239 CLR 390; 84 ALJR 1; 260 ALR 606
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 10 Nov 2009 Case Number: H7/2009 H8/2009
Torts – Negligence - Duty of care - Operator of hotel and liquor licensee - Intoxicated patron died in road accident after leaving hotel on motorcycle - Where patron and licensee agreed motorcycle and its keys should be held by licensee and patron's wife called when patron ready to leave - Patron refused licensee's offer to call wife to collect patron as arranged and requested keys - Whether licensee had duty to take reasonable care to prevent intoxicated patron from riding motorcycle from hotel - Whether an exceptional case.
Torts – Negligence - Breach - Whether alleged duty required licensee to call wife - Whether alleged duty discharged by offer to call wife.
Torts – Negligence - Causation - Whether calling wife would have prevented death - Whether on balance of probabilities wife would have received and responded to call in time.
Words and phrases – "balance of probabilities", "an exceptional case".
Criminal Code (Tas) – ss 43, 45.
Liquor and Accommodation Act 1990 (Tas) – ss 62, 78, 79, 79A, 80.
Road Safety (Alcohol and Drugs) Act 1970 (Tas) – ss 4, 5(1).
Traffic Act 1925 (Tas) – s 41A.
180 ALR 593
Date: 29 Jun 2001 Case Number: M39/2001
Constitutional law – High Court and federal judiciary - Implied or inherent powers - Practice and procedure - Application for special leave to appeal referred for hearing to Full Court of High Court - Proposed appeal concerns constitutional challenges to validity of Extradition Act 1988 (Cth) - Applicants subject to extradition determinations apply for bail - Applicants in custody for more than 31 months - Whether implied or inherent jurisdiction and power to grant bail - Purposes of constitutional jurisdiction and power - Whether ousted by bail provisions of the Act.
Extradition – Bail - High Court - Implied or inherent power to grant bail - Purposes of implied constitutional jurisdiction and powers to grant bail to applicant for special leave to appeal referred to Full High Court - Need for proof of exceptional circumstances - Proof of prolonged detention in severe custodial circumstances - Terms and conditions appropriate to applications - Entitlement of applicants to be separately considered.
Criminal law and procedure – Bail - Extradition Act 1998 (Cth) proceedings - Constitutional challenge to Act referred to Full High Court for argument as on appeal - Whether High Court has jurisdiction and power in the absence of a grant of special leave to appeal to grant bail - Whether in the circumstances bail should be granted - Whether exceptional circumstances established to enliven Court's jurisdiction and powers - Whether discretion to grant bail should be exercised - Terms and conditions relevant to the grant of bail - Relevance of earlier considerations of bail applications by Federal Court of Australia - Relevance of extended detention of applicants in severe custodial conditions unsegregated from convicted prisoners - Relevance of security against risk of absconding established by the evidence - Whether electronic tag and home detention shown to be a lawful and suitable condition of bail - Extent of sureties and financial security appropriate to the favourable exercise of the bail discretion.
Words and phrases – "exceptional circumstances".
Extradition Act 1988 (Cth) – ss 21, 53.
Director of Public Prosecutions Act 1983 (Cth) – ss 6(1)(k) and (n).
181 ALR 169
Date: 19 Jul 2001 Case Number: M39/2001
Constitutional law – High Court and federal judiciary - Implied or inherent powers - Distinction between implied and inherent powers - Whether implied or inherent jurisdiction and power to grant bail pending hearing - Whether bail only available to prevent futility of proceedings - Purpose of constitutional jurisdiction and power.
Practice and procedure – Application for special leave to appeal referred for hearing before Full Court of the High Court - Proposed appeal concerns constitutional challenges to validity of Extradition Act 1988 (Cth) - Applicant subject to extradition determination applies for bail pending hearing of application before Full Court - Applicant in custody for more than 30 months - Severe conditions of custody.
Extradition – Bail - High Court - Implied or inherent power to grant bail - Purpose of implied constitutional jurisdiction and power to grant bail to applicant for special leave to appeal referred to Full High Court - Need for exceptional circumstances - Proof of prolonged detention in severe custodial conditions during pendency of proceedings - Discretionary considerations for the grant of bail - Terms and conditions appropriate to bail - Whether sureties and delivery of certificate of title, mortgage and transfer of mortgage over substantial property sufficient security for compliance with bail conditions.
Criminal law and procedure – Bail - Extradition Act 1988 (Cth) proceedings - Constitutional challenge to Act referred to Full High Court for argument as on appeal - Whether High Court has jurisdiction and power to grant bail in the absence of a grant of special leave to appeal - Whether bail may be granted under Act before grant of special leave - Whether bail may be granted pursuant to the Constitution - Whether exceptional circumstances established - Relevance of extended detention of applicant in severe custodial conditions unsegregated from convicted prisoners - Whether discretion to grant bail should be exercised - Terms and conditions relevant to the grant of bail - Function of sureties and financial security appropriate to the favourable exercise of the bail discretion - Expedition of the hearing of proceedings before Full Court - Relevance of discovery of false identity documents after arrest - Relevance of presumption favourable to personal liberty in the context of the Act - Sufficiency of sureties and security to ensure compliance with bail conditions.
Words and phrases – "appeal" - "exceptional circumstances".
Extradition Act 1988 (Cth) – ss 21, 53.
242 CLR 195; 84 ALJR 588; 269 ALR 204
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 25 Aug 2010 Case Number: S367/2009
Mining – Ownership of minerals - Crown prerogative - Section 379 of the Mining Act 1992 (NSW) ("the Act") preserved any Crown prerogative in respect of mines of gold and silver - Ore mined on appellants' lands contained intermingled gold and copper, incapable of being separately mined - Royalty payable under the Act on gold and copper - Section 284 of the Act required Minister to pay seven-eighths of royalty paid on minerals not owned by or reserved to Crown to mineral owner - Whether intermingled copper owned by or reserved to Crown - Whether common law prerogative rights, as received in colony of New South Wales, included Crown ownership of intermingled copper - Whether Royal Mines Act 1688 (1 Wm & Mar c 30) excluded "mines of copper" from scope of prerogative recognised in Case of Mines (1568) 1 Plowden 310 [75 ER 472] - Whether mines on appellants' lands were "mines of copper".
Words and phrases – "mine of copper", "mine of gold", "prerogative", "privately owned mineral", "publicly owned mineral", "royal mines".
Royal Mines Act 1688 (1 Wm & Mar c 30) – s 3.
Statute 5 Wm & Mar c 6 (1693).
Mining Act 1992 (NSW) – ss 282, 284, 379.
209 CLR 339; 76 ALJR 382; 187 ALR 65
Gaudron, McHugh, Gummow, Kirby, Callinan JJ
Date: 14 Feb 2002 Case Number: P59/2001
Criminal Law – Sentence – Drug offence – Complaint wrongly particularised prohibited drug – Guilty plea entered as soon as complaint amended – Whether plea entered at first reasonable opportunity
Criminal Law – Sentence – Guilty plea as mitigating factor in sentencing – Whether guilty plea as mitigating factor in sentencing discriminatory.
Sentencing Act 1995 (WA) – ss 7 and 8.
Commonwealth Places (Application of Laws) Act 1970 (Cth) – ss 3, 4, and 7.
238 CLR 304; 83 ALJR 903; 257 ALR 610
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 29 Jul 2009 Case Number: S435/2008
Trade Practices – Misleading or deceptive conduct – Where vendor of share in company provided documents prior to making of share sale agreement that did not accurately state company's past financial performance, failed to correct some estimates of company's expected performance when vendor knew or ought reasonably to have known, prior to making of agreement, that estimated performance not achieved, and incorporated some statements of financial performance in share sale agreement with various warranties as to their accuracy – Whether conduct misleading or deceptive – Whether representations pleaded actually made – Relevance of whole course of conduct between parties – Relevance of character of some statements as estimates.
Trade Practices – Misleading or deceptive conduct – Whether purchaser suffered loss or damage "by conduct of" vendor – Causation and reliance – General principles – Relevance of contractual warranty by purchaser that purchaser had not relied on warranties other than those given in agreement.
Corporations – Oppression – Where Corporations Act 2001 (Cth), s 233(1) empowered court, if one or more grounds set out in s 232 satisfied, to make any order it considered appropriate in relation to company, including order for purchase of any shares by any member – Where grounds in s 232 included circumstance that conduct of company's affairs "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity of in any other capacity" – Whether vendor's conduct "oppressive to, unfairly prejudicial to, or unfairly discriminatory against", purchaser – Relevance of circumstance that conduct not continuing at time order made – Whether order for repurchase of share in company could or should be made in circumstances where, at time of making order, provisional liquidator had sold business and assets of company, proceeds had been disbursed and shares in company were worthless.
Contracts – Breach of warranties – Whether vendor breached warranties in share sale agreement.
Contracts – Implied terms – Implied duty to co-operate – Scope of duty contended for.
Words and phrases – "by conduct of another person", "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member".
Fair Trading Act 1987 (NSW) – ss 42, 68.
Corporations Act 2001 (Cth) – Pt 2F.
83 ALJR 1101; 259 ALR 402
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 23 Sep 2009 Case Number: S435/2008
Procedure – Costs.
Federal Proceedings (Costs) Act 1981 (Cth) – s 6.
229 CLR 386; 80 ALJR 1441; 229 ALR 58
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 30 Aug 2006 Case Number: S514/2005 S515/2005 S516/2005 S517/2005 S518/2005 S519/2005 S520/2005
Practice – Representative proceedings – Supreme Court Rules 1970 (NSW), Pt 8 r 13 – Representative proceedings brought in each case by a licensed tobacco retailer to recover from its wholesaler licence fees paid from the beginning of the financial year commencing 1 July 1997 until the decision in Ha v State of New South Wales which declared the licensing scheme invalid and which licence fees were not paid to the taxing authorities – Proceedings financed by litigation funder – Proceedings intended to be conducted by litigation funder on behalf of those retailers who "opted-in".
Practice – Representative proceedings – Supreme Court Rules 1970 (NSW), Pt 8 r 13 – Whether provisions for representative proceedings in the Supreme Court Rules were validly engaged – "Same interest" – Common interest of fact or law – Whether there were, at the time the proceedings were commenced, numerous persons who had the same interest in the proceedings – Proceedings intended to be conducted on behalf of those retailers who subsequently "opted-in" – None had "opted-in" when proceedings commenced ¬– Relationship between "same interest" and relief sought.
Practice – Representative proceedings – Stay of proceedings – Abuse of process – Public policy – Proceedings financed by litigation funder – Litigation funder sought out possible claimants – Retailer gave up to funder one-third of its claim – Whether the representative proceedings should be stayed as contrary to public policy or an abuse of process – Maintenance, Champerty and Barratry Abolition Act 1993 (NSW).
Practice – Discovery – Right to administer interrogatories in representative proceedings to identify others with the "same interest" in the proceedings.
Constitutional law (Cth) – Judicial power of Commonwealth – Abuse of process – Consistency of common law doctrine of abuse of process with judicial process.
Words and phrases – "abuse of process", "maintenance and champerty", "public policy", "representative proceedings", "same interest", "trafficking in litigation", "overriding purpose rule".
Maintenance – Champerty and Barratry Abolition Act 1993 (NSW).
Supreme Court Rules 1970 (NSW) – Pt 1, r 3; Pt 8, r 13.
202 CLR 45; 169 ALR 677
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 9 Mar 2000 Case Number: S41/1999 S42/1999
Trade Marks – "NIKE" - Appellants and respondents registered identical trade marks in respect of different products - Appellants' use of mark likely to deceive or cause confusion - Appellants intended to take advantage of respondents' goodwill - Application to expunge appellants' trade marks.
Trade Marks – Whether s 28 of Trade Marks Act 1955 (Cth) has continuing or secondary operation - Interests to which protection under s 28 is directed - Whether s 28 prevents "dilution" of trade mark - Whether s 28 accommodates prior or honest concurrent use - Whether appellants' trade marks had a reasonable probability of causing confusion - Issue to be considered prospectively at date of application for registration - Power to expunge mark from Register - Exercise of discretion on appeal - Limitation of goods for which trade mark registered.
Trade Practices – Misleading or deceptive conduct - Significance of "erroneous assumption" - Nexus between conduct and misconceptions or deceptions - Effect upon ordinary or reasonable members of the class of prospective purchasers to whom conduct directed.
Words and Phrases – "likely to deceive or cause confusion" - "wrongly made in the Register" - "wrongly remaining in the Register" - "blameworthy activities" - "dilution" - "probability of confusion" - "misleading or deceptive conduct" - "erroneous assumption".
Trade Marks Act 1955 (Cth) – ss 22, 28, 34, 53(2), 58, 61.
Trade Marks Act 1995 (Cth) – ss 93, 96, 207, 233(1), 234, 250.
Trade Practices Act 1974 (Cth) – ss 52, 80.
French CJ, Hayne, Crennan, Kiefel, Gageler JJ
Date: 3 Dec 2014 Case Number: S67/2014
Intellectual property – Trade marks – Foreign words – Appellant was registered owner of trade marks "ORO" and "CINQUE STELLE" in respect of products including coffee – Respondent sought cancellation of appellant's trade marks – Whether trade marks inherently adapted to distinguish appellant's goods from goods of other persons
Words and phrases − "covert and skilful allusion" – "directly descriptive", "inherently adapted to distinguish", "ordinary signification".
Trade Marks Act 1995 (Cth) – s 41.
226 CLR 535; 80 ALJR 1578; 229 ALR 445
Gummow ACJ, Kirby, Callinan, Heydon, Crennan JJ
Date: 28 Sep 2006 Case Number: S154/2006
Workers compensation − Injury and impairment − Liability of Comcare to pay compensation in respect of an injury which results in a permanent impairment pursuant to s 24 of the Safety – Rehabilitation and Compensation Act 1988 (Cth) ("the Act") − Where Comcare required to determined the degree of permanent impairment resulting from an injury under the approved Guide − Where s 25(4) of the Act provides that no further compensation payable in respect of a subsequent increase of less than 10 percent in the degree of impairment where Comcare has made a final assessment of the degree of permanent impairment of the employee − Where the worker sustained a physical injury to the back and also a mental injury being a post traumatic stress disorder − Where the mental injury manifested itself later in time than the physical injury − Whether s 25(4) of the Act precluded Comcare from being liable to pay compensation in respect of the mental injury because it resulted in an increase of less than 10 percent in the degree of impairment of the employee.
Statute − Statutory construction − Whether repugnancy arises between s 24 and s 25(4) of the Act in circumstances where something is both an injury and produces a subsequent increase in the degree of permanent impairment of the employee.
Safety – Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 24, 25(4).
232 CLR 138; 82 ALJR 1; 239 ALR 415
Gleeson CJ, Gummow, Kirby, Heydon, Crennan JJ
Date: 23 Oct 2007 Case Number: P34/2006
Criminal law – Evidence – Admissibility of videotape evidence of admissions recorded without suspect's consent – Police videotaped conversation with appellant in the lockup section of the police station – Appellant was unaware lockup conversation was being videotaped – Appellant made certain admissions – Whether lockup conversation was an "interview" within the meaning of s 570(1) of the Criminal Code (WA) ("the Code") – Relevance of formality of the lockup conversation – Whether s 570D(4) of the Code excluded, by implication, admissibility of videotape evidence of admissions recorded without suspect's consent – Relevance of assumption in s 570D(4)(c) of the Code that consent required – Difference between implication and assumption – Whether an "admission" within the meaning of s 570D of the Code included only those admissions capable of being videotaped.
Statutes – Interpretation – Purposive interpretation – Where the statutory provision reflects compromise between competing interests – Relevance of purpose or object of statute.
Words and phrases – "admissibility", "assumption", "consent", "exceptional circumstances", "formality", "implication", "interview", "right to silence".
Criminal Code (WA) – Ch LXA, ss 570(1), 570D.
Interpretation Act 1984 (WA) – s 18.
83 ALJR 579; 254 ALR 379
Gummow, Hayne, Crennan, Kiefel, Bell JJ
Date: 21 Apr 2009 Case Number: S30/2009
Criminal law – Sentencing - Prosecution appeal against sentence - Where sentence said to be "manifestly inadequate" - Where no specific error of principle or law alleged and case said to fall within last category of error identified in House v The King (1936) 55 CLR 499, namely sentence "unreasonable and plainly unjust" - Whether Court of Criminal Appeal erred in concluding sentence manifestly inadequate - Distinction between fresh consideration of how appellant's conduct to be characterised, and evaluation of adequacy of sentence by reference to matters of fact different from those found by primary judge.
Words and phrases – "manifestly inadequate".
Criminal Appeal Act 1912 (NSW) – s 5D(1).
French CJ, Hayne, Bell, Gageler, Keane JJ
Date: 4 Feb 2015 Case Number: S141/2014
Real property – Torrens system land – Indefeasibility of title – Respondent company transferred property to appellant and appellant's husband ("Claude") – Claude acted fraudulently in purchasing property – Claude later transferred his interest in property to appellant for nominal consideration – Whether fraud brought home to appellant as registered proprietor or to her agent – Whether Claude appellant's agent – Whether appellant's title defeasible because Claude had acted as appellant's agent – Whether appellant's title defeasible because Claude and appellant were registered as joint tenants – Whether appellant's title defeasible because of Claude's fraud pursuant to s 118(1)(d) of Real Property Act 1900 (NSW).
Words and phrases – "agent", "brought home to the person whose registered title is impeached or to his agents", "fraud", "joint proprietor", "joint tenant", "registered as proprietor of the land through fraud", "through".
Real Property Act 1900 (NSW) – ss 42(1), 100(1), 118(1).
201 CLR 189; 74 ALJR 535; 169 ALR 439
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby JJ
Date: 10 Feb 2000 Case Number: S110/1999
Criminal law – False evidence - Independent Commission Against Corruption - Whether hearing conducted by Assistant Commissioner was a "hearing before the Commission" - Evidence of delegation by Commissioner.
Independent Commission Against Corruption Act 1988 (NSW) – ss 30, 87.
247 CLR 149; 87 ALJR 528; 296 ALR 394
Hayne, Crennan, Kiefel, Bell, Gageler JJ
Date: 10 Apr 2013 Case Number: S263/2012
Real property – Torrens system land – Easements – Registered proprietor of servient tenement requested Registrar-General remove easement from Register – Easement removed from Register without objection from registered proprietors of dominant tenement – Subsequent purchaser of dominant tenement requested that Registrar-General restore easement to Register – Registrar-General refused – Whether deliberate removal of easement from Register "omission" within meaning of s 42(1)(a1) of Real Property Act 1900 (NSW) ("Act") – Whether subsequent purchaser of dominant tenement barred from action against Registrar-General under s 12A(3) of Act for removal of easement – Whether subsequent purchaser "person who is dissatisfied" with Registrar-General's decision under s 122 of Act.
Words and phrases – "in the case of the omission", "omission", "person who is dissatisfied".
Real Property Act 1900 (NSW) – ss 12(1)(d), 12A, 32(6), 41, 42(1), 42(1)(a1), 122, 136, 138.
87 ALJR 1159; 303 ALR 84
Hayne, Crennan, Kiefel, Bell, Gageler JJ
Date: 30 Oct 2013 Case Number: S263/2012
Practice and procedure – Judgments and orders – Power to vacate orders not yet entered – Whether Court should exercise power and withdraw published reasons.
Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 16 Nov 2016 Case Number: A24/2016 A26/2016
Criminal law – Appeal against conviction – Application of proviso – Where appellants convicted of murder arising out of joint criminal enterprise – Where evidence of exculpatory statement by one appellant wrongly left to jury as evidence of admission – Where remaining evidence circumstantial – Whether no substantial miscarriage of justice occurred.
Criminal law – Summing-up – Where one appellant gave evidence – Where trial judge referred jury to aspects of appellant's evidence but did not summarise it – Whether appellant's case fairly left to jury.
Criminal law – Admissibility of evidence – Where evidence that one appellant possessed handguns months prior to shooting – Whether evidence "discreditable conduct evidence" within meaning of s 34P(1) of Evidence Act 1929 (SA) – Whether open to conclude probative value of evidence substantially outweighed prejudicial effect.
Words and phrases – "admissibility", "discreditable conduct evidence", "exculpatory assertion", "proviso", "substantial miscarriage of justice", "summing-up".
Criminal Law Consolidation Act 1935 (SA) – s 353(1).
Evidence Act 1929 (SA) – s 34P.
215 CLR 1; 77 ALJR 1312; 199 ALR 131
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 16 Jul 2003 Case Number: B22/2002
Negligence – Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and future costs of raising and maintaining child until the age of 18 years - Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child.
Public policy – Family relationships - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether birth of child is a legal harm for which damages may be recovered - Whether departure is required from ordinary tortious rules as to causation and economic loss.
Damages – Negligence - Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Whether recovery limited to damages for pain, suffering, inconvenience and costs of pregnancy and childbirth - Whether additional damages recoverable for past and future costs of raising and maintaining child until the age of 18 years - Whether absence of physical injury to father of child indicates that damage amounts to pure economic loss - Whether unplanned pregnancy constitutes injury to mother - Applicable rules governing recovery in such a case - Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child - Whether recovery limited to cases involving extra costs caused by disability of parent or child.
228 CLR 168; 80 ALJR 1509; 229 ALR 1
Gleeson CJ, Kirby, Callinan, Heydon, Crennan JJ
Date: 31 Aug 2006 Case Number: M3/2006
Taxation – Charities - Pay-roll tax exemption - Meaning of "charitable body" - Whether privately-established non-profit organisation is a "charitable body" for purposes of pay-roll tax exemption - Whether organisation precluded from being characterised as "charitable body" because of its relationship with Commonwealth Government - Whether involvement in implementation of government policy precludes organisation from being characterised as "charitable body".
Words and phrases – "charitable body".
Pay –roll Tax Act 1971 (Vic), s 10(1)(bb).