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)
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.
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.
Puntoriero v Water Administration Ministerial Corporation
Statutory corporations - Exclusion of liability - Negligence - Action for conduct done under statute - Whether statutory provision affords immunity from liability arising from the negligent supply of water containing contaminants.
Negligence - Statutory corporation - Action for conduct done under statute - Whether statutory provision affords immunity from liability arising from the negligent supply of water containing contaminants.
Water, water supply and water courses - Powers, duties and liabilities of statutory authorities - Water supply - Whether statutory provision affords immunity from liability arising from supply of water containing contaminants.
Practice and procedure - Action in negligence - Question of causation - Jury trial - Roles of judge and jury - Appeal to New South Wales Court of Appeal - Whether action should be dismissed - Whether jury verdict could be supported on the evidence.
Words and phrases - substantial".
Irrigation Act 1912 (NSW)
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.
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.
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
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.
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.
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.
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.
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
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 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.
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.
"
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.
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.
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.
Minister for Immigration and Multicultural Affairs v Eshetu
Re Minister for Immigration and Multicultural Affairs
& Anor; Ex parte Eshetu
Administrative law – High Court - Constitution, s 75(v) - Prohibition and mandamus - Refugee Review Tribunal - "Wednesbury" unreasonableness - Whether Tribunal acting within jurisdiction.
Immigration law – Refugees - Refugee Review Tribunal decision refusing to grant protection visa - Whether review available if Tribunal acts inconsistently with s 420 of the Migration Act 1958 (Cth) - Whether ground of review precluded by s 476(2)(b) of the Act - Whether failure of Tribunal to make certain findings of fact an error of law - "well-founded fear of being persecuted".
