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Obeid v The Queen [No 2] [2016] HCA 10

Gageler J
Date: 4 Apr 2016 Case Number: S265/2015
Practice and procedure – High Court of Australia – Non-publication order – Application for non-publication order under s 77RE of Judiciary Act 1903 (Cth) – Application for special leave to appeal from orders of Court of Criminal Appeal of Supreme Court of New South Wales dismissing appeal from refusal of single judge to quash indictment or permanently stay criminal proceeding – Application in High Court for stay of criminal proceeding pending determination of special leave application – Respondent applies for non-publication order concerning information tending to reveal identity of applicant – Whether non-publication order should be made.

Judiciary Act 1903 (Cth) – ss 77RE, 77RG.

Old UGC, Inc v Industrial Relations Commission of New South Wales in Court Session [2006] HCA 24

225 CLR 274; 80 ALJR 1018; 227 ALR 190
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 18 May 2006 Case Number: S209/2005
Industrial law (NSW) – Industrial Relations Commission – Jurisdiction – Power given to the Commission by s 106(1) of the Industrial Relations Act 1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract – Upon termination of an employment agreement, compensation and release agreement made for the purpose of resolving any legal disputes with respect to the employment agreement – Compensation and release agreement governed by the laws of the State of Colorado – Application to Commission alleging the compensation and release agreement was unfair, harsh and unconscionable – Whether compensation and release agreement was a "contract whereby a person performs work in any industry" – Relevance of the availability of other remedies.

Prerogative writs – Prohibition – Excess of jurisdiction – Industrial Relations Commission (NSW) – Whether writ lies in the circumstances – Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court – Whether application for prohibition premature – Likelihood or danger of order being made in excess of jurisdiction – Relevance of privative provision purporting to exclude issue of writ – Relevance of specialist subject-matter of disputes before the Commission.

Contract – Construction – Provision requiring parties to act in good faith.

High Court – Appeal – Appeal from New South Wales Court of Appeal – Respondent raised privative provision before the Court of Appeal but not before High Court – Whether High Court can consider privative provision in the circumstances.

Natural justice – Procedural fairness – Entitlement to trial on the merits.

Private international law – Jurisdiction – Industrial Relations Commission (NSW) – Contract in question governed by the laws of the State of Colorado – Whether the power afforded to the Commission under s 106(1) of the Industrial Relations Act 1996 (NSW) extends to contracts for which the proper law is other than the law of New South Wales.

Statutes – Construction – Interpretation – Remedial statute – Purposive approach to construction – Objects of statute.

Statutes – Privative clause – Industrial Relations Commission (NSW) – Whether privative provision applicable.

Statutes – Construction – Interpretation – Composite phrase incorporating technical words – Extrinsic matters – Legislative history – Minister's second reading speech – Relevance of Parliament's purpose of successive re-enactment in increasingly ample terms

Words and phrases – "any contract whereby a person performs work in any industry", "arrangement", "decision or purported decision", "industry".

Industrial Relations Act 1996 (NSW) – ss 105-109A, 152-153, 179.

Supreme Court Act 1970 (NSW) – ss 25, 38, 39, 42.

Osland v Secretary to the Department of Justice [2008] HCA 37

234 CLR 275; 82 ALJR 1288; 249 ALR 1
Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Kiefel JJ
Date: 7 Aug 2008 Case Number: M3/2008
Administrative law – Freedom of information - Exempt documents - Freedom of Information Act 1982 (Vic), s 50(4) empowered Tribunal to decide access should be granted to exempt documents if of opinion that public interest required access to be granted - Whether, in circumstances of this matter, Court of Appeal erred in concluding no basis for Tribunal to exercise power, when Court of Appeal did not examine documents.

Practice and procedure – Legal professional privilege - Waiver - Legal advice obtained in relation to petition for exercise of prerogative of mercy - Whether issue of press release disclosing existence and effect of advice inconsistent with maintenance of confidentiality in content of advice.

Words and phrases – "legal professional privilege", "mercy", "pardon", "public interest", "public interest override", "waiver".

Freedom of Information Act 1982 (Vic) – ss 30, 32, 50(4).

Osland v Secretary to the Department of Justice [2010] HCA 24

241 CLR 320; 84 ALJR 528; 267 ALR 231
French CJ, Gummow, Hayne, Heydon, Kiefel, Bell JJ
Date: 23 Jun 2010 Case Number: M11/2010
Administrative law – Freedom of information - Exempt documents - Petition for mercy denied by Governor acting on advice of Attorney-General - Attorney- General had received legal advice from various sources - Attorney-General issued press release mentioning advice from one source that petition should be denied but did not mention advice from other sources - Freedom of information request by petitioner for all advices granted upon review by Victorian Civil and Administrative Tribunal ("VCAT") - VCAT of opinion that public interest required access to all advices to be granted - Whether open to VCAT to form opinion that public interest required access to be granted - Relevance of differences between advices.

Administrative law – Judicial review - Where Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("Act") provided for appeal to Court of Appeal on a question of law and empowered Court of Appeal to make orders on appeal including orders VCAT "could have made" - VCAT of opinion that public interest required disclosure of all advices - Court of Appeal examined advices and formed own view, without considering the correctness of VCAT's analysis, that public interest did not require access to be granted - Nature of "appeal" under Act - Whether VCAT decision attended by error of law.

Words and phrases – "appeal", "exempt documents", "public interest".

Freedom of Information Act 1982 (Vic) – ss 32, 50(4).

Victorian Civil and Administrative Tribunal Act 1998 (Vic) – ss 148(1), 148(7).

Ostrowski v Palmer [2004] HCA 30

218 CLR 493; 78 ALJR 957; 206 ALR 422
Gleeson CJ, McHugh, Kirby, Callinan, Heydon JJ
Date: 16 Jun 2004 Case Number: P35/2003
Criminal law – Defences - Respondent charged with fishing for rock lobsters in a prohibited area while holding a commercial fishing licence, contrary to a regulation made under statute - Respondent made inquiries at an office of a State Government department and was provided with incomplete information relating to prohibited areas - Respondent believed he had been provided with complete set of relevant regulations and was therefore unaware that fishing in relevant area was prohibited by law - Whether respondent could rely on defence of "mistake of fact" under s 24, Criminal Code (WA) - Whether respondent's honest and reasonable, but mistaken, belief was one of fact or law - Effect of officially induced error of law - Relevance of rules concerning pleading and proof of regulations.

Words and phrases – "mistake of fact", "mistake of law", "state of things".

Criminal Code (WA) – ss 22, 24.

Fish Resources Management Act 1994 (WA) – s 222.

Fish Resources Management Regulations 1995 (WA) – reg 34.

P.T. Garuda Indonesia Ltd v Australian Competition & Consumer Commission [2012] HCA 33

247 CLR 240; 86 ALJR 1071; 290 ALR 681
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 7 Sep 2012 Case Number: S343/2011
Public international law – Foreign State immunity – Sections 11(1) and 22 of Foreign States Immunities Act 1985 (Cth) ("Act") together provide that a separate entity of a foreign State is not immune from jurisdiction in a proceeding that concerns a "commercial transaction" – Respondent commenced proceedings against appellant for conduct allegedly contrary to Pt IV of Trade Practices Act 1974 (Cth) – Whether appellant immune under Act from exercise of jurisdiction – Whether civil penalty proceeding concerns a "commercial transaction".

Words and phrases – "commercial transaction", "conferral of jurisdiction", "jurisdiction", "sovereign immunity ".

Constitution – s 51(xxix).

Foreign States Immunities Act 1985 (Cth) – ss 3(1), 9, 10, 11, 22, 38, 40.

Judiciary Act 1903 (Cth) – s 39B.

Trade Practices Act 1974 (Cth) – Pt IV.

Pacific Carriers Limited v BNP Paribas [2004] HCA 35

218 CLR 451; 78 ALJR 1045; 208 ALR 213
Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ
Date: 5 Aug 2004 Case Number: S585/2003
Contract – Carriage of goods - Carriage by sea - Delivery of goods without surrendering bills of lading - Indemnity to carrier.

Contract – Construction and interpretation - Relevant principles - Objective interpretation of commercial documents - Letters of indemnity executed by trader in favour of carrier relating to unloading cargo without bills of lading - Where documents also signed by officer of the respondent bank - Whether letters of indemnity purported to bind the respondent as an indemnifying party.

Contract – Agency - Ostensible authority - Documents of the kind commonly relied upon and intended to be relied upon by third parties - Whether the assumption made by the appellant that the respondent was party to the letters of indemnity was induced or assisted by the respondent's conduct in such a way that it would be unjust to permit the respondent to depart from the assumption.

Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28

French CJ, Kiefel, Gageler, Keane, Nettle JJ
Date: 27 Jul 2016 Case Number: M219/2015 M220/2015
Banker and customer – Rule against penalties – Consumer credit card accounts – Late payment fees – Where late payment fees were $35 and $20 – Where costs actually incurred by respondent upon failure by first appellant to make timeous payment of amounts owing were approximately $3 – Where late payment fees not genuine pre-estimates of damage – Where respondent alleged it could conceivably have incurred loss provision costs, collection costs and regulatory capital costs as a result of first appellant's default – Whether late payment fees penalties – Whether late payment fees extravagant, exorbitant or unconscionable – Whether late payment fees out of all proportion to interests damaged – Whether respondent's legitimate interests confined to reimbursement of expenses directly occasioned by first appellant's default.

Contract – Rule against penalties – Essential characteristics of a penalty – Whether sum disproportionate to actual loss suffered amounts to a penalty – Whether sum incorporating loss too remote to be recoverable in action for damages amounts to a penalty – Relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79.

Trade practices – Consumer protection – Late payment fees – Unconscionable conduct – Unjust transactions – Unfair terms – Whether late payment fees unconscionable, unjust or unfair.

Precedent – Apex courts of foreign jurisdictions – Status of unwritten law of United Kingdom in Australia.

Words and phrases – "exorbitant", "extravagant", "genuine pre-estimate", "in terrorem", "late payment fees", "liquidated damages", "out of all proportion", "penalty", "unconscionable", "unconscionable conduct", "unfair terms", "unjust transactions".

Australian Securities and Investments Commission Act 2001 (Cth) – ss 12BF, 12BG, 12CB, 12CC.

National Consumer Credit Protection Act 2009 (Cth) – Sched 1 s 76.

Fair Trading Act 1999 (Vic) – ss 8, 8A, 32W, 32X.

Palgo Holdings Pty Ltd v Gowans [2005] HCA 28

221 CLR 249; 79 ALJR 1121; 215 ALR 253
McHugh, Gummow, Kirby, Hayne, Heydon JJ
Date: 25 May 2005 Case Number: S317/2004
Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Lender charged with carrying on the business of lending money on the security of pawned goods whilst not being the holder of a licence – Lender made short-term secured loans – Loan documents recorded that title in goods passed to lender – Chattel mortgage security – Goods usually kept by the lender for term of loan – Characterisation of transaction – Whether chattel mortgage was a bill of sale under Bills of Sale Act 1898 (NSW) – Whether the lender's business was the "business of lending money on the security of pawned goods" – Meaning of "pawned goods" in the Pawnbrokers and Second-hand Dealers Act 1996 (NSW).

Pawnbroking – History of meaning of "pawn" or "pledge" in Roman and common law – Understanding of "pawn" or "pledge" as one class of bailment of goods, distinct from mortgage and lien – Relevance of possession of goods.

Statutes – Construction – Pawnbrokers and Second-hand Dealers Act 1996 (NSW) – Purposive construction – Contextual construction – Technical and common words – Relevance of Minister's Second Reading Speech – Relevance of consumer credit legislation – Relevance of sham arrangement.

Words and phrases – "pawn", "pawned goods", "pledge".

Pawnbrokers and Second –hand Dealers Act 1996 (NSW), s 6.

Bills of Sale Act 1898 (NSW).

Paliflex Pty Limited v Chief Commissioner of State Revenue [2003] HCA 65

219 CLR 325; 78 ALJR 87; 202 ALR 376
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 12 Nov 2003 Case Number: S145/2003
Constitutional law (Cth) – Exclusive powers of Commonwealth Parliament - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW).

Taxation – Land tax - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW).

Constitution – s 52(i).

Commonwealth Places (Administration of Laws) Act 1970 (NSW).

Commonwealth Places (Mirror Taxes) Act 1998 (Cth).

Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW).

Land Tax Act 1956 (NSW).

Land Tax Management Act 1956 (NSW).

State Revenue Legislation Amendment Act 1997 (NSW).

Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69

208 CLR 388; 76 ALJR 163; 185 ALR 280
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 6 Dec 2001 Case Number: S8/2001
Injurious falsehood – Elements of the tort - Forged letter containing false statements - Initial publication to defined group intended to ridicule subject of letter - Report in newspaper of "bogus letter" - Contract terminated as a result of newspaper report - Whether loss suffered caused by initial publication - Whether loss suffered was a natural and probable consequence of initial publication - Identification of relevant falsehood - Relevance of reasonable foreseeability as criterion for limiting liability - Causation of plaintiff's damage - Whether actual damage to plaintiff proved or assumed by expert report.

Words and phrases – "Natural and probable consequence", "grapevine effect".

Palmer v Ayres [2017] HCA 5

Kiefel, Gageler, Keane, Nettle, Gordon JJ
Date: 8 Feb 2017 Case Number: B52/2016 B55/2016
Constitutional law (Cth) – Judicial power – Mandatory examination of persons about corporation's examinable affairs – Where plaintiffs former directors of corporation in voluntary liquidation – Where liquidators applied for and obtained order for issue of summons under s 596A of Corporations Act 2001 (Cth) requiring plaintiffs to attend for examination about corporation's examinable affairs – Whether s 596A invalid as contrary to Ch III of Constitution – Whether s 596A gives rise to "matter" that engages judicial power of Commonwealth – Whether power conferred by s 596A incompatible with or outside judicial power of Commonwealth.

Words and phrases – "examinable affairs", "federal jurisdiction", "judicial power", "matter".

Constitution – Ch III.

Corporations Act 2001 (Cth) – ss 596A, 597.

Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Limited [2000] HCA 20

74 ALJR 791; 170 ALR 579
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 13 Apr 2000 Case Number: M25/1999
Mortgage – Construction of terms - Mortgage agreement provided that event of default occurred if bank formed opinion that circumstances had arisen which had material adverse effect on business, assets and financial condition of borrower and ability of borrower to perform its obligations to the bank - Formation of requisite opinion - Declaration that moneys owing were immediately due and payable - Notice demanding payment - Validity of notice.

Mortgage – Debenture - Default - Power in mortgage to appoint receiver after moneys became payable - Validity of appointment - Mortgage and loan agreements each specifying circumstances in which moneys became payable - No inconsistency between mortgage and loan agreements.

Papaconstuntinos v Holmes a Court [2012] HCA 53

249 CLR 534; 87 ALJR 110; 293 ALR 215
French CJ, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Dec 2012 Case Number: S319/2011
Defamation – Defences – Common law defence of qualified privilege – Respondent involved in proposal to invest funds in football club – Appellant was board member of affiliated club – Appellant opposed proposal – Respondent sent letter to appellant's employer conveying imputations defamatory of appellant – Defamatory statements made voluntarily and in protection of personal interests – Whether defence of qualified privilege required respondent to show "pressing need" to protect interests – Whether "pressing need" to be adjudged by reference to test of "reasonable necessity" – Consideration of Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366.

Words and phrases – "community of interest", "fairly warranted by any reasonable occasion or exigency", "pressing need", "qualified privilege", "reasonable necessity".

Defamation Act 2005 (NSW) – ss 6(2), 24.

Pape v Commissioner of Taxation [2009] HCA 23

238 CLR 1; 83 ALJR 765; 257 ALR 1
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 7 Jul 2009 Case Number: S35/2009
Constitutional law – Standing - Section 7 of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) ("the Act") provides that the Commissioner of Taxation must pay a tax bonus to entitled persons - Persons entitled under s 5 of Act if, inter alia, an individual, Australian resident with an adjusted tax liability greater than nil and not exceeding $100,000 for 2007-08 income tax year - Whether person entitled under s 5 of Act has standing to bring action for declarations and injunction.

Constitutional law – Appropriations of moneys from the Consolidated Revenue Fund - Whether payment of tax bonus supported by valid appropriation under ss 81 and 83 of Constitution - Whether appropriation "for the purposes of the Commonwealth" under s 81 - Whether phrase "for the purposes of the Commonwealth" limits legislative power - Whether source of legislative "power to spend" is ss 81 and 51(xxxix).

Constitutional law – Powers of the Commonwealth Parliament - Whether Act law with respect to trade and commerce under s 51(i) - Whether Act law with respect to taxation under s 51(ii) - Whether Act law with respect to external affairs under s 51(xxix) - Whether Act supported by implied nationhood power - Whether Act supported by power conferred by ss 81 and 51(xxxix) - Whether Act supported by power conferred by ss 61 and 51(xxxix) - If Act beyond power, whether Act can be read down so as to be within power.

Constitutional law – Executive power of the Commonwealth - Global financial and economic crisis - Whether Act supported by ss 61 and 51(xxxix).

Constitutional law – Taxation power - Persons entitled under s 5 of Act included persons entitled to tax bonus greater than their adjusted tax liability for the 2007-08 financial year - Whether Act law with respect to taxation.

Words and phrases – "appropriation", "for the purposes of the Commonwealth", "made by law" and "maintenance of this Constitution".

Constitution – ss 51(i), (ii), (xxix), (xxxix), 61, 81 and 83.

Acts Interpretation Act 1901 (Cth) – s 15A.

Tax Bonus for Working Australians Act (No 2) 2009 (Cth).

Taxation Administration Act 1953 (Cth)
– ss 2 and 16.

Park v Brothers [2005] HCA 73

80 ALJR 317; 222 ALR 421
Gleeson CJ, Gummow, Hayne, Callinan, Heydon JJ
Date: 6 Dec 2005 Case Number: S226/2005
Vendor and purchaser – Sale of land – Purchasers entitled to possession prior to completion on conditions including requirement of vendor's approval – Vendor wrongly purported to rescind contract – Vendor denied purchasers access to land – Purchasers sued for damages for breach of access provision – Whether necessary for purchasers to seek vendor's approval notwithstanding purported rescission – Whether vendor's conduct waived condition of approval.

Contract – Construction of contract – Purchasers to have access to land prior to completion to farm in areas approved by vendor – Whether vendor required to act reasonably in granting or withholding approval.

Contract – Construction of contract – Implied duty to co-operate – Limits of operation of implication.

Practice and procedure – Appeal – Whether it is open to an appellate court to allow an appeal on a new ground that was not raised at trial and that, if raised, could have been the subject of evidence.

Parker v Comptroller-General of Customs [2009] HCA 7

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.

Pasini v United Mexican States [2002] HCA 3

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.

Patel v The Queen [2012] HCA 29

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).

Peldan v Anderson [2006] HCA 48

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.

Perara-Cathcart v The Queen [2017] HCA 9

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.

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