Judgments, ordered by date

Browsing By Year (1999)

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Wong v Silkfield Pty Ltd [1999] HCA 48

(1999) 199 CLR 255; 73 ALJR 1427; 165 ALR 373; [1999] ATPR 41-713
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 9 Sep 1999
Practice and procedure – Federal Court of Australia - Representative proceedings - Commencement - Misleading and deceptive conduct pleaded - Whether alleged common misrepresentation a substantial common issue of law or fact". Words and phrases - "substantial". Federal Court of Australia Act 1976 (Cth)

Husher v Husher [1999] HCA 47

(1999) 197 CLR 138; 73 ALJR 1414; 165 ALR 384; [1999] Aust Torts Reports 81-519
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 23 Jun 1999
Husher v Husher

Damages
– Tort - Personal injuries - Quantification - Loss of future earning capacity - Husband and wife partnership at will - Equal division of profits - No significant contribution by wife to partnership's business activity - Whether loss of future earning capacity calculated by reference to plaintiff's past share of partnership profits.

AB v The Queen [1999] HCA 46

(1999) 198 CLR 111; 73 ALJR 1385; 165 ALR 298
McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 9 Sep 1999
AB v The Queen

Criminal law
– Sentence - Principles - Offences not forming the basis of extradition - Extradition law - Confession and non-insistence on rule of speciality - Whether sentencing Court required to have regard to the public interest in the accused's confession and non-insistence on rule of speciality.

Appeal – Sentence for criminal offences - New ground added in appeal to High Court - Ground not expressly taken at first instance or in Court of Criminal Appeal - Whether ground could or should be allowed - Whether materials before lower courts, relevant to ground, sufficiently raised point of law for consideration in High Court.

Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44

(1999) 200 CLR 322; 73 ALJR 1324; 165 ALR 171
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 2 Sep 1999
Re The Governor – Goulburn Correctional Centre; Ex parte Eastman

Constitutional law – Territories - Australian Capital Territory - Courts of territories - Supreme Court of Australian Capital Territory - Whether a court \created by the Parliament" - Whether s 72 applies to courts created by or pursuant to s 122.

Constitutional law – Territories - Australian Capital Territory - "Seat of government" - Source of legislative power for laws for the government of the territory - Whether s 52(i) or s 122.

Habeas corpus – Applicant sentenced to imprisonment for life following conviction for murder - Trial presided over by judge appointed otherwise than in accordance with s 72 of the Constitution - Whether applicant was duly convicted.

Robinson v The Queen [1999] HCA 42

(1999) 197 CLR 162; 73 ALJR 1314; 165 ALR 226
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 2 Sep 1999
Robinson v The Queen

Criminal law and procedure
– Evidence - Sexual assault of child under 12 - Uncorroborated evidence of complainant - Necessity for warning by trial judge to jury.

Evidence – Criminal trial - Sexual assault of child under 12 - Uncorroborated evidence of complainant - Necessity for warning by trial judge to jury.

Byrnes v The Queen [1999] HCA 38

(1999) 199 CLR 1; 73 ALJR 1292; 164 ALR 520
Gaudron, McHugh, Gummow, Kirby, Callinan JJ
Date: 12 Aug 1999
Timothy Paul Hopwood v The Queen Constitutional law - Inconsistency between Commonwealth and State laws - Conferral of functions on Commonwealth Director of Public Prosecutions by State law - Whether permitted by Commonwealth law. Constitutional law - Offences against Companies (South Australia) Code - Whether offences deemed to be offences against a law of the Commonwealth - Whether s 80 of the Constitution applies to trial of accused. Constitutional law - State legislative power - Corporations law national scheme - Whether South Australian legislature abdicated its authority by participating in scheme. Courts - Court of Criminal Appeal of South Australia - Appeal against sentence by Commonwealth Director of Public Prosecutions - Offences against Companies (South Australia) Code - Whether deemed to be offences against the Corporations Law - Nature of appellate jurisdiction - Whether statutory grant of administrative power also conferred judicial authority to hear appeal. Courts - Inferior courts of limited jurisdiction - District Court of South Australia - Nature of jurisdiction - Whether appeal lies to Court of Criminal Appeal of South Australia. Criminal law - Companies - Directors - Improper use of position - Furnishing misleading information - Offences against Companies (South Australia) Code - Conviction and sentence - Whether Commonwealth Director of Public Prosecutions empowered to appeal against sentence. Statutes - Construction - Whether construction extending criminal liability appropriate in the absence of specific legislative intent. Words and phrases - appeal" - "enforcement power" - "relating to". The Constitution

Perre v Apand Pty Ltd [1999] HCA 36

(1999) 198 CLR 180; 73 ALJR 1190; 164 ALR 606; [1999] Aust Torts Reports 81-516
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 12 Aug 1999
Perre v Apand Pty Ltd

Negligence
– Duty of care - Economic loss - Factors relevant to determination of duty.

Attorney-General (Cth) v Oates [1999] HCA 35

(1999) 198 CLR 162; 73 ALJR 1182; 164 ALR 393; 32 ACSR 283
Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ
Date: 5 Aug 1999
Attorney –General v Oates

Companies – Procedure - Commencement of prosecutions - Indictable offences against Companies (Western Australia) Code - Application of Corporations Law, s 1316 - Time period between conduct alleged to give rise to offences and commencement of prosecution in excess of five years - Whether prosecution must be commenced within five years - Whether consent of Minister always necessary to commence prosecution if five years has elapsed.

Criminal law and procedure – Indictable offences against Companies (Western Australia) Code - Prosecution of offences - Commencement of prosecutions - Whether prosecution must be commenced within five years - Whether consent of Minister always necessary to commence prosecution if five years has elapsed.

Commissioner of Taxation (Cth) v Montgomery [1999] HCA 34

(1999) 198 CLR 639; 73 ALJR 1160; 164 ALR 435; 42 ATR 475; 99 ATC 4749
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 5 Aug 1999
The Commissioner of Taxation v Montgomery

Income tax
– Income - Income according to ordinary concepts and usage of mankind - Lease incentive payment received by taxpayer relocating premises - Whether income or capital - Whether receipt should be characterised as an incentive to pay greater rent - Whether receipt analogous to lease premium payment - Whether receipt part of profit-making undertaking or scheme - Whether receipt was an ordinary incident of a transaction in the course of the taxpayer's business - Whether receipt mustbe in the ordinary course of the taxpayer's business.

Walsh v Law Society (NSW) [1999] HCA 33

(1999) 198 CLR 73; 73 ALJR 1138; 164 ALR 405
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 5 Aug 1999
Walsh v Law Society of New South Wales

Appeal
– Jurisdiction - New South Wales Court of Appeal - Appeal from Legal Services Tribunal - Whether court exercising statutory or inherent jurisdiction with respect to the discipline of legal practitioners - Whether jurisdiction conferred by statute entitled court to treat appeal as a new hearing.

Appeal – Nature of appeal - Consideration by court of matters outside grounds of appeal and particulars - Procedural fairness to parties and non-parties - Substitution of views of court for findings of primary tribunal - Whether errors of law by court require rehearing of appeal and cross-appeal.

Legal practitioners – Solicitors - Professional misconduct - Unsatisfactory professional conduct - Conduct in connection with the practice of law - Fitness to remain on roll of legal practitioners.

Melbourne v The Queen [1999] HCA 32

(1999) 198 CLR 1; 73 ALJR 1097; 164 ALR 465
McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 5 Aug 1999
Melbourne v The Queen

Criminal law
– Evidence - Character evidence - Evidence of accused's good character adduced - Relevance of character evidence to propensity to commit offence charged - Relevance of character evidence to accused's credibility - Directions to jury - Whether directions about use of character evidence mandatory.

Sue v Hill [1999] HCA 30

(1999) 199 CLR 462; 73 ALJR 1016; 163 ALR 648
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 23 Jun 1999
High Court – Original jurisdiction - Court of Disputed Returns - Case stated pursuant to Judiciary Act 1903 (Cth), s 18 - Petition as to validity of election of a Senator - Disqualification under s 44(i) of the Constitution - Whether Div 2 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) exhaustively prescribes Court's jurisdiction to determine matters concerning the constitutional and legislative disqualifications of a Senator or whether jurisdiction also conferred by Div 1 of Pt XXII. Constitutional law - Judicial power - Petition as to validity of election of a Senator - Whether Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth) confers non-judicial power. Constitutional law - Commonwealth legislative power - Whether Parliament has otherwise provided" in respect of the constitutional qualifications of Senators by enacting Div 1 of Pt XXII of the Commonwealth Electoral Act 1918 (Cth). Constitutional law - Sovereignty - Legislative

Lowndes v The Queen [1999] HCA 29

(1999) 195 CLR 665; 73 ALJR 1007; 163 ALR 483
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 17 Jun 1999
Lowndes v The Queen

Criminal law
– Sentencing - Sexual offences - Appellant sentenced to six years with parole eligibility - Crown appeal - Order for indefinite imprisonment made by appellate court - Considerations relevant to making indefinite imprisonment order - No material error by sentencing judge or in resulting sentence identified - Appellate intervention and re-exercise of sentencing discretion impermissible.

Attorney-General (Cth) v Breckler [1999] HCA 28

(1999) 197 CLR 83; 73 ALJR 981; 163 ALR 576; 42 ATR 313
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 17 Jun 1999
Attorney –General of the Commonwealth v Breckler & Ors

Constitutional law – Judicial power of the Commonwealth - Power of Superannuation Complaints Tribunal to make decisions deemed to be decisions of trustees of regulated superannuation fund - Whether binding, authoritative and curially enforceable determination - Whether determination is subject to collateral attack.

High Court – Practice - Intervention and amicus curiae - Circumstances where appropriate to allow and refuse.

Re Wakim; Ex parte McNally [1999] HCA 27

(1999) 198 CLR 511; 73 ALJR 839; 163 ALR 270; 31 ACSR 99; 24 Fam LR 669; 17 ACLC 1,055
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 19 Aug 1999
Constitutional law – Judicial power of the Commonwealth - Cross-vesting of federal, State and Territory jurisdiction - Whether Chapter III of the Constitution contains an exhaustive delimitation of the original jurisdiction that may be conferred on a federal court.

Constitutional law – State and Commonwealth legislative power - State law vesting State jurisdiction in Federal Court - Whether State has power to confer State jurisdiction on federal courts - Whether Commonwealth has power to consent to conferral of State jurisdiction on federal courts - Doctrine of separation of powers considered.

Constitutional law – Jurisdiction - Territories - Commonwealth law vesting Territory jurisdiction in Federal Court - Whether Commonwealth law applying in Territory is a \law made by the Parliament" for the purposes of Chapter III of the Constitution.

Constitutional law – Interpretation - Whether constitutional validity turns on legislative purpose or intent - Whether constitutional validity turns on legislative consent - Consideration of "co-operative federalism".

High Court – Stare decisis - Whether equally divided previous decision of Court is binding precedent - Whether necessary to reopen or reconsider previous decision.

High Court – Appeal - Earlier challenge to validity of legislation dismissed - Issue estoppel and res judicata - Whether a party to earlier proceedings or another can reagitate issues decided in earlier proceedings - Whether order of Federal Court finally determined the rights of the parties.

Federal Court of Australia – Jurisdiction - Bankruptcy proceedings - "Matter" - "Accrued jurisdiction" - Whether matter includes non-federal claim - Whether claims arise out of a common substratum of facts.

Corporations – Winding up - Examination orders - Whether Corporations Law purports to confer non-judicial power on federal court. "

AMS v AIF [1999] HCA 26

(1999) 199 CLR 160; 73 ALJR 927; 163 ALR 501; 24 Fam LR 756; [1999] FLC 92-852; 12 Leg Rep 11
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 17 Jun 1999
AMS v AIF

AIF v AMS

Constitutional law
– Inconsistency between Commonwealth and State laws - Family law - Guardianship and custody of child - Whether Family Law Act 1975 (Cth), s 63F(1) inconsistent with Family Court Act 1975 (WA), s 35.

Constitutional law – Powers of the Commonwealth Parliament - Territories - Whether sufficient nexus with Commonwealth law concerning guardianship and custody of children born in Territory to parents then residing there.

Constitutional law – Interpretation - Whether implications arise from international law.

Constitutional law – Freedom of interstate intercourse - Movement of persons - Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 inconsistent with exercise of judicial discretion under Family Court Act 1975 (WA), s 36A - Guardianship and custody orders - Whether necessary to determine whether requirement of orders that parent not change child's principal place of residence greater than reasonably required to achieve legislative object.

Federal jurisdiction – Family law - Guardianship and custody application - Parents resident in the Northern Territory at birth of ex-nuptial child - Whether Family Court of Western Australia exercising federal jurisdiction under Family Law Act 1975 (Cth), s 63F(1).

Federal jurisdiction – Inconsistency between Commonwealth and State laws - Matter arising under s 76(i) of the Constitution - Whether jurisdiction invested by Judiciary Act 1903 (Cth), s 39(2).

Federal jurisdiction – Appeals - Family law - Whether appeal to Supreme Court of Western Australia an exercise of federal jurisdiction.

Family law – Guardianship and custody orders - Variation - Exercise of discretion by trial judge - Best interests of child - Whether requirement that custodial parent provide \compelling reasons" to justify relocation within Australia an error of law - Whether order that custodial parent may relocate is an order "with respect to" welfare or custody.

Kenny & Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25

(1999) 199 CLR 413; 73 ALJR 901; 163 ALR 611; 11 ANZ Insurance Cases 61-461; [1999] ATPR 41-711; [1999] Aust Torts Reports 81-509; [1999] NSW ConvR 55-905; [1999] Q ConvR 54-530; [1999] ANZ ConvR 514; [2000] Lloyd's Rep. P.N. 25
Gaudron, McHugh, Gummow, Kirby, Callinan JJ
Date: 17 Jun 1999
Tort – Misrepresentation - Valuation of property - Representation as to present and future value - Duty of care - Scope of liability of valuer - Causation and remoteness of loss - Whether liability to financier includes losses arising from subsequent fall in property market. Damages - Negligence - Misrepresentation - Valuation of property - Remoteness and measure of damages - Whether contractual remoteness test applicable. Trade practices - Misleading and deceptive conduct - Valuation of property - Remoteness and measure of damages. Valuation - Property - Principles - Efficiency of market - Foreseeable risks - Whether factored into value. Fair Trading Act 1987 (NSW), ss 42, 68. Trade Practices Act 1974 (Cth), ss 52, 82.

MYT Engineering Pty Ltd v Mulcon Pty Ltd [1999] HCA 24

(1999) 195 CLR 636; 73 ALJR 823; 162 ALR 441; 30 ACSR 705; 17 ACLC 861
Gleeson CJ, Gaudron, Gummow, Kirby, Hayne JJ
Date: 13 May 1999
MYT Engineering Pty Limited & Ors v Mulcon Pty Limited

Corporations
– Deed of company arrangement - Whether instrument required to be executed as a deed.

Corporations – Deed of company arrangement - Instrument not executed in accordance with company's articles of association - Whether instrument made by or on behalf of company - Whether instrument authenticated so as to bind company.

Corporations – Deed of company arrangement - Statute required instrument to be executed within specified time - Whether s 445G(3) of the Corporations Law applies when instrument not executed within specified time.

Charlie v The Queen [1999] HCA 23

(1999) 199 CLR 387; 73 ALJR 809; 162 ALR 463
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 13 May 1999
Charlie v The Queen

Criminal law
– Murder - Relationship between general Code provision establishing excuse from criminal responsibility and specific provision creating offence of murder - Whether accused must foresee death as a possible consequence of conduct - Principles of statutory construction - Relevance of common law in construction of Code.

Naxakis v Western General Hospital [1999] HCA 22

(1999) 197 CLR 269; 73 ALJR 782; 162 ALR 540
Gleeson CJ, Gaudron, McHugh, Kirby, Callinan JJ
Date: 13 May 1999
Naxakis v Western General Hospital & Anor

Practice and Procedure
– Civil trial by jury - Direction by trial judge to return verdict in favour of defendant - Circumstances in which trial judge may withdraw case from jury - Legal test to be applied in assessing sufficiency of evidence - Role of jury.

Negligence – Medical negligence - Physical injury - Breach of duty - Legal test for determining whether defendant had complied with the relevant standard of care - Rule in Rogers v Whitaker - Causation - Balance of probabilities - Loss of chance analysis in cases of physical injury.

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