Judgments, ordered by case name

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Vairy v Wyong Shire Council [2005] HCA 62

223 CLR 422; 80 ALJR 1; 221 ALR 711
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 21 Oct 2005 Case Number: S493/2004
Torts – Negligence - Duty of care - Breach of duty - Foreseeability of risk of injury - Local authority - Power of care, control and management of natural reserve - Person suffered injury when diving into a body of water - Whether a reasonable local authority would have erected signs warning against the dangers of diving - Relevance of obviousness of risk to questions of duty and breach.

Local Government Act 1919 (NSW).

Ordinance No 52 under the Local Government Act 1919 (NSW)
– cll 8, 29(a)-(b).

Vale v Sutherland [2009] HCA 26

237 CLR 638; 83 ALJR 940; 258 ALR 1
Gummow, Hayne, Heydon, Crennan, Kiefel JJ
Date: 29 Jul 2009 Case Number: S38/2009
Bankruptcy – Notice - Official Receiver issued notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) ("the Act") asserting certain property transactions void under s 120 of the Act - Notice asserted market value of properties at time of transfer - Failure to comply with notice may result in criminal sanctions under s 139ZT of the Act - Whether notice should be set aside under s 30 or s 139ZS if value stated incorrect.

Bankruptcy – Notice - Whether value in s 139ZQ of the Act value at time of transfer or when notice given.

Practice and procedure – Pleadings - Whether correctness of value traversed in defence or cross-claim - Effect of failure to make specific denial or specific non- admission in pleadings where trial conducted on basis that correctness of value was in issue.

Words and phrases – "valuation", "value ".

Bankruptcy Act 1966 (Cth) – ss 5, 30, 40(1)(g), 115, 120, 127, 139K, 139ZQ, 139ZR, 139ZS, 139ZT.

Federal Court Rules (Cth) – O 11, r 13(2).

Federal Magistrates Court Rules 2001 (Cth) – rr 1. 03, 1. 05.

Federal Magistrates Court Act 1999 (Cth) – s 76.

Van Beelen v The Queen [2017] HCA 48

Bell, Gageler, Keane, Nettle, Edelman JJ
Date: 8 Nov 2017 Case Number: A8/2017
Criminal law – Appeal against conviction – Second or subsequent appeal – Application for permission to appeal pursuant to s 353A(1) of Criminal Law Consolidation Act 1935 (SA) – Where appellant convicted of murder – Where expert evidence of time of death given at trial based on stomach contents of deceased – Where new evidence demonstrated expert estimation of time of death at trial erroneous – Where new evidence required to be fresh and compelling in order to be admitted – Where evidence compelling if reliable, substantial and highly probative in context of issues in dispute at trial – Whether new evidence substantial – Whether new evidence highly probative in context of issues in dispute at trial – Whether in interests of justice to consider new evidence on appeal – Whether admission of evidence based on stomach contents at trial occasioned substantial miscarriage of justice – Whether significant possibility jury acting reasonably would have acquitted had new evidence been before it.

Words and phrases – "compelling", "fresh evidence", "highly probative in the context of the issues in dispute at the trial", "second or subsequent appeal", "substantial", "substantial miscarriage of justice".

Criminal Law Consolidation Act 1935 (SA) – s 353A.

Vasiljkovic v Commonwealth of Australia [2006] HCA 40

227 CLR 614; 80 ALJR 1399; 228 ALR 447
Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ
Date: 3 Aug 2006 Case Number: C3/2006
Extradition – Plaintiff remanded in custody pending determination of eligibility for surrender – Arrest warrant for plaintiff in force in Croatia on charge of certain war crimes – Arrest warrant constitutes relevant "supporting documentation" for purposes of s 19 of the Extradition Act 1988 (Cth) – Statement made by Croatian investigating authorities of a well-founded suspicion that plaintiff committed the offences alleged, including recitation of evidence provided by witnesses – Croatia declared to be an "extradition country" by Extradition (Croatia) Regulations 2004 (Cth), regs 3, 4 – Whether Pt II of the Extradition Act is a valid law of the Commonwealth.

Constitutional law (Cth) – Judicial power of the Commonwealth – Plaintiff detained pending determination of eligibility for surrender – Extradition Act, s 19(1) provided power of an administrative nature to conduct proceedings to determine eligibility for surrender – Extradition Act, s 19(5) provided that the person to whom the proceedings relate is not entitled to adduce evidence to contradict allegations that the person has engaged in the conduct constituting an extradition offence – No prima facie evidence requirement applicable – Whether Pt II of the Extradition Act is invalid to the extent that it purports to confer a power to deprive an Australian citizen of liberty otherwise than in exercise of the judicial power of the Commonwealth – Whether Pt II of the Extradition Act when read together with the Extradition (Croatia) Regulations is invalid to the extent that it purports to confer a power to deprive an Australian citizen of liberty otherwise than upon a finding that there exists a prima facie case against that person of the commission of the offences alleged by the state requesting extradition – Whether law authorising such involuntary detention requires machinery for testing the validity of the charges made – Whether surrender proceedings are an integer of a "matter" for the purposes of Ch III of the Constitution.

Constitutional law (Cth) – External affairs – Extradition (Croatia) Regulations not made pursuant to any treaty between Australia and Croatia – Whether, in the absence of a treaty, the declaration by the Extradition (Croatia) Regulations of Croatia as an extradition country is invalid for want of support by s 51(xxix) of the Constitution or any other legislative power of the Commonwealth – Whether Pt II of the Extradition Act and the Extradition (Croatia) Regulations operate by reference to the conduct of the plaintiff external to Australia or by reference to an untested and untestable allegation of such conduct – Whether the mere fact of a request by a foreign state makes the subject-matter of the request amenable to the exercise of the legislative power conferred by s 51(xxix).

Constitution – s 51(xxix), Ch III.

Extradition Act 1988 (Cth) – ss 3(a), 5, 11, Pt II.

Extradition (Croatia) Regulations 2004 (Cth).

VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60

233 CLR 1; 81 ALJR 475; 231 ALR 544
Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ
Date: 14 Dec 2006 Case Number: M81/2006
Immigration – Refugees - Well-founded fear of persecution - Section 91R(1) of the Migration Act 1958 (Cth) required that persecution involve "serious harm to the person" - Serious harm defined to include "threat to the person's life or liberty" - Whether "threat to the person's life or liberty" referred to likelihood of death or deprivation of liberty, or communication of intention to kill or deprive of liberty - Whether expression of intention to harm sufficient to constitute "serious harm".

Immigration – Refugees - Application for protection visa - Whether Refugee Review Tribunal made findings of fact favourable to the appellant so as to call into operation s 91R of the Migration Act 1958 (Cth).

Words and phrases – "threat", "threat to the person's life or liberty", "serious harm".

Migration Act 1958 (Cth) s 91R(1)(b) – (2).

Velevski v The Queen [2002] HCA 4

76 ALJR 402; 187 ALR 233
Gleeson CJ, Gaudron, Gummow, Hayne, Callinan JJ
Date: 14 Feb 2002 Case Number: S197/2000
Criminal law – Evidence – Expert evidence – Whether certain wounds to deceased were self-inflicted – Whether capable of being the subject of expert opinion – Evidence given by experts on matters of common knowledge of human behaviour – No objection by accused – Whether admissible – Whether conflicting opinion of experts incapable of resolution beyond reasonable doubt by jury because of difficulty and sophistication of purely scientific or medical evidence.

Criminal law – Practice and procedure – Duties of prosecution – Whether prosecution obliged to call other expert witnesses whose evidence might have been favourable to the accused.

Criminal law – Evidence – Confessions and admissions – Lie as evidence of consciousness of guilt – Whether jury could rely upon alleged lie only if satisfied of it beyond reasonable doubt.

Evidence Act 1995 (NSW) – ss 79, 80.

Vella v Minister for Immigration and Border Protection [2015] HCA 42

Gageler J
Date: 30 Nov 2015 Case Number: S233/2015
Practice and procedure – High Court of Australia – Extension of time – Migration law – Migration Act 1958 (Cth), s 486A imposes 35 day limit on application for remedy in High Court's original jurisdiction in relation to migration decision – High Court may extend 35 day period if necessary in the interests of the administration of justice – Application for order to show cause in relation to migration decision made 16 months out of time – Whether order extending 35 day period should be made – Whether case for extension of time exceptional.

Words and phrases – "interests of the administration of justice".

Migration Act 1958 (Cth) – s 486A.

Vetter v Lake Macquarie City Council [2001] HCA 12

202 CLR 439; 75 ALJR 578; 178 ALR 1
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 8 Mar 2001 Case Number: S27/2000
Workers' compensation – Journey - Workers Compensation Act 1987 (NSW) - Compensation for worker injured on journey from work to place of abode - Worker travelling home after stopping for a meal with a relative - Whether deviation or interruption to the journey.

Workers' compensation – Practice and procedure - Compensation Court Act 1984 (NSW) - Appeal to Court of Appeal on a point of law only - Powers of the Court of Appeal.

Words and phrases – "journey" - "direct route" - "fault" - "place of abode".

Workers' Compensation Act 1926 (NSW) – s 7.

Workers Compensation Act 1987 (NSW) – s 10.

Compensation Court Act 1984 (NSW) – s 32.

Victims Compensation Fund Corporation v Brown [2003] HCA 54

77 ALJR 1797; 201 ALR 260
McHugh ACJ, Gummow, Kirby, Hayne, Heydon JJ
Date: 30 Sep 2003 Case Number: S162/2003
Criminal law – Victims compensation - Shock - When compensable - Eligibility for compensation only if victim suffers "symptoms and disability" - Whether "and" conjunctive or disjunctive.

Statutes – Interpretation - "Symptoms and disability" - Whether "and" conjunctive or disjunctive.

Words and phrases – "and".

Victims Support and Rehabilitation Act 1996 (NSW) – Sched 1, cl 5(a).

Victoria v Tatts Group Limited [2016] HCA 5

French CJ, Kiefel, Bell, Keane, Gordon JJ
Date: 2 Mar 2016 Case Number: M83/2015
Contract – Construction of terms – Where contract used statutory term "gaming operator's licence" – Where contract provided for payment to respondent if "new gaming operator's licence" issued to person other than respondent – Where statutory scheme amended so gaming operator's licence could no longer be issued – Meaning of "new gaming operator's licence" – Whether payment due.

Contract – Construction of terms – Context and purpose – Where commercial context regulated by statutory regime – Where letter from member of Executive annexed to contract – View of reasonable business people.

Contract – Construction of terms – Whether pre-existing contractual right operated independently of statutory right on same subject matter – Whether pre-existing contractual right discharged or abrogated by subsequent legislative enactment.

Words and phrases – "gaming machine entitlement", "gaming operator's licence", "new gaming operator's licence".

Gaming Machine Control Act 1991 (Vic) – Pt 3.

Gambling Regulation Act 2003 (Vic) – Pts 4 and 4A of Ch 3.

Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53

207 CLR 520; 75 ALJR 1513; 182 ALR 321
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 13 Sep 2001 Case Number: M101/2000
Accident compensation – Workers compensation - Section 138 of the Accident Compensation Act 1985 (Vic) confers an entitlement to indemnification upon employers or insurers who have paid or are liable to pay compensation - Section 60(1) of the Supreme Court Act 1986 (Vic) provides for damages in the nature of interest in respect of any proceeding for the recovery of debt or damages - Whether a proceeding to establish amount of indemnification under s 138 is a proceeding for the recovery of debt or damages.

Words and phrases – "debt or damages".

Accident Compensation Act 1985 (Vic) – s 138.

Supreme Court Act 1986 (Vic) – s 60.

Vigolo v Bostin [2005] HCA 11

221 CLR 191; 79 ALJR 731; 213 ALR 692
Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ
Date: 9 Mar 2005 Case Number: P30/2004
Testator's family maintenance – Adequate provision for proper maintenance - Application by son of deceased - From 1973 to 1993 appellant made substantial contribution to deceased's family farming business - Deceased promised appellant that he would inherit family farm in return for his work in building up family assets - In 1993 relationship between appellant and deceased broke down - As a consequence parties entered Deed of Settlement to rearrange family affairs including ownership of family farm, which was purchased by the appellant and his wife - Deceased's will made no provision for the appellant - Jurisdictional question - Whether appellant left without adequate provision for his maintenance, education or advancement in life - Effect of Deed of Settlement on totality of relationship - Relevance of moral duty criterion.

Words and phrases – "adequate provision from his estate for the proper maintenance, support, education or advancement in life" - "moral duty".

Inheritance (Family and Dependants Provision) Act 1972 (WA) – s 6.

Visnic v Australian Securities and Investments Commission [2007] HCA 24

231 CLR 381; 81 ALJR 1175; 234 ALR 413
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 24 May 2007 Case Number: S389/2006
Constitutional law (Cth) – Separation of powers - Judicial power - The Australian Securities and Investments Commission ("ASIC") disqualified the plaintiff from managing corporations pursuant to s 206F of the Corporations Act 2001 (Cth) - Whether the power of disqualification contained in s 206F of the Corporations Act 2001 (Cth) invalidly confers the judicial power of the Commonwealth upon ASIC.

Constitutional law (Cth) – Separation of powers - Whether a power of disqualification can validly be conferred concurrently upon a Chapter III court and an administrative body - Relevance of the existence of curial powers of disqualification alongside those conferred upon ASIC - Relevance of chameleon principle - Whether conferral of power upon an administrative body is an impermissible circumvention of Ch III of the Constitution.

Constitutional law (Cth) – Judicial power - Meaning of judicial power -Whether the maintenance of professional standards involves the exercise of judicial power - Whether the determination of the "public interest" involves the exercise of judicial power.

Words and phrases – "chameleon principle", "disqualification", "functional analysis", "judicial power of the Commonwealth", "public interest".

Constitution – Ch III.

Corporations Act 2001 (Cth) – Pt 2D. 6 ss 206F, 1317E.

Visscher v The Honourable President Justice Giudice [2009] HCA 34

239 CLR 361; 83 ALJR 1068; 258 ALR 651
Gummow, Heydon, Crennan, Kiefel, Bell JJ
Date: 2 Sep 2009 Case Number: S30/2008
Industrial law – Contract of employment - Where employee promoted to Chief Officer but promotion later sought to be rescinded by employer - Where employee continued to perform duties and receive salary equivalent to that of Chief Officer - Whether rescission of promotion effective to terminate contract of employment.

Contract – Contract of employment - Repudiation - Where employer repudiated contract of employment - Whether acceptance of repudiation by employee necessary to terminate contract of employment - Relevance of distinction between contract of employment and employment relationship - Whether employee estopped from denying that repudiation effective to terminate contract of employment.

Industrial law – Certified Agreement - Where annexure to Certified Agreement listed gradings of employees - Whether grading listed in Certified Agreement conclusive as to employee's position.

Words and phrases – "at the initiative of the employer", "contract of employment", "employment relationship", "repudiation", "termination".

Workplace Relations Act 1996 (Cth) – ss 170CD(1B), 170CE(1)(a), 170CH(3).

Visy Paper Pty Limited v Australian Competition and Consumer Commission [2003] HCA 59

216 CLR 1; 77 ALJR 1893; 201 ALR 414
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 8 Oct 2003 Case Number: S209/2002
Trade practices – Restrictive trade practices – Exclusionary provisions – Exclusive dealing – Arrangements for waste paper collection – Where non-competition provisions have dual and composite character – Non-competition provisions preventing both the acquisition of goods from, and the supply of services to, particular persons – Both aspects of the non-competition provisions contravened s 45(2)(a)(i) of the Trade Practices Act 1974 (Cth) and one of those aspects would, but for s 47(10), have contravened s 47 – Whether s 45(6) precluded the application of s 45(2)(a)(i) to both aspects of the non-competition provisions or only that aspect covered by s 47.

Words and phrases – "provision", "by reason that", "give effect to", "condition".

Trade Practices Act 1974 (Cth) – ss 4(1), 4D, 45(2)(a)(i), 45(6), 47.

W.R. Carpenter Holdings Pty Limited v Commissioner of Taxation [2008] HCA 33

237 CLR 198; 82 ALJR 1211; 248 ALR 256
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 31 Jul 2008 Case Number: S652/2007 S653/2007
International agreements – Dealings between parties not at "arm's length" - Income Tax Assessment Act 1936 (Cth), s 136AD(1) deemed consideration equal to "arm's length consideration" to be received or receivable by taxpayer in certain circumstances if respondent Commissioner determined sub-section should apply - Commissioner determined s 136AD(1) should apply to appellant taxpayers and included "deemed" interest in assessable income - Whether Commissioner obliged to consider fairness and reasonableness to taxpayer and taxpayer purpose or motive when making determination - Relevance of Constitution to statutory construction where tax liability dependent on conclusion of Commissioner respecting particular circumstance or state of affairs.

Income tax – Appeals - Pt IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act") - Appellants appealed to Federal Court under Pt IVC alleging assessments excessive - Proper issues for determination in Pt IVC proceedings where application of s 136AD(1) disputed.

Practice – Particulars - Pt IVC of the Administration Act - Appellants sought particulars of matters taken into account by Commissioner - Proper role of particulars in Pt IVC proceedings - Whether appellants entitled to particulars.

Words and phrases – "arm's length consideration", "excessive", "international agreement", "profit shifting motive", "substantive liability", "tax avoidance purpose".

Income Tax Assessment Act 1936 (Cth) – ss 136AC, 136AD, 136AF.

Taxation Administration Act 1953 (Cth) – s 14ZZO.

WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50

79 ALJR 94; 210 ALR 190
Gleeson CJ, McHugh, Gummow, Kirby, Heydon JJ
Date: 7 Oct 2004 Case Number: P92/2003
Immigration – Refugees - Non-citizen - Illiterate and unaccompanied minor in immigration detention - Application for review by the Federal Court of decision of Refugee Review Tribunal - Whether under s 478(1)(b) of the Migration Act 1958 (Cth) the application for review was lodged within 28 days of the applicant being notified of the decision - Whether applicant "notified of the decision" under s 478(1)(b) by being told of outcome of decision - Whether giving to the applicant the written statement under s 430 is required for notification under s 478(1)(b).

Statutes – Construction - Whether under s 478(1)(b) of the Migration Act 1958 (Cth) the application for review was lodged within 28 days of the applicant being notified of the decision - Whether the Minister's obligations as statutory guardian under s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) are relevant to the construction of s 478(1)(b).

Words and phrases – "Notified of the decision", "decision", "give".

Migration Act 1958 (Cth) – ss 430, 430A, 430B, 430C, 430D, 478.

Immigration (Guardianship of Children) Act 1946 (Cth) – ss 5, 6, 6A.

Wainohu v New South Wales [2011] HCA 24

243 CLR 181; 85 ALJR 746; 278 ALR 1
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 23 Jun 2011 Case Number: S164/2010
Constitutional law (Cth) – Judicial power of Commonwealth - Constitution, Ch III - Institutional integrity of State courts - Non-judicial functions conferred upon judges of State courts - Section 5 of Crimes (Criminal Organisations Control) Act 2009 (NSW) ("Act") provided that Attorney-General may, with consent of judge, declare judge of Supreme Court to be an "eligible Judge" for purposes of Act - Section 6(1) provided that Commissioner of Police ("Commissioner") may apply to eligible Judge for declaration that particular organisation is a "declared organisation" for purposes of Act - Section 9(1) provided that eligible Judge may make declaration if satisfied members of particular organisation "associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity", and that organisation "represents a risk to public safety and order" - Section 13(2) relevantly provided that eligible Judge not required to provide "any grounds or reasons" for making declaration - Part 3 of Act empowered Supreme Court to make, on application by Commissioner, control order against member of particular "declared organisation" - Whether function conferred by Act upon eligible Judge to make declaration without requirement to provide grounds or reasons repugnant to or incompatible with institutional integrity of Supreme Court - Whether substantial impairment of institutional integrity of Supreme Court.

Words and phrases – "incompatibility", "institutional integrity", "persona designata", "reasons".

Constitution – Ch III.

Crimes (Criminal Organisations Control) Act 2009 (NSW) – ss 5, 6(1), 9(1), 12, 13(2), 14, 19.

Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5

233 CLR 259; 82 ALJR 489; 242 ALR 383
Gleeson CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 27 Feb 2008 Case Number: S307/2007 S308/2007
Real Property – Compulsory acquisition - Amount of compensation - Market value - Respondent acquired industrial zoned land by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - Local council resisted attempts to rezone land for residential development before its acquisition - Whether effect of council's conduct on value of land should be disregarded in determining market value under s 56(1) of the Act.

Statutes – Interpretation - Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - Section 56(1) of the Act defined market value - Pursuant to s 56(1)(a) any increase or decrease in the value of land caused by the carrying out of, or the proposal to carry out, the public purpose for which land was acquired was to be disregarded - Whether conduct of local council was part of proposal to carry out the public purpose for which land was compulsorily acquired by the respondent - Relevance of common law principles derived from other jurisdictions.

Words and phrases – "market value", "proposal", "scheme".

Land Acquisition (Just Terms Compensation) Act 1991 (NSW) – ss 55, 56(1)(a).

Wallaby Grip Limited v QBE Insurance (Australia) Limited [2010] HCA 9

240 CLR 444; 84 ALJR 257; 264 ALR 425
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 30 Mar 2010 Case Number: S281/2009 S284/2009
Insurance – Workers' compensation - Workers' Compensation Act 1926 (NSW) ("Act") s 18(1) required employers to obtain insurance or indemnity policy from insurer in respect of liability for injury to any worker - Act stipulated minimum level of cover in respect of employer's liability independently of Act - General terms and conditions of policy referred to in Act and in Appendix to Workers' Compensation Regulations 1926 (NSW) ("Regulations") - Where insurance policy lost - Where no evidence as to level of indemnity in policy - Whether any limitation upon indemnity imposed by Act or policy - Whether insurer or insured carries burden of proving limitation upon indemnity.

Statutory construction – Interaction between Act and Regulations - Whether Regulations can be used to construe Act.

Workers' Compensation Act 1926 (NSW) – ss 18(1), 18(3)(a), 18(5).

Workers' Compensation Regulations 1926 (NSW) – Div I, reg 1.

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