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King v Philcox [2015] HCA 19

French CJ, Kiefel, Gageler, Keane, Nettle JJ
Date: 10 Jun 2015 Case Number: A26/2014
Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger's brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability.

Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath.

Words and phrases – "accident", "duty of care", "incident", "present at the scene of the accident when the accident occurred", "proximity", "reasonably foreseeable".

Civil Liability Act 1936 (SA) – ss 33, 53(1)(a).

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.

Queensland v Congoo [2015] HCA 17

French CJ, Hayne, Kiefel, Bell, Gageler, Keane JJ
Date: 13 May 2015 Case Number: B39/2014
Native title – Native title rights in relation to land – National Security Act 1939 (Cth), s 5(1)(b)(i) provided for making of regulations for securing public safety and defence of Commonwealth and for authorising taking of possession or control, on behalf of Commonwealth, of any property – National Security (General) Regulations 1939 (Cth), reg 54(1) provided that if it appeared to Minister of State for Army to be necessary or expedient to do so in interests of public safety, defence of Commonwealth or efficient prosecution of war, or for maintaining supplies and services essential to life of Commonwealth, Minister could, on behalf of Commonwealth, take possession of any land and give such directions as appeared necessary or expedient in connection with taking possession – Where orders were made under reg 54(1) in relation to land authorising officer to do anything in relation to land that holder of estate in fee simple in land could do and prohibiting all other persons from exercising any right of way over land or any other right relating thereto – Whether orders inconsistent with claimed native title rights and interests – Whether clear and plain legislative intention to extinguish native title rights and interests.

Words and phrases – "clear and plain legislative intention", "exclusive possession", "extinguishment", "inconsistency of rights", "possession".

National Security Act 1939 (Cth) – s 5(1).

National Security (General) Regulations 1939 (Cth) – reg 54.

Lindsay v The Queen [2015] HCA 16

French CJ, Kiefel, Bell, Keane, Nettle JJ
Date: 6 May 2015 Case Number: A24/2014
Criminal law – Murder – Defences – Provocation – Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant's home in presence of appellant's de facto wife and family – Where open to jury to find that appellant killed deceased having lost self-control following advances – Where provocation left to jury at trial and appellant convicted of murder – Where Court of Criminal Appeal ("CCA") dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation – Whether CCA erred in so concluding – Relevance of contemporary attitudes to sexual relations.

Criminal law – Appeal – Appeal against conviction – Application of proviso – CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA) – Where CCA not invited to apply proviso by prosecution – Whether CCA erred in invoking and applying proviso of its own motion.

Words and phrases – "minimum powers of self-control", "ordinary person", "partial defence".

Criminal Law Consolidation Act 1935 (SA) – s 353(1).

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).

Independent Commission Against Corruption v Cunneen [2015] HCA 14

French CJ, Hayne, Kiefel, Gageler, Nettle JJ
Date: 15 Apr 2015 Case Number: S302/2014
Statutory bodies – Investigating commission – Independent Commission Against Corruption – Powers – Independent Commission Against Corruption Act 1988 (NSW), s 8(2) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct".

Statutes – Interpretation – Context and purpose – Statutory definitions – Effect of express statement of objects of Act – Where purpose of Act cannot be identified without reference to terms to be interpreted.

Statutes – Interpretation – Extrinsic materials – Legislative history – Where legislation not amended after review of Act.

Words and phrases – "adversely affect", "and which could involve", "corrupt conduct".

Independent Commission Against Corruption Act 1988 (NSW) – ss 2A, 8, 9, 12A.

Duncan v New South Wales [2015] HCA 13

French CJ, Hayne, Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 15 Apr 2015 Case Number: S119/2014 S138/2014 S206/2014
Constitutional law – Judicial power – Independent Commission Against Corruption produced reports which recommended passing legislation to cancel three exploration licences granted under Mining Act 1992 (NSW) – Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("Amendment Act") inserted Sched 6A into Mining Act 1992 (NSW), cancelling three licences without compensation – Whether Amendment Act involves exercise of judicial power in nature of, or akin to, bill of pains and penalties.

Constitutional law – Constitution Act 1902 (NSW) – Legislative competence of New South Wales Parliament – Whether Amendment Act is "law" within meaning of s 5 of Constitution Act 1902 (NSW).

Constitutional law – Inconsistency between Commonwealth and State laws – Provision of Amendment Act authorised use or disclosure of information contained in works – Whether provision of Amendment Act inconsistent with Copyright Act 1968 (Cth) and invalid to extent of inconsistency.

Words and phrases – "bill of pains and penalties", "judicial power", "law".

Constitution – Ch III, s 109.

Constitution Act 1902 (NSW) – s 5.

Mining Act 1992 (NSW) – Sched 6A.

Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW).

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12

French CJ, Hayne, Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 8 Apr 2015 Case Number: B25/2013
Constitutional law – Constitution, s 99 – Prohibition on Commonwealth, by any law of revenue, giving preference to one State over another – Discrimination – Practical operation of law – Clean Energy Act 2011 (Cth), Clean Energy (Charges – Excise) Act 2011 (Cth), Pt 3, Clean Energy (Charges – Customs) Act 2011 (Cth), Pt 3, and Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth) established and imposed tax on certain greenhouse gas emissions – Schedule 1 ("JCP") to Clean Energy Regulations 2011 (Cth) provided for reduction of tax liability for emissions generated by certain activities – JCP, Pt 3, Div 48 defined "production of nickel" as an activity – Whether JCP, Pt 3, Div 48 discriminates between States because of differences between States in natural, business or other circumstances – Whether JCP, Pt 3, Div 48 contrary to Constitution, s 99.

Words and phrases – "discrimination", "natural, business or other circumstances", "practical effect", "practical operation", "States or parts of States".

Constitution – s 99.

Clean Energy Regulations 2011 (Cth) – Sched 1, Pt 3, Div 48.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11

French CJ, Hayne, Kiefel, Bell, Gageler, Keane, Nettle JJ
Date: 8 Apr 2015 Case Number: B63/2013
Constitutional law – Constitution, s 51(xx) – "[T]rading or financial corporations formed within the limits of the Commonwealth" – Queensland Rail Transit Authority Act 2013 (Q) established right and duty bearing entity which "is not a body corporate" – Functions of entity included provision of labour hire services – Functions to be carried out as a commercial enterprise – Whether entity a trading corporation formed within the limits of the Commonwealth.

Words and phrases – "is not a body corporate", "trading corporation".

Constitution – s 51(xx).

Queensland Rail Transit Authority Act 2013 (Q) – s 6.

Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10

French CJ, Hayne, Kiefel, Gageler, Keane JJ
Date: 11 Mar 2015 Case Number: S276/2014
Corporations – Winding up – Voidable transactions – Section 588FF(3)(b) of Corporations Act 2001 (Cth) empowers courts to make orders extending time for liquidator to make application under s 588FF(1) with respect to voidable transactions – Order extending time for respondents to make s 588FF(1) application did not refer to identified transaction – Respondents made s 588FF(1) application within extended time period – Whether courts can make order under s 588FF(3)(b) extending time to make s 588FF(1) application without identifying particular transaction or transactions to which it would apply.

Words and phrases – "extension of time", "re-enactment presumption", "shelf orders".

Corporations Act 2001 (Cth) – s 588FF.

CMB v Attorney General for New South Wales [2015] HCA 9

French CJ, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Mar 2015 Case Number: S257/2014
Criminal law – Sentencing – Sentence increased on prosecution appeal under s 5D of Criminal Appeal Act 1912 (NSW) – Appellant charged with sexual assault of daughter – Director of Public Prosecutions referred appellant for assessment for pre-trial diversion program – During assessment appellant disclosed further offences committed against daughter – First set of offences dealt with under program – Appellant charged with further offences and sentenced to good behaviour bonds with condition appellant complete program – Attorney General filed notice of appeal – Court of Criminal Appeal allowed appeal and re-sentenced appellant to five years and six months' imprisonment – Whether Court of Criminal Appeal erred in not exercising residual discretion to decline to interfere – Whether Court of Criminal Appeal erred in placing onus upon appellant with regard to exercise of residual discretion to dismiss appeal and limiting purpose of Crown appeals – Whether Court of Criminal Appeal erred in application of s 23 of Crimes (Sentencing Procedure) Act 1999 (NSW) and principles regarding voluntary disclosure of otherwise unknown guilt.

Words and phrases – "discretion not to intervene", "leniency", "manifestly inadequate", "onus", "proper sentence", "residual discretion", "restraint", "unreasonably disproportionate".

Criminal Appeal Act 1912 (NSW) – s 5D.

Pre –Trial Diversion of Offenders Act 1985 (NSW).

Crimes (Sentencing Procedure) Act 1999 (NSW) – s 23.

Grant Samuel Corporate Finance Pty Limited v Fletcher [2015] HCA 8

French CJ, Hayne, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Mar 2015 Case Number: S228/2014 S229/2014
Corporations – Winding up – Voidable transactions – Section 588FF(3) of Corporations Act 2001 (Cth) provided that application with respect to voidable transactions under s 588FF(1) "may only be made" during period set out in s 588FF(3)(a) or "within such longer period as the Court orders" on an application made by liquidator during par (a) period – On application made by liquidators after par (a) period had expired, Supreme Court made order under r 36. 16(2)(b) of Uniform Civil Procedure Rules 2005 (NSW) varying date by which liquidators could make application under s 588FF(1) – Whether UCPR could be utilised to extend time within which proceedings under s 588FF(1) could be brought – Whether s 588FF(3) "otherwise provided" within meaning of s 79(1) of Judiciary Act 1903 (Cth).

Words and phrases – "otherwise provided", "picked up".

Corporations Act 2001 (Cth) – s 588FF.

Judiciary Act 1903 (Cth) – s 79(1).

Uniform Civil Procedure Rules 2005 (NSW) – r 36. 16(2)(b).

Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7

French CJ, Hayne, Kiefel, Bell, Gageler, Keane JJ
Date: 4 Mar 2015 Case Number: S225/2014
Statutes – Statutory construction – Clause 8(1)(g) of Sched 2 to Broadcasting Services Act 1992 (Cth) ("BSA") conditioned commercial radio broadcasting licence on licensee not using broadcasting service in commission of offence against another Commonwealth Act or a law of a State or Territory – Authority's functions included suspension and cancellation of licences and taking enforcement action under BSA – Authority authorised to conduct investigations for purposes of its functions – Where, as part of investigation, Authority made finding that licensee used broadcasting service to commit offence against State law and thereby breached cl 8(1)(g) licence condition – Whether Authority had power to do so in absence of criminal court finding offence proven.

Constitutional law (Cth) – Judicial power – Where ss 10 and 12 of Australian Communications and Media Authority Act 2005 (Cth), ss 5, 170 and 178 of BSA and cl 8(1)(g) of Sched 2 to BSA authorised Authority to find licensee of commercial radio broadcasting licence breached cl 8(1)(g) licence condition and to take enforcement action under ss 141 and 143 of BSA prior to criminal court finding offence proven – Whether provisions thereby impermissibly confer judicial power on Authority.

Words and phrases – "adjudging and punishing criminal guilt", "administrative enforcement action", "judicial power", "used in the commission of an offence".

Australian Communications and Media Authority Act 2005 (Cth) – ss 10, 12.

Broadcasting Services Act 1992 (Cth) – ss 5, 141, 143, 170, 178, 179; Sched 2, cl 8(1)(a), (g).

Korda v Australian Executor Trustees (SA) Limited [2015] HCA 6

French CJ, Hayne, Kiefel, Gageler, Keane JJ
Date: 4 Mar 2015 Case Number: M82/2014
Trusts – Express trust – Two companies, "the Forest Company" and "the Milling Company", operated timber plantation investment scheme – Forest Company sought investment in scheme – Forest Company entered into Trust Deed with Trustee Company as trustee for holders of interests Forest Company issued – Whether proceeds of the sale of standing timber and scheme land payable to Forest Company and Milling Company subject to express trust in favour of scheme investors.

Words and phrases – "express trust".

Companies Act 1962 (SA) – s 80.

Companies (South Australia) Code – s 168.

Commissioner of the Australian Federal Police v Zhao [2015] HCA 5

French CJ, Hayne, Kiefel, Bell, Keane JJ
Date: 12 Feb 2015 Case Number: M92/2014
Jurisdiction – practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Matters connected with conduct of defence – Where respondent charged with offence – Where appellant applied for forfeiture order under s 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act") against property that is proceeds of crime – Whether forfeiture proceedings should be stayed until criminal proceedings are finalised – Whether refusal to stay forfeiture proceedings creates risk of prejudice in criminal proceedings – Whether respondent must state specific matters of prejudice before stay will be granted.

Statutes – Interpretation – Forfeiture of proceeds of crime – Stay of forfeiture proceedings – Where appellant applied for forfeiture order under s 49 of the Act – Where issues in forfeiture proceedings and criminal proceedings are substantially identical – Whether forfeiture proceedings should ordinarily continue.

Words and phrases – "prejudice".

Proceeds of Crime Act 2002 (Cth) – ss 39A, 49, 80, 266A, 319.

Lavin v Toppi [2015] HCA 4

French CJ, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Feb 2015 Case Number: S258/2014
Contribution – Requirement of coordinate liabilities – Where appellants and first and second respondents were co sureties of guaranteed debt – Where first and second respondents paid creditor disproportionate amount of guaranteed debt – Where creditor gave appellants covenant not to sue – Whether first and second respondents entitled to contribution from appellants – Whether appellants and first and second respondents shared coordinate liabilities despite creditor's covenant not to sue.

Words and phrases – "contribution", "contribution in equity", "coordinate liabilities", "covenant not to sue", "of the same nature and to the same extent".

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2015] HCA 3

French CJ, Hayne, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Feb 2015 Case Number: S297/2013
Migration – Refugees – Protection visas – Power of Minister under Sched 2, cl 866. 226 of Migration Regulations 1994 (Cth) to decide application for protection visa if Minister satisfied that grant of visa "is in the national interest" – Whether cl 866. 226 invalid – Whether cl 866. 226 permitted Minister to refuse to grant protection visa solely on ground that application for visa made by unauthorised maritime arrival.

Administrative law – Judicial review – Mandamus – Return of writ insufficient – Plaintiff sought order issuing peremptory writ of mandamus – Reg 2. 08F of Migration Regulations 1994 (Cth) applied where court quashed decision of Minister in relation to application for protection visa and ordered Minister to reconsider application in accordance with law – Whether reg 2. 08F applied.

Words and phrases – "is in the national interest", "peremptory mandamus", "unauthorised maritime arrival".

Migration Act 1958 (Cth) – ss 45AA, 46A.

Migration Regulations 1994 (Cth) – reg 2. 08F, Sched 2, cl 866. 226.

Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2

French CJ, Hayne, Bell, Gageler, Keane JJ
Date: 4 Feb 2015 Case Number: S141/2014
Real property – Torrens system land – Indefeasibility of title – Respondent company transferred property to appellant and appellant's husband ("Claude") – Claude acted fraudulently in purchasing property – Claude later transferred his interest in property to appellant for nominal consideration – Whether fraud brought home to appellant as registered proprietor or to her agent – Whether Claude appellant's agent – Whether appellant's title defeasible because Claude had acted as appellant's agent – Whether appellant's title defeasible because Claude and appellant were registered as joint tenants – Whether appellant's title defeasible because of Claude's fraud pursuant to s 118(1)(d) of Real Property Act 1900 (NSW).

Words and phrases – "agent", "brought home to the person whose registered title is impeached or to his agents", "fraud", "joint proprietor", "joint tenant", "registered as proprietor of the land through fraud", "through".

Real Property Act 1900 (NSW) – ss 42(1), 100(1), 118(1).

CPCF v Minister for Immigration and Border Protection [2015] HCA 1

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 28 Jan 2015 Case Number: S169/2014
Migration – Refugees – Section 72(4) of Maritime Powers Act 2013 (Cth) authorised maritime officer to detain person for purpose of taking person to place outside Australia – Plaintiff on board vessel intercepted by Commonwealth officers in Australia's contiguous zone – Plaintiff detained on Commonwealth vessel which sailed to India in implementation of decision of National Security Committee of Cabinet ("NSC") – Where no agreement existed between Australia and India applicable to reception of plaintiff prior to commencement of taking of plaintiff to India – Where maritime officer implemented decision of NSC without independent consideration of whether plaintiff should be taken to India – Whether decision to detain and take plaintiff lawful – Whether power under s 72(4) subject to obligation to afford procedural fairness – Whether power constrained by Australia's international non-refoulement obligations.

Constitutional law (Cth) – Executive power of Commonwealth – Whether Commonwealth has power derived from s 61 of Constitution to authorise maritime officer to detain person for purposes of taking person outside Australia – Whether any such power subject to obligation to afford procedural fairness.

Words and phrases – "detain", "maritime officer", "non-refoulement obligations", "procedural fairness", "reasonable time", "take".

Constitution – s 61.

Maritime Powers Act 2013 (Cth) – ss 5, 7, 16, 18, 69, 71, 72, 74, 97, 104(1).

Migration Act 1958 (Cth) – ss 42, 189(3).

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