Judgments, ordered by case name

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A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1

216 CLR 253; 78 ALJR 310; 204 ALR 8
Gleeson CJ, McHugh, Gummow, Kirby, Callinan JJ
Date: 4 Feb 2004 Case Number: S406/2002
Legal practitioners – Solicitors – Jurisdiction of the Supreme Court with respect to the discipline of legal practitioners – Declaration of professional misconduct in circumstances where person convicted of sexual offences – Declaration of professional misconduct in circumstances where person failed to disclose fact of conviction of offence but where conviction ultimately set aside on appeal – Duty of candour to professional association – Distinction between professional misconduct and purely personal misconduct – Removal from Roll of Practitioners on basis that person not a fit and proper person to be a legal practitioner – Relevance of rehabilitation and character – Relevance of findings of professional misconduct to question of whether fit and proper person.

Words and phrases – "inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners", "professional misconduct", "fit and proper person to be a legal practitioner".

Legal Profession Act 1987 (NSW) – ss 127, 171M.

A v State of New South Wales [2007] HCA 10

230 CLR 500; 81 ALJR 763; 233 ALR 584
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 21 Mar 2007 Case Number: S59/2006
Torts – Malicious prosecution - Whether prosecutor acted without reasonable and probable cause - Public rather than private prosecution - Applicant acquitted of offence charged - Prosecutor had no personal knowledge of the facts underlying the charge - Whether prosecutor did not honestly form the view that there was a proper case for prosecution or whether the prosecutor formed that view on an insufficient basis.

Torts – Malicious prosecution - Whether prosecutor acted maliciously - Whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law.

Words and phrases – "malicious prosecution", "malice", "absence of reasonable and probable cause".

AB v Western Australia [2011] HCA 42

244 CLR 390; 84 ALJR 1233
French CJ, Gummow, Hayne, Kiefel, Bell JJ
Date: 6 Oct 2011 Case Number: P15/2011 P16/2011
Statutes – Construction - Gender reassignment - Applications for recognition certificates as males - Reassignment procedures undertaken to alter genitals and gender characteristics - Appellants adopted lifestyle and have physical appearance of males - Retain some female sexual organs - Whether requirement that person have "the physical characteristics by virtue of which a person is identified as male or female" met - Whether adverse social consequences or community standards and expectations permissible considerations.

Words and phrases – "gender", "gender characteristics", "physical characteristics by virtue of which a person is identified", "reassignment procedure", "recognition certificate", "transsexual".

Gender Reassignment Act 2000 (WA) – ss 14(1), 15(1).

Achurch v The Queen [2014] HCA 10

88 ALJR 490; 306 ALR 566
French CJ, Crennan, Kiefel, Bell, Gageler JJ
Date: 2 Apr 2014 Case Number: S276/2013
Criminal law – Sentence – Appellant convicted of drug crimes and sentenced – Crown successfully appealed against sentences – Court of Criminal Appeal applied reasoning held to be erroneous in Muldrock v The Queen (2011) 244 CLR 120 in re-sentencing appellant – Appellant applied under s 43 of Crimes (Sentencing Procedure) Act 1999 (NSW) for re-sentencing proceedings to be re-opened – Court of Criminal Appeal dismissed application – Where sentences imposed by re-sentencing court open at law – Whether sentences imposed "contrary to law".

Words and phrases – "contrary to law", "principle of finality".

Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 43(1), 43(2).

ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation [2011] HCA 46

86 ALJR 4
Heydon J
Date: 2 Nov 2011 Case Number: S167/2011 S210/2011
Corporations – Reinstatement to register - Winding up - Companies deregistered under Corporations Act 2001 (Cth) ("Act") - Federal Court made orders reinstating companies to register pursuant to s 601AH(2) of Act and thereupon winding them up - Companies and former director sought writs of certiorari, to quash winding-up orders made by Federal Court, mandamus and prohibition - Whether Federal Court had jurisdiction to wind up companies - Whether Federal Court wound up deregistered companies - Whether Federal Court ordered that winding up take effect from date when companies reinstated - Whether s 601AH(5) of Act requires that company, when reregistered, come back into existence in same form as on deregistration.

Procedural fairness – Whether companies should have been given opportunity to be heard before winding-up orders made - Discretionary nature of relief sought - Whether there was unfairness as matter of substance - Whether opportunity to be heard could have made difference to outcome.

Words and phrases – "company", "jurisdictional error".

Corporations Act 2001 (Cth) – ss 459A, 459P, 601AH(2), 601AH(5).

Corporations Law – s 574(1)(b).

ACQ Pty Limited v Cook [2009] HCA 28

237 CLR 656; 83 ALJR 986; 258 ALR 58
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 5 Aug 2009 Case Number: S107/2009 S108/2009
Aviation – Liability for damage caused by aircraft - Crop dusting aircraft collided with conductor in cotton field - Electrical linesman dispatched to repair conductor tripped or fell near it - Injury occurring after electric arc - Whether injury "caused by . . . something that is a result of an impact" with an aircraft in flight - Damage by Aircraft Act 1999 (Cth), s 10(1).

Words and phrases – "something", "caused by".

Damage by Aircraft Act 1999 (Cth) – ss 10(1), 11.

Adam v The Queen [2001] HCA 57

207 CLR 96; 75 ALJR 1537; 183 ALR 625
Gleeson CJ, Gaudron, McHugh, Kirby, Hayne JJ
Date: 11 Oct 2001 Case Number: S139/2000
Criminal law – Evidence - Whether trial judge erred in admitting prior inconsistent statements of prosecution witness - Relevance of prior inconsistent statements - Application of credibility rule - Exceptions to hearsay rule - Prior inconsistent statements as evidence of the truth of the representations.

Criminal law – Evidence - Unfavourable witnesses - Whether trial judge erred in granting prosecution leave to cross-examine its own witness - Unreliable evidence.

Evidence – Prior inconsistent statements - Relevance of such statements - Whether evidence of the truth of representations - Whether judge erred in granting leave to prosecutor to cross-examine its own witness.

Evidence Act 1995 (NSW) – ss 38(1), 38(3), 38(6), 55(1), 59(1), 60, 102, 103, 192(2).

Adams v Lambert [2006] HCA 10

228 CLR 409; 80 ALJR 679; 225 ALR 396
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 4 Apr 2006 Case Number: C11/2005
Bankruptcy – Bankruptcy notice - Formal defect or irregularity - Interest due on judgment debt - Misdescription in notice of statutory provision under which interest claimed - Validity of notice.

Bankruptcy Act 1966 (Cth) – ss 41(2), 306.

Bankruptcy Regulations (Cth) – reg 4. 02.

Adams v The Queen [2008] HCA 15

234 CLR 143; 82 ALJR 718; 244 ALR 270
Gleeson CJ, Hayne, Heydon, Crennan, Kiefel JJ
Date: 23 Apr 2008 Case Number: M121/2007
Criminal law – Sentencing – Federal offences – Appellant convicted of possessing a "commercial quantity" of the narcotic MDMA (ecstasy) – Customs Act 1901 (Cth) fixed the commercial quantities of certain narcotics and imposed maximum penalties that did not distinguish between the narcotics – Whether appellant should have been sentenced on the basis that MDMA was less harmful than heroin.

Practice and procedure – Appellant did not demonstrate factual assertion that MDMA was less harmful than heroin – Whether controversy "moot" or "academic".

Words and phrases – "commercial quantity", "moot", "trafficable quantity".

Customs Act 1901 (Cth) – ss 233B, 235.

ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18

88 ALJR 624; 308 ALR 213
French CJ, Crennan, Kiefel, Gageler, Keane JJ
Date: 16 May 2014 Case Number: S201/2013
Workers compensation – Permanent impairment compensation – Injured worker claimed compensation – Subsequent specific claim for permanent impairment compensation under s 66 of Workers Compensation Act 1987 (NSW) ("WCA") – Amendments to WCA limited entitlement to permanent impairment compensation – Savings and transitional provisions of amending Act protected worker's entitlement – Employer claimed protection displaced by transitional regulation made pursuant to amending Act – Whether transitional regulation extinguished worker's entitlement – Whether transitional regulation valid.

Statutory interpretation – Retrospectivity – Henry VIII clause – Savings and transitional provisions.

Words and phrases – "accrued rights", "Henry VIII clause", "permanent impairment compensation", "retrospectivity", "savings and transitional provisions".

Interpretation Act 1987 (NSW) – ss 5(2), 30(1)(c).

Workers Compensation Act 1987 (NSW) – ss 66, 280, Sched 6, Pts 19H, 20.

Workers Compensation Regulation 2010 (NSW) – Sched 8, Pt 1, cl 11.

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

239 CLR 420; 84 ALJR 19; 260 ALR 628
French CJ, Gummow, Hayne, Heydon, Crennan JJ
Date: 10 Nov 2009 Case Number: S191/2009 S192/2009
Torts – Negligence - Duty of care - Where gunman shot two men at New Year's Eve function - Where shootings occurred on licensed premises - Whether defendant owed duty of care to prevent injury from conduct of other patrons - Relevance of statutory requirements under Liquor Act 1982 (NSW).

Torts – Negligence - Breach of duty - Where no licensed security personnel on premises - Whether licensed security personnel ought to have been provided - Relevance of size and type of function - Relevance of past incidents at premises.

Torts – Negligence - Causation - Whether absence of licensed security personnel necessary condition for shootings taking place - Whether "but for" test of causation satisfied - Relevance of nature of damage sustained - Whether an exceptional case.

Words and phrases – "necessary condition of the occurrence of the harm", "factual causation", "scope of liability", "an exceptional case".

Civil Liability Act 2002 (NSW) – ss 5B, 5C, 5D, 5E.

Liquor Act 1982 (NSW) – ss 2A, 103, 125.

Agar v Hyde [2000] HCA 41

201 CLR 552; 74 ALJR 1219; 173 ALR 665
Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Callinan JJ
Date: 3 Aug 2000 Case Number: S159/1999 S160/1999
Negligence – Duty of care - Particular relationships - Sport - Administrators and players - Whether duty of care owed by rugby union rule-making body to players.

Private international law – Service out of jurisdiction - Service pursuant to Rules of Court - Discretion - Whether necessary to show a good arguable case - Setting aside service - Refusal to exercise jurisdiction.

Supreme Court Rules 1970 (NSW) – Pt 10 rr 1A, 2 and 6A, Pt 11 r 8.

Agius v The Queen [2013] HCA 27

248 CLR 601; 87 ALJR 906; 298 ALR 165
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 5 Jun 2013 Case Number: S28/2013
Criminal law – Conspiracy – Where appellant charged with conspiracy to defraud Commonwealth contrary to ss 86(1) and 29D of Crimes Act 1914 (Cth) – Where appellant charged with conspiracy to dishonestly cause loss to Commonwealth contrary to s 135. 4(5) of Criminal Code (Cth) ("Code") – Where both charges related to single scheme to defraud Commonwealth of taxation revenue – Where two charges necessary because of legislative change – Whether s 135. 4(5) of Code required prosecution to prove appellant entered into agreement after commencement of provision – Whether "state of affairs" could be physical element of s 135. 4(5) of Code – Whether being party to an existing agreement a "state of affairs" – Whether s 135. 4(5) of Code given retrospective effect if offence satisfied by continuation of agreement formed before commencement of provision.

Words and phrases – "agreement", "conspiracy", "state of affairs".

Crimes Act 1914 (Cth) – ss 29D, 86(1) and 86(2).

Criminal Code (Cth) – ss 4. 1, 4. 2, 135. 4(5) and 135. 4(9).

Agricultural and Rural Finance Pty Limited v Gardiner [2008] HCA 57

238 CLR 570; 83 ALJR 196; 251 ALR 322
Gummow, Kirby, Hayne, Heydon, Kiefel JJ
Date: 11 Dec 2008 Case Number: S180/2008
Contracts – Interpretation – Where indemnity agreement provided that indemnity effective and enforceable if borrower "punctually paid" amounts under related loan agreement – Meaning of "punctually" – Whether context of agreement required departure from dictionary meaning – Whether conduct of lender in accepting late payment could render such payment "punctual".

Contracts – "Waiver" of contractual right – Meaning of "waiver" – Waiver distinguished from contractual variation and promissory estoppel – Whether doctrine referred to as "waiver" exists in form of election between inconsistent rights, common law doctrine of forbearance, or abandonment or renunciation of right – Whether any other residual form of "waiver" exists – Whether acceptance of late payments under loan agreement and other conduct constituted "waiver" by lender and indemnifier of condition for indemnity taking effect, that the borrower have "punctually paid" amounts under loan agreement.

Contracts – Election between inconsistent rights – Point at which choice between inconsistent rights arises – Whether indemnifier faced with choice between inconsistent rights.

Contracts – Forbearance from exercising contractual right – Relationship with estoppel – Influence of Statute of Frauds.

Contracts – Abandonment or renunciation of contractual right – Point at which time comes for abandoning or renouncing right – Whether time had come for lender or indemnifier to abandon or renounce right to insist on punctual payment under loan agreement.

Equity – Equitable doctrines – Election – Distinct character and application.

Words and phrases – "abandonment", "approbate and reprobate", "election", "forbearance", "punctually", "renunciation", "waiver".

Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38

223 CLR 251; 79 ALJR 1389; 218 ALR 677
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 10 Aug 2005 Case Number: M192/2004
Aviation – Carriage by air - Liability of carrier - Liability under Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Carriers Act") for damage sustained by reason of the death of a passenger resulting from an accident which took place on board an aircraft in the course of commercial transport operations - Liability enforceable for the benefit of such family members of deceased passenger as sustained damage by reason of the death - Passenger killed in aircraft accident - Action brought by family member - Whether action in exercise of right to damages brought within two years of the date on which the carriage stopped - Whether right to damages extinguished.

Aviation – Carriage by air - Liability of carrier - Family member's statutory right to damages - Extinguishment - Whether extinguishment of right to damages by effluxion of time involves determination of a condition which is of the essence of the right to damages or merely bars enforcement of the right.

Pleading – Statement of claim - Whether sufficient facts pleaded to raise a claim under Carriers Act, Pt IV - Whether explicit invocation of Carriers Act, Pt IV is necessary to raise such a claim - Relevance of rules of court of a State court where claim arises under federal law.

Pleading – Amendment - Amendment to pleadings to place beyond doubt reliance upon Carriers Act - Whether such amendment permissible after date on which right to damages would be extinguished - Relevance of State limitation of actions legislation.

Private international law – Choice of law - Cause of action accrues in Northern Territory - Action brought in Victoria - Cause of action arises under federal law - Whether common law choice of law rules applicable.

Constitutional law (Cth) – Federal judicial power - Federal jurisdiction - Jurisdiction invested in State courts in matters arising under federal law - Whether federal jurisdiction engaged - Whether law of Victoria governs the action by reason of Judiciary Act 1903 (Cth) ("Judiciary Act"), ss 79, 80 - Whether federal claim properly pleaded according to rules of court of a State court.

Constitutional law (Cth) – Inconsistency of laws - State law adopting Lord Campbell's Act invalid as inconsistent with Carriers Act, s 35(2) - Consequences of inconsistency - Relationship of s 109 of the Constitution with Judiciary Act, s 79.

Words and phrases – "is extinguished", "action … brought".

Civil Aviation (Carriers' Liability) Act 1959 (Cth) – Pt IV.

Judiciary Act 1903 (Cth) – ss 39, 79, 80.

Constitution – s 76(ii).

Aid/Watch Incorporated v Commissioner of Taxation [2010] HCA 42

241 CLR 539; 85 ALJR 154; 272 ALR 417
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 1 Dec 2010 Case Number: S82/2010
Taxation – Charitable institution - Appellant had object of promoting greater efficiency and effectiveness of foreign aid - Whether appellant "charitable institution" for purposes of Commonwealth tax exemptions and concessions - Whether meaning of "charitable institution" in revenue laws governed by law of charitable trusts - Whether meaning of "charitable institution" interpreted as at time of enactment - Whether appellant's main, predominant or dominant objects charitable - Whether for relief of poverty - Whether for advancement of education - Whether otherwise for purpose within spirit and intendment of preamble to Statute of Elizabeth 1601 (43 Eliz I c 4).

Trusts – Charitable trusts - Political objects doctrine - Whether, and to what extent, doctrine recognised by common law of Australia.

Words and phrases – "charitable institution", "political objects", "political purposes".

A New Tax System (Goods and Services Tax) Act 1999 (Cth) – s 176-1.

Fringe Benefits Tax Assessment Act 1986 (Cth) – s 65J(1)(baa).

Income Tax Assessment Act 1997 (Cth) – s 50-5.

Ainsworth v Albrecht [2016] HCA 40

French CJ, Bell, Keane, Nettle, Gordon JJ
Date: 12 Oct 2016 Case Number: B37/2016
Real property – Community titles scheme – Use of common property – Body Corporate and Community Management Act 1997 (Q) – Dispute between owners of lots in community titles scheme – Where one lot owner sought to use common property airspace to expand balconies – Where proposal put to body corporate for alteration of rights of lot owners to allow lot owner exclusive use of common property – Where proposal required resolution without dissent – Where motion defeated – Where proponent applied for dispute resolution – Where adjudicator concluded that opposition by other lot owners to proposal unreasonable – Whether adjudicator erred in approach to decision – Whether grounds for opposition to motion by individual lot owners unreasonable – Whether necessary to balance competing interests.

Words and phrases – "adjudicator", "body corporate", "common property", "original design intent", "resolution without dissent", "unreasonable in the circumstances".

Body Corporate and Community Management Act 1997 (Q) – ss 94(2), 276, Sched 5, Item 10.

Air Link Pty Limited v Paterson [2005] HCA 39

223 CLR 283; 79 ALJR 1407; 218 ALR 700
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 10 Aug 2005 Case Number: S420/2004 S57/2005
Aviation – Carriage by air – Liability of carrier – Liability under Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Carriers Act") for damage sustained by reason of personal injury to a passenger resulting from an accident which took place on board an aircraft in the course of commercial transport operations or in the course of embarking or disembarking – Passenger sustained personal injury whilst disembarking from aircraft – Action brought by passenger – Whether action in exercise of right to damages brought within two years of the date of aircraft's arrival at destination – Whether right to damages extinguished.

Aviation – Carriage by air – Liability of carrier – Statutory right to damages – Extinguishment – Whether extinguishment of right to damages by effluxion of time involves determination of a condition which is of the essence of the right to damages or merely bars enforcement of the right.

Aviation – Carriage by air – Liability of carrier – Carriage within New South Wales and between Queensland and New South Wales conducted by different carriers – Whether that part of carriage conducted within New South Wales is deemed to be carriage between a place in a State and a place in another State – Whether carriage was in successive stages, was regarded by the parties as a single operation and was carriage to which Carriers Act, Pt IV would apply were the whole of the carriage to be performed by a single carrier.

Pleading – Statement of claim – Whether sufficient facts pleaded to raise a claim under Carriers Act, Pt IV – Whether explicit invocation of Carriers Act, Pt IV is necessary to raise such a claim – Relevance of rules of court of a State court where claim arises under federal law.

Pleading – Amendment – Amendment to pleadings to place beyond doubt reliance upon Carriers Act – Whether such amendment permissible after date on which right to damages would be extinguished – Relevance of State limitation of actions legislation.

Pleading – Amendment – Provision in Pt 17 r 4 of the District Court Rules 1973 (NSW) for amendment to statement of claim after expiry of relevant limitation period – Whether Pt 17 r 4 is beyond the rule-making power in s 161 of the District Court Act 1973 (NSW) – Relevance of substantive nature of limitation provisions.

Words and phrases – "is extinguished", "action … brought".

Civil Aviation (Carriers' Liability) Act 1959 (Cth) – Pt IV.

Judiciary Act 1903 (Cth) – ss 79, 80.

District Court Act 1973 (NSW).

District Court Rules 1973 (NSW).

Convention for the Unification of Certain Rules Relating to International Carriage by Air ("Warsaw Convention")
– opened for signature at Warsaw, 12 October 1929, [1963] ATS No 18.

AJS v The Queen [2007] HCA 27

235 CLR 505; 81 ALJR 1208; 235 ALR 633
Gleeson CJ, Kirby, Hayne, Heydon, Crennan JJ
Date: 13 Jun 2007 Case Number: M2/2007
Criminal law – Verdicts – Statutory alternative verdicts – Appellant convicted by jury of one count of incest – Because of verdict on count of incest jury was not required to consider statutory alternative verdict of indecent act with a child aged under 16 – Court of Appeal quashed the conviction for insufficient evidence and ordered a new trial without specifying what charge or charges were to be tried – Whether the Court of Appeal should have entered a verdict of acquittal on the count of incest.

Criminal law – Verdicts – Appellate jurisdiction – Whether the Court of Appeal's jurisdiction pursuant to s 568(2) of the Crimes Act 1958 (Vic) either to enter a verdict of acquittal or order a new trial should be read with the provisions of ss 421 and 425 regulating alternative verdicts.

Criminal law – Verdicts – Whether entry of verdict of acquittal and order for new trial on lesser alternative count engage principles of estoppel or preclusion.

Criminal law – Trials – Evidence – Whether, following an acquittal and order for a new trial on a lesser alternative count, the jury in the new trial should be informed about that earlier acquittal.

Crimes Act 1958 (Vic) – ss 421, 425 and 568(2).

AK v The State of Western Australia [2008] HCA 8

232 CLR 438; 82 ALJR 534; 243 ALR 409
Gleeson CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 26 Mar 2008 Case Number: P27/2007
Criminal law – Appeals - Application of the proviso - Statutory requirement that reasons for judgment include the principles of law applied and the findings of fact relied upon - Failure to give reasons meeting statutory requirements in respect of central issue at trial - Failure to comply with statutory requirements an error of law - Appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred - Whether no substantial miscarriage of justice had occurred.

Criminal law – Evidence - Identification - Complainant indecently dealt with by one of two males with whom she and her sister were sharing a bed - Complainant unable to identify the perpetrator by visual or aural means - Complainant adamant that the appellant was responsible - Whether identification warning needed - Whether finding of guilt unreasonable or not supported by evidence.

Criminal Appeals Act 2004 (WA) – s 30.

Criminal Procedure Act 2004 (WA) – ss 119, 120.

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