Judgments, ordered by case name

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I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41

210 CLR 109; 76 ALJR 1461; 192 ALR 1
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 2 Oct 2002 Case Number: B48/2001
Trade practices – Misleading or deceptive conduct - Enforcement and remedies - Loan transaction - Mortgage over land - Misleading and deceptive valuation of land by valuer - Failure by lender to make reasonable inquiries as to borrower's capacity to meet interest payments - Default on loan by borrower - Proceeds of sale by mortgagee insufficient to meet borrower's obligation - Liability of valuer for loss and damage suffered by lender - Causal connection between contravention of Trade Practices Act 1974 (Cth) and loss and damage suffered - Whether damages awarded under s 82 of the Trade Practices Act 1974 (Cth) to be reduced for lender's failure to take reasonable care to protect its own interests.

Trade Practices Act 1974 (Cth) – ss 52, 82, 87.

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14

239 CLR 458; 83 ALJR 585; 254 ALR 386
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel JJ
Date: 22 Apr 2009 Case Number: S415/2008
Intellectual property – Copyright – Literary work – Compilation – Infringement – Production by employees of Nine Network Australia Pty Limited ("Nine") of weekly schedules of television programmes to be broadcast on television stations within Nine Network ("Weekly Schedules") – Information from Weekly Schedules used by third parties, with licence from Nine, to produce "Aggregated Guides" containing programme schedules for various television stations – Production by employees of IceTV Pty Limited of electronic programme guide for television using information from Aggregated Guides – Subsistence of copyright in each Weekly Schedule admitted – Alleged infringement of copyright by reproduction of substantial part of Weekly Schedules – Whether reproduction of "substantial part" – Quality of part reproduced – Originality – Information/expression dichotomy – Appropriation of "skill and labour" – Relevance of skill and labour devoted to programming decisions – Relevance of competing interests and policy considerations – Animus furandi.

Intellectual property – Copyright – Literary work – Compilation – Subsistence – Need to identify author, and time of making or first publication, of work – Originality – Kind of skill and labour required – "Sweat of the brow" and "industrious collection" compared with "creativity".

Intellectual property – Copyright – Literary work – Compilation – Subsistence – Weekly Schedules produced using computer database – Whether database also work in suit – Whether Weekly Schedules same work.

Words and phrases – "animus furandi", "author", "compilation", "information/expression dichotomy", "originality", "skill and labour", "substantial part".

Copyright Act 1968 (Cth) – ss 9(3), 10(1), 14(1), 21, 22, 29, 31, 32, 33, 34, 35, 36, Pt III Div 9, Pt III.

Copyright Act 1911 (Imp) – ss 1(1), 35(1).

Copyright – Designs and Patents Act 1988 (UK), s 9(3).

Copyright Act 1976 – 17 USC §§101, 102.

Copyright Act RSC 1985 – ch C-42, s 2.

ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51

240 CLR 140; 84 ALJR 87; 261 ALR 653
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 9 Dec 2009 Case Number: S24/2009
Constitutional law (Cth) – Powers of Commonwealth Parliament – Agreement between Commonwealth and a State – National Water Commission Act 2004 (Cth) authorised Chief Executive Officer ("CEO") of National Water Commission to enter into funding agreement with State – Whether CEO authorised to enter into funding agreement with State for purpose of State acquiring property on other than just terms – Whether legislative power conferred by s 96 of Constitution, or by s 96 with s 51(xxxvi), is subject to limitations contained in s 51(xxxi) – Relevance of distinction between coercive and non-coercive legislative power.

Constitutional law (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Plaintiffs held bore licences under Water Act 1912 (NSW) ("Water Act") – Plaintiffs' licences replaced with aquifer access licences under Water Management Act 2000 (NSW) – Whether Water Act divested common law rights with respect to extraction of groundwater – Whether plaintiffs' Water Act licences property within s 51(xxxi) of Constitution – Whether replacement of licences amounted to acquisition of property.

Words and phrases – "abstraction", "acquisition", "coercive and non-coercive power", "control", "just terms", "property", "the use and flow".

Constitution – ss 51(xxxi), 51(xxxvi), 61, 96.

Irrigation – Water, Crown Lands and Hunter Valley Flood Mitigation (Amendment) Act 1966 (NSW), s 3.

National Water Commission Act 2004 (Cth) – s 24.

Water Act 1912 (NSW).

Water Management Act 2000 (NSW)
– s 45(1), Sched 10, item 3.

Water Rights Act 1896 (NSW) – s 1(I).

IL v The Queen [2017] HCA 27

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 9 Aug 2017 Case Number: S270/2016
Criminal law – Murder and manslaughter – Where appellant and deceased engaged in joint criminal enterprise – Where act causing death committed in course of joint criminal enterprise – Where Crown could not exclude possibility that deceased had committed act causing death – Where appellant charged with murder or manslaughter of deceased – Whether s 18(1) of Crimes Act 1900 (NSW) encompasses self-killing.

Criminal law – Joint criminal enterprise liability – Whether acts or liability for actus reus of crimes committed in course of joint criminal enterprise attributed to co-participant – Whether act of deceased causing death attributable to appellant.

Words and phrases – "attribution of acts", "complicity", "constructive murder", "derivative liability", "felo de se", "felony murder", "joint criminal enterprise liability", "primary liability", "rules of attribution", "self-murder", "suicide".

Crimes Act 1900 (NSW) – s 18.

Imbree v McNeilly [2008] HCA 40

236 CLR 510; 82 ALJR 1374; 248 ALR 647
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 28 Aug 2008 Case Number: S43/2008 S392/2007
Negligence – Standard of care - Definition of standard - Where unskilled and inexperienced driver with passenger who, aware of driver's lack of skill and experience, has undertaken to supervise driving - Whether "special relationship" between driver and supervising passenger such that standard of care required of driver in respect of supervising passenger is merely care reasonably to be expected of unqualified and inexperienced driver in the circumstances, rather than care to be expected of a reasonable driver - Whether Cook v Cook (1986) 162 CLR 376 should still be followed.

Negligence – Standard of care - Relevance of compulsory third party insurance to definition of standard of care in negligence in motor vehicle context.

Insurance – Motor vehicles - Compulsory third party insurance - Compulsory provisions applicable throughout Australia - Relevance of such insurance to definition of standard of care in negligence in motor vehicle context - Whether such insurance immaterial to standard of care to be expected of learner driver - Whether common law of negligence affected in relevant way by existence of compulsory third party insurance.

Words and phrases – "compulsory third party insurance", "duty of care", "proximity", "special relationship", "standard of care".

Imbree v McNeilly [No 2] [2008] HCA 47

236 CLR 567; 82 ALJR 1501; 149 ALR 441
Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 26 Sep 2008 Case Number: S43/2008 S392/2007
Procedure – Costs - Offers of compromise - Calderbank offer - Effect.

IMM v The Queen [2016] HCA 14

French CJ, Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 14 Apr 2016 Case Number: D12/2015
Evidence – Admissibility and relevance – Evidence (National Uniform Legislation) Act (NT), ss 97(1)(b), 137 – Where appellant charged with indecent dealing with child and sexual intercourse with child – Where tendency evidence given by complainant that appellant ran his hand up complainant's leg – Where evidence tendered of complaints made by complainant concerning appellant – Whether probative value of evidence assessed on assumption that jury would accept evidence – Whether trial judge should have regard to credibility of witness or reliability of evidence in assessing probative value of evidence – Whether evidence from complainant adduced to show accused's sexual interest can have significant probative value.

Words and phrases – "complaint evidence", "credibility", "danger of unfair prejudice", "probative value", "relevance", "reliability", "significant probative value", "tendency evidence".

Evidence (National Uniform Legislation) Act (NT) – ss 55, 56, 65, 66, 97(1)(b), 101, 137.

In the matter of an appeal by Gaye Alexandra Mary Luck [2003] HCA 70

78 ALJR 177; 203 ALR 1
McHugh ACJ, Gummow, Heydon JJ
Date: 4 Dec 2003 Case Number: M11/2001
Appeal against order refusing leave to issue process – Whether leave to appeal required - Where proposed action frivolous, vexatious or an abuse of process - Whether order final or interlocutory.

Judiciary Act 1903 (Cth) – s 34(2)

In the matter of an application by Andrew Green for leave to issue a proceeding [2011] HCA 5

85 ALJR 423; 275 ALR 437
Hayne J
Date: 25 Mar 2011 Case Number: S88/2011
High Court – Practice and procedure - Leave to issue proceeding - Application for order to show cause against Federal Court sitting as Court of Disputed Returns - Applicant's electoral petition dismissed by Court of Disputed Returns for failure to sufficiently set out facts relied upon to invalidate election as required by Commonwealth Electoral Act 1918 (Cth) ("Act"), ss 355(a) and 355(aa) - Whether application to show cause raises "real question to be determined".

Administrative law – Electoral law - Electoral petitions - Applicant's electoral petition alleged contraventions of ss 184(1), 326(1)(c) and 327(1) of Act and error by Divisional Returning Officer invalidated election - Whether conclusion of Court of Disputed Returns that electoral petition does not sufficiently set out facts relied upon to invalidate election as required by ss 355(a) and 355(aa) of Act attended by doubt.

Constitutional law (Cth) – Section 368 of Act provides that decisions of Court of Disputed Returns shall not be questioned in any way - Applicant contends s 368 of Act invalid - Whether question of validity arises.

Words and phrases – "real question to be determined".

Constitution – s 75(v).

Commonwealth Electoral Act 1918 (Cth) – ss 184(1), 326(1)(c), 327(1), 352(1), 355(a), 355(aa), 358, 362, 368.

High Court Rules 2004 – r 6. 07.

In the matter of an application by Graham Freemantle for leave to issue a proceeding [2011] HCA 6

85 ALJR 433; 275 ALR 449
Hayne J
Date: 25 Mar 2011 Case Number: S89/2011
High Court – Practice and procedure - Leave to issue proceeding - No question arises differing in any material respect from questions arising in another application - Applicant adopts submissions made in that other application - Leave refused in that other application.

High Court Rules 2004 – r 6. 07.

In the Matter of an Application by the Chief Commissioner of Police (Vic) [2005] HCA 18

79 ALJR 881; 214 ALR 422
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Heydon JJ
Date: 20 Apr 2005 Case Number: M49/2004 M50/2004 M102/2004 M103/2004
Practice and procedure – Appeal from order of trial judge to prohibit, for a limited time, the publication of methods and material used by police in murder investigations - Whether appeal to Court of Appeal barred by s 17A(3) of the Supreme Court Act 1986 (Vic) - Whether appeal lay as of right, or only by way of leave - Provision of additional written submissions following conclusion of hearing - Proper procedure to be observed.

Procedural fairness – Whether Court of Appeal decided substantive issues without providing the Chief Commissioner of Police sufficient opportunity to present argument.

Constitutional law (Cth) – Appeal to High Court - Manner of conduct of proceedings in Court of Appeal - Elaboration of record by affidavit evidence - Whether affidavit admissible - Whether orders subject to appeal - Whether disjoined from administration of the law - Whether statutory publication prohibition orders sufficiently connected with concluded criminal trials - Whether necessary and appropriate to consider questions.

Words and phrases – "leave to appeal", "appeal as of right", "procedural fairness", "determination", "interlocutory", "in relation to".

Supreme Court Act 1986 (Vic) – ss 17A(3), 17A(4)(b), 18, 19.

Crimes Act 1958 (Vic) – s 567.

Independent Commission Against Corruption v Cunneen [2015] HCA 14

French CJ, Hayne, Kiefel, Gageler, Nettle JJ
Date: 15 Apr 2015 Case Number: S302/2014
Statutory bodies – Investigating commission – Independent Commission Against Corruption – Powers – Independent Commission Against Corruption Act 1988 (NSW), s 8(2) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct".

Statutes – Interpretation – Context and purpose – Statutory definitions – Effect of express statement of objects of Act – Where purpose of Act cannot be identified without reference to terms to be interpreted.

Statutes – Interpretation – Extrinsic materials – Legislative history – Where legislation not amended after review of Act.

Words and phrases – "adversely affect", "and which could involve", "corrupt conduct".

Independent Commission Against Corruption Act 1988 (NSW) – ss 2A, 8, 9, 12A.

Insight Vacations Pty Ltd v Young [2011] HCA 16

243 CLR 149; 85 ALJR 629; 276 ALR 497
French CJ, Gummow, Hayne, Kiefel, Bell JJ
Date: 11 May 2011 Case Number: S273/2010
Trade practices – Conditions and warranties in consumer transactions - Implied warranties - Limitation or preclusion of liability for breach of implied warranty - Section 74(1) of Trade Practices Act 1974 (Cth) ("TPA") provided that in every contract for supply by corporation of services there was an implied warranty that services will be rendered with due care and skill - Section 74(2A) of TPA provided that, where implied warranty breached and law of State was proper law of contract, that State law applied to limit or preclude liability for breach of implied warranty in same way as for breach of another term of contract - Section 5N(1) of Civil Liability Act 2002 (NSW) ("Civil Liability Act") provided that term of contract for supply of recreation services may exclude, restrict or modify liability for breach of implied warranty - Appellant and respondent entered contract for supply by appellant to respondent of tourism services in Europe - Proper law of contract was law of New South Wales - Contract contained clause exempting appellant from liability for claims arising from accident where passenger occupied motor coach seat fitted with safety belt if safety belt not being worn - While travelling by coach respondent left seat to retrieve item from overhead shelf - Coach braked suddenly causing injury to respondent - Respondent claimed damages for breach of implied warranty by appellant - Whether s 74(2A) of TPA picked up and applied State laws as surrogate federal laws - Whether s 74(2A) of TPA picked up and applied s 5N of Civil Liability Act - Whether s 5N a law that applies to limit or preclude liability for breach of contract.

Negligence – Civil Liability Act - Whether provision of transport services in the course of tourism constitutes "recreation services" for purposes of s 5N.

Statutes – Acts of parliament - Interpretation - Geographical limitation on legislative power of State parliament - Whether s 5N of Civil Liability Act subject to geographical limitation - Whether, if picked up by s 74(2A), s 5N applied to contract for supply of recreation services where supply occurred wholly outside New South Wales.

Contracts – General contractual principles - Construction and interpretation of particular contracts - Exemption from liability - Whether appellant could rely on exemption clause in contract as answer to respondent's claim.

Words and phrases – "applies to limit or preclude liability", "contract for the supply of recreation services", "geographical limitation", "recreational activity".

Civil Liability Act 2002 (NSW) – ss 5A, 5J, 5K, 5N.

Interpretation Act 1987 (NSW) – s 12(1)(b).

Trade Practices Act 1974 (Cth) – ss 68, 74(1), 74(2A).

Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24

218 CLR 89; 78 ALJR 821; 206 ALR 335
McHugh, Gummow, Kirby, Callinan, Heydon JJ
Date: 26 May 2004 Case Number: P37/2003
Insurance – Motor vehicles - Third party liability insurance - Prime mover and low loader - Where plaintiff injured while making repairs to vehicle - Directly caused by, or by the driving of, motor vehicle.

Insurance – Motor vehicles - Third party liability insurance - Construction of term of insurance contract in light of legislative policy.

Statutes – Construction - Purposive construction - Use of extrinsic materials to aid statutory construction.

Words and phrases – "Directly caused by, or by the driving of, [a] motor vehicle", "caused by [a] motor vehicle if a consequence of the driving of that vehicle or of the vehicle running out of control", "a consequence of", "driving".

Motor Vehicle (Third Party Insurance) Act 1943 (WA) – ss 3(1), 3(7), 4(1), 6(1), Schedule.

International Air Transport Association v Ansett Australia Holdings Limited [2008] HCA 3

234 CLR 151; 82 ALJR 419; 242 ALR 47
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 6 Feb 2008 Case Number: M51/2007 M52/2007
Contract – Construction - Agreements between the International Air Transport Association ("IATA") and participating airlines provided for the operation of a "Clearing House" in accordance with regulations ("the Regulations") - Pursuant to the Regulations IATA set off debits and credits that would otherwise exist between the airlines - The Regulations provided that no liability or right of action would accrue between participating airlines, including Ansett - Whether the effect of the Regulations was that IATA was the creditor of Ansett to the exclusion of other participating airlines.

Insolvency – Voluntary administration under Pt 5. 3A of the Corporations Act 2001 (Cth) ("the Act") - Deed of Company Arrangement - Public policy - Whether Pt 5. 3A of the Act or a rule of public policy required that the whole of the debtor's estate be available for distribution to all creditors - Whether any such rule invalidated the effect of the Regulations properly construed.

Insolvency – Voluntary administration under Pt 5. 3A of the Act - Deed of Company Arrangement - Order of priorities - Relationship between contractual rights and obligations and the operation of Pt 5. 3A - Whether the Regulations purported to circumvent the Deed or were otherwise repugnant to the Deed.

Corporations Act 2001 (Cth) – Pt 5. 3A.

International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49

240 CLR 319; 84 ALJR 31; 261 ALR 220
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 12 Nov 2009 Case Number: S72/2009
Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Criminal Assets Recovery Act 1990 (NSW) ("Act") – Section 10(2) of Act allows New South Wales Crime Commission ("Commission") to apply to Supreme Court of New South Wales ("Supreme Court") ex parte for restraining order in respect of interests in property – Section 10(3) of Act requires Supreme Court to make restraining order in respect of interest of person suspected of engaging in serious crime related activity and in respect of interests in property suspected of being derived from serious crime related activity where affidavit of authorised officer contains reasonable grounds for suspicion – Restraining order prevents persons disposing of or dealing with the interest, or attempting to do so – Section 25 of Act allows for application to exclude interest in property from restraining order – Where restraining orders granted, upon ex parte application by Commission, in respect of various bank accounts, suspected of being derived from serious crime related activity – Whether basis for granting restraining order only positively displaced by exclusion application under s 25 of Act, where applicant bears burden of proving, on balance of probabilities, that interest in property not fraudulently or illegally acquired – Whether s 10 engages Supreme Court in activity repugnant in a fundamental degree to judicial process.

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Section 22(2)(b) of Act requires Supreme Court, upon application by Commission, to make assets forfeiture order in respect of interests in property if more probable than not that the person whose suspected serious crime related activity formed the basis of restraining order has engaged in the last six years in serious crime related activity involving an offence punishable by imprisonment for five years or more – Whether s 22(2)(b) bill of pains and penalties – Whether s 22(2)(b) engages Supreme Court in activity repugnant in a fundamental degree to judicial process.

Statutes – Interpretation – Whether plain intendment of Act the establishment of regime distinct from usual incidents of Supreme Court.

Words and phrases – "ancillary orders", "confiscation", "ex parte", "fraudulently acquired property", "illegally acquired property", "reasonably plain intendment", "serious crime related activity".

Criminal Assets Recovery Act 1990 (NSW) – ss 10, 12(1), 22, 25.

International Litigation Partners Pte Ltd v Chameleon Mining NL (Receivers and Managers Appointed) [2012] HCA 45

246 CLR 455; 86 ALJR 1289; 292 ALR 233
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 5 Oct 2012 Case Number: S362/2011
Corporations – Credit facility – Derivative – Financial product – Financial service and markets – Financial service providers – Licensing and regulation – Where litigation funding agreement purportedly rescinded by reason of the lack of a financial services licence – Whether litigation funding agreement a financial product – Whether litigation funding agreement a credit facility.

Words and phrases – "credit facility", "financial product", "financial service", "litigation funding agreement".

Corporations Act 2001 (Cth) – ss 760A, 761A, 761D, 761EA, 762A-762C, 763A, 765A, 766A-766E, 911A, 924A, 925A, 925E.

Corporations Regulations 2001 (Cth) – reg 7. 1. 06.

Isbester v Knox City Council [2015] HCA 20

Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 10 Jun 2015 Case Number: M19/2015
Administrative law – Natural justice – Bias – Reasonable apprehension of bias – Incompatibility of roles – Where respondent made order under s 84P(e) of Domestic Animals Act 1994 (Vic) for destruction of appellant's dog – Where there was panel hearing and deliberation prior to decision being made – Where member of panel had been involved in prosecuting related criminal charges – Whether fair-minded observer might reasonably apprehend that panel member might not bring impartial mind to decision – Whether interest of panel member might affect decision-making of others on panel.

Words and phrases – "conflict of interest", "incompatibility of roles".

Domestic Animals Act 1994 (Vic) – s 84P(e).

Island Maritime Limited v Filipowski [2006] HCA 30

226 CLR 328; 80 ALJR 1168; 228 ALR 1
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 15 Jun 2006 Case Number: S449/2005 S450/2005
Criminal law – Double jeopardy – Autrefois acquit – Successive charges arising out of same facts – Charge brought against appellants under s 27(1) of the Marine Pollution Act 1987 (NSW) – Charge dismissed on basis that s 27(1) did not apply where a charge was available under s 8 – Charge subsequently brought against appellants under s 8 – Where s 27(1) offence included all elements of s 8 offence together with additional element – Whether second charge barred by principles of autrefois acquit – Whether appellants stood in jeopardy on first charge – Whether plea of autrefois acquit available if all elements of offence first charged not included in elements of offence charged second.

Criminal law – Abuse of process – Delay – Where first prosecution brought more than two years after the relevant events – Where second prosecution brought eight months after first defective prosecution dismissed.

Words and phrases – "abuse of process", "autrefois acquit", "double jeopardy", "in jeopardy".

Marine Pollution Act 1987 (NSW) – ss 8, 27(1).

James v The Queen [2014] HCA 6

88 ALJR 427; 306 ALR 1
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 5 Mar 2014 Case Number: M102/2013
Criminal law – Appeal – Appeal against conviction – Intentionally causing serious injury – Whether failure to instruct jury as to lesser alternative verdicts occasioned substantial miscarriage of justice.

Criminal law – Role of trial judge – Whether duty to secure fair trial required instruction on any lesser alternative verdicts regardless of forensic choices of counsel. Crimes Act 1958 (Vic), ss 16, 17.

Criminal Procedure Act 2009 (Vic) – s 239.

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