French CJ, Gageler, Keane, Nettle, Gordon JJ
Date: 8 Jun 2016 Case Number: A7/2016
Family law – Family Law Act 1975 (Cth) – Spousal maintenance – Conditions for making or discharge of interim spousal maintenance orders – Interim spousal maintenance order in favour of wife – Application to discharge by husband – Where wife's father's will expressed wish that wife receive voluntary annual payment from family business controlled by wife's brothers – Meaning of "financial resources" under s 75(2)(b) – Whether confined to present legal entitlements – Whether finding open on evidence that wife able to support herself adequately – Whether just cause for discharge of spousal maintenance order.
Courts and judges – Procedural fairness – Whether party on notice of possibility of factual finding being made – Whether party denied opportunity to lead further evidence.
Words and phrases – "financial resources", "source of financial support", "support himself or herself adequately".
Family Law Act 1975 (Cth) – ss 72, 74, 75, 83.
229 CLR 545; 80 ALJR 519; 224 ALR 79
Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ
Date: 9 Feb 2006 Case Number: S215/2005
Compulsory acquisition – Compensation - Minister acquired land by compulsory process pursuant to Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 19 - Where land comprised many individual parcels each of which was a separate lot in a deposited plan - Transactions purportedly undertaken with the effect that lots beneficially held by a small number of registered proprietors were distributed among a larger number of equitable owners ("May 1998 transactions") - May 1998 transactions included dealings between Sealark Pty Ltd ("Sealark") and Pacinette Pty Ltd ("Pacinette") - Sealark held equitable interest in land - Pacinette constituted as trustee of unit trust in which Ordinary Class and A Class units could be allotted - A Class unit holders entitled to fractional interest in assets received in consideration of the allotment of the units, which assets were to form a separate fund to the ordinary fund - Pacinette as trustee empowered to redeem A Class units - A Class units intended to be allotted to Sealark in consideration of the transfer of Sealark's interest in the land to Pacinette as trustee - Pacinette intended to acquire equivalent number of Ordinary Class units paid for by bill of exchange drawn by Pacinette on Sealark as an accommodation party - Sealark intended to redeem all A Class units and Pacinette to pay redemption moneys by endorsing bill of exchange to Sealark - Assets of A Class fund were thereby to become assets in the ordinary fund the entire equitable interest in which was vested in Pacinette - Whether transactions effective in law - Whether claimants for compensation had an equitable interest in the land compulsorily acquired.
Company law – Meetings - Transaction between Sealark and Pacinette was one of 770 similar transactions which made up the May 1998 transactions - Documents for the May 1998 transactions were mostly signed in one sitting in the offices of the appellants' solicitors, where those documents included minutes of meetings of the boards of directors of both Sealark and Pacinette - Whether evidence disclosed that May 1998 transactions occurred - Whether the meetings said to be recorded in the minutes occurred.
Statute of frauds – Requirement of writing - Disposition of equitable interests - Whether requirements of Conveyancing Act 1919 (NSW), s 23C(1)(c) were complied with in the course of dealings between Sealark and Pacinette.
Bills of exchange – Delivery - Negotiation by indorsement and delivery - Whether bill of exchange tendered in payment for units - Whether bill of exchange negotiated by indorsement and delivery - Whether mere intention to take steps involving tender and negotiation of bill of exchange sufficed to effectuate equitable transfer of interest in land to Pacinette.
Stamp duty – May 1998 transactions designed to ensure that Stamp Duties Act 1920 (NSW) ("Stamp Duties Act"), Pt 3, Div 3A was inapplicable to those transactions – No duty paid on those transactions – Whether transactions dutiable – Whether change in beneficial ownership occurred as a result of transfer by Sealark of its interest in the land to Pacinette as trustee in consideration of the issue of A Class units – Whether no change in beneficial ownership because Sealark was sole unit holder of A Class units – Whether change in beneficial ownership occurred as the consequence of the issue or redemption of units in a unit trust scheme for the purposes of s 44(2)(d) of the Stamp Duties Act – Whether s 29(3) of the Stamp Duties Act applied to bar admission of any documentary evidence to prove the transaction creating the equitable interests in the land in proceedings for compensation for compulsory acquisition of the land.
Words and phrases – "beneficial ownership", "occurring as the consequence of the issue or redemption of units in a unit trust scheme".
Bills of Exchange Act 1909 (Cth) – s 33(1).
Conveyancing Act 1919 (NSW) – s 23C(1)(c).
Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – ss 19, 20, 37.
Land and Environment Court Act 1979 (NSW) – s 57(1).
Stamp Duties Act 1920 (NSW) – ss 29(3), 44-44F.
Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 13 Sep 2017 Case Number: A14/2017
Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence requires prosecution to prove two or more acts of sexual exploitation – Whether generalised nature of complainant's evidence meant that not possible to identify two or more acts of sexual exploitation – Whether no case to answer.
Criminal law – Permission to appeal – Where orders made included granting application for permission to appeal – Whether majority of Court of Criminal Appeal failed to consider question of permission to appeal.
Words and phrases – "acts of sexual exploitation", "distinct occasion", "distinct transaction", "double jeopardy", "extended unanimity", "no case to answer", "particularity", "particulars", "permission to appeal", "persistent sexual exploitation of a child".
Criminal Law Consolidation Act 1935 (SA) – s 50.
Date: 8 Sep 2000 Case Number: P9/2000 P10/2000 P11/2000 P12/2000 P13/2000 P14/2000
245 CLR 282
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 8 Dec 2011 Case Number: B26/2011 B27/2011
Criminal law – Appeal - Jury misdirection - Application of proviso - Appellants in joint trial each convicted of multiple drug-related offences under Criminal Code (Cth) ("Code"), including two counts of importing commercial quantity of border controlled drugs into Australia contrary to s 307.
1 of Code ("importation offences") - Trial conducted on mistaken assumption that guilt of importation offences could be established by proof that appellants parties to joint criminal enterprise - Whether prosecution upon basis not known to law denied application of proviso under s 668E(1A) of Criminal Code (Q) - Whether directions to jury on "group exercise" distracted from real issues in trial of each count in indictment.
Words and phrases – "aids, abets, counsels or procures", "joint criminal enterprise", "proper conduct of trial", "proviso".
Criminal Code (Cth) – Ch 2, ss 11.
Criminal Code (Q) – s 668E(1A).
247 CLR 31; 86 ALJR 1256; 292 ALR 192
Gummow, Hayne, Heydon, Kiefel, Bell JJ
Date: 5 Oct 2012 Case Number: S318/2011
Defamation – Defences – Qualified privilege – Contextual truth – Substantial truth – Reply to criticism – Malice – Where appellant made broadcast in response to statements made by respondent – Whether defence of qualified privilege applicable to statements – Whether broadcast sufficiently connected to criticism by respondent – Whether broadcast made bona fide to vindicate reputation of appellant – Whether broadcast actuated by malice – Whether community standard test of "right-thinking" person relevant to substantial or contextual truth defence – Whether audience composed of ordinary decent persons relevant to substantial truth or contextual truth defence.
Words and phrases – "contextual truth", "malice", "qualified privilege", "substantial truth".
Defamation Act 1974 (NSW) – ss 3, 7A, 9, 11, 15, 16.
245 CLR 257
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 26 Oct 2011 Case Number: B28/2011 B24/2011
Criminal law – Trial - Directions to jury - Appellants convicted of charges arising from tax avoidance scheme - Appellants' dishonesty only issue at trial - Appellants gave evidence - Prosecution called appellants' accountant as witness - Appellants' counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution - Trial judge told jury they could evaluate credibility by considering a witness's "interest in the subject matter of the evidence" including "self-protection" - Whether misdirection causing miscarriage of justice - Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants' guilt - Whether direction invited jury to test appellants' evidence according to appellants' interest in outcome of trial - Principles applicable to directions about evaluation of evidence.
Criminal Code (Q) – s 668E.
226 CLR 52; 80 ALJR 791; 226 ALR 391
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 9 May 2006 Case Number: S229/2005
Torts – Medical negligence – Wrongful life – Birth of severely disabled child – Agreed for the purposes of separate questions at first instance that the respondent doctor failed to diagnose the mother's rubella infection during pregnancy – Doctor failed to warn the mother of the risk of serious disability as a consequence of the rubella infection – Whether the appellant child born with disabilities can recover from the doctor.
Duty of care – Medical practitioners – Whether the doctor owed the child a duty of care to diagnose rubella and advise the child's mother in relation to the termination of the pregnancy – Foreseeability of risk to the appellant – Whether the facts of the case fall within the established duty of care which medical practitioners owe to foetuses to take reasonable care to prevent pre-natal injury – Vulnerability of the appellant – Relevance of duty of care owed to the appellant's mother.
Damage – Whether a life with disabilities is actionable damage – Whether it is possible to prove damage by comparing a life with disabilities with non-existence.
Damages – Assessment – Measure of damages – Compensatory principle – Non-existence as a comparator – Comparison to child born without disability – Whether claim for special damages quantifiable – Whether only special damages may be awarded – Corrective justice.
Public policy – Principle of the sanctity of human life – Whether life is capable of constituting a legally cognisable injury – Effect on disabled people of awarding damages for wrongful life – Whether it would be appropriate to award damages in respect of minor defects in circumstances where a child's mother would have terminated her pregnancy had she been warned of the risk of such defects – Whether disabled child could sue his or her mother for failing to terminate her pregnancy – Whether awarding damages for wrongful life would undermine familial relationships – Relevance of unforeseen advances in genetic science.
Statutes – Whether common law can be developed by analogy with legislation – Whether it is possible to develop the common law by analogy in circumstances where there is no relevant legislative provision in any Australian jurisdiction – Relevance of legislature's inaction.
Words and phrases – "wrongful life", "wrongful birth".
Civil Liability Act 2002 (NSW) – ss 70, 71.
Civil Liability Act 2003 (Q) – s 49A.
Civil Liability Act 1936 (SA) – s 67.
188 ALR 296
Gleeson CJ, Gaudron, McHugh, Hayne, Callinan JJ
Date: 23 May 2002 Case Number: B49/2001
Criminal Law – Homicide – Unlawful killing – Appellant and co-accused engaged in armed robbery – Co-accused shot and killed victim – Appellant and co-accused tried jointly – Whether common intention to prosecute an unlawful purpose – Whether, if co-accused convicted of murder, appellant could be convicted of manslaughter.
Criminal Law – Directions to the jury – Failure to direct the jury to possibility, if co-accused convicted of murder, of finding appellant guilty of manslaughter – Whether absence of direction gave rise to a miscarriage of justice.
Criminal Code (Q) – ss 8, 289, 291, 293, 300, 302, 303.
244 CLR 22; 85 ALJR 836; 279 ALR 434
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 10 Aug 2011 Case Number: S8/2011
Constitutional law (Cth) – Judicial power of Commonwealth - Constitution, Ch III - Validity of laws - Plaintiff defence force member - Plaintiff convicted of disciplinary offences and sentenced to punishment including detention by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") - Plaintiff subjected to punishment - High Court subsequently held invalid provisions of Discipline Act establishing AMC - Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 - Whether provisions of Interim Measures Act constituted usurpation of judicial power - Whether provisions had prohibited features of bill of pains and penalties.
Constitutional law (Cth) – Powers of Commonwealth Parliament - Acquisition of property on just terms - Whether acquisition by Commonwealth of plaintiff's cause of action for false imprisonment.
Torts – False imprisonment - Liability of Commonwealth for acts of members of defence force - Detention of plaintiff a disciplinary measure applied by one member of defence force to another - Detention in obedience to command of superior - Command of superior lawful on its face - Whether action for false imprisonment destructive of military discipline - Whether action for false imprisonment available to plaintiff.
Words and phrases – "bill of pains and penalties", "false imprisonment", "military discipline", "usurpation of judicial power".
Constitution – ss 51(vi), 51(xxxi), Ch III.
Defence Force Discipline Act 1982 (Cth) – ss 3, 27, 68, 170, Pt VIIIA.
Military Justice (Interim Measures) Act (No 2) 2009 (Cth) – Sched 1, items 3, 4, 5, Pt 7.
240 CLR 590; 84 ALJR 321; 265 ALR 265
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 21 Apr 2010 Case Number: S199/2009 S200/2009
Intellectual property – Trade marks - Standing - Trade Marks Act 1995 (Cth) ("the Act"), ss 88 and 92 - Appellant and respondent both registered trade marks in class 5 for pharmaceutical products - Appellant sought cancellation of registration of respondent's trade mark under s 88 and removal of trade mark from Register under s 92 of the Act - Respondent claimed appellant not impeded in ownership and use of own trade mark by registration of respondent's trade mark - Whether appellant "aggrieved" under s 88(1) or s 92(1) of the Act - Whether "aggrieved" to be construed liberally - Whether actual desire or intention to use trade mark required to be "aggrieved" - Whether proof of adverse impact required to be "aggrieved".
Statutes – Statutory interpretation - Meaning of "aggrieved" - Subject, scope and purpose of statute - Whether "aggrieved" should be construed liberally.
Words and phrases – "aggrieved person", "person aggrieved".
Trade Marks Act 1995 (Cth) – ss 52, 59, 88, 92.
235 CLR 125; 82 ALJR 1259; 248 ALR 609
Gleeson CJ, Kirby, Hayne, Heydon, Crennan JJ
Date: 6 Aug 2008 Case Number: S123/2008
Courts – Appeal - Jurisdiction - Supreme Court of New South Wales (Court of Appeal) - Civil and criminal contempt of court - Character of contempt charged - Whether civil or criminal - Whether appeal to Court of Appeal precluded by findings and orders of primary judge acquitting alleged contemnors.
Contempt of court – Where implied undertaking by corporate litigant not to use documents prepared by another party otherwise than for purpose of proceedings in which they were prepared - Whether appellants as servants and agents of corporate litigant bound by obligation - Meaning of "implied undertaking" - Whether knowledge of implied undertaking required or whether knowledge of facts generating an obligation imposed by law sufficient.
Contempt of court – Supreme Court Act 1970 (NSW), s 101(6) - Whether breach of implied undertaking civil or criminal contempt - Whether statement of charge precluded appeal to New South Wales Court of Appeal.
Contempt of court – Disclosure of documents filed in but not yet received in evidence by court - Whether implied undertaking attached to documents that they would not be disclosed to third parties without leave of court - Where documents disclosed to Minister, a member of Parliament, and staff whether such disclosure protected by law of Parliament - Whether such disclosure protected by public interest defence based upon right of communication with Parliament - Whether such questions should or could be decided by Court on basis of grounds of appeal and in face of disclaimer by alleged contemnors.
Contempt of court – Implied undertaking not to disclose documents filed in court until received in evidence - Whether implied undertaking now a substantive rule of common law - Whether applicable law should be re-expressed - Whether such questions should or could be decided.
Parliament – State Parliament (NSW) - Privileges of - Contempt of - Whether provision of documents to Minister, a member of Parliament, within privileges of Parliament or public interest defence based thereon - Whether such questions could or should be decided in light of record and arguments of parties.
Words and phrases – "implied undertaking".
Supreme Court Act 1970 (NSW) – s 101(6).
Supreme Court Rules 1970 (NSW) – Pt 55 r 7.
French CJ, Kiefel, Bell, Gageler, Keane JJ
Date: 16 Dec 2014 Case Number: B22/2014
Criminal law – Confiscation of property – Exclusion order – Where State sought forfeiture of proceeds of sale of jewellery given to appellant by deceased father – Where appellant sought exclusion from forfeiture under s 68(2) of Criminal Proceeds Confiscation Act 2002 (Q) ("Act") on ground money not "illegally acquired property" – Where "illegally acquired property" defined by s 22(2)(a) of Act to include "proceeds of dealing with illegally acquired property" – Whether sufficient for appellant to prove money was not proceeds of illegal activity on his part – Whether appellant discharged onus placed upon him by s 68(2)(b) to prove jewellery not illegally acquired by father.
Words and phrases – "burden of proof", "civil standard of proof", "exclusion order", "forfeiture order", "illegally acquired property".
Criminal Proceeds Confiscation Act 2002 (Q) – ss 4, 22, 25, 26, 58(1), 68(2).
206 CLR 459; 75 ALJR 1410; 182 ALR 37
Gleeson CJ, Gaudron, McHugh, Gummow, Hayne JJ
Date: 6 Sep 2001 Case Number: P55/2000
Trade Practices – Misleading or deceptive conduct - Real estate transaction - Home unit development - Misleading representation by land agent to developer as to price which could be obtained for residential home units - Incorrect estimate of likely costs of development made by developer - Quantification of damages where misleading or deceptive conduct is but one of a combination of circumstances bringing about the loss ultimately suffered.
Damages – Statutory - Trade Practices Act - Measure of damages - Relevance of common law analogies when quantifying damages - Identification of loss or damage required - Causation of loss or damage - Quantification of damage caused "by conduct of" person in breach of s 52.
Words and phrases – "by conduct of".
Trade Practices Act 1974 (Cth) – ss 52, 82(1).
Date: 31 Mar 2000 Case Number: S97/1998 S36/1999 S89/1999
Date: 17 Apr 2000 Case Number: S97/1998 S36/1999 S89/1999
Date: 8 Sep 2000 Case Number: S97/1998 S36/1999 S89/1999
77 ALJR 908; 197 ALR 81
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 8 Apr 2003 Case Number: S30/2001
Criminal law – Application for special leave to appeal – Applicant to argue point not raised at trial or in intermediate appellate court – Whether circumstances of the case are exceptional.
Criminal law – Murder trial – Defences – Provocation – Misdirection of trial judge – No objection to direction – No request for further directions – Significance of misdirection in circumstances of the case.
237 CLR 130; 83 ALJR 547; 253 ALR 405
Gummow, Hayne, Heydon, Kiefel, Bell JJ
Date: 12 Mar 2009 Case Number: S470/2008
Workers' compensation – Contributory negligence - Worker recovers workers' compensation as a result
of injury - Worker brings damages claim against third party tortfeasor - Damages claim settled - Employer seeks recovery of workers' compensation pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(b) - Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates to reduce amount of repayment on account of worker's contributory negligence where damages claim settled.
Statutes – Interpretation - Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates on damages recovered by way of settlement - Whether reduction of repayment proportionate or by specific amount.
Words and phrases – "damages recoverable", "to the same extent".
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) – ss 9, 10.
Workers Compensation Act 1987 (NSW) – s 151Z(1), (5).
244 CLR 72
Gummow ACJ, Hayne, Heydon, Crennan, Kiefel JJ
Date: 22 Aug 2011 Case Number: M24/2011
Equity – Doctrine of contribution - Requirement of co-ordinate liabilities - Sub- contractor insured under insurance policy ("HIH policy") issued by member of HIH corporate group ("HIH") and under insurance policy issued by respondent's predecessor in title - Sub-contractor held liable for damage caused to third party by collapse of scaffold - HIH accepted sub-contractor's claim for indemnity under HIH policy and paid portion of sub-contractor's legal costs - After collapse of HIH corporate group, sub-contractor assigned rights against HIH to appellant as trustee under government assistance scheme and appellant paid 90 per cent of amount HIH would have paid under HIH policy in satisfaction of sub-contractor's liability and defence costs, excluding amounts already paid by HIH - Whether appellant could claim equitable contribution from respondent - Whether liabilities of appellant and respondent co-ordinate.
Words and phrases – "co-ordinate liabilities", "common burden", "common interest", "of the same nature and to the same extent".
Appropriation (HIH Assistance) Act 2001 (Cth) – ss 3, 4.