Judgments, ordered by case name

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Leach v The Queen [2007] HCA 3

230 CLR 1; 81 ALJR 598; 232 ALR 325
Gleeson CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 6 Feb 2007 Case Number: D10/2006
Statutes – Acts of Parliament – Sentencing legislation – Interpretation – Mandatory sentence of life imprisonment with no non-parole period passed upon the appellant in 1984 in respect of each of two convictions for murder – The Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) ("2003 Act") provided that life sentences for murder were taken to include a 25 year non-parole period – Section 19(1) of the 2003 Act empowered the Supreme Court of the Northern Territory, on the application of the Director of Public Prosecutions, to revoke the statutory non-parole period, and, in accordance with s 19(5), to refuse to fix a non-parole period – Whether the discretion granted to the Supreme Court under s 19(5) of the 2003 Act required the Court to consider "ordinary sentencing principles", including questions of the prisoner's rehabilitation – Meaning of the word "may" in s 19(5) – Whether primary judge must be satisfied "beyond reasonable doubt" of the basis for the decision before making an order under s 19(5).

Words and phrases – "may".

Criminal Code (NT).

Criminal Law Consolidation Act (NT)
– s 5.

Parole of Prisoners Act (NT) – s 4.

Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT) – ss 17-21.

Sentencing Act (NT) – s 53A.

Lee v Commonwealth of Australia [2012] HCA 62

87 ALJR 232; 293 ALR 534
French CJ
Date: 29 Nov 2012 Case Number: C5/2012
Practice − High Court − Case stated − Questions reserved − Judiciary Act 1903 (Cth) – s 18.

Practice − High Court − Remitter − Judiciary Act 1903 (Cth) – s 44.

Constitution – ss 92, 99, 100.

Judiciary Act 1903 (Cth) – ss 18, 44.

Water Act 2007 (Cth).

Lee v New South Wales Crime Commission [2013] HCA 39

87 ALJR 1082; 302 ALR 363
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 9 Oct 2013 Case Number: S29/2013
Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.

Words and phrases – "accusatorial system of criminal justice", "derivative use immunity", "direct use immunity", "examination", "fair trial", "principle of legality", "privilege against self-incrimination", "real risk of interference with the administration of justice", "right to silence", "serious crime related activity".

Criminal Assets Recovery Act 1990 (NSW) – ss 12, 13, 13A, 31D, 63.

Lee v The Queen [2014] HCA 20

88 ALJR 656; 308 ALR 252
French CJ, Crennan, Kiefel, Bell, Keane JJ
Date: 21 May 2014 Case Number: S313/2013 S314/2013
Criminal law – Appeal against conviction – Where appellants gave evidence before New South Wales Crime Commission ("Commission") – Where non-publication direction made under s 13(9) of New South Wales Crime Commission Act 1985 (NSW) – Where transcripts of appellants' evidence before Commission published to members of New South Wales Police Force and officers of Director of Public Prosecutions – Whether publication of appellants' evidence before Commission meant subsequent trial differed in fundamental respect from that which our system of criminal justice seeks to provide – Whether publication of appellants' evidence before Commission gave rise to miscarriage of justice.

Words and phrases – "miscarriage of justice", "non-publication direction".

Criminal Appeal Act 1912 (NSW) – s 6(1).

New South Wales Crime Commission Act 1985 (NSW) – s 13(9).

Legal Services Board v Gillespie-Jones [2013] HCA 35

249 CLR 493; 87 ALJR 985; 300 ALR 430
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 14 Aug 2013 Case Number: M27/2013
Legal practitioners – Legal Practitioners Fidelity Fund ("Fidelity Fund") – Barrister briefed by solicitor to appear for client – Money paid into general trust account by client on account of legal costs – Money misappropriated by solicitor – No finding that client instructed solicitor to pay third parties – Whether barrister entitled to claim against Fidelity Fund for unpaid fees.

Words and phrases – "default", "failure to pay or deliver trust money", "pecuniary loss", "persons for or on whose behalf money is held", "transit money", "trust money".

Legal Profession Act 2004 (Vic) – Pts 3. 3, 3. 6.

Lehman Brothers Holdings Inc v City of Swan [2010] HCA 11

240 CLR 509; 84 ALJR 275; 265 ALR 1
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 14 Apr 2010 Case Number: S1/2010 S362/2009
Corporations – Statutes - Deed of company arrangement ("DOCA") - Corporations Act 2001 (Cth), s 444D(1), provided that a "deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed" - Where provisions of DOCA purported to provide for moratorium on and release of claims that might be made by company's creditors against persons other than the company - Whether such provisions of DOCA binding on company's creditors - Whether DOCA void.

Words and phrases – "so far as concerns claims", "deed of company arrangement".

Corporations Act 2001 (Cth) – Pts 5. 1, 5. 3A, s 600A.

Leichhardt Municipal Council v Montgomery [2007] HCA 6

230 CLR 22; 81 ALJR 686; 233 ALR 200
Gleeson CJ, Kirby, Hayne, Callinan, Crennan JJ
Date: 27 Feb 2007 Case Number: S188/2006
Torts – Negligence - Duty of care - Roads authority - Independent contractor employed by roads authority to perform work on public road - Work not extra- hazardous - Independent contractor performed work negligently - Road user injured - Whether roads authority owed road user a non-delegable duty of care - Common features of relationships attracting non-delegable duties of care in common law of Australia - Whether existence of non-delegable duty of care consistent with Brodie v Singleton Shire Council (2005) 206 CLR 512 - Whether exception to general rule that a party is not liable for the negligence of an independent contractor.

Statutes – Interpretation - Roads Act 1993 (NSW) - Nature of powers given to roads authority - Power of roads authority to carry out road work - Right of member of the public to pass along public road - Whether statutory scheme evinced an intention that roads authority owed road user a non-delegable duty of care - Whether statutory scheme inconsistent with existence of a non-delegable duty - Significance of statute for applicable rule of the common law.

Words and phrases – "non-delegable duty of care", "highway rule", "non-feasance rule".

Roads Act 1993 (NSW) – ss 5, 7, 71, 145, 146.

Leighton Contractors Pty Ltd v Fox [2009] HCA 35

240 CLR 1; 83 ALJR 1086; 258 ALR 673
French CJ, Gummow, Hayne, Heydon, Bell JJ
Date: 2 Sep 2009 Case Number: S528/2008 S534/2008
Torts – Negligence - Duty of care - Independent subcontractor suffered injury resulting from negligent conduct of co-subcontractor - Whether induction training in industry approved code of practice would have avoided cause of injury - Whether principal contractor for construction work owes duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on construction site - Whether contractor retained to carry out concreting owes duty to provide training in safe work methods to independent subcontractor engaged by it to carry out concrete pumping - Whether obligations imposed on principal contractor and contractor under the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (NSW) give rise to a common law duty requiring for its discharge the provision of occupational health and safety induction training in respect of safe work methods of carrying out specialised tasks.

Occupational Health and Safety Act 2000 (NSW).

Occupational Health and Safety Regulation 2001 (NSW)
– Pt 8. 2.

Code of Practice Pumping Code (NSW).

Code of Practice Occupational Health and Safety Induction Training for Construction Work (NSW).

Li v Chief of Army [2013] HCA 49

88 ALJR 110; 303 ALR 397
French CJ, Crennan, Kiefel, Bell, Gageler JJ
Date: 27 Nov 2013 Case Number: S162/2013
Defence – Military forces – Discipline – Service offences ¬– Offence of creating a disturbance on service land – Meaning of "disturbance" – Physical and fault elements of "creating" a disturbance – Whether violence or threat of violence necessary to existence of "disturbance" – Whether "creating" a disturbance has one or two physical elements.

Words and phrases – "creating a disturbance", "disturbance".

Criminal Code (Cth) – Ch 2.

Defence Force Discipline Act 1982 (Cth) – s 33(b).

Defence Force Discipline Appeals Act 1955 (Cth).

Libke v The Queen [2007] HCA 30

230 CLR 559; 81 ALJR 1309; 235 ALR 517
Gleeson CJ, Kirby, Hayne, Callinan, Heydon JJ
Date: 20 Jun 2007 Case Number: B1/2007
Criminal law – Practice and procedure – Cross-examination – Appellant convicted at trial before jury of certain sexual offences against intellectually impaired person – Whether "miscarriage of justice" under s 668E(1) of Criminal Code (Q) by reason of manner in which prosecutor conducted cross-examination of appellant – Role of trial judge during the cross-examination – Application of the "proviso" in the circumstances – Requirements of Weiss v The Queen (2005) 224 CLR 300.

Criminal law – Practice and procedure – Directions to jury – Whether trial judge gave adequate directions on issue of consent as it related to cognitive capacity and intellectual impairment – Whether trial judge gave adequate directions on defence provided by s 216(4) of Criminal Code (Q) that accused had belief on reasonable grounds that person was not intellectually impaired.

Words and phrases – "cognitive capacity to give consent", "intellectually impaired person".

Criminal Code (Q) – ss 24, 216, 229F, 348(1), 348(2), 349(2)(a), 668E(1).

Liftronic Pty Limited v Unver [2001] HCA 24

75 ALJR 867; 179 ALR 321
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 3 May 2001 Case Number: S102/2000
Negligence – Contributory negligence – Apportionment of responsibility – Whether Court of Appeal erred in setting aside jury's apportionment of responsibility – Whether jury's apportionment reasonable.

Employer and employee – Negligence – Contributory negligence – Employer's duty to provide safe system and place of work – Conduct amounting to contributory negligence by employee – Respective roles of jury giving verdict at trial and appellate court deciding appeal against jury's apportionment.

Practice and procedure – When parties bound by conduct of case.

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) – s 10(1).

Likiardopoulos v The Queen [2012] HCA 37

247 CLR 265; 86 ALJR 1168; 291 ALR 1
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 14 Sep 2012 Case Number: M24/2012
Criminal law – Murder – Accessorial liability – Appellant convicted of murder – Crown accepted guilty pleas from five other participants to lesser offences – Trial judge left to jury Crown case based on accessorial liability – Whether appellant could be convicted as accessory to murder when Crown had accepted pleas from all other participants to lesser charges – Whether trial judge should have left accessorial case to jury – Whether Crown could lead evidence that other participants murdered the deceased – Whether inconsistency between convictions of other participants and accused – Whether exercise of prosecutorial discretion an abuse of process.

Words and phrases – "abuse of process", "accessory", "aiding and abetting", "counselling or procuring", "principal", "prosecutorial discretion".

Crimes Act 1958 (Vic) – s 323.

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).

Lithgow City Council v Jackson [2011] HCA 36

244 CLR 352
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 28 Sep 2011 Case Number: S66/2011
Evidence – Admissibility - Opinion evidence - Section 78 of Evidence Act 1995 (NSW) ("Act") provided that rule excluding evidence of opinion does not apply where "opinion is based on what the person saw, heard or otherwise perceived about a matter or event" and evidence "is necessary to obtain an adequate account or understanding of the person's perception of the matter or event" - Respondent found unconscious and injured in drain - Respondent conceded appellant only liable if respondent fell from vertical retaining wall - Ambulance record contained representation "? Fall from 1. 5 metres onto concrete" - Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.

Evidence – Admissibility - Hearsay evidence - Business records exception under s 69 of Act - Representation was hearsay evidence in business record - Whether representation must also comply with s 78.

Negligence – Causation - Whether circumstantial inferences sufficient to establish causation.

Evidence Act 1995 (NSW) – ss 69, 78.

LK v Director-General, Department of Community Services [2009] HCA 9

237 CLR 582; 83ALJR 525; 253 ALR 202
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 11 Mar 2009 Case Number: S524/2008
Family Law – Children - Family Law (Child Abduction Convention) Regulations - Whether children habitually resident in convention country immediately before retention in Australia - Relevance of past and present intentions of each parent - Relevance of habitual residence of each parent - Weighting of relevant criteria - Appropriate time for determining habitual residence.

Family Law – Children - Family Law (Child Abduction Convention) Regulations - Meaning of "habitually resident" - "habitual residence" distinct from connecting factors of domicile or nationality - Whether intention decisive of habitual residence or whether consideration of wide variety of circumstances permitted - Relevance of a finding of "settled purpose" - Meaning of "settled purpose" - Whether parent ceased habitual residence in Israel without making a final decision not to return there.

International law – Treaties - Interpretation - Convention on the Civil Aspects of International Child Abduction - Consistent construction of terms by courts of contracting states.

Words and phrases – "habitual residence", "habitually resident", "settled intention", "settled purpose", "wrongful retention".

Family Law Act 1975 (Cth) – s 111B(1).

Family Law (Child Abduction Convention) Regulations – regs 4, 15, 16(1A).

Convention on the Civil Aspects of International Child Abduction.

Local Government Association of Queensland (Inc) v Queensland; Ex parte Attorney-General (Q) [2001] HCA 75

185 ALR 457
Kirby J
Date: 12 Oct 2001 Case Number: B81/2001
High Court – Practice – Removal of a cause arising under the Constitution – Removal from Supreme Court of a State to the High Court of an application made on behalf of the Attorney-General of a State – Whether remitter of cause so removed to the Supreme Court is permissible having regard to the right of remitter − Whether in the circumstances such remitter should be ordered – High Court unable to hear and determine cause in time for provision of relevant relief – Relevance of desirability of securing reasoned decision of the Supreme Court.

Constitutional law (Cth) – Elections – General election for Federal Parliament – Qualifications and disqualification of candidates – State law purports to terminate office of local government councillor who is declared a candidate for election to the Federal Parliament – Whether State law is inconsistent with the Constitution and Commonwealth Electoral Act 1918 (Cth) – Whether matter involves a cause arising under the Constitution – Whether cause must be removed into the High Court on application by State Attorney-General – Whether such removed cause may and should be remitted to Supreme Court.

Elections – Candidates' eligibility and disqualification – State law disqualifies from office of local government councillor a declared candidate for election to the Federal Parliament – Whether such disqualification invalid under the Constitution s 109 having regard to express provisions for disqualification under federal law – Whether issue renders cause one arising under the Constitution or involving its interpretation – Whether cause once removed may be remitted to State court – Whether such remitter should be ordered in exceptional circumstances involving delay in resolution of cause by High Court.

Words and phrases – "as of course".

Constitution – ss 32, 44, 109.

Commonwealth Electoral Act 1918 (Cth) – ss 162, 163, 164, 176, 327.

Judiciary Act 1903 (Cth) – ss 40(1), 42(1).

Electoral Act 1992 (Q) – s 88(3).

Local Government Act 1993 (Q) – ss 221(f), 224A(b).

Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58

217 CLR 274; 79 ALJR 260; 212 ALR 1
Gleeson CJ, McHugh, Gummow, Hayne, Heydon JJ
Date: 18 Nov 2004 Case Number: S628/2003
Patents – Validity – Fair basing of claims – Patent for a door lock – Specification included a consistory clause and described a preferred embodiment – Central claim essentially repeated consistory clause – Whether claim was "fairly based" on the matter described in the specification within s 40(3) of the Patents Act 1990 (Cth) or travelled beyond it – Whether test of fair basing involves consideration of "merit", "inventive step", "technical contribution to the art" or general "fairness" – Whether grounds of invalidity under Patents Act must be kept distinct.

Words and phrases – "consistory clause", "fairly based", "fair basing", "inventive step", "invention", "merit", "real and reasonably clear disclosure", "technical contribution to the art", "the matter described in the specification".

Patents Act 1952 (Cth) – s 40(2).

Patents Act 1990 (Cth) – ss 18(1), 40(2), 40(3), 45(1), 59, 138(3), Sched 1.

Patents Act 1949 (UK) – s 4(4).

Patents Act 1977 (UK) – ss 14, 72(1)(c).

Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [No 2] [2007] HCA 21

235 CLR 173; 81 ALJR 1070; 235 ALR 202
Gummow, Hayne, Callinan, Heydon, Crennan JJ
Date: 23 May 2007 Case Number: S226/2006
Intellectual property – Patents - Invalidity - Lack of inventive step - Obviousness - The respondent challenged the validity of the appellant's patent on the grounds of lack of inventive step - The patent concerned a key operated door lock combining known integers - The patent included both a broad claim (a bare combination of integers) and a narrow claim (a "preferred embodiment" of those integers) - Whether the claimed combination of integers was obvious to a person skilled in the relevant art - Whether some of the patent claims were invalid for lack of inventive step.

Patents – Invalidity - Lack of inventive step - Whether inventive step is to be judged by reference to the claimed combination as a whole, or by reference to the addition of an integer to a known combination - Relevance of "idea" or "problem" underlying patent to the determination of inventive step.

Patents – Invalidity - Distinction between want of novelty and lack of inventive step.

Patents – Invalidity - Prior art base - Meaning of "common general knowledge" - Meaning of "prior art information" in s 7(3) of the Patents Act 1990 (Cth) - Whether "prior art information" differs as between a narrow claim and a broad claim in the one patent when assessing obviousness - Meaning of "regarded as relevant" - Meaning of "ascertained" - Meaning of "understood".

Patents – Invalidity - Amendment - Construction of, and relationship between, dependent claims following determination of invalidity - Whether order for amendment should be made.

Evidence – Patents - Lack of inventive step - Whether the patent specification contained an "implicit corollary admission" regarding common general knowledge - Whether that admission constituted evidence of obviousness and lack of inventive step.

Evidence – Patents - Prior art base - Relevance of "secondary evidence" - Weight to be given to the failure of other skilled persons (both inventive and non-inventive) to arrive at the invention.

Words and phrases – "common general knowledge", "lack of inventive step", "obvious", "person skilled in the relevant art", "prior art base", "prior art information".

Patents Act 1952 (Cth) – s 100.

Patents Act 1990 (Cth) – ss 7, 18, 22, 105, 128, 138, Sch 1.

Ludlam v Johnston [2014] HCA 1

88 ALJR 405; 305 ALR 319
Hayne J
Date: 21 Jan 2014 Case Number: P59/2013
Parliamentary elections (Cth) – Senate – Petition – Petition did not dispute validity of election or return – Whether petition authorised by Commonwealth Electoral Act 1918 (Cth) – Whether proceedings could be had on petition.

Words and phrases – "petition disputing an election or return".

Commonwealth Electoral Act 1918 (Cth) – ss 355, 358(1).

Lujans v Yarrabee Coal Company Pty Ltd [2008] HCA 51

83 ALJR 34; 249 ALR 663
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 16 Oct 2008 Case Number: S3/2008
Torts – Causation - Road accident - Whether road deceptive due to defendants' maintenance - Whether driver error constituted contributory negligence - Whether driver error sole cause of accident.

Courts – Jurisdiction and powers on appeal - Court of Appeal of Supreme Court of New South Wales - Whether rehearing under Supreme Court Act 1970 (NSW), s 75A(5) properly conducted - Whether failure to conduct real review of trial.

Courts – Jurisdiction and powers on appeal - Court of Appeal of Supreme Court of New South Wales - Conduct of rehearing - Whether evidence and trial judge's findings adequately considered - Whether original photographs relied upon - Whether inconsistent evidence taken into account.

Words and phrases – "appeal", "rehearing".

Supreme Court Act 1970 (NSW) – s 75A.

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