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