83 ALJR 494; 252 ALR 619
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 12 Feb 2009 Case Number: S317/2008
Practice and procedure – Appeals - Procedural fairness - Respondent issued a warrant under s 214 of Customs Act 1901 (Cth) authorising seizure of documents relating to single bottle of brandy - Officers of respondent seized documents relating to "other goods" imported within previous five years - District Court decided in In the matter of the appeal of Lawrence Charles O'Neill (unreported, District Court of New South Wales, 18 August 1988) that warrants issued under s 214 did not permit seizure of five year documents - Court of Appeal decided O'Neill "mistaken" without affording appellant opportunity to make submissions - Whether appellant denied procedural fairness in Court of Appeal - Scope of principles respecting procedural fairness in curial proceedings - Whether appellate court required to afford parties opportunity to be heard on non-binding decision.
Practice and procedure – Appeals - Procedural fairness - Court of Appeal went on to decide appeal on footing O'Neill correct - Whether lack of opportunity to make submissions with respect to O'Neill caused prejudice to appellant and affected outcome in Court of Appeal.
Evidence – Illegally or improperly obtained evidence - Evidence Act 1995 (NSW) ("Evidence Act"), s 138 - Respondent admitted condition precedent to execution of warrant not satisfied - Whether wilful disregard of Act in execution of warrant - Whether additional fact of seizure of five year documents relevant to exercise of discretion under s 138.
Practice and procedure – Appeals - Procedural fairness - Function of appellate court upon review of exercise by trial judge of discretion under s 138 of Evidence Act.
Words and phrases – "procedural fairness", "relating to the goods", "the goods".
Customs Act 1901 (Cth) – s 214, Sched V.
Evidence Act 1995 (NSW) – s 138.
209 CLR 246; 187 ALR 409
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby JJ
Date: 14 Feb 2002 Case Number: M39/2001
Constitutional law (Cth) – Judicial power - Extradition - Jurisdiction of Federal Court to review order by magistrate that applicant, being eligible for surrender to extradition country, be committed to prison - Provision requiring Federal Court to have regard only to the material before the magistrate - Whether provision denies to the Federal Court power to receive evidence led to show that proceeding before it was an abuse of its process - Whether consistent with the exercise of the judicial power of the Commonwealth - Whether provision enabling curial review of administrative function amounts to purported conferral of non-judicial power.
Extradition – Judicial review by Federal Court of magistrate's order - Provision requiring Federal Court to have regard only to material before the magistrate - Whether provision invalid under the Constitution as inconsistent with the exercise of federal power - Whether provision invalid as conferral of non- judicial power to participate in administrative function.
Constitution – s 71.
Extradition Act 1988 (Cth) – ss 19, 21.
247 CLR 531; 86 ALJR 954; 290 ALR 189
French CJ, Hayne, Heydon, Kiefel, Bell JJ
Date: 24 Aug 2012 Case Number: B11/2012 B25/2011
Criminal law – Manslaughter by criminal negligence – Appellant convicted of manslaughter and unlawfully doing grievous bodily harm – Section 288 of Criminal Code (Q) imposes duty on persons who undertake to administer surgical treatment to have reasonable skill and use reasonable care – Prosecution alleged appellant breached his duty by deciding to operate on certain patients – Whether "surgical treatment" in s 288 encompasses decision to operate.
Criminal law – Miscarriage of justice – Change in prosecution case at late point in trial – Prejudicial evidence admitted – Whether test of criminal negligence is objective – Whether evidence remained relevant on revised case – Significance of tactical decisions by defence counsel.
Criminal law – Appeal – Application of "proviso" – Irrelevant and prejudicial evidence admitted – Whether no substantial miscarriage of justice actually occurred – Consideration of Wilde v The Queen (1988) 164 CLR 365 and concept of fundamental error.
Words and phrases – "fundamental error", "miscarriage of justice", "moral culpability", "no substantial miscarriage of justice has actually occurred", "proviso", "surgical treatment".
Criminal Code (Q) – ss 282, 288-289, 303, 320, 668E(1)-(1A).
227 CLR 471; 80 ALJR 1588; 229 ALR 432
Gummow ACJ, Kirby, Hayne, Callinan, Crennan JJ
Date: 4 Oct 2006 Case Number: B110/2005
Bankruptcy – Transfers to defeat creditors - s 121(1)(a) of the Bankruptcy Act 1966 (Cth) ("the Act") - Transfers of property void against the trustee in bankruptcy if the property would probably have become part of the transferor's estate or would probably have been available to creditors if the property had not been transferred - Where pursuant to s 121(9)(b) of the Act property that did not previously exist is taken to have been transferred for the purposes of s 121 of the Act - Where the bankrupt unilaterally severed a joint tenancy in Torrens title land held between himself and his wife who later died prior to his bankruptcy - Whether s 121(9)(b) of the Act operated so as to take the bankrupt to have transferred property to his wife - Whether that property would probably have become part of the transferor's estate in bankruptcy if the property had not been transferred.
Real property – Joint tenancy - Severance - Torrens system land - Unilateral severance of joint tenancy pursuant to s 59 of the Land Title Act 1994 (Q) - Effect of severance upon property of the bankrupt.
Statute – Statutory construction - Construction of pars (1)(a) and (9)(b) of s 121 of the Act where drafting reflects inconsistent assumptions - Whether possible to render those sub-sections capable of concomitant operation so as to give effect to the text and policy of the Act.
Bankruptcy Act 1966 (Cth) – s 121.
Land Title Act 1994 (Q) – ss 57, 59, 60.
Kiefel, Bell, Gageler, Keane, Nettle, Gordon JJ
Date: 1 Mar 2017 Case Number: A39/2016
Criminal law – Appeal against conviction – Directions to jury – Where discreditable conduct evidence admitted under s 34P of Evidence Act 1929 (SA) – Relevance of discreditable conduct evidence – Whether trial judge adequately directed jury as to permissible and impermissible uses of discreditable conduct evidence in accordance with s 34R.
Criminal law – Appeal against conviction – Application of proviso – Criminal Law Consolidation Act 1935 (SA), s 353(1) – Where majority of Full Court found miscarriage of justice occasioned by misdirection to jury – Where majority of Full Court divided as to whether misdirection occasioned substantial miscarriage of justice for purposes of applying proviso – Whether appeal could be dismissed pursuant to proviso.
Words and phrases – "discreditable conduct evidence", "error of law", "opinion of majority", "permissible and impermissible use", "proviso", "substantial miscarriage of justice", "sufficiency of direction".
Criminal Law Consolidation Act 1935 (SA) – ss 349, 353(1).
Evidence Act 1929 (SA) – ss 34P, 34R.
214 CLR 514; 77 ALJR 1070; 197 ALR 364
McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 8 May 2003 Case Number: S124/2002
Insurance – Obligations of insured to disclose to insurer – Where decision "probably not" to renew policy for following year – Whether decision was a failure to disclose a "matter relevant to the decision of the insurer whether to accept the risk" to extend policy under s 21(1)(a) of the Insurance Contracts Act 1984 (Cth) – Whether non-disclosure was a misrepresentation in breach of s 26(2) of the Act.
Fraud – Whether trial judge erred in failing to consider that evidence of an alleged misrepresentation became fraudulent – Whether fraud was clearly and distinctly pleaded and put at trial – Whether appellate court was warranted in finding error on this ground.
Insurance Contracts Act 1984 (Cth) – ss 21(1)(a), 26(2).
220 CLR 388; 79 ALJR 146; 211 ALR 18
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 12 Nov 2004 Case Number: M277/2003
Constitutional law (Cth) – Taxation - Whether s 55 of the Constitution applies to a law made in exercise of the power conferred by s 52(i) of the Constitution - Where Commonwealth law applies State taxing laws to Commonwealth places within that State - Whether invalid as a law imposing taxation and dealing with matters other than the imposition of taxation - Whether invalid as a law imposing taxation and dealing with more than one subject of taxation.
Constitutional law (Cth) – Commonwealth laws of regulation of trade, commerce or revenue not to give preference to one State or any part thereof over another State or any part thereof - Revenue laws - Where Commonwealth law applies State taxing laws to Commonwealth places within that State - Where effect of law is that different rates of tax apply in Commonwealth places depending on the State in which place is located - Whether prohibition in s 99 of the Constitution applies with respect to revenue laws supported by s 52(i) of the Constitution - Whether the Commonwealth law infringed the prohibition in s 99 of the Constitution.
Constitutional law (Cth) – Places acquired by Commonwealth for public purposes - Exclusive legislative power of Commonwealth Parliament - Extent of power - Whether decisions in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 and Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 should be re-opened.
Constitutional law (Cth) – Exclusive legislative power of the Commonwealth - Delegation - Whether Commonwealth law permitting State Treasurer to modify applied State taxing law confers the legislative power of the Commonwealth on the Executive Governments of the States.
Constitution – ss 52(i), 53, 54, 55 and 99.
Commonwealth Places (Mirror Taxes) Act 1998 (Cth) – ss 3, 6, 8, 9 and Sched 1.
Commonwealth Places (Mirror Taxes Administration) Act 1999 (Vic) – s 7.
Stamps Act 1958 (Vic) – ss 17, 17A and Third Schedule.
205 CLR 126; 75 ALJR 1385; 181 ALR 337
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 9 Aug 2001 Case Number: P64/2000
Trade practices – Restraint of trade – Sale of business – Appellant manufactured and sold ice cream products in Western Australia under the "Peters" marks – Respondents manufactured and sold ice cream products under the "Pauls" marks nationally and under the "Peters" marks in every State except Western Australia – Sale of respondents' Western Australian ice cream business to appellant – Sale agreement provided that the appellant be granted the exclusive right and licence to use the "Pauls" marks in Western Australia in return for percentage royalty – Sale agreement contained covenant restraining respondents from selling ice cream products in Western Australia – Restraint coextensive with duration of licensing arrangements but extended to ice cream products to which licensing arrangements not applicable – Whether restraint is one to which the common law restraint of trade doctrine applies.
Trade practices – Restraint of trade – Circumstances in which the restraint of trade doctrine does not apply – Whether "sterilisation of capacity test" should be adopted in Australia.
Trade practices – Restraint of trade – Development of common law respecting restraint of trade – Considerations of public interest – Relationship between doctrine of "restraint of trade" and Trade Practices Act 1974 (Cth).
Words and phrases – "restraint of trade" – "sterilisation of capacity" – "fettering of existing freedom" – "public interest".
Trade Practices Act 1974 (Cth) – ss 4M, 45-51AAA.
209 CLR 57; 76 ALJR 269; 185 ALR 183
Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ
Date: 13 Dec 2001 Case Number: B40/2001
Statutes – Construction – By-laws and Regulations – Validity – Procedure for making interim local laws – Whether Minister's power to extend interim local law limited so as to preclude multiple extensions – Whether power to extend interim local law contrary to requirements of sunset provision – Where statute conferred power on Minister to extend interim local law for "longer period" – Whether interim local law had ceased to have effect at relevant time.
Local Government – By-laws and Regulations – Validity – Power of extension of interim local law.
Constitutional law (Cth) – "law of a State" – Constitutional presumptions and penal laws – Contextual implications of limited delegation – Whether multiple extensions of an interim local law that imposes penal sanctions results in uncertain validity.
Words and phrases – "sunset provision", "a longer period", "interim local law".
Acts Interpretation Act 1954 (Q) – s 23(1).
Local Government Act 1993 (Q) – ss 850, 851, 859, 860, 861, 862, 863.
245 CLR 355; 86 ALJR 641; 287 ALR 599
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 30 May 2012 Case Number: A15/2011
Criminal law – Rape - Husband's immunity from prosecution for rape of wife - Presumption of consent to intercourse by wife in marriage - Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) - Alleged rapes committed in 1963 against then spouse - Legislative amendments enabled institution of proceedings despite lapse of time - Elements of offence of rape in 1963 supplied by common law - Whether in 1963 common law of Australia presumed consent by wife in marriage.
Precedent – Judicial method - Development of common law - Whether presumption of consent by wife in marriage was part of common law of Australia - Whether statement of common law in R v L (1991) 174 CLR 379 applied to events alleged to have occurred in 1963.
Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application".
Criminal Law Consolidation Act 1935 (SA) – s 48.
Matrimonial Causes Act 1857 (UK) (20 & 21 Vict c 85).
225 CLR 303; 80 ALJR 537; 224 ALR 216
Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ
Date: 1 Mar 2006 Case Number: B58/2005
Criminal Law – Information, indictment or presentment - Joinder of counts - Criminal Code (Q), ss 567, 597A - Series of offences of same or similar character - Whether admission of evidence of each complainant in relation to all counts prejudicial to appellant such that separate trials should have been ordered.
Criminal Law – Evidence - Admissibility of similar fact evidence - Appellant charged with eight counts of sexual offences against six complainants -Whether evidence in relation to counts involving one complainant admissible in relation to counts involving other complainants - Whether similar fact evidence admissible on the issue of consent - Whether similar fact evidence admissible on issues other than consent - Application of principles for admissibility of similar fact evidence stated in Pfennig v The Queen (1995) 182 CLR 461 - Whether similar fact evidence has strong degree of probative force sufficient to outweigh prejudicial effect.
Criminal Law – Jury - Verdict - Unreasonable verdicts - Whether verdicts only explicable as the product of compromise between jurors - Whether intervention required to prevent injustice.
Criminal Law – Retrial - Appellant acquitted on one count of rape - Whether admission of closely related evidence at retrial on different counts would fail to give full effect to that acquittal.
Criminal Code (Q) – ss 567, 597A.
246 CLR 561; 86 ALJR 335; 286 ALR 61
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 28 Mar 2012 Case Number: S23/2010
Intellectual property – Copyright - Sound recordings - Source of rights - Transitional provisions - Whether after commencement of Copyright Act 1968 (Cth), the Copyright Act 1911 (Imp) remained source of subsisting copyright in pre-1969 sound recordings.
Constitutional law (Cth) – Validity of Commonwealth legislation - Acquisition of property on just terms - Whether fixing of a "cap" on compulsory licence fees in relation to copyright interests is unconstitutional - Application of s 51(xxxi) of Constitution.
Words and phrases – "compulsory licence", "copyright", "Imperial legislation", "just terms", "licence fees", "validity".
Constitution – s 51(xxxi).
Copyright Act 1911 (Imp), ss 19, 24-26.
Copyright Act 1912 (Cth).
Copyright Act 1968 (Cth) – ss 84-113C, 152, 204-248.
Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 3 May 2017 Case Number: B68/2016
Criminal law – Justification and excuse – Resisting actual and unlawful violence threatened to person – Where appellant stabbed deceased – Where appellant acquitted of murder but convicted of manslaughter – Where s 31(1) of Criminal Code (Q) not left to jury – Whether appellant able to rely on s 31(1) to deny criminal responsibility in relation to offence of manslaughter – Whether s 31(2) renders s 31(1) unavailable wherever evidence discloses that act of accused constitutes offence described in s 31(2) regardless of charge.
Words and phrases – "act", "criminally responsible", "liable to punishment", "offence".
Criminal Code (Q) – s 31.
79 ALJR 825; 214 ALR 392
Gleeson CJ, McHugh, Gummow, Hayne, Heydon JJ
Date: 5 Apr 2005 Case Number: B60/2004
Contract – Parties to a contract - Sole director of first respondent company was principal actor on behalf of another company in securing a loan - Director, as borrower's actor, offered to use land owned by first respondent as further security to obtain a further extension of loan repayment - No reference was made to the first respondent, or to its ownership of the land, or to the fact that the borrower's actor was the first respondent's sole director - Lender agreed to extend the repayment date - Whether first respondent was a party to the agreement - Whether a reasonable person in position of lender could have understood that the first respondent was making an offer to provide security - Whether borrower's actor was in fact exercising his authority to offer the land as security - Whether the lender supplied consideration for the first respondent's promise.
Corporations Law – ss 128(1), 128(4), 129(4), 180 and 181.
207 CLR 165; 75 ALJR 1067; 180 ALR 249
McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 31 May 2001 Case Number: A46/1999
Contract – Breach - Damages - Calculation of loss - Contract of retainer for valuation of subject of takeover bid - Plaintiff company effected takeover in reliance on valuation made in breach of duty of care - Had valuation been accurate plaintiff would not have proceeded - Consideration included cash and issue and allotment of shares - Whether plaintiff suffered loss by issue of shares - Whether damages include sum representing market value of shares issued under agreement.
Companies – Company finance - Share capital - Maintenance of capital - Company limited by shares - Company issuing new shares - Issue and allotment otherwise than for cash - Whether company suffers loss by reason of issuing new shares.
Equity – Fiduciary duties - Duty of loyalty - Conflict of duties and interests - Conflict of duty and duty - Accountant retained by company to give independent expert valuation report to be placed before shareholders - Whether accountant owed fiduciary duties to company - Principles of causation in equity.
Equity – Equitable remedies - Equitable compensation - Assessment - Reduction for contributing fault.
ASX (Australian Stock Exchange Ltd) Listing Rules – Listing Rule 3J(3).
219 CLR 444; 78 ALJR 797; 206 ALR 84
Gleeson CJ, McHugh, Gummow, Kirby, Heydon JJ
Date: 20 May 2004 Case Number: P47/2003
Criminal law – Supply of prohibited drug – Where appellant sent prohibited drug by air courier from Sydney to Perth – Where package intercepted by police in Perth – Where police agent handed package to intended recipient – Whether supply under Misuse of Drugs Act 1981 (WA).
Criminal law – Innocent agency – Whether acts of courier attributable to appellant – Whether acts of police agent attributable to appellant – Whether actual receipt by intended recipient necessary for "supply" under Misuse of Drugs Act 1981 (WA).
Constitutional law – State Supreme Court exercising federal jurisdiction – Offence committed in Commonwealth place – Trial in Western Australia – "Trial on indictment of any offence against any law of the Commonwealth … shall be held in the State where the offence was committed" – Whether offence committed in Western Australia for the purposes of s 80 of the Constitution.
Constitution – s 80.
Commonwealth Places (Application of Laws) Act 1970 (Cth).
Criminal Code (WA) – s 12.
Misuse of Drugs Act 1981 (WA) – ss 3(1), 6(1)(c).
77 ALJR 768; 196 ALR 257
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 11 Mar 2003 Case Number: P60/2001
Damages – Breach of contract - Proof of damage - Calculation of damages - Joint venture mining contract - Respondent carried out mining operations for appellant - Rates based on genuine estimates of cost of operations - Respondent inflated cost estimates - Whether breach of contractual obligation of good faith - Whether sufficient evidence from appellant to prove damage - Whether sufficient evidence for trial judge to make a calculation of damages on proper principles - Significance of respondent's admission that cost estimates exceeded actual bona fide estimates of costs - Continuing obligation during litigation to correct fraudulent conduct.
Date: 19 Jun 2015 Case Number: B15/2015
Migration – Unauthorised maritime arrivals – Section 5AA(1A) of Migration Act 1958 (Cth) provides that person is an unauthorised maritime arrival if "a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival" – Whether s 23 of Acts Interpretation Act 1901 (Cth) required "a parent" to be read as "both parents".
Practice and procedure – Summary determination of action without trial – Whether affidavit evidence sufficient to create controversy which should be resolved by litigation – Where there would be no utility in a trial.
Words and phrases – "unauthorised maritime arrival".
Acts Interpretation Act 1901 (Cth) – s 23.
Migration Act 1958 (Cth) – ss 5AA(1A), 46A(1).
85 ALJR 740; 277 ALR 667
Date: 23 Jun 2011 Case Number: M13/2011
Immigration – Refugees - Well-founded fear of persecution - Relocation - Plaintiff applied for and delegate of defendant refused to grant Protection (Class XA) visa - Delegate found plaintiff's fear not well-founded due to possibility of relocation within country of residence - Delegate made no finding of where plaintiff had been resident or to where plaintiff could relocate - Delegate did not consider whether relocation was reasonable or practicable for plaintiff - Whether delegate required to consider particular circumstances of plaintiff and impact upon plaintiff of relocation.
Practice and procedure – High Court of Australia - Original jurisdiction - Extension of time for commencing proceeding - Plaintiff sought writ of certiorari to quash decision of delegate of defendant - Proceeding commenced outside period prescribed by s 486A(1) of Migration Act 1958 (Cth) and r 25.
1 of High Court Rules 2004 - Section 486A(2) of Act allowed extension of time where "necessary in the interests of the administration of justice" - Whether time for commencing proceeding should be extended.
Words and phrases – "jurisdictional error", "necessary in the interests of the administration of justice", "particular circumstances", "relocation".
Migration Act 1958 (Cth) – ss 48B, 486A(1), (2).
High Court Rules 2004 – r 25.
88 ALJR 735; 309 ALR 225
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 20 Jun 2014 Case Number: M150/2013
Migration – Refugees – Protection visas – Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided – Minister signed instrument limiting number of protection visas granted in current financial year – Plaintiff's protection visa application not determined by Minister pursuant to that determination – Whether power under s 85 extended to protection visas – Whether instrument valid.
Words and phrases – "harmonious construction", "implied repeal", "leading provision", "legislative instrument", "subordinate provision".
Legislative Instruments Act 2003 (Cth) – s 56.
Migration Act 1958 (Cth) – ss 36, 39, 65, 65A, 84, subdiv AH.
88 ALJR 775; 311 ALR 154
French CJ J
Date: 3 Jul 2014 Case Number: M150/2013 S297/2013
Practice and procedure – Court ordered writs of mandamus issue directing Minister to consider and determine plaintiffs' protection visa applications – Minister sought extension of return date to consider criterion for grant of protection visa in cl 866.
226 of Sched 2 to Migration Regulations 1994 (Cth).
High Court Rules 2004 (Cth) – rr 25.
Migration Regulations 1994 (Cth) – Sched 2, cl 866.