Judgments, ordered by case name

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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.

New South Wales v Fahy [2007] HCA 20

232 CLR 486; 81 ALJR 1021; 236 ALR 406
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 22 May 2007 Case Number: S341/2006
Negligence – Relationship between the Police Service Act 1990 (NSW) and the nature and extent of the duty of care owed by the "Crown" or Commissioner of Police to the respondent police officer.

Negligence – Respondent police officer assisted a stabbing victim without support from nearby police officers - As a result the respondent suffered post- traumatic stress disorder - Whether the "Crown" or Commissioner of Police breached duty of care owed to the respondent by failing to establish a system of work whereby, when possible, the respondent was supported by another police officer - Whether failure of nearby police officers to provide support to respondent was a breach of duty.

Negligence – Breach of duty - Foreseeability of risk of injury - Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 should be overruled.

Words and phrases – "breach of duty" - "calculus of negligence".

Police Service Act 1990 (NSW) – s 201.

New South Wales v Ibbett [2006] HCA 57

229 CLR 638; 81 ALJR 427; 231 ALR 435
Gleeson CJ, Gummow, Kirby, Heydon, Crennan JJ
Date: 12 Dec 2006 Case Number: S227/2006
Tort – Trespass – Whether recognition of occupiers' rights of quiet enjoyment of land an appropriate consideration when awarding damages.

Damages – Aggravated damages – Exemplary damages – Where assault and trespass committed by police officers – Whether an award of general damages, aggravated and exemplary damages involves punishment twice for the same wrong.

Damages – Exemplary damages – Vicarious liability – Where the Law Reform (Vicarious Liability) Act 1983 (NSW) and the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) assigned liability of police officers to the Crown – Whether award of exemplary or aggravated damages against the Crown appropriate.

Words and phrases – "double punishment", "aggravated damages", "exemplary damages", "vicarious liability".

Crown Proceedings Act 1988 (NSW) – s 5.

Law Reform (Vicarious Liability) Act 1983 (NSW) – ss 6, 8, 9B, 9G(2).

Police Legislation Amendment (Civil Liability) Act 2003 (NSW).

New South Wales v Lepore [2003] HCA 4

212 CLR 511; 77 ALJR 558; 195 ALR 412
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 6 Feb 2003 Case Number: S108/2002 B20/2002 B21/2002
Negligence – Liability of school authority - Alleged sexual assault on pupil by teacher - Whether school authority in breach of non-delegable duty of care - Concept of non-delegable duty - Whether school authority vicariously liable - Test for imposition of vicarious liability.

Practice and procedure – Trial - Negligence - Trial of issues of liability and damage severed - Failure to make necessary findings of fact - Retrial.

Words and phrases – "non-delegable duty", "vicarious liability".

Negligence – Liability of school authority - Sexual assault on pupil by teacher - Whether school authority in breach of non-delegable duty of care - Concept of non-delegable duty - Whether school authority vicariously liable - Test for imposition of vicarious liability.

Words and phrases – "non-delegable duty", "vicarious liability".

New South Wales v Williamson [2012] HCA 57

87 ALJR 154; 293 ALR 440
French CJ, Hayne, Crennan, Kiefel, Bell JJ
Date: 12 Dec 2012 Case Number: S416/2011
Costs – Limit on maximum costs in connection with claim for "personal injury damages" – Legal Profession Act 2004 (NSW), s 338 – Where "personal injury damages" defined to have same meaning as in Civil Liability Act 2002 (NSW), Pt 2 – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.

Costs – Limit on maximum costs in connection with claim for "personal injury damages" – Legal Profession Act 2004 (NSW), s 338 – Claim for false imprisonment not claim for "personal injury damages" – Where such claim is included in claim for damages and not severable part of claim, the claim for damages not claim for "personal injury damages".

Statutory interpretation – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute.

Words and phrases – "award of personal injury damages", "claim for personal injury damages", "false imprisonment", "maximum costs", "personal injury damages", "same meaning".

Civil Liability Act 2002 (NSW) – Pt 2, ss 3B, 11.

Legal Profession Act 2004 (NSW) – Pt 3. 2 Div 9, ss 337, 338.

Newcrest Mining Limited v Thornton [2012] HCA 60

87 ALJR 198; 293 ALR 493
French CJ, Heydon, Crennan, Kiefel, Bell JJ
Date: 13 Dec 2012 Case Number: P59/2011
Negligence – Damages – Statutory limit on recoverability of damages – Section 7(1)(b) of Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) provides that person bringing more than one action in respect of damage suffered as the result of a tort cannot recover more than "the amount of the damages awarded by the judgment first given" – Settlement of claim against concurrent tortfeasor given effect by consent judgment – Subsequent claim brought against different concurrent tortfeasor – Whether statutory limitation on recoverability of damages applied to subsequent claim.

Words and phrases – "award", "consent judgment", "damages awarded by the judgment first given".

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) – s 7(1)(b).

News Limited v South Sydney District Rugby League Football Club Limited [2003] HCA 45

215 CLR 563; 77 ALJR 1515; 200 ALR 157
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 13 Aug 2003 Case Number: S34/2002
Trade practices – Exclusionary provisions - Merger of competing sporting competitions - Provision that no more than a certain number of teams participate in new competition - Whether provision included for purpose of preventing, restricting or limiting supply of goods or services to, or acquisition of goods or services from, particular persons or classes of persons - Test for determining purpose - Trade Practices Act 1974 (Cth), ss 4D, 45(2)(a)(i), 45(2)(b)(i).

Practice and procedure – Interveners - Whether intervener may advance on appeal argument not adopted by parties to appeal.

Words and phrases – "purpose", "particular persons or classes of persons", "preventing, restricting or limiting".

Trade Practices Act 1974 (Cth) – ss 4D, 4F, 45(2)(a)(i), 45(2)(b)(i).

Ng v The Queen [2003] HCA 20

217 CLR 521; 77 ALJR 967
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 10 Apr 2003 Case Number: M148/2002
Constitutional law (Cth) – Law of the Commonwealth – Indictable offence – Trial by jury – Whether State law requiring, by ballot, a reduction in the number of jurors from 15 to 12 prior to commencement of jury deliberations contravenes s 80 of the Constitution – Whether State law exempting foreperson from removal from jury by ballot contravenes s 80 of the Constitution.

Constitution – s 80.

Judiciary Act 1903 (Cth) – s 68.

Juries Act 1967 (Vic) – ss 14, 14A, 48A.

Nguyen v The Queen [2013] HCA 32

87 ALJR 853; 298 ALR 649
French CJ, Kiefel, Bell, Gageler, Keane JJ
Date: 27 Jun 2013 Case Number: M30/2013
Criminal law – Murder – Practice and procedure – Directions to jury – Available alternative charge – Whether position of appellant and co-accused sufficiently distinguishable to affect adequacy of directions to jury – Whether reasonably open to jury to return alternative verdict of manslaughter – Whether failure to leave alternative verdict to jury constituted wrong decision on question of law – Whether substantial miscarriage of justice occurred.

Words and phrases – "alternative verdict of manslaughter", "substantial miscarriage of justice".

Nguyen v The Queen [2016] HCA 17

Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 4 May 2016 Case Number: S271/2015
Criminal law – Sentencing – Manslaughter – Excessive self-defence – Where deceased a police officer – Where appellant taken to have shot deceased in honest but mistaken belief that deceased was person posing as police officer with intent to rob appellant – Whether sentencing judge erred in assessment of objective gravity of offence by taking into account absence of circumstance which if present would render subject offence a different offence – Relevance of R v De Simoni (1981) 147 CLR 383.

Criminal law – Sentencing – Totality principle – Where appellant convicted of manslaughter and wounding with intent to cause grievous bodily harm – Whether open to sentencing judge to impose wholly concurrent sentences – Whether appellate court erred in partially accumulating sentences – Whether sentence imposed manifestly inadequate.

Words and phrases – "accumulation", "concurrency", "De Simoni principle", "manifestly inadequate", "objective gravity", "totality".

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A(a), 21A(1).

NH v Director of Public Prosecutions [2016] HCA 33

French CJ, Kiefel, Bell, Nettle, Gordon JJ
Date: 31 Aug 2016 Case Number: A14/2016 A15/2016 A16/2016 A19/2016
Criminal law – Appeal – Verdict – Not guilty of murder but guilty of manslaughter – Alleged mistake by foreperson – Requisite majority for verdict of not guilty of murder allegedly not reached – Report of foreperson to court officer disclosing alleged error – Statements as affidavits from jurors – Full Court quashed jury verdicts and ordered new trials on count of murder – Whether presumption of correctness of jury verdicts rebuttable in circumstances – Whether Full Court could reconsider perfected orders in original jurisdiction – Whether alleged mistake was material irregularity leading to unlawful verdicts – Whether alleged mistake by foreperson and acquiescence of jury an abuse of process – Whether inherent power to correct perfected orders in circumstances – Admissibility of jury statements to impeach verdicts – Consideration of distinction between verdict and judgment.
Criminal Law Consolidation Act 1935 (SA) – ss 350, 351A, 352, 353.

Juries Act 1927 (SA) – s 57.

Supreme Court Act 1935 (SA) – ss 17, 48, 49.

Nicholas v The Commonwealth [2011] HCA 29

244 CLR 66
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 10 Aug 2011 Case Number: S183/2010
Constitutional law (Cth) – Judicial power of Commonwealth - Constitution, Ch III - Validity of laws - Plaintiff defence force member - Plaintiff convicted of disciplinary offences and sentenced to punishment by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") - Plaintiff subjected to punishment - High Court subsequently held invalid provisions of Discipline Act establishing AMC - Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 - Whether provisions of Interim Measures Act had prohibited features of bill of pains and penalties - Whether provisions invalid as contrary to Ch III.

Words and phrases – "bill of pains and penalties", "usurpation of judicial power".

Constitution – s 51(vi), Ch III.

Defence Force Discipline Act 1982 (Cth) – ss 27, Pt VIIIA.

Military Justice (Interim Measures) Act (No 2) 2009 (Cth) – Sched 1, items 3, 4, 5, Pt 7.

Nicholls v The Queen [2005] HCA 1

219 CLR 196; 79 ALJR 468; 213 ALR 1
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 3 Feb 2005 Case Number: P79/2003 P81/2003
Criminal law – Evidence – Admissibility of admissions made off-video during interview with accused – Whether reasonable excuse for not videotaping admissions – Criminal Code (WA), s 570D(2)(b), (4).

Criminal law – Evidence ¬– Admissibility of evidence of prior inconsistent statement of witness – Whether evidence of statement went to issue – Whether admissible as exception to rule against admission of collateral statements – Whether exceptions of bias, interest or corruption applicable – Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination.

Evidence – Criminal trial – Prior inconsistent statement of witness – Whether admissible as exception to rule against collateral statements – Admissions allegedly made off-video during interview by police – Whether reasonable excuse for not videotaping such admissions.

Criminal law – Evidence – Whether evidence of prior inconsistent statement hearsay – Whether exception to hearsay rule.

Criminal law – Jury directions – Whether trial judge's direction accorded with McKinney v The Queen – Appropriateness of reference to possible perjury on part of police.

Criminal law – Evidence – Admissions – Adequacy of trial judge's direction – Whether need for McKinney direction.

Words and phrases – "interview", "reasonable excuse".

Criminal Code (WA) – s 570D.

Evidence Act 1906 (WA) – s 21.

Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11

228 CLR 529; 80 ALJR 688; 225 ALR 643
Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ
Date: 5 Apr 2006 Case Number: S329/2005
Nominal Defendant v GLG Australia Pty Limited

Statutes
– Motor Accidents Act 1988 (NSW) ("the Act") - Scope of indemnity - Scope of definition of "injury" under s 3(1) of the Act - A system of work involving forklift vehicle produced vibrations causing boxes in container to fall and strike worker - Whether injury "is a result of and is caused during . . . the driving of the vehicle" under par (a)(i) of the definition of "injury" - Whether Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 79 ALJR 1079 215 ALR 385 required definition of "injury" to be construed consistently with s 69(1) of the Act - Whether injury "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle" - Whether fault in failing to devise a safe system of work can be invoked as basis of claim for indemnity under the Act - Causation - Whether direct and proximate relationship between the driving of the vehicle and the injuries.

Statutes – Construction - Purpose of legislation - Extrinsic materials - Use of ministerial second reading speech - Whether any disparity between Minister's speech and law as enacted - Duty of courts to enacted law.

Practice and procedure – Court of Appeal (NSW) - Orders disposing of appeal - Inclusion of orders for costs and interest - Whether such orders involved procedural unfairness in the circumstances.

Words and phrases – "injury".

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

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41

M45/2015
French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 11 Nov 2015
Statutory interpretation – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

Constitutional law (Cth) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution.

Constitutional law (Cth) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts.

Words and phrases – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction".

Constitution – Ch III, s 122.

Bail Act (NT) – ss 16, 33.

Fines and Penalties (Recovery) Act (NT) – ss 9, 12B, 13, 21, 22.

Police Administration Act (NT) – Pt VII, Div 4AA; ss 123, 137, 138.

Police Administration Regulations (NT) – reg 19A.

North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31

218 CLR 146; 78 ALJR 977; 206 ALR 315
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 17 Jun 2004 Case Number: D2/2003
Statutes – Construction - Magistrates Act (NT), s 6 - Requirement that a magistrate be paid such remuneration and allowances as determined from time to time by the Administrator - Respondent appointed Chief Magistrate with 11 years to serve before age of compulsory retirement - Initial determination of remuneration by Administrator limited to a two year period - Whether appointment valid pursuant to Magistrates Act (NT).

Constitutional law (Cth) – Judicial power of the Commonwealth - Vesting in State and Territory courts - Minimum requirements for the appearance of impartiality and independence - Whether contravened by appointment where salary determined for a limited period.

Constitution – Ch III.

Magistrates Act (NT) – ss 4, 6, 7, 19A.

Remuneration Tribunal Act (NT).

Northern Territory of Australia v Arnhem Land Aboriginal Land Trust [2008] HCA 29

236 CLR 24; 82 ALJR 1099; 248 ALR 195
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 30 Jul 2008 Case Number: D7/2007
Aboriginals – Land rights - Rights to exclude persons from tidal waters under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") - Grants of "Estate in Fee Simple" extending to low water mark - Grants subject to Land Rights Act - Subject of grants "Aboriginal land" under Land Rights Act - Under Land Rights Act, s 70(1), a "person shall not enter or remain on Aboriginal land" - Defence under Land Rights Act, s 70(2A), if person enters or remains on land in accordance with that Act, or law of Northern Territory - Under Aboriginal Land Act (NT) relevant Land Council may grant permission to enter and remain on Aboriginal land - Meaning of "Aboriginal land" - Whether, without permission, licensee under Fisheries Act (NT) ("Fisheries Act") can fish in "intertidal zone", or in tidal waters within boundaries of grants - Whether fishing in those waters is to "enter or remain on Aboriginal land" - Construction of Land Rights Act, s 70(1) - Whether licensee under Fisheries Act does not contravene Land Rights Act, s 70(1), because enters or remains on land "in accordance with - a law of the Northern Territory".

Statutes – Construction - Whether Fisheries Act, by necessary implication, abrogated any pre-existing common law public right to fish in tidal waters - Whether Fisheries Act permits licensee to enter any place to fish in accordance with licence - "Application" of Fisheries Act - Public rights of navigation - Approach to interpretation - Whether legislation extinguishing Aboriginal rights requires specificity.

Words and phrases – "Aboriginal land", "enter or remain on Aboriginal land", "Estate in Fee Simple", "public right of navigation", "public right to fish", "waters of the sea".

Aboriginal Land Act (NT) – ss 4, 5, 12.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – ss 3(1), 70(1), 70(2A), 73(1).

Fisheries Act (NT) – ss 10(1), 10(2), 11.

Northern Territory v Collins [2008] HCA 49

235 CLR 619; 83 ALJR 1; 249 ALR 621
Gummow ACJ, Kirby, Hayne, Heydon, Crennan JJ
Date: 16 Oct 2008 Case Number: D2/2008
Intellectual property – Patents - Infringement - Contributory infringement - Respondents owned patent for methods of producing oils from species of a particular genus of tree - Appellant Territory licensed third party ("ACOC") to enter Crown land and remove timber from trees of this species - Patents Act 1990 (Cth), s 117(1) provided that, if "use of a product by a person" would infringe a patent, "supply" of that product by one person to another was an infringement by supplier - Respondents alleged Territory infringed patent by supply of timber to ACOC - Relationship between exclusive rights to exploit patent and s 117 - Meaning of "product" in s 117 where patent said to be infringed is for method or process - Whether "product" confined to product that itself results from use of a patented method or process.

Intellectual property – Patents - Infringement - Contributory infringement - Meaning of "supply" in s 117 - Whether grant of licences to sever and take timber from Crown land constituted "supply" of timber by Territory for purposes of s 117(1) - Relevance of classification of interest of ACOC as realty or personalty.

Intellectual property – Patents - Infringement - Contributory infringement - Section 117(2)(b) provided that "use of a product by a person" in s 117(1) meant "any use" if product was not a "staple commercial product" - Meaning of "staple commercial product" - Whether timber taken by ACOC under licences a "staple commercial product".

Words and phrases – "exploit", "method or process", "product", "staple commercial product", "supply", "use of a product by a person".

Patents Act 1990 (Cth) – ss 13, 117 and Sched 1.

NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11

250 CLR 490; 88 ALJR 506; 306 ALR 585
French CJ, Hayne, Kiefel, Bell, Keane JJ
Date: 2 Apr 2014 Case Number: S273/2013
Statutes – Interpretation – Registrar's power to register a "change of sex" under Births, Deaths and Marriages Registration Act 1995 (NSW) – Respondent underwent sex affirmation procedure – Respondent applied for registration of change of sex under Act – Whether Registrar has power to register change of sex to "non specific".

Words and phrases – "change of sex".

Births – Deaths and Marriages Registration Act 1995 (NSW), ss 32A, 32DA, 32DB, 32DC, 32J.

NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48

219 CLR 90; 79 ALJR 1; 210 ALR 312
McHugh ACJ, Gummow, Kirby, Callinan, Heydon JJ
Date: 6 Oct 2004 Case Number: D13/2003
Trade practices – Market definition - Substantial degree of market power - Where statutory authority had a monopoly in the markets for electricity transmission and distribution services and for electricity supply - Where authority owned the transmission and distribution infrastructure - Where no transactions occurred in the transmission and distribution services market - Whether authority's control of the infrastructure gave it market power in both markets - Trade Practices Act 1974 (Cth), ss 46(1), 46(4)(c).

Trade practices – Misuse of market power - Taking advantage of market power - Proscribed purpose - Whether statutory authority's refusal of access to its infrastructure involved taking advantage of its market power or only of its proprietary rights - Whether refusal was due to a "direction" from the Minister - whether Minister's purpose in giving direction meant authority's refusal was not for a proscribed purpose - Whether authority's regulatory role meant refusal was not for a proscribed purpose - Trade Practices Act 1974 (Cth), s 46(1) - Power and Water Authority Act (NT), s 16.

Crown – Immunity - Crown in right of the Northern Territory - Carrying on a business under the Trade Practices Act 1974 (Cth) - Exceptions - Where statutory authority had a monopoly in the markets for electricity transmission and distribution services and for electricity supply - Where authority owned the transmission and distribution infrastructure - Whether authority's exclusive use of the infrastructure was part of carrying on a business - Whether refusal of access to infrastructure was merely refusal of a "licence" and thus not part of carrying on a business - Trade Practices Act 1974 (Cth), ss 2B, 2C(1)(b).

Crown – Immunity - Crown in right of the Northern Territory - "Emanation of the Crown" - Where statutory authority established by the Territory Government was the sole beneficial owner of a trading corporation - Where corporation incorporated under general enactment for the incorporation of companies rather than specific statute - Where corporation acquired for specific Government purpose - Whether corporation was an "emanation of the Crown".

Crown – Immunity - Crown in right of the Northern Territory - "Derivative Crown immunity" - Where statutory authority established by the Territory Government was the sole beneficial owner of a trading corporation - Where corporation entered into contracts with third parties - Where financial interests of the Government potentially prejudiced by preventing enforcement of those contracts under the Trade Practices Act 1974 (Cth) - Where no legal or proprietary interests of the Government affected - Whether corporation could claim "derivative Crown immunity".

Practice and procedure – Pleadings - Where points made in original pleadings but not relied on and no evidence called at trial - Whether points can be taken on appeal.

Words and phrases – "carries on a business", "market power", "take advantage of", "derivative Crown immunity", "emanation of the Crown", "direction", "licence".

Competition Policy Reform Act 1995 (Cth) – s 89.

Competition Policy Reform (Northern Territory) Act (NT) – ss 14, 15.

Power and Water Authority Act (NT) – s 16.

Trade Practices Act 1974 (Cth) – ss 2B(1), 2C(1)(b), 4, 46(1), 46(4)(c), Schedule, Pt 1, cl 46.

Nudd v The Queen [2006] HCA 9

80 ALJR 614; 225 ALR 161
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 9 Mar 2006 Case Number: B22/2005
Criminal Law – Trial - Miscarriage of justice - Competence of counsel - Alleged failure to take instructions - Alleged failure to understand elements of offence and relevant statutory provisions - Alleged failure to be familiar with applicable judicial decisions.

Appeal – Criminal appeal - Miscarriage of justice - Competence of counsel - Application of "proviso" - Whether denial of fair trial may sometimes without more amount to miscarriage of justice.

Legal practitioners – Criminal trial - Competence of counsel and of solicitor - Alleged failures to take instructions, to understand elements of offence and to consider applicable judicial decisions - Extent to which, if at all, alleged incompetence contributed to any miscarriage of justice - Whether in some circumstances miscarriage of justice includes denial of fair trial according to law without more.

Words and phrases – "on any ground whatsoever there was a miscarriage of justice".

Criminal Code (Q) – s 668E(1).

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