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).
234 CLR 599; 82 ALJR 680; 244 ALR 404
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 23 Apr 2008 Case Number: S40/2007 P41/2007 P410/2007
Extradition – Function of State magistrates under s 19 of Extradition Act 1988 (Cth) ("Extradition Act") and application of s 4AAA of Crimes Act 1914 (Cth) ("Crimes Act") - Arrangements between Governor-General and State Governors under s 46 of Extradition Act - Whether power exercised by State magistrates under s 19(1) of Extradition Act conferred under Commonwealth law relating to criminal matters - Whether intention appears in Extradition Act not to apply rule set out in s 4AAA of Crimes Act that State magistrates need not accept power conferred by Commonwealth law - Whether State magistrates obliged to accept performance of functions under Extradition Act - Whether acceptance of power conferred by s 19(1) of Extradition Act may be inferred by course of conduct of State magistrates - Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act.
Constitutional law (Cth) – Relationship between Commonwealth and States - Whether Commonwealth may unilaterally impose functions on State magistrates - Whether on true construction Extradition Act imposes functions on State magistrates - Whether such functions involve imposition of legal duties on State magistrates - Application of s 4AAA of Crimes Act - Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act - Whether consent of State executive government sufficient to authorise imposition of functions on State magistrates.
Words and phrases – "duty or power", "extradition", "magistrates".
Crimes Act 1914 (Cth) – s 4AAA.
Extradition Act 1988 (Cth) – ss 19, 46.
Magistrates Courts Act 2004 (WA) – s 6.
Local Courts Act 1982 (NSW) – s 23.
88 ALJR 960; 313 ALR 465
French CJ, Hayne, Bell, Gageler, Keane JJ
Date: 9 Oct 2014 Case Number: S114/2014
Criminal law – Appeal – Application to extend time within which to apply for leave to appeal against sentence – Principles to be applied in determining whether extension of time should be granted – Whether applicant required to demonstrate that refusal of application would occasion substantial injustice – Relevance of principle of finality – Relevance of prospect of success should extension be granted – Whether extension of time should be granted.
Words and phrases – "Abdul test", "principle of finality", "substantial injustice".
Criminal Appeal Act 1912 (NSW) – s 10(1)(b).
Criminal Appeal Rules (NSW) – rr 3A, 3B.
74 ALJR 1010; 172 ALR 342
Date: 31 May 2000 Case Number: S212/1999
Constitutional law (Cth) – Whether authorisation of a search warrant under s 3E of the Crimes Act 1914 (Cth) is in breach of s 71 of the Constitution - Whether s 29D of the Crimes Act 1914 (Cth) is beyond the legislative power of the Commonwealth Parliament - Whether the State laws authorising the Director of Public Prosecutions of New South Wales to issue indictments under s 10 of the Criminal Procedure Act 1986 (NSW) are inconsistent with s 7(2) of the Australia Act 1986 (NSW).
Practice and procedure – Jurisdiction invested in State Supreme Courts by the Judiciary Act 1903 (Cth) in matters involving interpretation of the Constitution - Relevance of considerations of fragmentation of criminal proceedings.
Constitution – ss 51(ii), 51(xxxix), 109.
Australia Act 1986 (Cth) – ss 2, 3, 7(2).
Crimes Act 1914 (Cth) – ss 3E, 29D.
Judiciary Act 1903 (Cth) – ss 38, 39.
Criminal Procedure Act 1986 (NSW) – s 10.
Director of Public Prosecutions Act 1986 (NSW).
215 CLR 496; 77 ALJR 980; 197 ALR 105
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Heydon JJ
Date: 10 Apr 2003 Case Number: S431/2002;
Extradition – Request for surrender of alleged fugitive offender from foreign state - Where extradition treaty exists with foreign state - Whether offences referred to in request were offences listed in extradition treaty - Whether request lawful.
Constitutional law (Cth) – Executive power - Power to request surrender of alleged fugitive offender from foreign state - Whether power abrogated by statute - Whether limitations, conditions, exceptions or qualifications imposed upon power to request surrender - Whether power may only be exercised in relation to extraditable offences as listed in extradition treaty with foreign state - Extradition Act 1988 (Cth), ss 3, 11, 40.
Statutory interpretation – Executive power - Power to request surrender of alleged fugitive offender from foreign state - Whether power abrogated by statute - Whether statute abrogates power by express words or necessary implication - Extradition Act 1988 (Cth), ss 3, 11, 40.
Extradition Act 1988 (Cth) – ss 3, 11, 40.
Extradition (Foreign States) Act 1966 (Cth) – ss 9, 21.
Poland (Extradition Commonwealth of Australia and New Zealand) Order in Council 1934 (UK).
Extradition Act 1870 (UK) – s 2.
Extradition Acts 1870 –1935 (UK).
Date: 4 Apr 2016 Case Number: S265/2015
Practice and procedure – High Court of Australia – Appeal – Stay of proceeding – Application to stay criminal proceeding in Supreme Court of New South Wales pending determination of application for special leave to appeal – Applicant made interlocutory application before empanelment of jury in proceeding on indictment in Supreme Court to quash indictment or permanently stay proceeding – Application refused by single judge – Appeal dismissed by Court of Criminal Appeal – Application made for special leave to appeal – Whether criminal proceeding should be stayed pending determination of special leave application.
High Court Rules 2004 (Cth) – r 8.
Date: 4 Apr 2016 Case Number: S265/2015
Practice and procedure – High Court of Australia – Non-publication order – Application for non-publication order under s 77RE of Judiciary Act 1903 (Cth) – Application for special leave to appeal from orders of Court of Criminal Appeal of Supreme Court of New South Wales dismissing appeal from refusal of single judge to quash indictment or permanently stay criminal proceeding – Application in High Court for stay of criminal proceeding pending determination of special leave application – Respondent applies for non-publication order concerning information tending to reveal identity of applicant – Whether non-publication order should be made.
Judiciary Act 1903 (Cth) – ss 77RE, 77RG.
Bell, Keane, Nettle, Gordon, Edelman JJ
Date: 20 Mar 2019 Case Number: P62/2018
Criminal practice – Appeal against conviction – Application of proviso that no substantial miscarriage of justice actually occurred – Criminal Appeals Act 2004 (WA), s 30(4) – Where jury found appellant guilty of indecently dealing with child under 13 years of age – Where credibility and reliability of complainant's evidence central issue at trial – Where complainant admitted and was alleged to having lied – Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon – Where Court of Appeal found direction by trial judge was wrong decision on question of law – Where Court of Appeal found no substantial miscarriage of justice occurred – Whether error in application of proviso.
Words and phrases – "misdirection", "natural limitations of proceeding on the record", "no effect upon the jury's verdict", "proviso", "substantial miscarriage of justice", "sufficiency of evidence to prove guilt", "very significant weight", "weight to the verdict of guilty", "wrong decision on a question of law".
Criminal Appeals Act 2004 (WA) – s 30(4).
225 CLR 274; 80 ALJR 1018; 227 ALR 190
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 18 May 2006 Case Number: S209/2005
Industrial law (NSW) – Industrial Relations Commission – Jurisdiction – Power given to the Commission by s 106(1) of the Industrial Relations Act 1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract – Upon termination of an employment agreement, compensation and release agreement made for the purpose of resolving any legal disputes with respect to the employment agreement – Compensation and release agreement governed by the laws of the State of Colorado – Application to Commission alleging the compensation and release agreement was unfair, harsh and unconscionable – Whether compensation and release agreement was a "contract whereby a person performs work in any industry" – Relevance of the availability of other remedies.
Prerogative writs – Prohibition – Excess of jurisdiction – Industrial Relations Commission (NSW) – Whether writ lies in the circumstances – Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court – Whether application for prohibition premature – Likelihood or danger of order being made in excess of jurisdiction – Relevance of privative provision purporting to exclude issue of writ – Relevance of specialist subject-matter of disputes before the Commission.
Contract – Construction – Provision requiring parties to act in good faith.
High Court – Appeal – Appeal from New South Wales Court of Appeal – Respondent raised privative provision before the Court of Appeal but not before High Court – Whether High Court can consider privative provision in the circumstances.
Natural justice – Procedural fairness – Entitlement to trial on the merits.
Private international law – Jurisdiction – Industrial Relations Commission (NSW) – Contract in question governed by the laws of the State of Colorado – Whether the power afforded to the Commission under s 106(1) of the Industrial Relations Act 1996 (NSW) extends to contracts for which the proper law is other than the law of New South Wales.
Statutes – Construction – Interpretation – Remedial statute – Purposive approach to construction – Objects of statute.
Statutes – Privative clause – Industrial Relations Commission (NSW) – Whether privative provision applicable.
Statutes – Construction – Interpretation – Composite phrase incorporating technical words – Extrinsic matters – Legislative history – Minister's second reading speech – Relevance of Parliament's purpose of successive re-enactment in increasingly ample terms
Words and phrases – "any contract whereby a person performs work in any industry", "arrangement", "decision or purported decision", "industry".
Industrial Relations Act 1996 (NSW) – ss 105-109A, 152-153, 179.
Supreme Court Act 1970 (NSW) – ss 25, 38, 39, 42.
234 CLR 275; 82 ALJR 1288; 249 ALR 1
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Kiefel JJ
Date: 7 Aug 2008 Case Number: M3/2008
Administrative law – Freedom of information - Exempt documents - Freedom of Information Act 1982 (Vic), s 50(4) empowered Tribunal to decide access should be granted to exempt documents if of opinion that public interest required access to be granted - Whether, in circumstances of this matter, Court of Appeal erred in concluding no basis for Tribunal to exercise power, when Court of Appeal did not examine documents.
Practice and procedure – Legal professional privilege - Waiver - Legal advice obtained in relation to petition for exercise of prerogative of mercy - Whether issue of press release disclosing existence and effect of advice inconsistent with maintenance of confidentiality in content of advice.
Words and phrases – "legal professional privilege", "mercy", "pardon", "public interest", "public interest override", "waiver".
Freedom of Information Act 1982 (Vic) – ss 30, 32, 50(4).
241 CLR 320; 84 ALJR 528; 267 ALR 231
French CJ, Gummow, Hayne, Heydon, Kiefel, Bell JJ
Date: 23 Jun 2010 Case Number: M11/2010
Administrative law – Freedom of information - Exempt documents - Petition for mercy denied by Governor acting on advice of Attorney-General - Attorney- General had received legal advice from various sources - Attorney-General issued press release mentioning advice from one source that petition should be denied but did not mention advice from other sources - Freedom of information request by petitioner for all advices granted upon review by Victorian Civil and Administrative Tribunal ("VCAT") - VCAT of opinion that public interest required access to all advices to be granted - Whether open to VCAT to form opinion that public interest required access to be granted - Relevance of differences between advices.
Administrative law – Judicial review - Where Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("Act") provided for appeal to Court of Appeal on a question of law and empowered Court of Appeal to make orders on appeal including orders VCAT "could have made" - VCAT of opinion that public interest required disclosure of all advices - Court of Appeal examined advices and formed own view, without considering the correctness of VCAT's analysis, that public interest did not require access to be granted - Nature of "appeal" under Act - Whether VCAT decision attended by error of law.
Words and phrases – "appeal", "exempt documents", "public interest".
Freedom of Information Act 1982 (Vic) – ss 32, 50(4).
Victorian Civil and Administrative Tribunal Act 1998 (Vic) – ss 148(1), 148(7).
218 CLR 493; 78 ALJR 957; 206 ALR 422
Gleeson CJ, McHugh, Kirby, Callinan, Heydon JJ
Date: 16 Jun 2004 Case Number: P35/2003
Criminal law – Defences - Respondent charged with fishing for rock lobsters in a prohibited area while holding a commercial fishing licence, contrary to a regulation made under statute - Respondent made inquiries at an office of a State Government department and was provided with incomplete information relating to prohibited areas - Respondent believed he had been provided with complete set of relevant regulations and was therefore unaware that fishing in relevant area was prohibited by law - Whether respondent could rely on defence of "mistake of fact" under s 24, Criminal Code (WA) - Whether respondent's honest and reasonable, but mistaken, belief was one of fact or law - Effect of officially induced error of law - Relevance of rules concerning pleading and proof of regulations.
Words and phrases – "mistake of fact", "mistake of law", "state of things".
Criminal Code (WA) – ss 22, 24.
Fish Resources Management Act 1994 (WA) – s 222.
Fish Resources Management Regulations 1995 (WA) – reg 34.
247 CLR 240; 86 ALJR 1071; 290 ALR 681
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 7 Sep 2012 Case Number: S343/2011
Public international law – Foreign State immunity – Sections 11(1) and 22 of Foreign States Immunities Act 1985 (Cth) ("Act") together provide that a separate entity of a foreign State is not immune from jurisdiction in a proceeding that concerns a "commercial transaction" – Respondent commenced proceedings against appellant for conduct allegedly contrary to Pt IV of Trade Practices Act 1974 (Cth) – Whether appellant immune under Act from exercise of jurisdiction – Whether civil penalty proceeding concerns a "commercial transaction".
Words and phrases – "commercial transaction", "conferral of jurisdiction", "jurisdiction", "sovereign immunity ".
Constitution – s 51(xxix).
Foreign States Immunities Act 1985 (Cth) – ss 3(1), 9, 10, 11, 22, 38, 40.
Judiciary Act 1903 (Cth) – s 39B.
Trade Practices Act 1974 (Cth) – Pt IV.
218 CLR 451; 78 ALJR 1045; 208 ALR 213
Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ
Date: 5 Aug 2004 Case Number: S585/2003
Contract – Carriage of goods - Carriage by sea - Delivery of goods without surrendering bills of lading - Indemnity to carrier.
Contract – Construction and interpretation - Relevant principles - Objective interpretation of commercial documents - Letters of indemnity executed by trader in favour of carrier relating to unloading cargo without bills of lading - Where documents also signed by officer of the respondent bank - Whether letters of indemnity purported to bind the respondent as an indemnifying party.
Contract – Agency - Ostensible authority - Documents of the kind commonly relied upon and intended to be relied upon by third parties - Whether the assumption made by the appellant that the respondent was party to the letters of indemnity was induced or assisted by the respondent's conduct in such a way that it would be unjust to permit the respondent to depart from the assumption.
French CJ, Kiefel, Gageler, Keane, Nettle JJ
Date: 27 Jul 2016 Case Number: M219/2015 M220/2015
Banker and customer – Rule against penalties – Consumer credit card accounts – Late payment fees – Where late payment fees were $35 and $20 – Where costs actually incurred by respondent upon failure by first appellant to make timeous payment of amounts owing were approximately $3 – Where late payment fees not genuine pre-estimates of damage – Where respondent alleged it could conceivably have incurred loss provision costs, collection costs and regulatory capital costs as a result of first appellant's default – Whether late payment fees penalties – Whether late payment fees extravagant, exorbitant or unconscionable – Whether late payment fees out of all proportion to interests damaged – Whether respondent's legitimate interests confined to reimbursement of expenses directly occasioned by first appellant's default.
Contract – Rule against penalties – Essential characteristics of a penalty – Whether sum disproportionate to actual loss suffered amounts to a penalty – Whether sum incorporating loss too remote to be recoverable in action for damages amounts to a penalty – Relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd  AC 79.
Trade practices – Consumer protection – Late payment fees – Unconscionable conduct – Unjust transactions – Unfair terms – Whether late payment fees unconscionable, unjust or unfair.
Precedent – Apex courts of foreign jurisdictions – Status of unwritten law of United Kingdom in Australia.
Words and phrases – "exorbitant", "extravagant", "genuine pre-estimate", "in terrorem", "late payment fees", "liquidated damages", "out of all proportion", "penalty", "unconscionable", "unconscionable conduct", "unfair terms", "unjust transactions".
Australian Securities and Investments Commission Act 2001 (Cth) – ss 12BF, 12BG, 12CB, 12CC.
National Consumer Credit Protection Act 2009 (Cth) – Sched 1 s 76.
Fair Trading Act 1999 (Vic) – ss 8, 8A, 32W, 32X.
221 CLR 249; 79 ALJR 1121; 215 ALR 253
McHugh, Gummow, Kirby, Hayne, Heydon JJ
Date: 25 May 2005 Case Number: S317/2004
Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Lender charged with carrying on the business of lending money on the security of pawned goods whilst not being the holder of a licence – Lender made short-term secured loans – Loan documents recorded that title in goods passed to lender – Chattel mortgage security – Goods usually kept by the lender for term of loan – Characterisation of transaction – Whether chattel mortgage was a bill of sale under Bills of Sale Act 1898 (NSW) – Whether the lender's business was the "business of lending money on the security of pawned goods" – Meaning of "pawned goods" in the Pawnbrokers and Second-hand Dealers Act 1996 (NSW).
Pawnbroking – History of meaning of "pawn" or "pledge" in Roman and common law – Understanding of "pawn" or "pledge" as one class of bailment of goods, distinct from mortgage and lien – Relevance of possession of goods.
Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Purposive construction – Contextual construction – Technical and common words – Relevance of Minister's Second Reading Speech – Relevance of consumer credit legislation – Relevance of sham arrangement.
Words and phrases – "pawn", "pawned goods", "pledge".
Pawnbrokers and Second –hand Dealers Act 1996 (NSW), s 6.
Bills of Sale Act 1898 (NSW).
219 CLR 325; 78 ALJR 87; 202 ALR 376
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 12 Nov 2003 Case Number: S145/2003
Constitutional law (Cth) – Exclusive powers of Commonwealth Parliament - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW).
Taxation – Land tax - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW).
Constitution – s 52(i).
Commonwealth Places (Administration of Laws) Act 1970 (NSW).
Commonwealth Places (Mirror Taxes) Act 1998 (Cth).
Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW).
Land Tax Act 1956 (NSW).
Land Tax Management Act 1956 (NSW).
State Revenue Legislation Amendment Act 1997 (NSW).
208 CLR 388; 76 ALJR 163; 185 ALR 280
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 6 Dec 2001 Case Number: S8/2001
Injurious falsehood – Elements of the tort - Forged letter containing false statements - Initial publication to defined group intended to ridicule subject of letter - Report in newspaper of "bogus letter" - Contract terminated as a result of newspaper report - Whether loss suffered caused by initial publication - Whether loss suffered was a natural and probable consequence of initial publication - Identification of relevant falsehood - Relevance of reasonable foreseeability as criterion for limiting liability - Causation of plaintiff's damage - Whether actual damage to plaintiff proved or assumed by expert report.
Words and phrases – "Natural and probable consequence", "grapevine effect".
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.
74 ALJR 791; 170 ALR 579
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 13 Apr 2000 Case Number: M25/1999
Mortgage – Construction of terms - Mortgage agreement provided that event of default occurred if bank formed opinion that circumstances had arisen which had material adverse effect on business, assets and financial condition of borrower and ability of borrower to perform its obligations to the bank - Formation of requisite opinion - Declaration that moneys owing were immediately due and payable - Notice demanding payment - Validity of notice.
Mortgage – Debenture - Default - Power in mortgage to appoint receiver after moneys became payable - Validity of appointment - Mortgage and loan agreements each specifying circumstances in which moneys became payable - No inconsistency between mortgage and loan agreements.
249 CLR 534; 87 ALJR 110; 293 ALR 215
French CJ, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Dec 2012 Case Number: S319/2011
Defamation – Defences – Common law defence of qualified privilege – Respondent involved in proposal to invest funds in football club – Appellant was board member of affiliated club – Appellant opposed proposal – Respondent sent letter to appellant's employer conveying imputations defamatory of appellant – Defamatory statements made voluntarily and in protection of personal interests – Whether defence of qualified privilege required respondent to show "pressing need" to protect interests – Whether "pressing need" to be adjudged by reference to test of "reasonable necessity" – Consideration of Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366.
Words and phrases – "community of interest", "fairly warranted by any reasonable occasion or exigency", "pressing need", "qualified privilege", "reasonable necessity".
Defamation Act 2005 (NSW) – ss 6(2), 24.