Judgments, ordered by case name

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U v U [2002] HCA 36

211 CLR 238; 76 ALJR 1416; 191 ALR 289
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 5 Sep 2002 Case Number: S256/2001
Family law – Children - Parenting orders - Residence orders - Contact orders - Place of residence of child when one parent wishes to relocate to another country - Proposals of parents about residence of child of marriage and contact with child - Wife's wish to return to country of origin - Wife applies for permission to leave Australia with child - Whether wife should be permitted to remove child from Australia - Wife acknowledged that she would remain in Australia if her return to her place of origin would result in order for child to reside with father - Best interests of child paramount consideration.

Family Court – Practice and Procedure - Children - Parenting orders - Residence orders - Contact orders - Proposals of parents - Whether powers or discretion of Court confined by proposals of parents.

Family Law Act 1975 (Cth) – s 65E.

UBS AG v Tyne [2018] HCA 45

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Oct 2018 Case Number: B54/2017
Practice and procedure – Permanent stay of proceedings – Abuse of process – Where respondent (in personal capacity) was controlling mind of former trustee and related company – Where respondent (in personal capacity), former trustee and related company commenced proceedings in Supreme Court of New South Wales – Where respondent (in personal capacity) and former trustee discontinued as parties in Supreme Court proceedings – Where Supreme Court proceedings permanently stayed – Where respondent (as trustee) pursued substantially same claims in Federal Court of Australia – Where primary judge permanently stayed proceedings for abuse of process – Whether on appeal Full Court erred in finding no abuse of process and setting aside permanent stay – Whether Full Court failed to consider overarching purpose of conduct of civil litigation.

Words and phrases – "abuse of process", "administration of justice", "conduct of civil litigation", "discontinue", "final determination", "just resolution", "overarching purpose of the conduct of civil litigation", "permanent stay", "related parties", "unconditional discontinuance", "unjustifiably oppressive".

Federal Court of Australia Act 1976 (Cth) – ss 23, 37M, 37N.

Federal Court Rules 2011 (Cth) – r 26. 14.

Uniform Civil Procedure Rules 2005 (NSW) – rr 12. 3(1), 12. 4.

Uelese v Minister for Immigration and Border Protection [2015] HCA 15

French CJ, Kiefel, Bell, Keane, Nettle JJ
Date: 6 May 2015 Case Number: S277/2014
Migration and citizenship – Visa cancellation – Character test – Administrative Appeals Tribunal – Migration Act 1958 (Cth), s 500(6H) precludes Tribunal from having regard to information presented orally in support of a person's case unless provided in written statement to Minister two days before Tribunal holds a hearing – Information arose regarding children during cross examination of witness called on behalf of appellant – Tribunal required to consider best interests of minor children in Australia – Whether Tribunal erred in its application of s 500(6H) by not considering that information – Relevance of whether information could reasonably have been anticipated by appellant.

Migration and citizenship – Visa cancellation – Character test – Administrative Appeals Tribunal – Whether Migration Act 1958 (Cth), s 500(6H) precludes Tribunal from adjourning hearing so that notice requirements may be met – Whether day on which Tribunal "holds a hearing" includes day on which hearing resumes.

Words and phrases – "holds a hearing", "information presented orally in support of the person's case".

Migration Act 1958 (Cth) – ss 499, 500(6H), 500(6L), 501.

Administrative Appeals Tribunal Act 1975 (Cth) – ss 33, 40(1)(c).

Ugle v The Queen [2002] HCA 25

211 CLR 171; 76 ALJR 886; 189 ALR 22
Gaudron, Gummow, Kirby, Hayne, Callinan JJ
Date: 20 Jun 2002
Criminal law – Homicide - Unlawful killing - Murder - Deceased died from knife wound to chest - Whether stabbing was an unwilled act - Whether trial judge erred in failing to direct jury about unwilled acts - Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered - Whether "event" arguably occurred "by accident".

Words and phrases – "accident" - "act" - "event" - "unwilled act".

The Criminal Code (WA) – s 23.

Unions NSW v New South Wales [2013] HCA 58

88 ALJR 227; 304 ALR 266
French CJ, Hayne, Crennan, Kiefel, Bell, Keane JJ
Date: 18 Dec 2013 Case Number: S70/2013
Constitutional law – Implied freedom of communication on governmental and political matters – Section 96D of Election Funding, Expenditure and Disclosures Act 1981 (NSW) ("EFED Act") prohibits political donations unless made by individual enrolled on roll of electors – Section 95G(6) of EFED Act aggregates expenditure by political party and affiliated organisations for purposes of cap on electoral communication expenditure – Whether political communication at State level can effectively burden federal implied freedom of communication – Whether ss 96D and 95G(6) effectively burden implied freedom of communication – Whether ss 96D and 95G(6) connected to legitimate end.

Words and phrases – "implied freedom of communication on governmental and political matters", "legitimate end".

Constitution – ss 7, 24, 96, 128.

Election Funding – Expenditure and Disclosures Act 1981 (NSW), Pt 5, Div 2, Pt 6, ss 83, 95G(6), 96D.

Election Funding – Expenditure and Disclosures Regulation 2009 (NSW), cl 34A.

Unions NSW v New South Wales [2019] HCA 1

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 29 Jan 2019 Case Number: S204/2018
Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(10) of Electoral Funding Act 2018 (NSW) ("EF Act") substantially reduced cap on electoral expenditure applicable to third-party campaigners from cap applicable under previous legislation – Where third-party campaigners subject to substantially lower cap than political parties – Where s 35 of EF Act prohibits third-party campaigner from acting in concert with another person to incur electoral expenditure exceeding cap – Where preparatory materials to EF Act recommended reduction in cap for various reasons, including that third parties should not be able to "drown out" political parties, which should have a "privileged position" in election campaigns – Where subsequent parliamentary committee report recommended that, before reducing cap, government consider whether proposed reduced cap would enable third-party campaigners reasonably to present their case – Where no evidence that such consideration was undertaken – Whether s 29(10) enacted for purpose compatible with maintenance of constitutionally prescribed system of representative government – Whether s 29(10) necessary to achieve that purpose – Whether necessary to decide validity of s 35.

Words and phrases – "capped expenditure period", "compatible with maintenance of the constitutionally prescribed system of representative government", "deference to Parliament", "domain of selections", "domain of the legislative discretion", "effect of the law", "electoral expenditure", "expenditure cap", "justified", "legislative purpose", "legitimate purpose", "level playing field", "marginalise", "margin of appreciation", "necessity", "reasonably appropriate and adapted", "third-party campaigner".

Constitution – ss 7, 24.

Electoral Funding Act 2018 (NSW) – ss 3, 29, 33, 35.

Election Funding – Expenditure and Disclosures Act 1981 (NSW), ss 4, 4A, 95F.

United Mexican States v Cabal [2001] HCA 60

209 CLR 165; 75 ALJR 1663; 183 ALR 645
Gleeson CJ, McHugh, Gummow JJ
Date: 24 Oct 2001 Case Number: M74/2001
Criminal law – Practice and procedure - Bail - Whether High Court has power to grant bail - In what circumstances High Court will grant bail - What constitutes "special circumstances" - Whether special circumstances established where applicant subject to extradition determination, in custody for over 30 months and subject to extremely harsh conditions in detention - Whether risk of flight outweighs special circumstances.

Extradition – Bail - Whether High Court has power to grant bail pursuant to the Extradition Act 1988 (Cth) or pursuant to the Constitution - What constitutes "special circumstances" for the purposes of granting bail in extradition proceedings - Rationale for refusing bail in extradition cases.

High Court of Australia – Practice and procedure - Bail - Whether High Court has power to grant bail pursuant to appellate or original jurisdiction - Proper form of order for admitting prisoner to bail - In what circumstances High Court will grant bail - Where applicant for bail subject to extradition determination and application for special leave to appeal still pending - What constitutes "special circumstances" - Whether special circumstances established by applicant in this extradition proceeding - Whether risk of flight outweighs special circumstances.

High Court of Australia – Significance of referring hearing of application for special leave to appeal to Full Court of High Court.

Words and phrases – "special circumstances".

Extradition Act 1988 (Cth) – ss 15, 19, 21.

United Mexican States v Pasini [2001] HCA 61

209 CLR 165; 183 ALR 671
Gleeson CJ, McHugh, Gummow JJ
Date: 24 Oct 2001 Case Number: M70/2001
Criminal law – Practice and procedure - Bail - Whether High Court has power to grant bail - In what circumstances High Court will grant bail - What constitutes "special circumstances" - Whether special circumstances established where applicant subject to extradition determination, in custody for over 30 months and subject to extremely harsh conditions in detention - Whether risk of flight outweighs special circumstances.

Extradition – Bail - Whether High Court has power to grant bail pursuant to the Extradition Act 1988 (Cth) or pursuant to Constitution - What constitutes "special circumstances" for the purposes of granting bail in extradition proceedings - Rationale for refusing bail in extradition cases.

High Court of Australia – Practice and procedure - Bail - Whether High Court has power to grant bail pursuant to appellate or original jurisdiction - Proper form of order for admitting prisoner to bail - In what circumstances High Court will grant bail - Where applicant for bail subject to extradition determination and application for special leave to appeal still pending - What constitutes "special circumstances" - Whether special circumstances established by applicant in this extradition proceeding - Whether risk of flight outweighs special circumstances.

High Court of Australia – Significance of referring hearing of application for special leave to appeal to Full Court of High Court.

Words and phrases – "special circumstances".

Extradition Act 1988 (Cth) – ss 15, 19, 21.

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