Judgments, ordered by case name

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SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24

228 CLR 294; 79 ALJR 1009; 215 ALR 162
Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ
Date: 18 May 2005 Case Number: A28/2004
Immigration – Refugees – Decision of Refugee Review Tribunal ("Tribunal") – Tribunal invited the first appellant to appear to give evidence and present arguments under Migration Act 1958 (Cth), s 425 – Evidence was later taken from first appellant's daughter in absence of first appellant – Tribunal affirmed decision under review by relying on information obtained from first appellant's daughter – Tribunal failed to give the first appellant particulars in writing of information – Tribunal failed to invite the first appellant in writing to comment on information – Whether Tribunal breached Migration Act, s 424A.

Immigration – Construction of Migration Act, s 424A – Whether the provisions of Pt 7 Div 4 have sequential or ambulatory operation – Relevance of Refugee Convention in case of ambiguity.

Immigration – Jurisdictional error – Whether a breach of Migration Act, s 424A amounts to jurisdictional error that invalidates the decision.

Immigration – Procedural fairness – General law – Whether Tribunal breached rules of procedural fairness.

Administrative Law (Cth) – Certiorari – Mandamus – Jurisdictional error – Whether grant of relief should be withheld on discretionary grounds – Relevant factors – Judiciary Act 1903 (Cth), s 39B.

Practice – Joinder of party – Tribunal was not named as a party for the relief sought under Judiciary Act, s 39B – Whether the Tribunal was a necessary party to the proceedings – "officer or officers of the Commonwealth" – Judiciary Act, s 39B.

Judiciary Act 1903 (Cth) – s 39B.

Migration Act 1958 (Cth) – ss 424A, 425.

Saeed v Minister for Immigration and Citizenship [2010] HCA 23

241 CLR 252; 84 ALJR 507; 267 ALR 204
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel JJ
Date: 23 Jun 2010 Case Number: S305/2009
Immigration – Visa - Visa applications made outside migration zone - Where applicant not afforded opportunity to comment upon information which supported inference that essential aspect of application was false or misleading - Where Minster's delegate not satisfied about necessary criterion for visa on basis of such information - Whether ss 51A(1) or 57(3) of Migration Act 1958 (Cth) ("Act") excluded requirements of natural justice hearing rule in relation to visa applications made outside migration zone - Whether provision of information to visa applicants outside migration zone was a "matter" which Pt 2 Div 3 subdiv AB of Act "deals with" - Whether requirements of natural justice a condition of statutory power to grant or refuse visa - Where statutory requirement of actual satisfaction as to facts - Whether obligation to take into account all factors which may affect determination - Whether state of non- satisfaction about criterion can be reached if Minister fails to consider whether any answer to information was put forward by applicant.

Statutory interpretation – Where amendments to Act respond to High Court decision - Relevance and permissible use of extrinsic material.

Words and phrases – "natural justice hearing rule", "satisfied", "the matters it deals with".

Migration Act 1958 (Cth) – ss 51A(1), 56, 57, 65(1).

Samad v District Court of New South Wales [2002] HCA 24

209 CLR 140; 76 ALJR 871; 189 ALR 1
Gleeson CJ, Gaudron, McHugh, Gummow, Callinan JJ
Date: 20 Jun 2002 Case Number: S189/2001
Statutes – Construction - Power to suspend or cancel a licence to supply a drug of addiction - Whether cl 149 of the Poisons and Therapeutic Goods Regulation 1994 (NSW) confers on the Director-General of the Department of Health a power of suspension or cancellation which must be exercised if one or more of the specified grounds for suspension or cancellation are established - Whether provision that Director-General "may suspend or cancel" licence on specified grounds conferred a power to be exercised not a discretion to be weighed - Whether circumstances obliged Director-General to exercise discretion in favour of cancellation.

Courts and tribunals – Error of law - Whether decision based upon that error.

Words and phrases – "may" - "based upon".

Poisons and Therapeutic Goods Act 1966 (NSW).

Poisons and Therapeutic Goods Regulation 1994 (NSW)
– cl 149.

Saraceni v Jones [2012] HCA 38

246 CLR 251; 86 ALJR 1181; 291 ALR 188
Gummow, Hayne, Bell JJ
Date: 7 Sep 2012 Case Number: P8/2012
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Sections 596A and 596B of Corporations Act 2001 (Cth) confer power upon court exercising federal jurisdiction to order, on application of receiver, examination of person about examinable affairs of corporation – Whether conferral of non-judicial power.

Corporations Act 2001 (Cth) – ss 596A, 596B.

Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18

200 CLR 121; 74 ALJR 743; 170 ALR 594
Gleeson CJ, Gaudron, McHugh, Kirby, Hayne JJ
Date: 13 Apr 2000 Case Number: P39/1999
Negligence – Res ipsa loquitur - Circumstances in which res ipsa loquitur can be used - Effect of the application of res ipsa loquitur - Whether res ipsa loquitur affects the burden of proof - Whether res ipsa loquitur more than a permissible process of reasoning.

Practice and procedure – Amendment - Reopening of issues at trial - Need for care.

Words and phrases – "res ipsa loquitur".

Scott v Bowden [2002] HCA 60
194 ALR 593
Date: 17 Dec 2002 Case Number: S346/2002

Scott v Davis [2000] HCA 52

204 CLR 333; 74 ALJR 1410; 175 ALR 217
Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ
Date: 5 Oct 2000 Case Number: A16/1999
Negligence – Vicarious liability - Agency - Whether owner of aircraft vicariously liable for negligence of person who flew aircraft with owner's consent for a social purpose connected with owner.

Negligence – Vicarious liability - Aircraft - Motor vehicles - Negligent use of chattel of conveyance - Whether the principles in Launchbury v Morgans [1973] AC 127 apply - Non-delegable duties of care - Strict liability.

Selected Seeds Pty Ltd v QBEMM Pty Limited [2010] HCA 37

242 CLR 336; 85 ALJR 1; 271 ALR 484
French CJ, Hayne, Crennan, Kiefel, Bell JJ
Date: 3 Nov 2010 Case Number: B16/2010
Insurance – Product liability insurance - Insurance policy - Indemnity - Exclusion clause - Appellant seed merchant sold contaminated seed - Planting of seed by third party resulted in damage to property - Exclusion of liability caused by or arising from "the failure of any Product to correctly fulfil its intended use or function" - Proper construction of exclusion clause - Whether liability for damage arose out of failure of product to fulfil its intended use or function - Distinction between product failing to fulfil intended use or function and causing positive harm.

Words and phrases – "intended use or function".

Selig v Wealthsure Pty Ltd [2015] HCA 18

French CJ, Kiefel, Bell, Gageler, Keane JJ
Date: 13 May 2015 Case Number: A25/2014
Corporations – First and second respondents provided financial advice to appellants – First and second respondents found to have contravened various provisions of Corporations Act 2001 (Cth) ("Act") and Australian Securities and Investments Commission Act 2001 (Cth) – Whether liability should be limited to proportion of appellants' loss, having regard to comparative responsibility of other parties – Whether application of Div 2A of Pt 7. 10 of Act limited to claims based on contravention of s 1041H of Act or also applies to other causes of action.

Procedure – Costs – Costs order against non-party – Where professional indemnity insurer had conduct of respondents' defence at trial and made decision to appeal – Where insurer acting in own interests by bringing appeal – Where respondents' cover under insurance policy was capped – Whether circumstances justified costs order against insurer who was a non party to proceedings.

Words and phrases – "apportionable claim", "proportionate liability".

Corporations Act 2001 (Cth) – ss 1041H, 1041I(1B), 1041L, 1041N(1); Pt 7. 10, Div 2A.

Australian Securities and Investments Commission Act 2001 (Cth) – ss 12DA, 12GP(1); Pt 2, Div 2, subdiv GA.

SGH Ltd v Commissioner of Taxation [2002] HCA 18

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 1 May 2002 Case Number: B19/2001
Constitutional law (Cth) – Relationship between Commonwealth and State - Imposing any tax on State property - Building society controlled by State instrumentality - Whether building society is the State for the purposes of s 114 of the Constitution.

Associations and Clubs – Building Societies - The nature and structure of building societies.

Words and phrases – "property of any kind belonging to a State".

Constitution – s 114.

Shafron v Australian Securities and Investments Commission [2012] HCA 18

247 CLR 465; 86 ALJR 584; 286 ALR 612
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 3 May 2012 Case Number: S173/2011
Corporations – Duties and liabilities of directors and officers - Section 180(1) of the Corporations Act 2001 (Cth) ("the Act") required directors and officers of a corporation to discharge duties with degree of care and diligence that reasonable person in their position and with their responsibilities would exercise - "Officer" defined in s 9 of the Act - Paragraph (a) of definition provided that secretary of a corporation is an "officer" - Paragraph (b)(i) of definition provided that person who "participates in making" decisions that substantially affect business of corporation is an "officer" - Appellant was company secretary and general counsel of corporation - Whether appellant participated in making decisions substantially affecting business of corporation - Whether s 180(1) applied to all tasks that officer of corporation performed within that corporation - Whether responsibilities of company secretary and general counsel divisible - How scope of "responsibilities within the corporation" of an officer to be determined.

Words and phrases – "in the capacity of", "occupied the office held by", "officer", "participate in making", "real contribution", "responsibilities within the corporation".

Corporations Act 2001 (Cth) – s 9 (definition of "officer"), s 180(1).

Shahi v Minister for Immigration and Citizenship [2011] HCA 52

86 ALJR 162; 284 ALR 448
French CJ, Gummow, Hayne, Heydon, Bell JJ
Date: 14 Dec 2011 Case Number: M10/2011
Immigration – Visa - Refugee and Humanitarian (Class XB) visa - Subclass 202 Global Special Humanitarian - Plaintiff Australian permanent resident, eligible proposer for and held Subclass 202 visa - Plaintiff's mother applied for Subclass 202 visa - Primary criteria for grant of visa in cl 202. 211 of Sched 2 to Migration Regulations 1994 (Cth) included that applicant "member of the immediate family of the proposer" on date proposer's visa granted and that applicant "continues to be a member of the immediate family of the proposer" at time of applicant's application for visa - Applicant must continue "to satisfy the criterion in clause 202. 211" at time of decision for applicant's visa - Mother "member of the immediate family" of proposer only until proposer 18 years old - Plaintiff proposed mother for visa before turned 18 but Minister's delegate's decision not made until after plaintiff turned 18 - Minister's delegate decided that mother ceasing to be member of plaintiff's "immediate family" after date of application but before date of decision required refusal of mother's application - Whether "continues to be a member of the immediate family of the proposer" is criterion to be determined at time of application or time of decision - Whether jurisdictional error.

Words and phrases – "continues to be a member of the immediate family", "continues to satisfy the criterion", "criteria to be satisfied at time of decision".

Migration Act 1958 (Cth) – ss 31(3), 47(1), 65(1), 65A.

Migration Regulations 1994 (Cth) – regs 2. 01, 2. 03(1), Sched 1, item 1402, Sched 2, Div 202. 2.

Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72

218 CLR 28; 78 ALJR 203; 203 ALR 143
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 9 Dec 2003 Case Number: B99/2002
Constitutional law (Cth) – Powers of the Parliament - Naturalisation and aliens - Applicant born in United Kingdom - Applicant entered Australia in 1974 - Applicant did not acquire Australian citizenship - Cancellation of applicant's visa by Minister - Whether power of cancellation validly extended to applicant - Whether applicant an "alien" for purposes of s 51(xix) of the Constitution - Whether applicant's statutory status as "British subject" at time of entry into Australia inconsistent with classification as "alien" - Whether applicant a "subject of the Queen" for purposes of s 117 of the Constitution.

Constitutional law (Cth) – Powers of the Parliament - Whether applicant subject to removal under power with respect to immigration - Whether applicant subject to removal under power with respect to external affairs - Whether implied nationhood power relevant.

Constitution – ss 51(xix), (xxvii), (xxix), 117.

Citizenship Act 1948 (Cth) – s 7.

Migration Act 1958 (Cth) – ss 15, 501.

British Nationality Act 1948 (UK).

British Nationality and Status of Aliens Act 1914 (UK).

Shergold v Tanner [2002] HCA 19

209 CLR 126; 76 ALJR 808; 188 ALR 302
Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ
Date: 23 May 2002 Case Number: M63/2001
Administrative Law (Cth) – Judicial review - Freedom of information - Documents affecting relations between the Commonwealth and a State - Internal working documents of an agency, a Minister or the Government of the Commonwealth - Refusal of access to documents in respect of which Minister's delegate issued certificates pursuant to ss 33A(2) and 36(3) of the Freedom of Information Act 1982 (Cth) ("the FOI Act") - FOI Act provides that, subject to Pt VI of the Act, certificates, while in force, "establish conclusively" that disclosure would be contrary to public interest or that documents are exempt documents and do not contain matter the disclosure of which would be in the public interest - Whether "conclusive evidence" provisions impliedly amend conferral of jurisdiction on the Federal Court by the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or by the Judiciary Act 1903 (Cth) ("the Judiciary Act") - Whether issue of certificates reviewable by the Federal Court under the ADJR Act or the Judiciary Act.

Federal Court of Australia – Jurisdiction - Whether Court's jurisdiction under ADJR Act or the Judiciary Act impliedly limited by "conclusive evidence" provisions of the FOI Act - Whether jurisdiction conferred by the ADJR Act and the Judiciary Act extends to judicial review of decision to issue certificates under ss 33A(2) and 36(3) of the FOI Act.

Statutes – Interpretation - Conferral of jurisdiction upon a court - Whether later legislation withdraws or limits conferral of jurisdiction - Need for clear and unmistakable implication to have such effect.

Commonwealth Constitution – s 77(i).

Freedom of Information Act 1982 (Cth) – ss 11, 33A, 36.

Administrative Decisions (Judicial Review) Act 1977 (Cth) – ss 5, 8. Judiciary Act 1903 (Cth), s 39B.

Administrative Appeals Tribunal Act 1975 (Cth).

Ombudsman Act 1976 (Cth).

Shi v Migration Agents Registration Authority [2008] HCA 31

235 CLR 286; 82 ALJR 1147; 248 ALR 390
Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 30 Jul 2008 Case Number: S522/2007
Administrative law – Application for review by Administrative Appeals Tribunal ("Tribunal") - Decision by Migration Agents Registration Authority ("the Authority") to cancel registration of migration agent - Tribunal's task to determine what was the correct or preferable decision - Whether Tribunal should determine what was the correct or preferable decision when the Authority made its decision, or whether Tribunal should determine the correct or preferable decision as at the time of its own decision - Necessity for close attention to the applicable legislative provisions.

Immigration – Migration agents - Registration and cautioning of migration agents - Power of the Authority to set out one or more conditions for the lifting of a caution given to registered migration agents - Tribunal (exercising for itself the powers and discretions conferred on the Authority) cautioned a migration agent and imposed conditions for the lifting of that caution - Conditions imposed restricted migration agent from providing assistance with protection visas and from working without supervision of another registered migration agent - Whether conditions could be imposed that seek to qualify a registered migration agent's right to use that registration - Whether conditions imposed were inconsistent with the legislative scheme for registration of migration agents.

Statutes – Construction - Powers of Tribunal to substitute its decision for a decision of an administrator - Proper approach to ambit and application of power - Necessity for close attention to the applicable legislative provisions - Necessity for attention to purpose and history of legislation - Whether any general presumption as to determination of the rights of parties - Relevance of the constitution, functions and general powers of Tribunal.

Words and phrases – "correct or preferable decision", "decision made in substitution for the decision so set aside".

Administrative Appeals Tribunal Act 1975 (Cth) – ss 25, 43.

Migration Act 1958 (Cth) – ss 303, 304A, 306.

Shoalhaven City Council v Firedam Civil Engineering Pty Limited [2011] HCA 38

244 CLR 305
French CJ, Gummow, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Oct 2011 Case Number: S216/2010
Contract – Construction - Dispute resolution clause - Parties to contract agreed to expert determination of claims for damages for breach of contract - Expert contractually obliged to give reasons - Whether inconsistency in expert's reasons - Whether court has power to review expert's determination made under contract.

Words and phrases – "expert determination", "inconsistency", "issue", "valid and sufficient reasons".

Commercial Arbitration Act 1984 (NSW) – ss 24, 28, 33, 44.

Corporations Act 2001 (Cth) – s 500(2).

Shorey v PT Limited [2003] HCA 27

77 ALJR 1104; 197 ALR 410
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 28 May 2003 Case Number: S212/2002
Appeal – Rehearing - Causation - Conflict of expert evidence - Review of trial judge's finding of fact - Where plaintiff fell and suffered physical injuries as a result of tortfeasor's negligence - Plaintiff suffering from persistent psychologically disturbed condition - Whether psychological condition caused by fall.

Negligence – Damage - Causation of - Evidentiary foundation for proof of - Existence of multiple causes of damage - Obligation of plaintiff at trial to prove damage - Sufficiency of proof that the alleged tortfeasor's conduct was a cause of the plaintiff's damage - Alleged disproportion between the tortfeasor's conduct and subsequent symptoms - Whether plaintiff malingering - Obligation of tortfeasor to take plaintiff as it finds him or her.

Evidence – Evidentiary presumptions - Multiple causes of damage allegedly occasioned by tortfeasor's negligence - Evidentiary onus of tortfeasor to exclude the operation of its wrong as a cause of continuing damage - Relevance of factual findings made at trial - Whether alleged tortfeasor has displaced the causative effect of its injury.

Sidhu v Van Dyke [2014] HCA 19

88 ALJR 640; 308 ALR 232
French CJ, Kiefel, Bell, Gageler, Keane JJ
Date: 16 May 2014 Case Number: S312/2013
Estoppel – Equitable estoppel – Proprietary estoppel – Where promisor made representations to give property to promisee – Whether promisee acted to her detriment in reliance on promisor's representations – Whether onus of proof on promisee to prove reliance on promisor's representations.

Equity – Relief – Whether relief measured by reference to value of representations.

Words and phrases – "presumption of reliance".

Siemens Ltd v Schenker International (Australia) Pty Ltd [2004] HCA 11

216 CLR 418; 78 ALJR 508; 205 ALR 232
McHugh ACJ, Gummow, Kirby, Callinan, Heydon JJ
Date: 9 Mar 2004 Case Number: S158/2003
Contract – Negligence – Limitation of liability – Construction and interpretation – Contract for the international carriage of goods by air – Goods damaged by negligence of carrier – Goods damaged while in transit by road outside perimeter of airport of destination – Limitation of liability clause in air waybill – Whether limitation clause in air waybill applies to carriage by road.

Contract – Air waybill for international carriage of goods by air – Whether limitation clause in an air waybill applies to ground transport beyond the perimeter of the airport of destination – Services incidental to such air carriage – Whether limitation of liability must be, and was, expressed clearly to attract restriction on recovery for admitted negligence in ground transport.

Carriers – Carriage by air – Warsaw Convention, Arts 18 and 22 – Guadalajara Convention, Art 2 – Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 11 – Whether statutory limitation of liability applies to goods damaged outside perimeter of airport.

Words and phrases – "carriage", "international carriage", "actual carrier", "contracting carrier", "air carriage", "other services incidental to such air carriage".

Civil Aviation (Carriers' Liability) Act 1959 (Cth) – ss 11(1), 25A, Sched 2.

Customs Act 1901 (Cth) – ss 40AA, 71E(1), 71(2)(a).

Convention for the Unification of Certain Rules Relating to International Carriage by Air as amended at The Hague 1955 (Warsaw Convention) – Arts 1, 18, 22, 31.

Convention – Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier, Guadalajara 1961 (Guadalajara Convention), Art 2.

Silbert v Director of Public Prosecutions for Western Australia [2004] HCA 9

217 CLR 181; 78 ALJR 464; 205 ALR 43
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 3 Mar 2004 Case Number: P16/2002
Constitutional law – Judicial power of the Commonwealth - Vesting in State courts - Power of State Parliament to confer functions incompatible with exercise by State court of judicial power of the Commonwealth - State Act deems person who dies before a charge is finally determined to be taken to have been convicted of a "serious offence" - Whether provision of State Act amounts to parliamentary determination of guilt and imposition of conviction - Whether provision of State Act precludes a court from making any or any sufficient inquiry into whether the deceased committed the offence - Whether State law invokes the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

Criminal law – Confiscation of profits - Person charged with "serious offence" dies before charge finally determined - Crimes (Confiscation of Profits) Act 1988 (WA) deems deceased to be taken to have been convicted of the "serious offence" - Application for pecuniary penalty order and forfeiture order - Whether court precluded from making any or sufficient inquiry into whether the deceased committed the offence - Relevance of principles identified in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 - Whether legislative determination of guilt of the offence and imposition of conviction.

Words and phrases – "abscond", "serious offence".

Crimes (Confiscation of Profits) Act 1988 (WA) – ss 3, 6, 15, 53.

Criminal Property Confiscation Act 2000 (WA) – ss 6, 157, 160.

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