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.
185 ALR 457
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).
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).
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.
88 ALJR 405; 305 ALR 319
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).
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.
232 CLR 635; 82 ALJR 1037; 247 ALR 412
Gleeson CJ, Gummow, Hayne, Crennan, Kiefel JJ
Date: 18 Jun 2008 Case Number: A39/2007
Quantum meruit – Services performed and subcontractors paid - Entitlement to compensation - Appellants entered into oral agreement with building company for construction of domestic dwelling - Respondent performed some of the construction work - Appellants did not request respondent perform any services or pay any subcontractors - Whether claim for quantum meruit or money paid available.
Restitution – Unjust enrichment - Appellants accepted benefit of construction work performed by and at the expense of respondent - Claim that it would be unconscionable for appellants to retain benefit - Appellants made no direct request of respondent - Whether restitutionary claim available.
Contract – Domestic building contracts - "Cost plus" oral agreement between building company and owners - Informal reorganisation within building company's corporate group - Benefit and burden of oral agreement informally assigned by building company to related company - No notice given to owners of reorganisation or assignment - Some subcontractors paid directly by owners - Acknowledgement by building company that owners had met all progress claims made and paid all monies due under the oral agreement - Whether related company can demand compensation from owners for difference between amounts paid by owners and amounts outlaid by related company together with margin for supervision and profit.
Words and phrases – "expense", "free acceptance", "incontrovertible benefit", "unjust enrichment", "windfall".
210 CLR 333; 76 ALJR 635; 187 ALR 529
Gleeson CJ, Gaudron, McHugh, Kirby, Hayne, Callinan JJ
Date: 11 Apr 2002 Case Number: C40/1995
Constitutional law (Cth) – Taxation – Law imposing taxation – Statutory power to register a parent's or step-parent's child maintenance liability – Validity – Whether amounting to law imposing taxation – Whether law deals only with the imposition of taxation.
Constitutional law (Cth) – Judicial power of Commonwealth – Child Support Registrar may assess child support payable by parent or step-parent under statute – Validity – Whether impermissible conferral of the judicial power of the Commonwealth upon Registrar.
Words and phrases – "laws imposing taxation".
Constitution – ss 53, 55, 71.
Child Support (Assessment) Act 1989 (Cth) – Pts 5, 6A.
Child Support (Registration and Collection) Act 1988 (Cth) – Pt III.
French CJ, Bell, Gageler, Keane, Nettle JJ
Date: 5 Oct 2016 Case Number: B16/2016
Discrimination law – Disability discrimination – Where deaf person summoned for jury service – Where deaf person required assistance of Auslan interpreters to participate as juror – Where deaf person excluded from jury panel – Whether exclusion was unlawful discrimination.
Juries – Persons constituting jury – Jury deliberations – Whether permissible for interpreter to be present in jury room during deliberations – Whether deaf person who requires assistance of interpreter in jury room eligible for jury service under Jury Act 1995 (Q).
Words and phrases – "deaf person", "direct discrimination", "functions of a juror", "indirect discrimination", "jury deliberations", "jury service", "separation of the jury".
Anti –Discrimination Act 1991 (Q), ss 10, 11, 101.
Jury Act 1995 (Q) – ss 4(3), 54, 70.
88 ALJR 616; 308 ALR 202
French CJ, Crennan, Kiefel, Bell, Gageler JJ
Date: 14 May 2014 Case Number: S39/2014
Corporations – Managed investment schemes – Unlisted unit trust – Members' rights to withdraw from scheme – Where terms of issue of units in trust provided for redemption within stipulated time period – Where units not redeemed within stipulated time period – Whether obligation to redeem units subject to requirements of Pt 5C.
6 of Corporations Act 2001 (Cth) – Whether redemption of units constitutes withdrawal from scheme within meaning of Pt 5C.
6 of Corporations Act 2001 (Cth).
Words and phrases – "managed investment schemes", "redemption", "withdrawal".
Corporations Act 2001 (Cth) – Pt 5C.
6, ss 601GA(4), 601KA.
237 CLR 66; 82 ALJR 1425; 249 ALR 250
Gummow ACJ, Kirby, Hayne, Heydon, Kiefel JJ
Date: 4 Sep 2008 Case Number: S107/2008
Trusts – Trustees – Judicial advice – Charitable trust – Entitlement of trustee to advice that it would be entitled to defend itself against allegations of breach of trust – Entitlement of trustee to advice that it could fund its defence from trust property.
Trusts – Trustees – Judicial advice – Power of Supreme Court – Trustee Act 1925 (NSW), s 63(1) – Limitations on power to give advice – Nature of advice – Power to revoke order providing advice – Effect of revocation.
Trusts – Trustees – Judicial advice – Factors relevant to discretion of Supreme Court to give advice under s 63 of Trustee Act 1925 (NSW) – Whether advice in best interests of trust – Whether trustee’s financial position irrelevant – Whether Court required expressly to undertake exercise balancing advantages to trust in giving advice against disadvantages – Relevance of adversarial character of proceedings.
Charities – Trustees – Judicial advice – Relevance of public benefit in giving advice.
Practice and Procedure – Appeal from discretionary decision – Necessity of intermediate appellate court identifying particular House v The King (1936) 55 CLR 499 error – Whether error shown where trial judge said not to "expressly" consider particular matters not put at trial.
Words and phrases –"all expenses incurred", "question respecting the management or administration of the trust property".
Rules of Supreme Court 1883 (UK) – O 55 r 3.
Trustee Act 1925 (NSW) – ss 59(4), 63, 85, 93(3).
211 CLR 287; 76 ALJR 1445; 191 ALR 543
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 11 Sep 2002 Case Number: P55/2001
Criminal law – Companies - Offence against Corporations (Western Australia) Act 1990 (WA) - Attraction of federal jurisdiction under s 75(iii) of the Constitution by presence of Australian Securities and Investments Commission as party to prosecution - Section 206A(2) of the Justices Act 1902 (WA) conferred standing to apply for leave to appeal (and, if granted, to institute and conduct an appeal) upon "a party" to an earlier appeal - Whether Australian Securities and Investments Commission empowered to appeal to the Full Court against the order of a single judge of the Supreme Court of Western Australia on appeal from summary proceedings - Whether s 79 of the Judiciary Act 1903 (Cth) "picked up" s 206A(2) of the Justices Act - Whether Australian Securities Commission Act 1989 (Cth) "otherwise provided" for the purposes of s 79 of the Judiciary Act.
Constitutional law (Cth) – Federal jurisdiction - Australian Securities and Investments Commission a party - s 75(iii) of the Constitution - Substantive content of matter supplied by State law - Construction of legislation in co-operative national scheme.
Appeal – Competency of appeal by Australian Securities and Investments Commission to the Full Court against the setting aside of an appeal to a single judge of the Supreme Court of Western Australia from conviction in summary proceedings.
Constitution – s 75(iii).
Judiciary Act 1903 (Cth) – s 79.
Australian Securities Commission Act 1989 (Cth) – ss 11(4), 49.
Justices Act 1902 (WA) – s 206A(2).
Corporations (Western Australia) Act 1990 (WA) – ss 7, 58.
214 CLR 230; 77 ALJR 1047; 197 ALR 333
Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ
Date: 7 May 2003 Case Number: S86/2002
Criminal law – Property offence - Fraudulent application of company property by director or officer - Accused also sole beneficial shareholder of company - Whether consent of accused, as sole shareholder, cures what would otherwise be a breach by accused, as director or officer, of s 173, Crimes Act 1900 (NSW).
Criminal law – Property offence - Fraudulent application of company property by director or officer - Directions - Whether trial judge misdirected jury in failing to identify the use of dishonest means as an essential element of s 173, Crimes Act 1900 (NSW) - Whether trial judge erred in failing to direct that it was necessary for accused to have realised that his impugned conduct was dishonest by the current standards of ordinary, decent people.
Words and phrases – "fraudulently", "claim of right".
Crimes Act 1900 (NSW) – ss 4(1), 173.
French CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 2 Dec 2015 Case Number: S100/2015
Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) – Exemption from taxation on salaries and emoluments received from certain international organisations – Whether monthly pension payments exempt from taxation.
International law – Treaty interpretation – Privileges and immunities of specialized agencies – Whether Convention on the Privileges and Immunities of the Specialized Agencies requires Australia not to tax monthly pension payments received by former officer of specialized agency.
Words and phrases – "emolument", "pension", "salary".
International Organisations (Privileges and Immunities) Act 1963 (Cth) – s 6(1)(d)(i), Fourth Schedule.
Specialized Agencies (Privileges and Immunities) Regulations (Cth) – reg 8(1).
Convention on the Privileges and Immunities of the Specialized Agencies  ATS 41 – Sections 18-19, 22.
87 ALJR 1060; 302 ALR 461
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 11 Oct 2013 Case Number: S114/2013
Constitutional law – Judicial power of the Commonwealth – Constitution, Ch III – Appellant crew member of boat carrying passengers with no lawful right to come to Australia – Appellant convicted of aggravated offence of smuggling group of at least five non citizens reckless as to whether they had lawful right to enter Australia under s 233C(1) of Migration Act 1958 ("Act") – Section 236B of Act prescribed mandatory minimum sentence for offence under s 233C(1) of five years' imprisonment with minimum non parole period of three years – Whether ss 233A(1) and 233C(1) coextensive – Whether prescription of mandatory minimum sentence for offence under s 233C(1) conferred judicial power to determine punishment on prosecuting authorities – Whether s 236B incompatible with institutional integrity of courts – Whether s 236B required court to impose arbitrary and non judicial sentence.
Words and phrases – "aggravated offence", "institutional integrity", "judicial power", "mandatory minimum penalty", "prosecutorial discretion".
Constitution – Ch III.
Migration Act 1958 (Cth) – ss 233A(1), 233C(1), 236B.
210 CLR 181; 76 ALJR 246; 185 ALR 152
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 13 Dec 2001 Case Number: B36/2001
Contract – Confidential information – Contractual restraint upon use of "Information" – Restraint expressed to be perpetual – Information disclosed in patent application – Proper construction of contract – Whether restraint to apply once information disclosed to public – Whether contract in restraint of trade.
Restraint of trade – Contractual restraint upon use of information concerning invention – Whether confidentiality agreement constitutes an unenforceable contractual restriction on trade – Whether the restraint imposed is more than that required to protect the interests of the parties.
Injunction – Confidentiality agreement between inventor and potential marketer – Substantial copying of invention found contrary to agreement – Whether injunction granted unacceptably wide – Whether injunction would involve excessive supervision by court – Permissible scope and duration of injunctive relief.
Words and phrases – "quality of confidence".
226 CLR 551; 81 ALJR 254; 231 ALR 277
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan JJ
Date: 9 Nov 2006 Case Number: M152/2005
Tort – Deceit - Paternity - Whether tort of deceit can be applied in marital context in relation to false representations of paternity - Where false representations were made by wife in course of marriage concerning paternity of children born during marriage - Where birth notification forms completed by wife represented husband to be father - Where DNA testing after marriage ended revealed two children of the marriage were not the biological children of the husband - Where husband claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering - Relevance of history of tort of deceit - Relevance of abolition of inter-spousal immunity in tort by Family Law Act 1975 (Cth) - Relevance of statutory scheme intended to minimise role of fault in determining legal rights and liabilities following breakdown of marriages - Relevance of statutory regime under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support - Relevance of public policy considerations.
Statute – Statutory construction - Family Law Act 1975 (Cth) - Whether tort of deceit is excluded from applying between spouses by the Family Law Act 1975 (Cth) - Whether ss 119 and 120 of the Family Law Act 1975 (Cth) expressly or impliedly preclude an action for deceit by a husband in respect of false representations made by the wife during the subsistence of the marriage as to the paternity of children of the marriage.
Words and phrases – "deceit", "inter-spousal immunity", "paternity fraud".
Child Support (Assessment) Act 1989 (Cth) – ss 107, 143.
Family Law Act 1975 (Cth) – ss 43, 48, 51, 66X, 69P-69X, 119, 120.
Matrimonial Causes Act 1959 (Cth) – ss 21, 28, 44, 98.
232 CLR 397; 82 ALJR 372; 241 ALR 606
Gleeson CJ, Gummow, Kirby, Hayne, Kiefel JJ
Date: 30 Jan 2008 Case Number: P39/2007
Evidence – Criminal law - Portions of "walk through" video tendered by defence at trial - Prosecution objected to tender of whole video - In closing prosecutor invited jury to draw adverse inferences from portions played - Trial judge refused to allow defence to re-open case to tender whole of video - Whether re- opening ought to have been allowed - Whether a direction to the jury was required to overcome prejudicial effects of the prosecutor's invitation.
Criminal law – Practice and procedure - Directions to jury - Distinction between directions and comments - Whether trial judge's statements in summing up amounted to a direction.
Evidence – Criminal law - Duty of prosecutor to tender all inculpatory statements - Whether prosecutor obliged to tender "walk through" video in whole or in part.
Evidence – Criminal law - Evidence of blood stains in pocket - Whether accused had had opportunity to respond to blood-stain allegation - Whether judge's direction to the jury on this point was sufficient.
Evidence – Criminal law - Evidence of blood stains in pocket not put to prosecution witnesses but mentioned by prosecutor in closing - Whether judge required to give a Jones v Dunkel direction.
Criminal Appeal Act 2004 (WA) – s 30.
204 CLR 290; 75 ALJR 626; 178 ALR 218
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 15 Mar 2001 Case Number: M14/2000
Customs and excise – Duty – Proceeding by Collector of Customs for recovery of unpaid duty after goods released to owner – Dispute as to whether duty owed – Whether s 167 Customs Act 1901 (Cth) prevents owner of goods from disputing indebtedness other than by paying duty "under protest" and then commencing action against Collector of Customs for recovery of duty.
Statutes – Construction – Presumption that legislation does not erode fundamental rights – Relevance and contents of presumption.
Customs Act 1901 (Cth) – ss 153, 165, 167, 273GA(2).
224 CLR 125; 80 ALJR 160; 222 ALR 236
Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 15 Nov 2005 Case Number: P77/2004
Criminal law – Appellant convicted of murder - Appellant petitioned for mercy - Attorney-General referred petition to Court of Criminal Appeal - Whether non- disclosure of exculpatory evidence by prosecution denied appellant a fair trial or fair chance of acquittal - Scope of jurisdiction of Court of Criminal Appeal on Attorney-General's reference under s 140(1)(a) Sentencing Act 1995 (WA) - Duty to consider the "whole case" - Whether Court of Criminal Appeal erred in refusing to consider evidence adduced at trial - Whether jury verdict unreasonable or unsupportable - Whether jury verdict could not be supported having regard to the evidence - Whether a substantial miscarriage of justice occurred - Whether a retrial should be ordered.
Appeal – New trial - Petition for mercy - Reference of whole case to Court of Criminal Appeal - Scope of proceedings in Full Court.
Words and phrases – "fresh evidence", "new evidence", "whole case", "as if it were an appeal".
Criminal Code (WA) – ss 21, 689(1).
Sentencing Act 1995 (WA) – s 140(1)(a).