Judgments, ordered by case name

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E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15

241 CLR 144; 84 ALJR 352; 265 ALR 645
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 19 May 2010 Case Number: S189/2009
Intellectual property – Trade marks - Respondent sought removal of appellant's registered trade mark from Register for non-use during prescribed statutory period - Previous foreign registered owner of trade mark authorised by licence attachment of trade mark to goods offered for sale and sold overseas - Goods offered for sale and sold in Australia during statutory period without knowledge of appellant, previous registered owner and licensee of trade mark - Whether trade mark used in Australia by registered owner or authorised user - Whether registered owner or authorised user must knowingly project goods bearing trade mark into course of trade in Australia - Whether use in good faith.

Words and phrases – "in the course of trade", "use in good faith".

Trade Marks Act 1995 (Cth) – ss 92(4), 100(1), 100(3).

East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission [2007] HCA 44

233 CLR 229; 81 ALJR 1868; 239 ALR 50
Gleeson CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 27 Sep 2007 Case Number: S57/2007
Trade Practices – Third party access regime for natural gas pipelines - East Australian Pipeline Pty Limited ("EAPL") owned a natural gas pipeline which was a Covered Pipeline under the National Third Party Access Code for Natural Gas Pipeline Systems ("the Code") - EAPL was required to submit to the Australian Competition and Consumer Commission ("the ACCC") an Access Arrangement for use of the pipeline by third parties - ACCC rejected EAPL's proposed Access Arrangement and adopted its own Access Arrangement incorporating a Reference Tariff based on a lower initial Capital Base ("ICB") than that proposed by EAPL - ACCC arrived at an ICB in a novel fashion - Section 8. 10 of the Code sets out a number of factors which are to be considered in establishing the ICB for an existing pipeline - Proper construction of s 8. 10 of the Code - Whether s 8. 10 of the Code permits a novel asset valuation methodology.

Administrative Law – Administrative review of a regulatory decision - Australian Competition Tribunal ("the Tribunal") varied the determination by the ACCC substituting a new ICB - Grounds for review included a ground that "the exercise of the relevant Regulator's discretion was incorrect or unreasonable having regard to all the circumstances" - Nature and scope of the Tribunal's jurisdiction to review decision of the ACCC.

Administrative Law – Judicial review of the outcome of an administrative review - Full Court of the Federal Court set side the Tribunal's determination of the ICB -Whether error of law within the meaning of s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) established - Whether there was jurisdictional error attracting the Federal Court's jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth).

Gas Pipelines Access (South Australia) Act 1997 (SA) – s 39 of Sched 1, s 8. 10 of Sched 2.

Administrative Decisions (Judicial Review) Act 1977 (Cth) – s 5(1)(f).

Judiciary Act 1903 (Cth) – s 39B.

Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28

214 CLR 318; 77 ALJR 1122; 198 ALR 1
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 28 May 2003 Case Number: C11/2002
Administrative law – Injunction and declaration sought to prevent magistrate from conducting an inquiry under s 475 Crimes Act 1900 (ACT) – Whether Supreme Court judge had power to instigate such an inquiry in the circumstances – Whether a doubt as to an accused person's fitness to plead is a doubt as to the "guilt" of that person – Whether "guilt" means "guilt as established by the conviction" or only the occurrence of the acts or omissions that constitute the offence – Whether a doubt as to the fitness to plead of an accused person is relevant to such an inquiry.

Criminal law – Inquiry after conviction – Inquiry under s 475 Crimes Act 1900 (ACT) instituted – Whether Supreme Court judge had power to instigate such an inquiry in the circumstances – Whether a doubt as to an accused person's fitness to plead is a doubt as to the "guilt" of that person – Whether "guilt" means "guilt as established by the conviction" or only the occurrence of the acts or omissions that constitute the offence – Whether a doubt as to the fitness to plead of an accused person is relevant to such an inquiry.

Statutes – Interpretation – Provision for inquiry into a suggested doubt or question as to the guilt of a person convicted of a criminal offence – Construction of words of legislation so that all integers operate congruously and harmoniously – Construction by reference to words included and omitted – Construction by reference to legal history of Australian and English progenitors to the subject provision – Construction to give effect to a beneficial, remedial provision – Adoption of a purposive approach to statutory construction.

Words and phrases – "guilt", "doubt or question".

Crimes Act 1900 (ACT) – s 475.

Administrative Decisions (Judicial Review) Act 1989 (ACT).

Eastman v The Queen [2000] HCA 29

203 CLR 1; 74 ALJR 915; 172 ALR 39
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 25 May 2000 Case Number: C5/1997
Constitutional Law (Cth) – Appellate jurisdiction of High Court - Appeal from a federal court - Whether High Court has power to receive new evidence in an appeal from a federal court - Whether power to receive new evidence is different in appeals from federal and state courts.

Constitutional Law (Cth) – Interpretation - Relevance of historical background to Constitution.

Appeals – New evidence - Whether admissible on appeal to High Court.

Criminal Law and Practice – Fitness to plead - Issue not raised at trial - Whether material before appeal court suggested issue of fitness to plead at trial - Whether appeal court under a duty to investigate whether an accused was fit to plead at trial - Whether fundamental failure of trial process.

Words and phrases – "appellate jurisdiction" - "appeal" - "fresh evidence" - "fitness to plead".

Constitution – s 73.

Mental Health (Treatment and Care) Act 1994 (ACT) – s 68.

Crimes Act 1900 (ACT) – s 428E.

Federal Court of Australia Act 1976 (Cth) – s 24.

Ebner v The Official Trustee in Bankruptcy [2000] HCA 63

205 CLR 337; 75 ALJR 277; 176 ALR 644
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 7 Dec 2000 Case Number: M131/1999 M2/2000
Courts and judges – Bias - Reasonable apprehension of bias - Direct or indirect shareholding by judge in a corporation which is a party to litigation or financially interested in its outcome - Whether judge automatically disqualified - Principles governing disqualification - Disclosure - Relationship between principles governing disqualification and requirement of disclosure - Necessity - Whether there is a principle of necessity - Circumstances for operation of principle of necessity.

Constitutional Law (Cth) – Chapter III - Judicature of the Commonwealth - Impartiality of Judiciary - Bias - Reasonable apprehension of bias - Whether requirement of impartial and independent judge derived from implications arising from Chapter III of the Constitution.

Words and Phrases "impartial" – "independent".

Constitution – Ch III.

Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12

Kiefel, Bell, Gageler, Nettle, Gordon JJ
Date: 29 Mar 2017 Case Number: M143/2016
Contract – Construction and interpretation of contracts – Long-term lease – Standard form contract – Where parties entered lease because unable to effect sale and purchase of land due to planning restrictions – Where standard form lease amended by parties – Where clause pertaining to payment of rates, taxes, assessments and other outgoings ambiguous – Whether parties intended lease to resemble sale and purchase of land – Whether lessee liable to pay all rates, taxes, assessments and other outgoings or only liable to pay those payable in lessee's capacity as tenant.

Words and phrases – "commercial purpose and objects", "commercial sense", "deletions from standard form contract", "in respect of the said premises", "payable by the tenant", "reasonable businessperson".

Edwards v Santos Limited [2011] HCA 8

242 CLR 421; 85 ALJR 463; 275 ALR 489
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 30 Mar 2011 Case Number: S153/2010
Practice and procedure – Federal Court of Australia - Summary judgment - Applications by defendants to dismiss proceedings summarily under s 31A(2) of Federal Court of Australia Act 1976 (Cth) - Plaintiffs "registered native title claimant" under s 253 of Native Title Act 1993 (Cth) ("NTA") in respect of certain land - Plaintiffs and first and third defendants negotiating Indigenous Land Use Agreement ("ILUA") under NTA that included land first and third defendants claimed was encumbered by "Authority to Prospect" ("ATP") granted by second defendant under Petroleum Act 1923 (Q) - ATP entitled first and third defendants to apply to Minister for grant of lease of encumbered land for purpose of petroleum exploration - Plaintiffs sought declarations that grant of lease to first and third defendants would not be valid and any lease granted would not be a "pre-existing right-based act" within meaning of s 24IB of NTA - Whether plaintiffs have sufficient interest for grant of declaratory and injunctive relief - Whether questions raised by plaintiffs hypothetical - Whether plaintiffs seeking advisory opinion.

Practice and procedure – Federal Court of Australia - Jurisdiction - Section 213(2) of NTA conferred jurisdiction on Federal Court with respect to "matters arising under" NTA - Where determination of whether lease would be valid and whether lease would be a pre-existing right-based act may affect ILUA negotiations - Whether negotiation of ILUA a matter arising under NTA.

Practice and procedure – High Court - Original jurisdiction - Costs - Application pursuant to s 75(v) of Constitution for writs directed to Federal Court to quash orders of that Court - Section 26 of Judiciary Act 1903 (Cth) empowers High Court to award costs in "all matters brought before the Court" - Section 32 empowers High Court in exercise of original jurisdiction to grant all such remedies as parties are entitled to "so that as far as possible all matters in controversy between the parties" may be "completely and finally determined" - Where High Court quashes orders of Federal Court - Whether High Court may make costs order in place of orders quashed.

Words and phrases – "advisory opinion", "certiorari", "completely and finally", "hypothetical", "matter", "reasonable prospects of success", "standing", "sufficient interest".

Federal Court of Australia Act 1976 (Cth) – ss 31A(2), 33(4B)(a).

Judiciary Act 1903 (Cth) – ss 26, 32.

Native Title Act 1993 (Cth) – s 213.

ElecNet (Aust) Pty Ltd v Commissioner of Taxation [2016] HCA 51

Kiefel, Gageler, Keane, Nettle, Gordon JJ
Date: 21 Dec 2016 Case Number: M104/2016
Taxation – Unit trusts – Public trading trust – Where trust settled by deed – Where employers become members of industry severance scheme created by trust – Where members of scheme obliged to make payments to trustee – Where trustee credits payments to accounts in name of individual employees – Where trustee makes payment to employee upon termination of employment – Whether unit trust within meaning of Div 6C of Pt III of the Income Tax Assessment Act 1936 (Cth).

Words and phrases – "beneficial interest", "ordinary acceptation", "prescribed trust estate", "public trading trust", "unit", "unit trust".

Income Tax Assessment Act 1936 (Cth) – ss 102M, 102P, 102R, 102S, 102T.

Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7

88 ALJR 447; 306 ALR 25
French CJ, Hayne, Crennan, Kiefel, Gageler JJ
Date: 5 Mar 2014 Case Number: P47/2013 P48/2013
Contract − Construction – Long term gas supply agreement – Sellers obliged to use "reasonable endeavours" to supply supplemental gas – Agreement allowed sellers to take into account all "relevant commercial, economic and operational matters" in determining whether able to supply supplemental gas – Gas explosion at plant operated by third party temporarily reduced supply of gas to market – Sellers refused to supply supplemental gas at price stipulated in agreement during period of reduced supply – Sellers offered to supply equivalent quantities of gas at higher price under separate short term agreements – Whether sellers breached obligation to use "reasonable endeavours" to supply supplemental gas.

Words and phrases – "able", "reasonable endeavours", "relevant commercial, economic and operational matters".

Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40

221 CLR 309; 78 ALJR 1231; 209 ALR 116
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 2 Sep 2004 Case Number: S245/2003 A211/2003 A212/2003
Industrial law (Cth) – Industrial action – Whether industrial action protected action – Industrial action in support of claims in respect of proposed certified agreement – Where proposed agreement included bargaining agent's fee payable to unions – Where bargaining agent's fee to be paid by all employees including non-union members – Whether bargaining agent's fee provision about matter pertaining to the relationship between employer and employee – Whether proposed agreement an agreement about matters pertaining to the relationship between an employer and its employees – Whether "protected action" in s 170ML of the Workplace Relations Act 1996 (Cth) includes industrial action in support of a proposed agreement that is not capable of certification under Div 4 of Pt VIB.

Industrial law (Cth) – Industrial action – Whether prohibition on industrial action in s 170NC of the Workplace Relations Act 1996 (Cth) includes industrial action in support of a proposed agreement that is not capable of certification under Div 4 of Pt VIB – Legislative objective of s 170NC.

Statutes – Interpretation – Presumption against abrogation of common law rights – Presumption against depriving persons of access to courts – Scope of interpretative presumptions – Application of presumptions to ss 170ML and 170MT of the Workplace Relations Act 1996 (Cth).

Workplace Relations Act 1996 (Cth) – ss 170LI, 170ML, 170MT, 170NC.

Elias v The Queen [2013] HCA 31

248 CLR 483; 87 ALJR 895; 298 ALR 637
French CJ, Hayne, Kiefel, Bell, Keane JJ
Date: 27 Jun 2013 Case Number: M29/2013 M25/2013
Criminal law – Sentence – Where offence carries higher maximum penalty than other offence for which offender could have been prosecuted – Whether sentencing judge required to take lesser maximum penalty for other offence into account as mitigating factor – Whether R v Liang (1995) 124 FLR 350 should be followed.

Criminal law – Respective roles of prosecution and sentencing judge – Whether appropriate for sentencing judge to have regard to other offence which judge considers as appropriate or more appropriate to facts of case.

Sentencing Act 1991 (Vic) – s 5(1), (2).

Elliott v The Queen [2007] HCA 51

234 CLR 58; 82 ALJR 82; 239 ALR 651
Gummow, Hayne, Heydon, Crennan, Kiefel JJ
Date: 8 Nov 2007 Case Number: S215/2007 S218/2007
Criminal law – Criminal appeals – Jurisdiction of Court of Criminal Appeal – The appellants were sentenced to life imprisonment and were subject to a non-release recommendation made by the sentencing judge – Whether the non-release recommendation was a "sentence" or "order" for the purposes of an appeal pursuant to s 5 of the Criminal Appeal Act 1912 (NSW).

Courts – Judgments – Circumstances in which judgments may be reopened – Earlier order not perfected – Relevance of subsequent legislative changes – Whether Court of Criminal Appeal erred in refusing leave to reopen judgment.

Words and Phrases – "non-release recommendation", "order", "reopen", "sentence".

Crimes Act 1900 (NSW) – ss 19, 442.

Criminal Appeal Act 1912 (NSW) – ss 3, 5, 6.

Sentencing Act 1989 (NSW) – s 13A.

Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 (NSW) – Sched 1 Item 1.

Em v The Queen [2007] HCA 46

232 CLR 67; 81 ALJR 1896; 239 ALR 204
Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ
Date: 4 Oct 2007 Case Number: S59/2007
Criminal law – Evidence - Confessions and admissions - Discretionary grounds for exclusion - Unfairness discretion - Police covertly recorded a conversation with the appellant in a park - Appellant made certain admissions - Appellant not aware that he was being recorded - Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically - Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court - Interpretation of s 90 of the Evidence Act 1995 (NSW) - Whether admitting evidence of admissions in these circumstances was unfair - Reliability of the admissions - Whether right to silence impugned - Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable.

Words and phrases – "unfair".

Evidence Act 1995 (NSW) – ss 84, 85, 90, 137, 138.

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55

218 CLR 471; 79 ALJR 206; 211 ALR 101
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 16 Nov 2004 Case Number: B93/2003 B94/2003 B95/2003 B96/2003 B97/2003 B98/2003
Contract – Loan - Written agreement and prior oral agreement - Written agreement inconsistent with terms of alleged prior oral agreement - No allegation of mistake or claim to rectification - Borrower bound by written agreement.

Contract – Loan - Direction to lender to apply money lent in payment of moneys due from borrower to third party - Series of connected and legally effective transactions creating and satisfying debts - One of those transactions satisfying amount due from borrower to third party - No payment by cheque or cash - Does a loan require the transfer of "real money" - Whether loan made as agreed.

Practice and Procedure – Appeal and new trial - Remitter for further consideration.

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [No 2] [2005] HCA 5

79 ALJR 564; 213 ALR 309
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 10 Feb 2005 Case Number: B93/2003 B94/2003 B95/2003 B96/2003 B97/2003 B98/2003
Costs – Disposition of costs in an appeal to the High Court.

Equuscorp Pty Ltd v Haxton [2012] HCA 7

246 CLR 498; 86 ALJR 296; 286 ALR 12
French CJ, Gummow, Heydon, Crennan, Kiefel, Bell JJ
Date: 8 Mar 2012 Case Number: M128/2010 M129/2010 M130/2010 M131/2010 M132/2010
Restitution – Restitution of benefits derived from unenforceable or illegal contracts - Recovery of money paid as money had and received - Respondents invested in tax driven blueberry farming schemes - Respondents borrowed funds to pay farm management fees - Each investment a "prescribed interest" under Companies Code of each respondent's home State ("Code") - Contrary to s 170(1) of Code, no valid prospectus registered when prescribed interests offered - Farming schemes collapsed - Respondents did not repay loan funds - Loan agreements unenforceable against respondents due to illegality - Whether restitution of loan funds available - Whether failure of consideration - Whether respondents' retention of loan funds unjust.

Personal property – Alienation of personal property - Assignment of choses in action - Assignment of right to restitution - Deed of assignment included assignment of legal right to debts and "all legal and other remedies" - Whether right to restitution capable of assignment - Whether deed of assignment assigned right to restitution.

Words and phrases – "bare right of action", "chose in action", "failure of consideration", "legal and other remedies", "money had and received", "prescribed interest", "unjust enrichment".

Companies Code – ss 170, 174.

Property Law Act 1974 (Q) – s 199(1).

Judicature Act 1873 (UK) – s 25(6).

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8

209 CLR 95; 76 ALJR 465; 187 ALR 92
Gaudron, McHugh, Kirby, Hayne, Callinan JJ
Date: 7 Mar 2002 Case Number: A22/2001
Contract – Intention to create contractual relations - Engagement of a minister of religion - Whether presumption against intention to create contractual relations.

Churches and Religious Associations – Appointment and removal of ministers of religion - Discussion of presumption that no intention to create contractual relations.

Primary decision –maker was a Magistrate - Appeals - Finding by primary decision-maker - Whether primary decision-maker failed to consider parties' intention to create contractual relations - Appellate review of findings by primary decision-maker.

Esso Australia Pty Ltd v The Australian Workers' Union [2017] HCA 54

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 6 Dec 2017 Case Number: M185/2016 M187/2016
Industrial relations – Fair Work Act 2009 (Cth) – Protected industrial action – Common requirements for industrial action to qualify as protected industrial action – Where s 413(5) of Fair Work Act requires that persons organising or engaging in proposed protected industrial action "must not have contravened any orders that apply to them" in relation to relevant agreement – Where order obtained from Fair Work Commission requiring union to stop organising certain industrial action – Where union contravened order – Whether union's contravention of order precluded satisfaction of common requirement in s 413(5) in relation to subsequent industrial action – Whether s 413(5) requires only that relevant persons not be contravening orders extant at time of proposed protected industrial action – Whether relevant contraventions limited to contraventions of orders committed in course of organising or engaging in proposed protected industrial action.

Industrial relations – Fair Work Act 2009 (Cth) – Organising, taking or threatening action with intent to coerce contrary to s 343 or s 348 of Fair Work Act – Whether person must act with intent that action be unlawful, illegitimate or unconscionable – Whether person must have subjective understanding of factual circumstances rendering action unlawful, illegitimate or unconscionable.

Words and phrases – "coercive action", "common requirements", "compliance with orders", "extant orders", "intent to coerce", "must not have contravened any orders", "past contravention", "protected industrial action", "statutory interpretation", "unlawful, illegitimate or unconscionable".

Fair Work Act 2009 (Cth) – ss 343, 348, Ch 3, Pt 3-3, Div 2.

Ettridge v Director of Public Prosecutions (Q) [2003] HCA 68

78 ALJR 157; 202 ALR 423
Callinan J
Date: 23 Sep 2003 Case Number: B70/2003 B71/2003
Criminal Law – application for bail pending the hearing of an application for special leave to appeal against a refusal of bail by an intermediate appellate court and before even the substantive appeal against conviction has been heard by the intermediate court of appeal - whether exceptional or special circumstances shown.

European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6

240 CLR 432; 84 ALJR 239; 264 ALR 1
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 10 Mar 2010 Case Number: S272/2009
Damages – Assessment - Remoteness - Usual undertaking as to damages - Supreme Court Rules 1970 (NSW) ("the Rules") - Respondent gave usual undertaking as to damages to court pending application for special leave to appeal to High Court - Court ordered money to which appellant otherwise entitled be paid into court in United States dollars - Appellant would have converted money from United States dollars to euros but for the order - Nature of "usual undertaking as to damages" in Pt 28 r 7(2) of the Rules - Relevance of contractual remoteness principles in Hadley v Baxendale (1854) 9 Exch 341 [156 ER 145] - Equitable origin of usual undertaking as to damages in Pt 28 r 7(2) of the Rules - What is "just and equitable" or "fair and reasonable" in the circumstances - Whether loss of preferential movement in exchange rates and interest flowed directly from order - Whether kind of loss could have been foreseen by respondent.

Words and phrases – "usual undertaking as to damages".

Supreme Court Rules 1970 (NSW) – Pt 28 r 7(2). Uniform Civil Procedure Rules 2005 (NSW), Pt 25 r 8.

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