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Badenach v Calvert [2016] HCA 18

French CJ, Kiefel, Gageler, Keane, Gordon JJ
Date: 11 May 2016 Case Number: H12/2015
Negligence – Duty of care – Scope of duty of care – Where solicitor received instructions from testator to prepare a will – Where entirety of testator's estate was to pass to respondent – Where testator's daughter brought successful proceedings under Testator's Family Maintenance Act 1912 (Tas) ("TFM Act") for provision out of testator's estate – Whether duty of care owed by solicitor to testator extended to advising testator of possible steps to avoid exposing testator's estate to a claim under TFM Act.

Negligence – Duty of care – Existence of duty of care – Whether solicitor owed duty of care to intended beneficiary under testator's will – Whether Hill v Van Erp (1997) 188 CLR 159 applied – Whether interests of testator coincident with interests of intended beneficiary.

Negligence – Causation – Whether, but for solicitor's failure to give advice, respondent would have received entirety of testator's estate – Whether relevant loss is a loss of chance.

Words and phrases – "coincident", "duty of care", "interests of the intended beneficiary", "interests of the testator", "loss of a chance", "testamentary intention".

Civil Liability Act 2002 (Tas) – s 13(1)(a).

Testator's Family Maintenance Act 1912 (Tas).

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14

246 CLR 92; 86 ALJR 459; 286 ALR 421
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 30 Mar 2012 Case Number: M126/2011
Criminal law – Appeal - Jury misdirection - Application of "proviso" - Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) - Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue - Whether appellate court able to conclude that no substantial miscarriage of justice occurred - Whether judicial "discretion" in applying proviso.

Words and phrases – "proviso", "substantial miscarriage of justice".

Crimes Act 1958 (Vic) – s 568(1).

Occupational Health and Safety Act 2004 (Vic) – s 21.

Baini v The Queen [2012] HCA 59

246 CLR 469; 87 ALJR 180; 293 ALR 472
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler JJ
Date: 12 Dec 2012 Case Number: M87/2012
Criminal law – Appeal – Error or irregularity in trial – Failure to sever counts – Appellant charged with numerous counts of blackmail of one victim and one count of blackmail of another victim – Trial judge refused application to sever trial of separate count – Court of Appeal held that trial judge erred in refusing application – Whether refusal to sever resulted in "substantial miscarriage of justice" within meaning of s 276 of Criminal Procedure Act 2009 (Vic).

Words and phrases – "substantial miscarriage of justice".

Criminal Procedure Act 2009 (Vic) – s 276.

Baker v The Queen [2004] HCA 45

223 CLR 513; 78 ALJR 1483; 210 ALR 1
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 1 Oct 2004 Case Number: S395/2003
Constitutional law (Cth) – Judicial power of Commonwealth – Vesting of federal jurisdiction in State courts – Act empowering State court to determine a minimum term and an additional term for persons serving an existing sentence of life imprisonment – Act prohibiting such determination in respect of prisoners the subject of a non-release recommendation by the original sentencing judge unless "special reasons" justified making the determination – Whether incompatible with State court being a suitable repository of judicial power of the Commonwealth.

Constitutional law (NSW) – Separation of powers – Power of State Parliament to confer function incompatible with exercise by State court of judicial power of the Commonwealth – Where class of affected persons closed and known – Whether judicial discretion preserved – Whether judicial function prescribed by Act compatible with State court being a suitable repository of judicial power of the Commonwealth.

Words and phrases – "special reasons".

Constitution – Ch III.

Sentencing Act 1989 (NSW) – s 13A.

Sentencing Legislation Further Amendment Act 1997 (NSW).

Baker v The Queen [2012] HCA 27

245 CLR 632; 86 ALJR 906; 289 ALR 614
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 15 Aug 2012 Case Number: M154/2011
Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co-accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co-accused made certain admissions in police interview and to witnesses ("out-of-court confessional statements") – Consideration of Bannon v The Queen (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.

Words and phrases – "admissions", "against penal interest", "hearsay rule", "out-of-court confessional statements".

Bakewell v The Queen [2009] HCA 24

238 CLR 287; 83 ALJR 894; 257 ALR 170
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 7 Jul 2009 Case Number: D5/2009
Criminal law – Punishment - Appellant sentenced in 1989 to mandatory life imprisonment for murder - Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), s 18(a) deemed sentence to include 20 year non-parole period - Section 19 provided Supreme Court of the Northern Territory may or, in certain circumstances, must revoke deemed non-parole period and fix longer period or no period on application of Director of Public Prosecutions - Appellant transferred to South Australia before Director made application for longer non- parole period - Upon transfer, Northern Territory sentence ceased to have effect but same sentence deemed to have been imposed by South Australian court - Whether Supreme Court of Northern Territory may determine application - Whether appellant "prisoner" within meaning of Act.

Criminal law – Transfer of prisoners - Interaction of Prisoners (Interstate Transfer) Act 1982 (SA) and Prisoners (Interstate Transfer) Act (NT) - Whether application to Supreme Court of the Northern Territory was for "review" of sentence or minimum term.

Words and phrases – "prisoner", "review".

Prisoners (Interstate Transfer) Act 1982 (SA) – ss 5, 25, 27, 28. Prisoners (Interstate Transfer) Act (NT), ss 3, 23, 26.

Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) – Pt 5, Div 1.

Sentencing (Crime of Murder) and Parole Reform Amendment Act 2008 (NT).

Interpretation Act (NT)
– s 38(1)(b).

Banditt v The Queen [2005] HCA 80

224 CLR 262; 223 ALR 663
Gummow, Hayne, Callinan, Heydon JJ
Date: 15 Dec 2005 Case Number: S216/2005
Criminal law – Break and enter and commit serious indictable offence – Sexual assault – Recklessness as to consent – Appellant broke and entered complainant's house at night while complainant asleep – Complainant alleged appellant commenced intercourse while complainant asleep – Appellant claimed that complainant was awake and consented to intercourse and that appellant thought complainant was consenting – Complainant had rejected appellant's advances on a previous occasion – Whether trial judge erred in directing jury that appellant could have known complainant was not consenting because he was reckless as to consent – Whether recklessness requires more than advertence to possibility of lack of consent or requires determination to proceed with intercourse regardless of lack of consent – Whether appropriate to direct juries to apply an ordinary understanding of "recklessness".

Words and phrases – "reckless".

Crimes Act 1900 (NSW) – ss 61I, 61R, 112(1).

Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46

223 CLR 660; 79 ALJR 1511; 221 ALR 1
Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ
Date: 7 Sep 2005 Case Number: S480/2004
Nuisance – Local government - Drainage - Nuisance in exercise of statutory powers - Indemnity under Local Government Act 1993 (NSW), s 733 for acts or omissions done in good faith relating to the likelihood of land being flooded or the nature or extent of such flooding - Council constructed and operated drainage system whilst involved in the process of urbanisation - Drainage system caused flooding of adjacent land owned by respondent - Whether Council thereby incurred "liability in respect of" its conduct in constructing and operating drainage system - Whether Council acted "in good faith".

Statutes – Construction - Council's statutory indemnity for conduct done in good faith relating to the likelihood or nature or extent of flooding - Whether indemnity precludes the grant of injunctive relief in addition to precluding award of damages for nuisance - Relevance of the objective of s 733 in protecting local government bodies - Relevance of the respective consequences of grant of damages and grant of injunctive relief - Relevance of discretionary nature of injunctive relief - Whether s 733 applies only to liability in respect of past events - Whether liability to injunctive relief is liability in respect of past events.

Statutes – Construction - Council's statutory indemnity for conduct done in good faith relating to the likelihood or nature or extent of flooding - Where Council deferred the taking of immediate action respecting nuisance complained of by respondent - Whether "good faith" requires dishonesty or similar state of mind - Whether something more than negligence is required - Relevance of pending litigation to the character of the Council's conduct in deferring action.

Injunctions – Mandatory injunctive relief - Relationship with grant of damages under Supreme Court Act 1970 (NSW), s 68 - Relevance to whether Council would have incurred any liability in respect of its conduct.

Lord Cairns' Act – Availability of damages in lieu of injunction - Whether such damages readily calculable in money - Relevance to whether Council would have incurred any liability in respect of its conduct - Relevance to character of such liability.

Words and phrases – "liability", "liability in respect of", "not incur any liability", "good faith".

Local Government Act 1993 (NSW) – ss 59A, 733.

Supreme Court Act 1970 (NSW) – s 68.

Barbaro v The Queen [2014] HCA 2

88 ALJR 372; 305 ALR 323
French CJ, Hayne, Kiefel, Bell, Gageler JJ
Date: 12 Feb 2014 Case Number: M3/2013 M1/2013
Criminal law – Sentence – Principles – Applicants pleaded guilty to offences against laws of Commonwealth after prosecution expressed views about available range of sentences that could be imposed on each applicant – Sentencing judge refused to receive submission from prosecution about available range of sentences – Whether duty of prosecution to make submission as to available range of sentences – Whether submission as to range amounts to submission of law – Whether failure to receive prosecution submission as to range procedurally unfair – Whether failure to receive prosecution submission as to range failure to take account of relevant consideration.

Words and phrases – "available range of sentences", "submission of law".

Crimes Act 1914 (Cth) – Pt IB.

Barclay v Penberthy [2012] HCA 40

246 CLR 258; 86 ALJR 1206; 291 ALR 608
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 2 Oct 2012 Case Number: P55/2011 P57/2011
Negligence – Pure economic loss – Plane crash caused by engine failure and negligent response of pilot – Whether damages recoverable for pure economic loss suffered by employer due to injury to employees.

Tort – Action per quod servitium amisit – Whether absorbed into tort of negligence – Whether action per quod servitium amisit exists under common law of Australia.

Tort – Action per quod servitium amisit – Measure of damages – Remoteness –Whether damages recoverable calculated by price of substitute less wages no longer paid to injured employee.

Tort – Rule in Baker v Bolton – Whether employer can recover for death of employee.

Words and phrases – "per quod servitium amisit", "pure economic loss", "vulnerability".

Barns v Barns [2003] HCA 9

214 CLR 169; 77 ALJR 734; 196 ALR 65
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 7 Mar 2003 Case Number: A68/2002 A69/2002
Succession – Family provision - Deed between husband and wife - Mutual wills executed pursuant to deed - Effect of deed and wills upon family provision claim - Whether property the subject of deed and wills available as part of estate out of which provision made - Whether deed invalid for reasons of public policy - Inheritance (Family Provision) Act 1972 (SA), s 7.

Precedent – High Court and Privy Council - Conflict between two Privy Council decisions - Circumstances in which High Court should depart from Privy Council decisions - Where decision of Privy Council was on a matter of State law in appeal directly from primary judge in a State Supreme Court, rather than from High Court.

Words and phrases – "estate".

Inheritance (Family Provision) Act 1972 (SA) – s 7.

Barwick v Law Society of New South Wales [2000] HCA 2

74 ALJR 419; 169 ALR 236
Gleeson CJ, Gaudron, McHugh, Kirby, Callinan JJ
Date: 3 Feb 2000 Case Number: S25/1999
Legal practitioners – Disciplinary proceedings - Requirement for investigation of complaints - Institution of proceedings by filing of informations - Jurisdiction and powers of Legal Services Tribunal - Complaints initiated outside statutory period - Power of Legal Services Tribunal to vary informations to include conduct occurring outside statutory period.

Statutes – Construction - Mandatory versus directory - Legislative purpose - Course of enactment of legislation - Successive drafts of Bill - Whether permissible to consider.

Words and phrases – "complaints" - "made" - "initiated".

Legal Profession Act 1987 (NSW) – ss 134-138, 148-150, 152, 154-156, 167, 167A.

Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5

218 CLR 366; 78 ALJR 346; 204 ALR 193
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 11 Feb 2004 Case Number: S393/2002
Defamation – Defences - Common law defence of qualified privilege - Matter published conveying imputation defamatory of appellant in subscription publication - Where matter involved report of judicial proceedings - Where no claim for qualified privilege made under Defamation Act 1974 (NSW) - Whether qualified privilege available as a defence - Whether matter published on occasion of qualified privilege - Publication for reward - Publication of matter concerning occupational health and safety - Publication to subscribers - Subscribers professionally concerned with matters of occupational health and safety - Whether reciprocity of duty or interest - Whether defamatory matter sufficiently connected to the privileged occasion - Whether absence of availability of defence of fair and accurate report of judicial proceedings precludes availability of defence of qualified privilege.

Defamation Act 1912 (NSW) – s 29(1)(d), (e).

Defamation Act 1958 (NSW).

Defamation Act 1974 (NSW)
– ss 11, 22, 24.

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27

226 CLR 256; 80 ALJR 1100; 227 ALR 425
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 14 Jun 2006 Case Number: S530/2005 S531/2005
Abuse of Process – Delay – Proceedings commenced in 1994 in respect of causes of action which accrued in 1965 – Appellant suffered quadriplegia and other injuries in motor accident allegedly caused by the negligence of, and nuisance created by, the respondents – Appellant born mentally retarded and later orphaned – Applications brought by respondents for summary dismissal or permanent stay for abuse of process – Whether, due to the effluxion of time since the causes of action accrued, a fair trial was not possible for the respondents.

Abuse of Process – Delay – Factors to be considered in determining whether delay precludes the conduct of a fair trial – Whether actions commenced by appellant untenable or futile – Whether actions commenced by appellant present real question to be determined – Sufficiency of evidence – Relevance of fundamental right to bring legal proceedings – Relevance of summarily denying right to a trial – Relevance of appellant's severely disabled condition – Relevance of the extent of the investigations made by the parties – Relevance of the disparity in the economic resources of the parties – Relevance of fact that the 30 year ultimate limitation bar had not yet descended.

Limitation of Actions – Appellant born mentally disabled and suffered quadriplegia in the accident out of which these proceedings arose – Appellant's causes of action not subject to 6 year limitation period which would otherwise have been imposed by the Limitation Act 1969 (NSW) by reason of the appellant's disabilities – Actions commenced within 30 year ultimate limitation period – Whether Limitation Act 1969 (NSW) precludes court from summarily dismissing or permanently staying proceedings for abuse of process when actions commenced before expiry of limitation period – Whether exercise of power to dismiss or stay in such circumstances is exceptional and requires proof of oppressive or contumelious conduct on the part of the plaintiff.

Courts – Powers of courts – Whether supplementary power of Supreme Court of New South Wales properly described as inherent or implied – Distinction between inherent powers and implied powers – Basis from which the State Supreme Court derives its jurisdiction to summarily dismiss or permanently stay proceedings.

Courts – Powers of courts – Jurisdiction – Rules of Court – Whether Rules of Court are exhaustive of the circumstances in which the Supreme Court can dismiss or stay proceedings for abuse of process – Weight to be given to the relevant legislative context in exercising discretion to dismiss or stay proceedings – Where both Rules of Court and supplementary jurisdiction empower Supreme Court to stay or dismiss proceedings for abuse of process – Relationship between supplementary jurisdiction and Rules of Court.

Words and phrases – "abuse of process", "delay", "inherent jurisdiction", "implied jurisdiction".

Limitation Act 1623 (Imp) (21 Jac I c 16) – ss 3, 7.

Limitation Act 1969 (NSW) – ss 5, 11(3), 51(1), 52.

Supreme Court Act 1970 (NSW).

Supreme Court Rules (NSW)
– Pt 13 r 5.

Batterham v QSR Limited [2006] HCA 23

225 CLR 237; 80 ALJR 995; 227 ALR 212
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 18 May 2006 Case Number: S207/2005
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 - Option to acquire shares in company pursuant to an option deed - Option deed made as part reward to option holder as promoter of company - Application to Commission for orders declaring the option deed unfair, harsh, and unconscionable and contrary to the public interest, and orders varying the deed - Whether the option deed was a contract or arrangement according to which the first appellant performed work in any industry - Relevance of the fact that the work performed pre-dated the option deed.

Industrial law (NSW) – Industrial Relations Commission - Writ of prohibition sought to restrain the Commission from exercising jurisdiction - Entitlement of the Commission to determine its own jurisdiction in first instance.

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.

Statutes – Privative clause - Industrial Relations Commission (NSW) - Whether privative provision applicable - Relevance of interlocutory decision of the Commission dismissing a motion by the respondent for pre-emptive relief.

Statutes – Construction - Interpretation - Remedial statute - Purposive approach to construction - Objects of statute.

Statutes – Construction - Interpretation - Composite phrase incorporating technical words - Extrinsic matters - Legislative history - 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", "any related condition or collateral arrangement", "arrangement", "decision or purported decision", "industry".

Industrial Relations Act 1996 (NSW) – ss 105-109A, 152, 179.

Supreme Court Act 1970 (NSW) – s 48.

Baxter v Obacelo Pty Ltd [2001] HCA 66

205 CLR 635; 184 ALR 616
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 15 Nov 2001 Case Number: S10/2001
Torts – Joint tortfeasors - Satisfaction - Settlement with one tortfeasor - Entry of consent judgment against one tortfeasor - Settlement figure less than total damages claimed by the respondents - Whether settlement prevented respondents continuing claim against other tortfeasor - Whether cause of action against joint tortfeasors is one and indivisible - Whether settlement was paid and received in "full satisfaction" of respondents' loss.

Practice and procedure – Rule against "double satisfaction" - Settlement amount in first action less than amount otherwise recoverable in second action - Respondents conceded that credit is to be given for the amount recovered upon settlement of the first action - Whether second action in breach of rule against "double satisfaction" - Nature of the rule against "double satisfaction".

Words and phrases – "full satisfaction" - "double satisfaction" - "action" - "cause of action".

Law Reform (Miscellaneous Provisions) Act 1946 (NSW) – s 5(1).

Law Reform (Married Women and Tortfeasors) Act 1935 (UK) – 6(1).

Bayside City Council v Telstra Corporation Limited [2004] HCA 19

216 CLR 595; 78 ALJR 704; 206 ALR 1
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 28 Apr 2004 Case Number: S79/2003 S80/2003 S83/2003 S84/2003
Local government – Council – Rates and charges – Respondent corporations were carriers licensed under the Telecommunications Act 1997 (Cth) – Respondent carriers installed underground and aerial coaxial cabling in local government areas under the responsibility of the various local authorities – Local authorities in New South Wales resolved to make charges pursuant to Local Government Act 1993 (NSW), s 611 in respect of respondents' underground and aerial cabling – Local authorities in Victoria declared and levied rates on land occupied by respondents' cables pursuant to Local Government Act 1989 (Vic), Pt 8 – Statutory provisions provided exemptions from relevant charges or rates in respect of other owners or occupiers of public land – Whether State laws imposing such rates and charges discriminated against respondent carriers within meaning of Telecommunications Act 1997 (Cth), Sched 3, cl 44, and were therefore invalid under the Constitution, s 109.

Constitutional Law (Cth) – Powers of the Parliament – Whether provision conferring upon respondent carriers an immunity from discriminatory burdens imposed upon them in their capacity as carriers by State or Territory laws is a law with respect to postal, telegraphic, telephonic and other like services – Constitution, s 51(v) – Inconsistency between Commonwealth and State laws – Constitution, s 109 – Whether immunity conferred by a federal law, having regard to its substance and operation, in a significant manner curtailed or interfered with the capacity of States to function as governments.

Constitution – ss 51(v), 109.

Telecommunications Act 1997 (Cth) – Sched 3, cl 44.

Local Government Act 1993 (NSW) – s 611.

Local Government Act 1989 (Vic) – Pt 8.

BBH v The Queen [2012] HCA 9

245 CLR 499; 86 ALJR 357; 286 ALR 89
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 28 Mar 2012 Case Number: B76/2010
Criminal law – Evidence - Relevance - Propensity evidence - Applicant found guilty by jury of maintaining sexual relationship with child under 16, indecent treatment of child under 16 and sodomy of person under 18 - Complainant was applicant's daughter - Complainant's brother gave evidence of uncharged incident between applicant and complainant - Complainant's brother provided innocent explanation for incident - Whether brother's evidence admissible where complainant did not give evidence about incident - Whether evidence relevant to applicant's alleged sexual interest in complainant - Whether test for admissibility in Pfennig v The Queen (1995) 182 CLR 461 applicable - Whether test satisfied.

Words and phrases – "propensity", "rational view", "sexual interest".

Criminal Code (Q) – ss 208, 210 and 229B.

BCM v The Queen [2013] HCA 48

88 ALJR 101; 303 ALR 387
Hayne, Crennan, Kiefel, Bell, Keane JJ
Date: 27 Nov 2013 Case Number: B31/2013
Criminal law – Appeal – Appeal against conviction – Whether verdict unreasonable or unsupported having regard to evidence – Indecent dealing with child under 12 years – Inconsistencies in evidence of child complainant – Whether inconsistencies affected reliability – Whether inconsistencies went to essential features of complainant's account of offences.

Criminal law – Reasons – Whether Court of Appeal gave sufficient reasons – Whether Court of Appeal's reasons disclosed assessment of capacity of evidence to support verdict – Obligation to give reasons not discharged by observation that jury entitled to accept evidence of complainant.

Words and phrases – "unsafe and unsatisfactory", "verdict cannot be supported having regard to the evidence", "verdict is unreasonable".

Criminal Code (Q) – ss 210, 668E(1).

Beck v Weinstock [2013] HCA 15

87 ALJR 570; 297 ALR 21
French CJ, Hayne, Crennan, Kiefel, Gageler JJ
Date: 1 May 2013 Case Number: S56/2012
Corporations law – Shares – Redeemable preference shares – Shares issued as "redeemable preference shares" – No shares over which redeemable preference shares took preference then or later issued – Whether preference shares required ordinary shares to be issued – Whether redemption of shares effective.

Words and phrases – "issued share", "ordinary share", "preference share", "redeemable".

Companies Act 1961 (NSW) – ss 61, 66.

Corporations Act 2001 (Cth) – ss 254A, 254J.

Beckett v New South Wales [2013] HCA 17

248 CLR 432; 87 ALJR 602; 297 ALR 206
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler JJ
Date: 8 May 2013 Case Number: S144/2012
Torts – Malicious prosecution – Elements – Whether proof of innocence required where proceedings terminated by entry of nolle prosequi – Whether entry of nolle prosequi terminates proceedings in favour of accused – Whether Davis v Gell (1924) 35 CLR 275 should be followed – Whether direction that no further proceedings be taken against person under s 7(2)(b) of Director of Public Prosecutions Act 1986 (NSW) equivalent to termination by entry of nolle prosequi.

Words and phrases – "favourable termination of the prosecution", "malicious prosecution", "nolle prosequi".

Director of Public Prosecutions Act 1986 (NSW) – s 7(2).

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