88 ALJR 616; 308 ALR 202
French CJ, Crennan, Kiefel, Bell, Gageler JJ
Date: 14 May 2014 Case Number: S39/2014
Corporations – Managed investment schemes – Unlisted unit trust – Members' rights to withdraw from scheme – Where terms of issue of units in trust provided for redemption within stipulated time period – Where units not redeemed within stipulated time period – Whether obligation to redeem units subject to requirements of Pt 5C.
6 of Corporations Act 2001 (Cth) – Whether redemption of units constitutes withdrawal from scheme within meaning of Pt 5C.
6 of Corporations Act 2001 (Cth).
Words and phrases – "managed investment schemes", "redemption", "withdrawal".
Corporations Act 2001 (Cth) – Pt 5C.
6, ss 601GA(4), 601KA.
237 CLR 66; 82 ALJR 1425; 249 ALR 250
Gummow ACJ, Kirby, Hayne, Heydon, Kiefel JJ
Date: 4 Sep 2008 Case Number: S107/2008
Trusts – Trustees – Judicial advice – Charitable trust – Entitlement of trustee to advice that it would be entitled to defend itself against allegations of breach of trust – Entitlement of trustee to advice that it could fund its defence from trust property.
Trusts – Trustees – Judicial advice – Power of Supreme Court – Trustee Act 1925 (NSW), s 63(1) – Limitations on power to give advice – Nature of advice – Power to revoke order providing advice – Effect of revocation.
Trusts – Trustees – Judicial advice – Factors relevant to discretion of Supreme Court to give advice under s 63 of Trustee Act 1925 (NSW) – Whether advice in best interests of trust – Whether trustee’s financial position irrelevant – Whether Court required expressly to undertake exercise balancing advantages to trust in giving advice against disadvantages – Relevance of adversarial character of proceedings.
Charities – Trustees – Judicial advice – Relevance of public benefit in giving advice.
Practice and Procedure – Appeal from discretionary decision – Necessity of intermediate appellate court identifying particular House v The King (1936) 55 CLR 499 error – Whether error shown where trial judge said not to "expressly" consider particular matters not put at trial.
Words and phrases –"all expenses incurred", "question respecting the management or administration of the trust property".
Rules of Supreme Court 1883 (UK) – O 55 r 3.
Trustee Act 1925 (NSW) – ss 59(4), 63, 85, 93(3).
211 CLR 287; 76 ALJR 1445; 191 ALR 543
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 11 Sep 2002 Case Number: P55/2001
Criminal law – Companies - Offence against Corporations (Western Australia) Act 1990 (WA) - Attraction of federal jurisdiction under s 75(iii) of the Constitution by presence of Australian Securities and Investments Commission as party to prosecution - Section 206A(2) of the Justices Act 1902 (WA) conferred standing to apply for leave to appeal (and, if granted, to institute and conduct an appeal) upon "a party" to an earlier appeal - Whether Australian Securities and Investments Commission empowered to appeal to the Full Court against the order of a single judge of the Supreme Court of Western Australia on appeal from summary proceedings - Whether s 79 of the Judiciary Act 1903 (Cth) "picked up" s 206A(2) of the Justices Act - Whether Australian Securities Commission Act 1989 (Cth) "otherwise provided" for the purposes of s 79 of the Judiciary Act.
Constitutional law (Cth) – Federal jurisdiction - Australian Securities and Investments Commission a party - s 75(iii) of the Constitution - Substantive content of matter supplied by State law - Construction of legislation in co-operative national scheme.
Appeal – Competency of appeal by Australian Securities and Investments Commission to the Full Court against the setting aside of an appeal to a single judge of the Supreme Court of Western Australia from conviction in summary proceedings.
Constitution – s 75(iii).
Judiciary Act 1903 (Cth) – s 79.
Australian Securities Commission Act 1989 (Cth) – ss 11(4), 49.
Justices Act 1902 (WA) – s 206A(2).
Corporations (Western Australia) Act 1990 (WA) – ss 7, 58.
214 CLR 230; 77 ALJR 1047; 197 ALR 333
Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ
Date: 7 May 2003 Case Number: S86/2002
Criminal law – Property offence - Fraudulent application of company property by director or officer - Accused also sole beneficial shareholder of company - Whether consent of accused, as sole shareholder, cures what would otherwise be a breach by accused, as director or officer, of s 173, Crimes Act 1900 (NSW).
Criminal law – Property offence - Fraudulent application of company property by director or officer - Directions - Whether trial judge misdirected jury in failing to identify the use of dishonest means as an essential element of s 173, Crimes Act 1900 (NSW) - Whether trial judge erred in failing to direct that it was necessary for accused to have realised that his impugned conduct was dishonest by the current standards of ordinary, decent people.
Words and phrases – "fraudulently", "claim of right".
Crimes Act 1900 (NSW) – ss 4(1), 173.
French CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 2 Dec 2015 Case Number: S100/2015
Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Exemption from taxation on salaries and emoluments received from certain international organisations – Whether monthly pension payments exempt from taxation.
International law – Treaty interpretation – Privileges and immunities of specialized agencies – Whether Convention on the Privileges and Immunities of the Specialized Agencies requires Australia not to tax monthly pension payments received by former officer of specialized agency.
Words and phrases – "emolument", "pension", "salary".
International Organisations (Privileges and Immunities) Act 1963 (Cth) – s 6(1)(d)(i), Fourth Schedule.
Specialized Agencies (Privileges and Immunities) Regulations (Cth) – reg 8(1).
Convention on the Privileges and Immunities of the Specialized Agencies  ATS 41 – Sections 18-19, 22.
87 ALJR 1060; 302 ALR 461
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Oct 2013 Case Number: S114/2013
Constitutional law – Judicial power of the Commonwealth – Constitution, Ch III – Appellant crew member of boat carrying passengers with no lawful right to come to Australia – Appellant convicted of aggravated offence of smuggling group of at least five non citizens reckless as to whether they had lawful right to enter Australia under s 233C(1) of Migration Act 1958 ("Act") – Section 236B of Act prescribed mandatory minimum sentence for offence under s 233C(1) of five years' imprisonment with minimum non parole period of three years – Whether ss 233A(1) and 233C(1) coextensive – Whether prescription of mandatory minimum sentence for offence under s 233C(1) conferred judicial power to determine punishment on prosecuting authorities – Whether s 236B incompatible with institutional integrity of courts – Whether s 236B required court to impose arbitrary and non judicial sentence.
Words and phrases – "aggravated offence", "institutional integrity", "judicial power", "mandatory minimum penalty", "prosecutorial discretion".
Constitution – Ch III.
Migration Act 1958 (Cth) – ss 233A(1), 233C(1), 236B.
210 CLR 181; 76 ALJR 246; 185 ALR 152
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 13 Dec 2001 Case Number: B36/2001
Contract – Confidential information – Contractual restraint upon use of "Information" – Restraint expressed to be perpetual – Information disclosed in patent application – Proper construction of contract – Whether restraint to apply once information disclosed to public – Whether contract in restraint of trade.
Restraint of trade – Contractual restraint upon use of information concerning invention – Whether confidentiality agreement constitutes an unenforceable contractual restriction on trade – Whether the restraint imposed is more than that required to protect the interests of the parties.
Injunction – Confidentiality agreement between inventor and potential marketer – Substantial copying of invention found contrary to agreement – Whether injunction granted unacceptably wide – Whether injunction would involve excessive supervision by court – Permissible scope and duration of injunctive relief.
Words and phrases – "quality of confidence".
226 CLR 551; 81 ALJR 254; 231 ALR 277
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan JJ
Date: 9 Nov 2006 Case Number: M152/2005
Tort – Deceit - Paternity - Whether tort of deceit can be applied in marital context in relation to false representations of paternity - Where false representations were made by wife in course of marriage concerning paternity of children born during marriage - Where birth notification forms completed by wife represented husband to be father - Where DNA testing after marriage ended revealed two children of the marriage were not the biological children of the husband - Where husband claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering - Relevance of history of tort of deceit - Relevance of abolition of inter-spousal immunity in tort by Family Law Act 1975 (Cth) - Relevance of statutory scheme intended to minimise role of fault in determining legal rights and liabilities following breakdown of marriages - Relevance of statutory regime under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support - Relevance of public policy considerations.
Statute – Statutory construction - Family Law Act 1975 (Cth) - Whether tort of deceit is excluded from applying between spouses by the Family Law Act 1975 (Cth) - Whether ss 119 and 120 of the Family Law Act 1975 (Cth) expressly or impliedly preclude an action for deceit by a husband in respect of false representations made by the wife during the subsistence of the marriage as to the paternity of children of the marriage.
Words and phrases – "deceit", "inter-spousal immunity", "paternity fraud".
Child Support (Assessment) Act 1989 (Cth) – ss 107, 143.
Family Law Act 1975 (Cth) – ss 43, 48, 51, 66X, 69P-69X, 119, 120.
Matrimonial Causes Act 1959 (Cth) – ss 21, 28, 44, 98.
232 CLR 397; 82 ALJR 372; 241 ALR 606
Gleeson CJ, Gummow, Kirby, Hayne, Kiefel JJ
Date: 30 Jan 2008 Case Number: P39/2007
Evidence – Criminal law - Portions of "walk through" video tendered by defence at trial - Prosecution objected to tender of whole video - In closing prosecutor invited jury to draw adverse inferences from portions played - Trial judge refused to allow defence to re-open case to tender whole of video - Whether re- opening ought to have been allowed - Whether a direction to the jury was required to overcome prejudicial effects of the prosecutor's invitation.
Criminal law – Practice and procedure - Directions to jury - Distinction between directions and comments - Whether trial judge's statements in summing up amounted to a direction.
Evidence – Criminal law - Duty of prosecutor to tender all inculpatory statements - Whether prosecutor obliged to tender "walk through" video in whole or in part.
Evidence – Criminal law - Evidence of blood stains in pocket - Whether accused had had opportunity to respond to blood-stain allegation - Whether judge's direction to the jury on this point was sufficient.
Evidence – Criminal law - Evidence of blood stains in pocket not put to prosecution witnesses but mentioned by prosecutor in closing - Whether judge required to give a Jones v Dunkel direction.
Criminal Appeal Act 2004 (WA) – s 30.
204 CLR 290; 75 ALJR 626; 178 ALR 218
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 15 Mar 2001 Case Number: M14/2000
Customs and excise – Duty – Proceeding by Collector of Customs for recovery of unpaid duty after goods released to owner – Dispute as to whether duty owed – Whether s 167 Customs Act 1901 (Cth) prevents owner of goods from disputing indebtedness other than by paying duty "under protest" and then commencing action against Collector of Customs for recovery of duty.
Statutes – Construction – Presumption that legislation does not erode fundamental rights – Relevance and contents of presumption.
Customs Act 1901 (Cth) – ss 153, 165, 167, 273GA(2).
224 CLR 125; 80 ALJR 160; 222 ALR 236
Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 15 Nov 2005 Case Number: P77/2004
Criminal law – Appellant convicted of murder - Appellant petitioned for mercy - Attorney-General referred petition to Court of Criminal Appeal - Whether non- disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal - Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) - Duty to consider the "whole case" - Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial - Whether jury verdict unreasonable or unsupportable - Whether jury verdict could not be supported having regard to the evidence - Whether a substantial miscarriage of justice occurred - Whether a retrial should be ordered.
Appeal – New trial - Petition for mercy - Reference of whole case to Court of Criminal Appeal - Scope of proceedings in Full Court.
Words and phrases – "fresh evidence", "new evidence", "whole case", "as if it were an appeal".
Criminal Code (WA) – ss 21, 689(1).
Sentencing Act 1995 (WA) – s 140(1)(a).
87 ALJR 755; 298 ALR 308
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler JJ
Date: 19 Jun 2013 Case Number: B57/2012
Discrimination law – Racial discrimination – Certain geographical areas on Palm Island subject to restrictions as to nature and quantity of liquor which may be possessed – Palm Island population overwhelmingly Aboriginal – Appellant, an Indigenous member of Palm Island community, convicted of possessing liquor in restricted area on Palm Island – Whether restrictions affected enjoyment of right to equal treatment before tribunals protected by Art 5(a) of International Convention on the Elimination of All Forms of Racial Discrimination ("Convention") – Whether restrictions affected enjoyment of right to own property protected by Art 5(d)(v) of Convention – Whether restrictions affected enjoyment of right of access to places or services for use by general public protected by Art 5(f) of Convention – Whether restrictions engaged s 10 of Racial Discrimination Act 1975 (Cth) – Whether restrictions valid as special measure within meaning of s 8 of Racial Discrimination Act.
Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency pursuant to s 109 of Constitution.
Words and phrases – "human rights or fundamental freedoms", "racial discrimination", "right of access to any place or service intended for use by the general public", "right to equal treatment before the tribunals and all other organs administering justice", "right to own property", "special measure".
Constitution – s 109.
Liquor Act 1992 (Q) – ss 168B, 173G, 173H.
Racial Discrimination Act 1975 (Cth) – ss 8, 10.
Liquor Regulation 2002 (Q) – ss 37A, 37B, Sched 1R.
240 CLR 409; 84 ALJR 188; 262 ALR 614
French CJ, Gummow, Hayne, Crennan, Bell JJ
Date: 3 Feb 2010 Case Number: P15/2009
Real property – Compulsory acquisition - Parts of various lots reserved under town planning scheme for Primary Regional Roads - Whole lots subsequently acquired for purpose of railways and primary regional roads - Whether land reserved for one purpose could be acquired for another purpose - Whether valid acquisition under s 13 of Town Planning and Development Act 1928 (WA) - Whether valid acquisition under s 161 of Land Administration Act 1997 (WA) ("Land Act").
Real property – Compulsory acquisition - Section 161 of Land Act provided that acquisition must be for purposes of public work - Portions of lots cut off from access to public roads by railway - Whole lots acquired to avoid statutory obligation to construct crossings - Whether acquisition incidental to purposes of public work - Whether compulsory acquisition of whole lots valid - Whether severance possible where same taking order effected both valid and invalid acquisitions.
Words and phrases – "for the purpose of a town planning scheme", "for the purposes of the work", "public work", "railway purposes".
Land Administration Act 1997 (WA) – ss 161, 177, 179.
Public Works Act 1902 (WA) – s 95.
Town Planning and Development Act 1928 (WA) – s 13(1).
80 ALJR 413; 223 ALR 228
Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 14 Dec 2005 Case Number: P18/2005
Negligence – Accident - Respondent struck and injured by a vehicle driven by the appellant - Respondent lying on road carriageway at time of accident - Respondent heavily intoxicated at time of accident - Appellant's attention drawn to a third person at the side of the road - Appellant continued to drive vehicle at same speed - Appellant changed vehicle direction by veering to the centre of the road - Whether appellant had exercised reasonable care in carrying out his duty to other road users.
226 CLR 486; 80 ALJR 1366; 228 ALR 214
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan JJ
Date: 20 Jul 2006 Case Number: P53/2005
Criminal Law − Confiscation of property − Freezing order − Where Director of Public Prosecutions ("DPP") may apply ex parte for a freezing order pursuant to s 41 of the Criminal Property Confiscation Act 2000 (WA) ("the Act") − Where Court "may" make freezing orders pursuant to s 43 of the Act − Where no express statutory restrictions imposed upon the permissive power to grant freezing orders under s 43 of the Act − Whether relevant that proceedings under the Act are "civil proceedings" by reason of s 102 of the Act − Whether DPP is able to give an undertaking as to damages − Whether the limitation of liability provision in s 137 of the Act would render futile the provision of an undertaking as to damages by the DPP − Whether Court has power to require the DPP to provide an undertaking as to damages when exercising the statutory power under s 43 of the Act to make a freezing order.
Criminal Law − Confiscation of property − Freezing order − Variation of freezing order − Where power to vary freezing orders derived by implication from s 45 of the Act and s 48 of the Interpretation Act 1984 (WA) − Where legal expenses not referred to in s 45 of the Act which provides that the Court may provide for meeting "reasonable living and business expenses" in a freezing order − Whether Court has power to vary a freezing order to allow for the payment of reasonable legal costs.
Courts − Jurisdiction of courts − Relationship between general law powers of court and jurisdiction conferred by the statute − Where s 43 of the Act expressed in permissive terms without express statutory restrictions − Whether equitable principles applicable to granting discretionary remedies at general law may be imported into exercise of jurisdiction under s 43 of the Act.
Statute − Statutory construction − Whether appropriate in legislation to draw negative implications from prior legislation on the same subject matter − Whether appropriate in construing statutory provisions to draw negative implications from other provisions in the Act − Whether s 137 of the Act limits the power conferred by s 43 of the Act to make freezing orders − Whether the express words of s 45 of the Act limit the power to vary freezing orders.
Words and phrases – "freezing order", "undertaking as to damages".
Crimes (Confiscation of Profits) Act 1988 (WA) (repealed) – s 20(11).
Criminal Property Confiscation Act 2000 (WA) – Pt 2, Pt 3 Div 2, Pt 4 Div 3, ss 4, 5, 41, 42, 43, 45, 101, 102, 137, 141, 142.
Crown Suits Act 1947 (WA) – s 5.
Director of Public Prosecutions Act 1991 (WA) – s 10, s 16, s 20.
Interpretation Act 1984 (WA) – s 48.
Supreme Court Act 1935 (WA).
Rules of the Supreme Court (WA) – O 52 r 9.
247 CLR 86; 87 ALJR 20; 293 ALR 1
Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 14 Nov 2012 Case Number: P60/2011 P61/2011
Corporations law – Insider trading – Appellants allegedly possessed inside information concerning listed public company – Appellants allegedly bought or procured purchase of shares in that company – Information was false – Corporations Act 2001 (Cth) prohibits certain conduct by person who possesses inside information about company – Whether person in possession of false information can contravene insider trading prohibitions.
Words and phrases – "information".
Corporations Act 2001 (Cth) – Pt 7.
242 CLR 546; 85 ALJR 380; 274 ALR 634
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 9 Mar 2011 Case Number: S114/2010
Real property – Conveyancing - Conveyancing Act 1919 (NSW), s 37A - Voluntary alienation to defraud creditors - Appellant sought to set aside registered transfer of land from second respondent to first respondent - Whether intent to defraud creditors satisfied by proof of "actual" or "predominantly" fraudulent intent - Whether satisfied by proof that transfer would "delay, hinder or defraud" creditors - Whether intent may be inferred where transfer is voluntary.
Words and phrases – "delay, hinder or defraud".
Conveyancing Act 1919 (NSW) – s 37A.
An Act against fraudulent Deeds – Gifts, Alienations, etc 1571 (Imp) (13 Eliz I c 5).
French CJ, Bell, Gageler, Keane, Nettle JJ
Date: 31 Aug 2016 Case Number: S136/2016
Statutes – Delegated legislation – Validity – Migration Act 1958 (Cth) – Offshore resources industry – Where amendments to Migration Act had effect of extending migration zone to non-citizens participating in or supporting offshore resources activity – Where amendments created specified visa requirements for such persons – Where amendments conferred power on Minister to make determination excepting operations and activities from extended migration zone – Where Minister's determination purported to except from migration zone, and specified visa requirements, all operations and activities to extent certain vessels or structures were used – Whether determination entirely negated operation of general rule in extending migration zone to non-citizens participating in or supporting offshore resources activity – Whether determination beyond power and invalid.
Words and phrases – "Australian resources installation", "exception", "migration zone", "offshore resources activity".
Legislation Act 2003 (Cth) – s 42.
Migration Act 1958 (Cth) – ss 5, 8, 9A, 13(1), 41.
Migration Amendment (Offshore Resources Activity) Act 2013 (Cth).
Offshore Minerals Act 1994 (Cth) – s 4, Ch 2.
Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) – s 7, Chs 2, 3.
228 CLR 357; 79 ALJR 1048; 215 ALR 213
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 18 May 2005 Case Number: S600/2003
Criminal law – Sentence - Principles - Drug offence - Appellant acted as driver for heroin dealer - Appellant pleaded guilty and asked that four other offences be taken into account by sentencing judge - Whether Court of Criminal Appeal adopted impermissible approach to sentencing by means of staged approach - Whether staged approach to be preferred to instinctive synthesis of sentencer - Relevance of maximum available sentence - Relevance of quantity of drug.
Criminal law – Appeal - Prosecution appeal against sentence - Court of Criminal Appeal increased sentence from 2 years and 6 months to 8 years - Whether Court of Criminal Appeal was wrong to find that the original sentence was manifestly inadequate - Whether re-sentencing discretion miscarried.
Criminal law – Sentence - Re-sentencing - Further offences - Additional discrete sentence added to head sentence for further offences disclosed by offender - Whether such approach a breach of totality principle.
Criminal law – Sentence - Principles - Failure by trial judge and Court of Criminal Appeal to consider an obligatory requirement of sentencing statute in determining appellant's sentence - Whether sentencing discretion of trial judge and Court of Criminal Appeal miscarried because of such omission.
Words and phrases – "staged approach", "two-stage approach", "instinctive synthesis".
Crimes (Sentencing Procedure) Act 1999 (NSW) – Div 3 Pt 3, s 21A, s 31, s 32, s 34(1), s 101A.
Criminal Appeal Act 1912 (NSW) – s 5D.
Drug Misuse and Trafficking Act 1985 (NSW) – s 33(2).
216 CLR 31; 78 ALJR 51; 202 ALR 39
Gleeson CJ, McHugh, Kirby, Callinan, Heydon JJ
Date: 11 Nov 2003 Case Number: B101/2002
Criminal Law – Supply of dangerous drug – Counselling – Procuring – Where appellant was inmate at correctional facility and arranged for person outside facility to supply him with heroin – Whether criminally liable for the offence of supplying a dangerous drug within Drugs Misuse Act 1986 (Q), s 4 and Criminal Code (Q), s 7.
Statutes – Construction of statutes – Intersecting statutes of general and particular application – Criminal law – Whether provision enacting substantive offence is incompatible with deeming provision in statute of general application – Provisions for primary and secondary liability for criminal offences – Application of deeming provisions – Approach to statutory intersection – Whether history and suggested policy of the substantive legislation relevant to resolution of the intersection – Whether context determinative of contested statutory construction.
Words and Phrases: "deemed supply" – "supplies a dangerous drug to another".
Criminal Code (Q) – s 7.
Drugs Misuse Act 1986 (Q) – ss 4 and 6.