Judgments, ordered by case name

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AK v The State of Western Australia [2008] HCA 8

232 CLR 438; 82 ALJR 534; 243 ALR 409
Gleeson CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 26 Mar 2008 Case Number: P27/2007
Criminal law – Appeals - Application of the proviso - Statutory requirement that reasons for judgment include the principles of law applied and the findings of fact relied upon - Failure to give reasons meeting statutory requirements in respect of central issue at trial - Failure to comply with statutory requirements an error of law - Appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred - Whether no substantial miscarriage of justice had occurred.

Criminal law – Evidence - Identification - Complainant indecently dealt with by one of two males with whom she and her sister were sharing a bed - Complainant unable to identify the perpetrator by visual or aural means - Complainant adamant that the appellant was responsible - Whether identification warning needed - Whether finding of guilt unreasonable or not supported by evidence.

Criminal Appeals Act 2004 (WA) – s 30.

Criminal Procedure Act 2004 (WA) – ss 119, 120.

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33

87 ALJR 916; 300 ALR 1
French CJ, Hayne, Crennan, Kiefel, Bell JJ
Date: 7 Aug 2013 Case Number: B58/2012
Native title – Native title rights in relation to waters – Determination made in relation to waters in Torres Strait – Determination included native title right to access and take for any purpose resources in native title areas – Successive Commonwealth and Queensland legislative regimes prohibited taking fish and other aquatic life for commercial purposes without licence – Whether legislative regimes inconsistent with continued existence of native title right – Whether right to access and take resources in native title areas partially extinguished where resources taken for commercial purposes.

Native title – Native title rights in relation to waters – Certain reciprocal access and use rights recognised in Islander society – Reciprocal rights arose out of personal relationships – Whether reciprocal rights "native title rights and interests" within meaning of s 223(1) of Native Title Act 1993 (Cth).

Words and phrases – "extinguishment", "inconsistent with the continued existence of a native title right", "native title rights and interests", "reciprocal rights".

Native Title Act 1993 (Cth) – ss 10, 11, 211, 223, 225 227, 238.

Aktas v Westpac Banking Corporation Limited [2010] HCA 25

241 CLR 79; 84 ALJR 551; 268 ALR 409
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 4 Aug 2010 Case Number: S3/2010
Defamation – Defences - Qualified privilege - Common law - Respondent bank mistakenly dishonoured cheques of appellant and communicated dishonour to payees of cheques - Communication defamatory - Whether communication made on occasion of qualified privilege - Rationale for defence of qualified privilege - Whether reciprocity of interest between respondent bank and payees - Whether public interest in privilege attaching to occasion of such communication - Relevance of mistake leading to communication - Relevance of statutory obligations.

Words and phrases – "community of interest", "malice", "occasion of qualified privilege", "reciprocity of interest", "refer to drawer".

Cheques Act 1986 (Cth) – ss 67, 69.

Defamation Act 1974 (NSW) – s 11.

Property – Stock and Business Agents Act 1941 (NSW), s 36.

Aktas v Westpac Banking Corporation Limited [No 2] [2010] HCA 47

241 CLR 570; 85 ALJR 302; 273 ALR 118
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 15 Dec 2010 Case Number: S3/2010
High Court – Practice and procedure - Judgments and orders - Costs - Power to vary orders not yet authenticated - Circumstances in which power should be exercised.

Aktiebolaget Hässle v Alphapharm Pty Limited [2002] HCA 59

212 CLR 411; 77 ALJR 398; 194 ALR 485
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 12 Dec 2002 Case Number: S287/2001
Patents – Revocation - Obviousness or lack of inventive step - Patent for an oral pharmaceutical preparation - Whether invention obvious and did not involve an inventive step having regard to what was known or used in Australia on or before priority date - Combination of integers - Preparation arrived at by group of pharmaceutical chemists after period of experimental research - Whether hypothetical non-inventive worker in the field would have been led directly as a matter of course to pursue one avenue in expectation that it might well produce claimed invention - Relevance of publications discoverable by "routine literature search" but not found to have been part of the common general knowledge in Australia at the priority date - Whether invention obvious if it was apparent to a non-inventive skilled worker that it would be "worthwhile to try" each of the integers that was ultimately successfully used - Relevance of attempts to replicate the process of invention by a skilled person aware of the desired result - Whether attempts futile.

Appeal – Whether decision of primary judge in respect of obviousness affected by legal error - Where conclusions of primary judge affirmed by Full Court of the Federal Court.

Patents Act 1952 (Cth) – s 100(1)(e).

Al-Kateb v Godwin [2004] HCA 37

219 CLR 562; 78 ALJR 1099; 208 ALR 124
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 6 Aug 2004 Case Number: A253/2003
Immigration – Unlawful non-citizens - Detention pending removal from Australia - No real prospect of removal from Australia in reasonably foreseeable future - Whether detention lawful under Migration Act 1958 (Cth) - Whether detention is temporally limited by purpose of removal - Whether requirement to remove as soon as reasonably practicable implies time limit on detention.

Statutes – Acts of Parliament - Construction and interpretation - Where meaning ambiguous or uncertain - Presumption of legislative intention not to invade personal common law rights.

Constitutional law (Cth) – Judicial power of the Commonwealth - Unlawful non-citizen in immigration detention - No real prospect of removal from Australia in reasonably foreseeable future - Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution - Whether detention involves an exercise of judicial power of the Commonwealth by the Executive - Whether detention is for a non-punitive purpose.

Constitutional law (Cth) – Construction and interpretation - Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms.

Constitution – Ch III.

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

Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23

231 CLR 350; 81 ALJR 1155; 234 ALR 618
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 24 May 2007 Case Number: S356/2006 S361/2006
Constitutional law (Cth) – Separation of powers - Judicial power - On the application of the Australian Securities and Investments Commission, the Companies Auditors and Liquidators Disciplinary Board ("the Board") suspended the registration of the appellants as liquidators pursuant to s 1292 of the Corporations Act 2001 (Cth) - Whether s 1292 of the Corporations Act 2001 (Cth) invalidly confers the judicial power of the Commonwealth upon the Board.

Constitutional law (Cth) – Judicial power - Meaning of judicial power - Whether disciplinary proceedings involve the exercise of judicial power - Whether the determination of wrongdoing or impropriety involves the exercise of judicial power - Whether the capacity to affect the appellants' "status" as registered liquidators involves the exercise of judicial power.

Insolvency – Liquidators - Suspension of registration as liquidator - Role and function of the Board - Whether the functions performed by the Board involved the ascertainment or enforcement of an "existing right or liability" - Whether the function performed by the Board involved the imposition of punishment - Relevance of the composition and membership of the Board - Relevance of the exercise of evaluative or discretionary power - Relevance of historical considerations - Relevance of chameleon principle - Whether the Board exercised judicial power.

Insolvency – Liquidators - Suspension of registration as liquidator - Meaning of "adequately and properly" and "fit and proper" in s 1292(2) of the Corporations Act 2001 (Cth).

Words and phrases – "adequately and properly", "chameleon principle", "disciplinary", "existing right or liability", "fit and proper", "functional analysis", "judicial power of the Commonwealth", "punishment", "registered liquidator", "separation of powers".

Constitution – Ch III.

Australian Securities and Investments Commission Act 2001 (Cth) – ss 203, 204.

Corporations Act 2001 (Cth) – Pts 9. 2, 9. 6A ss 448B, 532(1), 1292.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

239 CLR 27; 83 ALJR 1152; 260 ALR 1
French CJ, Hayne, Heydon, Crennan, Kiefel JJ
Date: 30 Sep 2009 Case Number: D7/2009
Taxes and duties – Stamp duty - Transactions resulted in acquisition of all shares in corporation which held Crown leases containing options to renew - Section 56N(2)(b) of Taxation (Administration) Act (NT) ("Act") requires valuation for assessment of duty of "all land" to which corporation is entitled at time of acquisition - Section 4(1) of Act provides "land" includes "a lease of land" but that "'lease' - does not include - an option to renew a lease" - Whether "land" in s 56N(2)(b) includes option to renew lease.

Leases – Definition - Whether lease includes option to renew.

Statutes – Interpretation - Definitions - Whether definition contained in general definition provision displaced by contrary intention.

Words and phrases – "land", "lease".

Interpretation Act (NT) – ss 62A, 62B.

Taxation (Administration) Act (NT) – Pt III Div 8A, ss 4(1), 56N, 56R.

Alcan Gove Pty Ltd v Zabic [2015] HCA 33

French CJ, Kiefel, Bell, Keane, Nettle JJ
Date: 7 Oct 2015 Case Number: D5/2015
Limitation of actions – When cause of action accrues – Negligence – Damage – Statute abolished cause of action unless accrued before 1 January 1987 – Whether compensable damage suffered upon changes to mesothelial cells following exposure to asbestos – Whether mesothelioma inevitable – Relevance of hindsight – Whether "trigger" for development of disease endogenous or exogenous.

Torts – Negligence – Damage – Dust diseases – Mesothelioma – Whether changes to mesothelial cells compensable damage.

Words and phrases – "compensable damage", "endogenous", "exogenous", "hindsight", "mesothelial cell changes", "trigger".

Workers Rehabilitation and Compensation Act (NT) – ss 52(1), 189(1).

ALDI Foods Pty Limited v Shop, Distributive & Allied Employees Association [2017] HCA 53

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Dec 2017 Case Number: M33/2017
Industrial law (Cth) – Fair Work Act 2009 (Cth) – Enterprise agreements – Approval of enterprise agreements by Fair Work Commission – Where employer in process of establishing new undertaking – Where existing employees in other undertakings of employer accepted offer of employment in new undertaking – Where enterprise agreement made with those employees before new undertaking commenced operations – Whether agreement required to be made as "greenfields agreement" pursuant to s 172(2) and (4) of Fair Work Act – Where Commission may approve non-greenfields agreement under s 186 of Fair Work Act only where satisfied agreement genuinely agreed to by employees covered by agreement – Whether employees "covered by" agreement from time agreement made or from time employees commence working under agreement.

Industrial law (Cth) – Fair Work Act 2009 (Cth) – Enterprise agreements – Approval of enterprise agreements by Commission under s 186 of Fair Work Act – Where Commission, before approving agreement, required to be satisfied that each award-covered employee would be "better off overall" under agreement than under relevant modern award – Where Commission considered agreement passed better off overall test because clause in agreement entitled employees to payment of any shortfall in entitlement under agreement as compared with entitlement under modern award – Whether Commission failed to engage in comparison between agreement and modern award.

Words and phrases – "applies", "better off overall test", "covers", "employees covered by the agreement", "greenfields agreement", "will be covered by the agreement".

Fair Work Act 2009 (Cth) – ss 51, 52, 53, 54(1), 58(1), 172, 173(1), 176, 180(2)(a), 181(1), 182, 185, 186, 187(5), 188, 193, 207.

Alexander v Perpetual Trustees WA Limited [2004] HCA 7

216 CLR 109; 78 ALJR 411; 204 ALR 417
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 12 Feb 2004 Case Number: S509/2002
Contribution – Statutory right of – Trusts – Money received by firm of solicitors from respondent trustees to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Breach of trust by firm – Respondent trustees sued by beneficiaries – Firm sued by respondent trustees – Cross-claim by firm against respondent trustees – Whether contribution available – Whether firm liable to beneficiaries for damage – Whether respondent trustees liable to beneficiaries for same damage – Nature of beneficiaries' rights against firm – Proper construction of Wrongs Act 1958 (Vic), Pt IV.

Contribution – Statutory right of – Trade practices – Misleading and deceptive conduct – Money received by firm of solicitors from respondent trustees to be held for a specific purpose and in accordance with specific conditions – Misapplication of funds by firm – Misrepresentations by firm – Respondent trustees sued by beneficiaries – Firm sued by respondent trustees – Cross-claim by firm against respondent trustees – Whether contribution available – Whether firm liable to beneficiaries for damage – Whether respondent trustees liable to beneficiaries for same damage.

Fair Trading Act 1985 (Vic) – ss 11, 37.

Wrongs Act 1958 (Vic) – Pt IV.

ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue [2012] HCA 6

245 CLR 338; 86 ALJR 287; 286 ALR 1
French CJ, Hayne, Crennan, Kiefel, Bell JJ
Date: 8 Mar 2012 Case Number: S285/2011
Stamp duty – Agreement for sale or transfer of dutiable property - Cancelled agreement - Section 8(1)(b)(i) of Duties Act 1997 (NSW) ("Duties Act") charged duty on "an agreement for the sale or transfer of dutiable property" - Section 50(1)-(2) of Duties Act relevantly provided that cancelled agreement for sale or transfer of dutiable property not liable to duty and that respondent must refund duty paid on such agreement - Oakland Glen Pty Limited ("Oakland") entered into contract ("2003 contract") to sell property to Trust Company Fiduciary Services Limited ("Trust") - Oakland, Trust and appellant executed deed ("Deed of Consent") under which appellant assumed Trust's obligations under 2003 contract - Oakland and appellant executed deed ("Deed of Termination") which as rectified cancelled Deed of Consent - Whether Deed of Consent recorded agreement on which duty chargeable under s 8(1)(b)(i) of Duties Act - Whether Deed of Consent effected novation or assignment of Trust's rights under 2003 contract to appellant - Whether Deed of Consent rescinded 2003 contract - Whether Deed of Termination cancelled any agreement for sale or transfer of property recorded in Deed of Consent so that respondent must refund duty paid pursuant to s 50(2) of Duties Act.

Words and phrases – "an agreement for the sale or transfer of dutiable property", "assignment", "novation", "rescission".

Duties Act 1997 (NSW) – ss 8(1)(a), 8(1)(b)(i), 50(1)-(2).

Ali v The Queen [2005] HCA 8

79 ALJR 662; 214 ALR 1
Gleeson CJ, McHugh, Hayne, Callinan, Heydon JJ
Date: 8 Mar 2005 Case Number: B42/2004
Criminal law – Trial - Miscarriage of justice - Competence of counsel - Joint trial of accused - Whether counsel should have applied for a separate trial - Whether application would have succeeded - Whether accused disadvantaged by joint trial - Whether counsel failed to object to evidence of bad character - Whether counsel failed to advance alternative case - Whether accused deprived of a fair chance of acquittal.

Evidence – Criminal trial - Character of accused - Failure to object to evidence of bad character - Whether objection would have succeeded - Whether evidence admissible for other purpose.

Criminal Code (Q) – ss 579B, 668E.

Alinta LGA Limited (Formerly The Australian Gas Light Company) v Mine Subsidence Board [2008] HCA 17

82 ALJR 826; 244 ALR 276
Gummow, Hayne, Heydon, Crennan, Kiefel JJ
Date: 24 Apr 2008 Case Number: S520/2007
Statutes – Interpretation – Mine Subsidence Compensation Act 1961 (NSW) ("the Subsidence Act") – Appellants claimed compensation from statutory fund for cost of works to prevent damage to pipeline from subsidence – Pursuant to s 15(5)(b) "no claim shall be entertained or payment made" where improvement erected without approval unless certificate is issued – Respondent Board found pipeline erected without approval and refused to issue certificate or entertain claim – Section 12B(b) conferred right of appeal to Land and Environment Court against "the decision of the Board as to the amount of the payment from the Fund" – Whether refusal of Board to entertain claim in absence of jurisdictional facts appealable under s 12B(b) or subject only to judicial review in Supreme Court.

Courts and judicial system – Jurisdiction – Land and Environment Court – Appeals – Class 3 – Sections 16 and 19(fl) of the Land and Environment Court Act 1979 (NSW) conferred jurisdiction to hear and determine appeals under s 12B of the Subsidence Act – Whether jurisdiction to hear and determine appellants' appeal against Board's decision – Relevance of breadth of powers under s 39(3) to conduct de novo rehearing.

Words and phrases – "amount", "appeal", "jurisdictional facts", "no claim shall be entertained or payment made".

Land and Environment Court Act 1979 (NSW) – ss 16, 19(fl), 39.

Mine Subsidence Compensation Act 1961 (NSW) – ss 12B, 15(5)(b).

Allan v Transurban City Link Limited [2001] HCA 58

208 CLR 167; 75 ALJR 1551; 183 ALR 380
Gleeson CJ, Gaudron, Gummow, Kirby, Hayne, Callinan JJ
Date: 11 Oct 2001 Case Number: M90/2000
Administrative law – Judicial review - Standing - Legislation providing review process - Under legislation application for review may be made by a "person who is affected by a reviewable decision" - Whether applicant is such a person is to be determined by construction of the legislation not by general considerations respecting "standing".

Administrative law – Judicial review - Reviewable decision - Legislation establishing tax incentive scheme by issue of tax certificates in respect of "infrastructure borrowings" - Issue of tax certificate - Whether application for review may be brought in respect of a decision to issue a tax certificate.

Words and phrases – "reviewable decision", "person who is affected by a reviewable decision".

Development Allowance Authority Act 1992 (Cth) – ss 93A-93ZG, 93AA, 119, 120.

Administrative Appeals Tribunal Act 1975 (Cth) – ss 25, 27.

Income Tax Assessment Act 1936 (Cth) – ss 159GZZZZD-159GZZZZH.

Melbourne City Link Act 1995 (Vic).

Allen v Chadwick [2015] HCA 47

French CJ, Kiefel, Bell, Keane, Gordon JJ
Date: 9 Dec 2015 Case Number: A14/2015
Torts – Negligence – Contributory negligence – Section 47 of Civil Liability Act 1936 (SA) ("Act") presumes contributory negligence of injured person who relied on care and skill of intoxicated person and who was aware or ought to have been aware that other person was intoxicated – Section 47(2)(b) of Act establishes exception where injured person could not reasonably be expected to have avoided risk – Where respondent travelled in car with intoxicated driver and suffered serious injuries – Whether respondent could reasonably be expected to have avoided risk – Proper construction of s 47(2)(b) of Act – Relevance of respondent's capacity to make reasonable assessment of relative risks – Relevance of subjective characteristics.

Torts – Negligence – Contributory negligence – Section 49 of Act presumes contributory negligence where person injured in motor vehicle accident not wearing seatbelt – Where respondent was not wearing seatbelt and suffered serious injuries in motor vehicle accident – Whether appellant's erratic driving prevented respondent from fastening seatbelt – Whether factual findings overturned on appeal – Relevance of "act of a stranger" defence.

Words and phrases – "act of a stranger", "could not reasonably be expected to have avoided the risk", "reasonable assessment of risk".

Civil Liability Act 1936 (SA) – ss 3, 44(1), 47, 49.

Allesch v Maunz [2000] HCA 40

203 CLR 172; 74 ALJR 1206; 173 ALR 648
Gaudron, McHugh, Gummow, Kirby, Hayne JJ
Date: 3 Aug 2000 Case Number: C15/1999
Family Law – Family Court of Australia - Appeals - Nature of an appeal to the Full Court of the Family Court - Discretion to set aside an order made in the absence of a party - Miscarriage of justice where a party suffers effect of an adverse order and that party's absence adequately explained.

Family Law – Family Court of Australia - Appeals - Appeals by way of rehearing from discretionary judgments - Appellate court seeking to re-exercise discretion by reference to circumstances as they presently exist - Parties must be given an opportunity to adduce evidence as to circumstances as they presently exist in such cases.

Practice and Procedure – Appeal - Discretion to set aside order made in absence of a party.

Words and Phrases – "miscarriage of justice".

Family Law Act 1975 (Cth) s 79A – s 93A(2), s 94

Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26

221 CLR 568; 79 ALJR 1079; 215 ALR 385
McHugh, Gummow, Hayne, Callinan, Heydon JJ
Date: 19 May 2005 Case Number: S247/2004
Insurance – Motor vehicles – Third party liability insurance – Truck and trailer provided by first respondent to convey packed containers of food to airport – Appellant insurer of vehicle – Second respondent an employee of first respondent – Second respondent suffered back injury while assisting in unloading containers after vehicle's lifting mechanism became inoperative – Whether second respondent's injury an "injury" within the meaning of the Motor Accidents Act 1988 (NSW).

Insurance – Motor vehicles – Third party liability insurance – Causation – Whether second respondent's injury a result of and caused during use or operation of the vehicle by a defect in the vehicle – Utility of "common sense" tests for causation and notions of proximate cause.

Statutes – Construction – Purposive construction – Where object of the Motor Accidents Act 1988 (NSW), as amended, to contain overall costs of compulsory third party insurance scheme within reasonable bounds – Whether consistent with an expansive notion of causation of injury.

Words and phrases: "a result of" – "caused".

Motor Accidents Act 1988 (NSW) – ss 3(1), 69(1).

Alphapharm Pty Ltd v H Lundbeck A/S [2014] HCA 42

Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 5 Nov 2014 Case Number: S97/2014
Intellectual property – Patents – Extension of term – Application to extend time for applying for extension of term of patent – Section 71(2) of Patents Act 1990 (Cth) required application for extension of term of patent to be made during term of patent and within six months after latest of three specified dates – First respondent made application for extension of term of patent during term of patent but more than six months after latest of three specified dates – Whether Commissioner of Patents had power to grant extension of time.

Words and phrases − "filing – during the term of a standard patent", "prescribed action", "relevant act".

Patents Act 1990 (Cth) – ss 70(1), 71(2) and 223.

Patents Regulations 1991 (Cth) – reg 22. 11(4)(b).

Alqudsi v The Commonwealth [2015] HCA 49

French CJ J
Date: 20 Jul 2015 Case Number: S119/2015 S132/2015
Remitter summons – Plaintiff sought declaratory relief that s 7(1)(e) of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) is invalid in context of pending criminal proceedings – Whether proceedings should be remitted.

Application for removal – Whether sufficient cause shown to remove pending criminal proceedings – Relevance of principle against fragmentation of pending criminal proceedings.

Words and phrases – "fragmentation of pending criminal proceedings", "sufficient cause".

Judiciary Act 1903 (Cth) – ss 40(1)-(2), 44(1).

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