 75, 76, 77, 106, 107, 108, 109.

Judiciary Act 1903 (Cth) – ss 38, 39.

Anti –Discrimination Act 1977 (NSW), ss 49ZT, 114.

Civil and Administrative Tribunal Act 2013 (NSW) – ss 28(2), 29(1), 32.

Interpretation Act 1987 (NSW) – s 31.

WET044 v The Republic of Nauru [2018] HCA 14

Kiefel CJ, Gageler, Keane JJ
Date: 11 Apr 2018 Case Number: M132/2017
Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Nauru Department of Justice and Border Control determined appellant not refugee and not entitled to complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal adopted reasoning of Secretary – Whether Tribunal failed to consider country information before it – Whether Tribunal acted in way that was procedurally unfair by failing to put to appellant nature and content of country information it relied upon.

Words and phrases – "appeal", "country information", "procedural fairness".

Appeals Act 1972 (Nr) – s 44(a).

Refugees Convention Act 2012 (Nr).

Craig v The Queen [2018] HCA 13

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 21 Mar 2018 Case Number: B24/2017
Criminal law – Appeal against conviction – Murder and manslaughter – Intention to kill or cause grievous bodily harm – Incorrect advice – Where appellant's case was that he had not intended to kill or cause grievous bodily harm – Where appellant incorrectly advised that giving evidence would likely lead to cross-examination on prior convictions – Where chance of cross-examination on prior convictions possible but not likely due to s 15(2) of Evidence Act 1977 (Q) – Where appellant's account of incident to his solicitor inconsistent with prior statements to police – Where appellant was correctly advised that giving evidence would likely lead to cross-examination on inconsistencies – Where appellant gave evidence on appeal that had he been physically and mentally well and absent the incorrect advice he would have given evidence at trial – Where no evidence to suggest trial would have been conducted differently absent the incorrect advice – Whether no miscarriage of justice.

Words and phrases – "criminal history", "cross-examination", "decision not to give evidence", "fair trial", "inconsistent evidence", "incorrect advice", "intent", "intoxication", "miscarriage of justice", "murder", "prior convictions".

Criminal Code (Q) – ss 644, 668E(1).

Evidence Act 1977 (Q) – s 15.

Clone Pty Ltd v Players Pty Ltd (In Liquidation) (Receivers & Managers Appointed) [2018] HCA 12

Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ
Date: 21 Mar 2018 Case Number: A22/2017 A23/2017
Equity – Where judgment given by Supreme Court of South Australia, as varied by Full Court of Supreme Court of South Australia – Where successful party engaged in malpractice – Where malpractice later discovered – Where perfected judgment set aside – Where no pleading or proof of fraud – Nature of court's equitable power to set aside perfected judgment – Whether equitable power extends to malpractice not amounting to fraud – Whether power to set aside perfected judgment conditional upon unsuccessful party having exercised reasonable diligence to discover fraud or malpractice.

Procedure – Perfected judgment – Rescission – Where two applications brought to set aside judgment – Where judgment set aside for malpractice – Whether proper course application in original proceeding or fresh action.

Words and phrases – "actual fraud", "causation", "equitable jurisdiction", "equitable power", "equity", "finality", "fraud", "fresh action", "malpractice", "misconduct", "new trial", "not amounting to fraud", "perfected judgment", "perfected orders", "power", "proper application", "reasonable diligence", "setting aside".

Supreme Court Act 1935 (SA) – s 17(2)(a)(i).

Alley v Gillespie [2018] HCA 11

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 21 Mar 2018 Case Number: S190/2017
Constitutional law (Cth) – Parliamentary elections – Common informer action – Where plaintiff commenced common informer action in original jurisdiction of High Court – Where liability to penalty under Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) requires determination of whether defendant incapable of sitting as member of House of Representatives – Whether High Court has jurisdiction to determine eligibility of member of House of Representatives in common informer action – Proper construction of s 46 of Constitution – Proper construction of s 47 of Constitution.

Words and phrases – "common informer", "common informer action", "Court of Disputed Returns", "declared by the Constitution", "declared by this Constitution", "exclusive cognisance", "incapable of being chosen or of sitting", "jurisdiction", "until the Parliament otherwise provides".

Constitution – ss 44(v), 45, 46, 47, 49.

Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) – s 3.

Commonwealth Electoral Act 1918 (Cth) – s 376.

Re Kakoschke-Moore [2018] HCA 10

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 21 Mar 2018 Case Number: C30/2017
Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Ms Skye Kakoschke-Moore and Mr Timothy Storer nominated for election as senator for State of South Australia as nominees of Nick Xenophon Team ("NXT") – Where Ms Kakoschke-Moore listed as third of four in order of NXT candidates, before Mr Storer – Where Ms Kakoschke-Moore returned as elected – Where Ms Kakoschke-Moore was British citizen at time of nomination – Where Ms Kakoschke-Moore subsequently renounced British citizenship – Where Mr Storer ceased to be member of NXT – Where Ms Kakoschke-Moore held incapable of being chosen or of sitting by reason of s 44(i) of Constitution – Whether vacancy in Senate should be filled by declaring Ms Kakoschke-Moore as elected – Whether Ms Kakoschke-Moore should be included in special count – Whether Mr Storer should be excluded from special count.

Words and phrases – "above the line", "electoral choice", "electoral process", "incapable of being chosen or of sitting", "political party", "process of being chosen", "special count", "true legal intent of the voters".

Constitution – ss 15, 44.

Commonwealth Electoral Act 1918 (Cth) – ss 162, 166, 168, 169, 181(2), 239, 269, 272, 360(1)(vi), 376.

Pike v Tighe [2018] HCA 9

Kiefel CJ, Bell, Keane, Gordon, Edelman JJ
Date: 14 Mar 2018 Case Number: B33/2017
Town planning – Conditions on development – Where development approval permitted reconfiguration of lot into two lots – Where development approval subject to conditions – Where conditions included requirement to provide easement to allow access, on-site manoeuvring and connection of services and utilities – Where easement executed by registered proprietors of original lot did not comply with condition – Where Council approved survey plan to give effect to reconfiguration – Where titles for new lots created – Whether successor in title obliged to provide easement complying with condition.

Town planning – Enforcement orders – Where Planning and Environment Court of Queensland may make enforcement order if satisfied that development offence "has been committed" – Where development offence to "contravene" development approval – Whether successor in title committed development offence by failing to provide easement complying with condition.

Words and phrases – "binds the owner, the owner's successors in title and any occupier of the land", "contravene", "development", "development approval", "development offence", "enforcement order", "fail to comply with", "land", "lot", "the land the subject of the application to which the approval relates".

Acts Interpretation Act 1954 (Q) – s 36(1), Sched 1.

Sustainable Planning Act 2009 (Q) – ss 7, 10(1), 244(a), 245, 580, 601(1)(a), 604(1)(a), 605(1)(e), Sched 3.

Irwin v The Queen [2018] HCA 8

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 14 Mar 2018 Case Number: B48/2017
Criminal law – Appeal against conviction – Where appellant convicted of one count of unlawfully doing grievous bodily harm – Where complainant suffered broken hip in three places following confrontation with appellant – Where appellant gave evidence that he pushed complainant causing complainant to stumble backwards three or four metres and fall to ground – Where s 23(1) of Criminal Code (Q) provides person not criminally responsible for event that ordinary person would not reasonably foresee as possible consequence – Where Court of Appeal observed there were "equally open" interpretations of evidence – Whether jury verdict unreasonable or unsupported by evidence.

Criminal law – Appeal against conviction – Where s 23(1) of Criminal Code (Q) provides person not criminally responsible for event that ordinary person would not reasonably foresee as possible consequence – Where Court of Appeal found it open to jury to conclude ordinary person could have foreseen injury of kind suffered by complainant – Whether Court of Appeal applied incorrect test – Whether any difference between what ordinary person "could" and "would" reasonably foresee.

Words and phrases – "could have foreseen", "grievous bodily harm", "possibility", "probability", "unreasonable verdict", "verdict unsupported by evidence", "would have foreseen".

Criminal Code (Q) – s 23.

Kalbasi v Western Australia [2018] HCA 7

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Mar 2018 Case Number: P21/2017
Criminal law – Appeal against conviction – Application of proviso – Where appellant indicted for attempting to possess prohibited drug with intent to sell or supply to another – Where police replaced prohibited drug with another substance – Where trial judge and counsel erroneously assumed s 11 of Misuse of Drugs Act 1981 (WA) applied deeming possession of quantity of drugs sufficient to prove possession for purpose of sale or supply to another – Where jury erroneously directed that proof of possession of substitute "drugs" would suffice to prove intention to sell or supply to another – Where intention not otherwise live issue at trial – Where sole issue at trial was appellant's possession of substitute "drugs" – Where prosecution concedes erroneous direction as to intention but contends "no substantial miscarriage of justice has occurred" – Whether "no substantial miscarriage of justice has occurred" – Whether misdirection precluded application of proviso.

Words and phrases – "deemed intent", "error of outcome", "error of process", "fundamental defect", "fundamental error", "fundamentally flawed", "inevitability of result", "intention", "loss of a fair or real chance of acquittal", "miscarriage of justice", "negative proposition", "proviso", "reasonable jury", "substantial miscarriage of justice", "this jury".

Criminal Appeals Act 2004 (WA) – s 30.

Misuse of Drugs Act 1981 (WA) – ss 6(1)(a), 11, 33(1), 34.

Re Lambie [2018] HCA 6

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Mar 2018 Case Number: C27/2017
Constitutional law (Cth) – Parliamentary elections – Reference to Court of Disputed Returns – Where Court held there was a vacancy in representation of Tasmania in Senate – Where Court made directions for special count of ballot papers to fill vacancy – Where orders sought following special count that Mr Steven Martin be declared elected as senator to fill vacancy – Where Mr Martin held offices of mayor and of councillor of local government corporation under Local Government Act 1993 (Tas) – Whether Mr Martin incapable of being chosen or of sitting as senator by reason of s 44(iv) of Constitution – Proper construction of s 44(iv) of Constitution – Where no dispute that office of mayor or of councillor is "office of profit" – Whether office of mayor or of councillor constitutes office of profit "under the Crown".

Words and phrases – "civil service", "conflict between duties", "conflict of duty and interest", "control over holding or profiting from holding", "employment by the Crown", "employment in the public service", "executive government", "executive influence", "from the Crown", "incapable of being chosen or of sitting", "office of profit", "public service", "under the Crown", "will of the executive government".

Constitution – ss 44(iv), 45(i), 48.

Commonwealth Electoral Act 1918 (Cth) – s 376.

Local Government Act 1993 (Tas).

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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