Cases and authorities

CORPORATIONS - Where corporation reinstated without notice to directors - where Examination Summonses issued to director - application for access to liquidator's affidavit - application for stay of Examination Summonses

CORPORATIONS - Appointment of provisional liquidator – where dispute as to who should be appointed

CONTRACT – construction – whether dispute resolution clause operative – no question of principle – CONTRACT – specific performance – contractual dispute resolution clause provides for compulsory sale of land and division of proceeds – whether damages a sufficient remedy – CONTRACT – abandonment – CONTRACT – termination for failure of condition subsequent whether right to terminate once and for all and waived, or continuing

PROCEDURE – Notice to Produce – documents in categories excluded from discovery – documents already covered by order for discovery – categories so broad as to necessarily catch relevant material – served shortly before trial – does not comply with requirement for specificity – abuse of process

COSTS - defamation - party/party costs - indemnity costs - rate of interest

CORPORATIONS - winding up in insolvency - termination of winding up - evidence of solvency - no issue of general principle

EQUITY – CORPORATIONS – external administration – voluntary administration – deed of company arrangement – where deed requires consent of members to sale of “core property” – where administrator attempting to sell company assets in absence of approval of members – where seriously arguable that administrator acting to prejudice of members – where balance of convenience favours interlocutory injunction

PRACTICE AND PROCEDURE – Costs and orders – plaintiffs succeed against one party and entitled to costs – Plaintiffs partially succeed and failed against another party – in the circumstances no order for costs between plaintiffs and that other party

PROCEDURE - Application to have parts of affidavit previously rejected on the grounds of hearsay admitted (following cross-examination) on grounds that they contained admissions made with authority - Evidence Act s 87 - Statements made by contractor of defendant - Statement beyond scope of authority - Statement not admissible

CRIMINAL LAW – directed verdict – no evidence upon which a jury, directed in accordance with law, could properly convict – Crown case taken at highest – inference to be drawn if human experience would be contradicted otherwise – act causing death speculative – deliberate act is more speculative – intention necessary for murder mere conjecture – jury not entitled to conjecture – likewise, commission of unlawful and dangerous act to establish manslaughter would be conjecture – verdict directed on murder and manslaughter

EQUITY – trusts and trustees – construction or rectification – royal lives clause - where “shorter” used erroneously rather than “longer” – where error in deed is obvious – where no need for court to look at extrinsic evidence as to intention of parties – where intention of parties obvious from face of deed – not necessary to resort to rectification.

MOTION PURPORTING TO COMMENCE PROCEEDINGS - Remedy provided by statute otherwise than by approaching court - Motion dismissed

CORPORATIONS - External administration – winding up – liquidator – removal and replacement - where current liquidators have indicated intention to resign upon appointment of new liquidator but no resignation tendered and no indication of specific date upon which resignation will take effect - where plaintiff claims current liquidator has not adequately investigated claims of breach of statutory and fiduciary duties by the second defendant director - Whether Court has power under (CTH) Corporations Act 2001 s 502 to appoint liquidator where liquidator has not yet ceased to act - Held: conditions for Court to exercise power under, s 502, not satisfied – Whether Court has power under (CTH) Corporations Act 2001, s 503, to appoint new liquidator - whether removal of current liquidator in the interest of the liquidation - Held: removal of current liquidators is in interest of liquidation - order that new liquidator be appointed - Whether plaintiff’s nominee should be appointed as new liquidator - whether general rule that plaintiff’s nominee is ordinarily appointed should be departed from - Held: plaintiff’s nominee rejected - where appointment of plaintiff’s nominee could be seen as acceding to pressure to appoint plaintiff’s preferred nominee, rather than an impartial and appropriate liquidator

CONTRACTS – general contractual principles – consideration – offer to obtain for the plaintiff a beneficial interest in shares in a company controlled by the defendant – total failure of consideration – no issue of principle

CORPORATIONS – Application by company and its liquidators under s 588FF of the Corporations Act 2001 (Cth) (“the Act”) to recover from the Deputy Commissioner of Taxation payments made under alleged voidable transactions within meaning of s 588FE of the Act – No contest by Commissioner – Commissioner seeks indemnity under s 588FGA of the Act from company’s director for part of the amount - Director contests insolvency and plead defences under ss 588FGB(3) and (4) – Whether insolvency established – Whether defences made out

TRUSTS – administration – where plaintiff seeks appointment of receivers and managers to trustee company – where defendants seek appointment of new trustee – question to be resolved on basis of respective advantages and disadvantages of each arrangement in commercial context – where just and equitable in the conventional sense that the relationship between these parties be brought to an end – receiver and manager appointed

Courts and judges - Procedures to determine claims that a judge should refuse or apprehended bias - Whether reasonable apprehension of bias - Test to be applied - Attributes of the "fair-minded lay observer" - Comments by judges to be considered in context - Danger of judge disqualifying himself or herself too readily

WILLS – Costs – application for leave to make will for incapable person – person interested intervenes as defendant – plaintiff discontinues – whether court should make order other than that plaintiff pay defendant’s costs

PROCEDURE - Injunctions - receiver appointed to business with powers limited to gaining information as an interlocutory measure over vacation - bank seeks to enforce securities and put in an additional receiver for an act of default in payment one day late and on basis that interim report of receiver shows a substantial decline in takings since A Current Affair programme on the plaintiff's business was aired - bank argued this a material adverse change and an act of default not known to bank when interlocutory regime established - whether prima facie case for continuation of interlocutory during vacation - undesirable to have two receivers in one business

PRACTICE AND PROCEDURE - Email to registry on eve of trial fixture - Apparently application for adjournment - Vague reference to legal aid - Lengthy history of litigation - Implied application for adjournment refused

PROCEDURE – Costs – where plaintiff brings action against multiple defendants – where plaintiff only succeeds against first defendant – where reasonable to bring action against both defendants as defendants disputed liability amongst themselves – Where conditions for Bullock or Sanderson order are satisfied – considerations as to which is the appropriate order – where first defendant is or is likely to be insolvent – where plaintiff is unlikely to recover any or much of damages or costs due to first defendant’s insolvency – where second defendant is unlikely to recover costs due to first defendant’s insolvency

[SECURITY FOR COSTS] - Where assignment of action to corporation with no assets - [ACCOUNTS] - Whether accounting party reasonably characterised as moving party or plaintiff - Whether security should be ordered

TRADE AND COMMERCE [28] – Trade and commerce generally – Restraint of trade – Restraint by agreement – Enforcement of agreement – Remedies for breach of agreement – Right to injunction – Interlocutory injunction – Agreement not to act for former clients or customers.

PROCEDURE - Injunctions - confidentiality - whether serious question to be determined - whether material in hands of defendant has necessary quality of confidentiality and obtained by defendant in such circumstances as to import an obligation of confidence - rushed nature of application - whether interim injunction should be granted

EASEMENT - easement for drainage of water - quantum of compensation to be paid – land liable to flood affected in part – heads of compensation – whether allowance for “blot on title” appropriate

CORPORATIONS – statutory demand – application to set aside under s 459H – genuine dispute – substantiated amount less than statutory minimum – demand set aside

PROCEDURE - Application for interim regime to have plaintiff’s moneys in control of defendants, her attorneys under power until recent revocation, transferred to plaintiff’s solicitor - Whether arguable case of incompetence, incapacity or undue influence - Whether such a regime necessary and prudent - Where undertakings given by new solicitor to ensure moneys are adequately protected until proper determination of issues - Held: No triable case impugning the purported revocation on evidence currently available - Orders made for transfer of accounts moneys to control of plaintiff’s solicitors.

PROCEDURE – Costs – determination after final hearing – claims and cross claims dismissed – offer of compromise – plaintiffs do not resist order for indemnity costs of the proceedings brought by them but seek their costs of the cross-claims – held plaintiffs to pay defendants’ costs, other than the cross claims, on party / party basis up until offer of compromise, and on an indemnity basis thereafter – defendants to pay plaintiffs’ costs of the cross claim

GUARANTEE and INDEMNITY - subrogation of surety to rights of principal creditor - W was registered proprietor and mortgaged family home to secure loan by Bank to H & W - two companies controlled by H paid weekly payments on the loan - later W gave unregistered charge by deed to plaintiffs who were her solicitors in Family Law proceedings to secure costs - after Family Court proceedings settled, plaintiffs sued to establish charge over surplus on sale - competing equitable priorities - HELD - the claim of the guarantor companies by subrogation to rights of Bank as first mortgage had priority because they were earlier in time - consideration of - significance of terms of caveats - HELD - subrogation available to guarantor who pays part only of debt, who pays without demand or compulsion by principal creditor, who treats obligation to it of principal debtor as a loan in its books - HELD - discharge of mortgage to carry out sale and convert property to fund of money under interlocutory arrangements did not deprive guarantor of subrogation rights.

PROCEDURE - Costs - offer not accepted and judgment more favourable to cross-claimant - whether exceptional circumstances to avoid indemnity costs under the Uniform Civil Procedure Rules 2005, Pt 42 r 42.14

PRACTICE AND PROCEDURE - application for adjournment of winding up proceedings - applicant's previous non-compliance with directions to file evidence - no satisfactory excuse - no question of general principle

Practice and Procedure - Application for late service of subpoena on overseas witness about to give evidence in Australia - Abuse of process

EVIDENCE - affidavit evidence - deponent unavailable for cross-examination - whether to exercise court's discretion and allow affidavit to be read.

AB (a pseudonym) v CD (a pseudonym) EF (a pseudonym) v CD (a pseudonym) Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where risk of harm to persons associated with party to proceeding "acute" – Whether non-publication order necessary to protect safety of persons. Words and phrases – "administration of justice", "necessary to protect the safety of any person", "non-publication order", "public interest in open justice". Judiciary Act 1903 (Cth), ss 77RE, 77RF(1)(c).

Commonwealth of Australia v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory Aboriginals – Native title rights – Assessment of compensation – Where "previous exclusive possession act[s]" within meaning of s 23B in Div 2B of Pt 2 of Native Title Act 1993 (Cth) ("NTA") extinguished non-exclusive native title rights and interests held by Ngaliwurru and Nungali Peoples ("Claim Group") – Where Claim Group entitled to compensation under Div 5 of Pt 2 of NTA – Whether economic loss and cultural loss assessed separately – Principles of assessment for compensation for economic loss – Whether economic value of Claim Group's native title rights and interests equivalent to freehold value of affected land – Whether reduction from freehold value appropriate and how calculated – Whether inalienability of native title rights and interests a relevant discounting factor – Principles of assessment for compensation for cultural loss – Whether trial judge erred in assessment of cultural loss – Whether award manifestly excessive – Whether award met community standards. Interest – Whether simple or compound interest payable on award for economic loss – Upon what basis simple interest payable. Words and phrases – "compensable acts", "compensation", "compound interest", "compulsory acquisition", "cultural loss", "discount", "easement", "economic loss", "exclusive native title rights and interests", "extinguishing act", "inalienability", "just terms", "manifestly excessive", "native title", "non-economic loss", "non-exclusive native title rights and interests", "objective economic value", "percentage reduction from full exclusive native title", "previous exclusive possession act", "simple interest", "solatium". Constitution, 51(xxxi). Lands Acquisition Act (NT), Sch 2. Native Title Act 1993 (Cth), Pts 1, 2, 15. Racial Discrimination Act 1975 (Cth), s 10.

Criminal law – Appeal against conviction – Question of law referred to Court of Criminal Appeal – Case stated – Destroying or damaging property – Physical element of offence – Where appellant harnessed himself to ship loader – Where ship loader shut down due to safety concerns – Where ship loader inoperable until appellant removed – Where no alteration to physical integrity of ship loader – Whether property damaged. Words and phrases – "destroys or damages", "impairment of value", "physical derangement", "temporary functional derangement". Crimes Act 1900 (NSW), s 195(1). KIEFEL CJ, BELL, KEANE AND GORDON JJ. A person who intentionally or recklessly destroys or damages property belonging to another (or to that person and another) commits an offence contrary to s 195(1) of the Crimes Act 1900 (NSW). This appeal is concerned with the physical element of the offence. In issue is whether a person can be said to destroy or damage a thing if the person's conduct does not occasion any alteration to the physical integrity of the thing. Mr Grajewski, a protestor, harnessed himself to a ship loader at a coal terminal. Mr Grajewski was at risk of serious harm while he remained in this position. The ship loader was shut down as Mr Grajewski commenced to climb the machine and remained shut down until he was removed. Mr Grajewski was charged with an offence against s 195(1)(a), particularised as doing "damage [to] property causing the temporary impairment of the working machinery" of Ship Loader 2. He was convicted of this offence in the Newcastle Local Court, and fined a sum of $1,000. Mr Grajewski appealed against his conviction to the District Court of New South Wales (Judge Bright)[1]. Her Honour dismissed the appeal and confirmed the conviction. Under s 5B(2) of the Criminal Appeal Act 1912 (NSW) a party to appeal proceedings in the District Court may request that a question of law be submitted to the Court of Criminal Appeal for determination even though the proceedings during which the question arose have been determined. The Court of Criminal Appeal may, in connection with the determination of the question of law in such a case, quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court[2]. At the request of Mr Grajewski, Judge Bright stated a case to the Court of Criminal Appeal setting out the facts and asking (i) can these facts support a finding of guilt for an offence contrary to s 195(1)(a); and (ii) was the evidence capable of proving beyond reasonable doubt that Ship Loader 2 had been damaged by the conduct of Mr Grajewski. The Court of Criminal Appeal (Leeming JA, Johnson and Adamson JJ) considered the stated case principally by reference to three Australian authorities. In Director of Public Prosecutions v Fraser & O'Donnell, Simpson J in the Supreme Court of New South Wales[3] dismissed the Director of Public Prosecutions' appeal against the dismissal of charges under s 195(1)(a) arising out of Ms Fraser's and Mr O'Donnell's conduct in chaining themselves to a conveyor belt at the site of a coal loader. Her Honour reviewed the authorities in the United Kingdom and Australia on the meaning of "damage" in cognate legislation ("criminal damage") and concluded that, with the possible exception of the decision of the Court of Appeal (Criminal Division) in R v Henderson and Battley, common to all is the requirement that there be "some physical change or alteration to the property", even if temporary[4]. The Court of Criminal Appeal acknowledged the force of Simpson J's conclusion that the words "destroys or damages" require that there be some physical interference with or alteration to the property. The Court of Criminal Appeal considered, however, that it should not depart from two decisions which were against acceptance of this "narrow" construction. In the first, R v Heyne[5], an unreported decision to which it appeared Simpson J had not been referred, it was held that the "temporary functional derangement" of property suffices as criminal damage. In the second, Hammond v The Queen[6], it was held that interference with functionality alone without any "derangement" of the property may constitute criminal damage. The Court of Criminal Appeal also considered that the purpose of s 195(1), understood in light of the legislative history, provides a further reason for rejecting the "narrow construction". The Court of Criminal Appeal determined that "physical interference causing property to be inoperable", whether temporarily or otherwise, satisfies the "destroys or damages" element of the offence[7]. In the Court of Criminal Appeal's analysis, Mr Grajewski's attachment to Ship Loader 2 amounted to an act of physical interference which caused it to be inoperable for some two hours. The Court of Criminal Appeal answered question (i) "yes" and declined to answer question (ii) because it asked the Court to determine the question on the evidence as distinct from the facts stated by Judge Bright[8]. On 18 May 2018, Kiefel CJ and Bell J granted Mr Grajewski special leave to appeal from the judgment of the Court of Criminal Appeal. For the reasons to be given, damage to property within the meaning of s 195(1) of the Crimes Act requires proof that the defendant's act or omission has occasioned some alteration to the physical integrity of the property, even if only temporarily. It follows that the first question submitted by Judge Bright to the Court of Criminal Appeal should be answered "no" and in consequence that Mr Grajewski's conviction should be quashed. Section 195(1)(a) Part 4AD of the Crimes Act, headed "Criminal destruction and damage", comprises a number of Divisions concerning crimes against property generally; crimes relating to particular kinds of property; sabotage; and bushfires. Part 4AE concerns offences relating to transport services, including to aircraft and to railways. Parts 4AD and 4AE were inserted into the Crimes Act by the Crimes (Criminal Destruction and Damage) Amendment Act 1987 (NSW) ("the Amending Act"). Section 195(1) is in Pt 4AD. It provides: "195 Destroying or damaging property (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for five years, or ..." "Property" is broadly defined in s 4(1) of the Crimes Act to include every description of real and personal property. Section 194(1) provides that in Pt 4AD, "a reference to property does not include a reference to property that is not of a tangible nature". Apart from providing that for the purposes of Pt 4AD, "damaging property includes removing, obliterating, defacing or altering the unique identifier of the property"[9], the Crimes Act does not define "damage". The unique identifier is any numbers, letters or symbols that are marked on, or attached to, the property to enable it to be distinguished from similar property. As a matter of ordinary English, to damage a thing means to injure or harm the thing in some way that, commonly, lessens the value of the thing[10]; a thing is not damaged if the physical integrity of the thing is not altered in any respect. Contrary to the Court of Criminal Appeal's analysis, the legislative history does not support a construction of the offence in s 195(1) that extends its reach to any "interference" with property that results in the property being inoperable. The legislative history Chapter II of Pt IV of the Crimes Act, as enacted, contained a plethora of offences of criminal damage to property. Its provisions can be traced to the Malicious Damage Act 1861 (UK) ("the 1861 UK Act")[11], which amended and consolidated the Malicious Injuries to Property Act 1827 (UK)[12]. The latter was the first consolidation of many provisions largely enacted in the eighteenth and nineteenth centuries which made criminal damage to particular types of property an offence ("property-specific offences")[13]. The 1861 UK Act, like its predecessor, contained a range of property-specific offences: some criminalised "damaging" the thing and some criminalised "injuring" the thing. There is no reason to consider that the former was intended to have any wider meaning than the latter. The difference in wording merely reflects that the 1861 UK Act, like its predecessor, was a consolidation Act. Section 51 of the 1861 UK Act was novel. It made it an offence for a person to "maliciously commit any Damage, Injury, or Spoil to or upon any Real or Personal Property whatsoever, either of a public or private Nature, for which no Punishment is herein-before provided". This general offence was said by its draftsman to recognise the "many very valuable instruments and machines daily invented" and the impracticality of making specific provision for each[14]. Section 247 in Ch II of Pt IV of the Crimes Act, as enacted, was framed in terms reminiscent of s 51 of the 1861 UK Act and provided that "[w]hosoever maliciously injures ... any real or personal property whatsoever, either of a public or private nature for which act no punishment is hereinbefore provided, shall be liable to imprisonment". Chapter II of Pt IV was repealed by the Amending Act, which inserted Pt 4AD. On the second reading of the Bill for the Amending Act, the Attorney-General stated its object as the reformation and simplification of the law. The Attorney-General observed that Ch II of Pt IV contained "a large number of archaic and anomalous offences ... based on damage to different types of property"[15], and he described the s 195(1) offence as being "similar to the existing offence of malicious injury in section 247"[16]. The simplification of offences involving criminal damage under the Amending Act, in common with reforms introduced in Victoria[17] and the Australian Capital Territory[18], was based on the Criminal Damage Act 1971 (UK) ("the 1971 UK Act"), which replaced many antique property-specific offences with a general offence of intentionally or recklessly destroying or damaging any property belonging to another[19]. The Court of Criminal Appeal considered that s 195(1) is to be understood as having a broad meaning that is apt to capture all of the offences formerly contained in Ch II of Pt IV[20]. Their Honours noted that Ch II of Pt IV was headed "Malicious injuries to property", and they concluded there is no reason to find that the legislature intended "damage" to have a narrower meaning in Pt 4AD than "injury" in Ch II of Pt IV. Among the conduct proscribed in the repealed Chapter were offences of obstructing machinery and rendering machinery useless. The Court of Criminal Appeal identified a number of provisions in this respect. Sections 209 and 210 contained offences that were most apt to cover the conduct with which Mr Grajewski was charged[21]. These sections were expressed in terms "[w]hosoever maliciously cuts, breaks, or destroys, or damages, with intent to destroy or render useless, any ... machine, engine ...". Sections 223 and 224 were offences involving injuries to mines[22]. The former made it an offence to obstruct or damage "with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level, or shaft" and the latter made it an offence to destroy or damage "with intent to destroy, or render useless, any engine". Section 232 made it an offence to obstruct, or cause "to be obstructed, the passing, or working, of any engine, or carriage, on any railway"[23]. Against this background, the Court of Criminal Appeal concluded that physical interference which obstructs machinery, or which renders machinery useless, whether permanently or temporarily, should be understood as within the meaning of the expression "destroys or damages" in s 195(1)[24]. The legislative history cannot overcome the plain words of the provision. In any event, it is not apparent that the history supports the Court of Criminal Appeal's interpretation of the intended broad reach of s 195(1). The view that the offences formerly provided in ss 209 and 210 were most apt to capture the conduct with which Mr Grajewski was charged conflates the physical and mental elements of the repealed offences. The physical element of each offence was "cutting, breaking, destroying or damaging". It was the mental element that required that the conduct be accompanied by the intent, among others, to "render useless". While the evident intention of enacting s 195(1) was to provide a general offence of criminal damage to property[25] applying to conduct which in many instances had been criminalised in the repealed property-specific offences, it is overstating its object as to apply to all of the conduct proscribed in the repealed Ch II of Pt IV[26]. The conduct proscribed by ss 223 and 224, obstructing or rendering useless machinery or structures involved in mining activity[27], is proscribed under s 201 in Pt 4AD. The conduct proscribed by s 232, obstructing any engine or carriage on any railway, is proscribed under s 213 in Div 2 of Pt 4AE, which is headed "Offences relating to railways etc". The physical element of the offence created by s 195(1) is conduct which "destroys or damages". It strains the language of the provision to interpret the words "destroys or damages" as including conduct which obstructs or renders useless without in any way altering the physical integrity of the property. If the legislature intended to criminalise the obstruction of property or the rendering of it useless in s 195(1), it is to be expected that it would have so provided. While the Court of Criminal Appeal was correct to take from the legislative history that the word "damages" in s 195(1) does not have a narrower meaning than the word "injures" as the latter is used in the context of criminal damage to property, it remains that the legislative history does not warrant interpreting either word as applying to conduct which does not occasion any alteration to the physical integrity of the thing said to be damaged or injured. The authorities Mr Grajewski adopts Simpson J's analysis of the authorities and her Honour's conclusion in Fraser & O'Donnell that proof of criminal damage requires that there be some "physical derangement" of the property damaged. The respondent submits that it is not possible to explain a number of decisions which have considered the meaning of criminal damage by reference to this criterion: R v Fisher[28]; Henderson and Battley[29]; Griffiths v Morgan[30]; Hardman v Chief Constable of Avon & Somerset Constabulary[31]; R v Fiak[32] and Heyne[33]. Implicit in the submission is the further submission that in following the model of s 1(1) of the 1971 UK Act the legislature is presumed to have intended the words "destroys or damages" to have an extended meaning consistent with a settled line of authority. A difficulty with acceptance of the respondent's submission is, as Auld J observed in Morphitis v Salmon, the authorities show that what constitutes "damage" in this context is not always clear[34]. In Morphitis, the Queen's Bench set aside Mr Morphitis' conviction for an offence of criminal damage, particularised as damaging a scaffold clip and scaffold bar. These two items together with an upright had formed a barrier across an access road. Mr Morphitis dismantled the barrier and carried off the scaffold clip and scaffold bar, leaving the upright in position. The question on the appeal was whether the scaffold clip and scaffold bar, although not physically damaged as individual objects, were nevertheless damaged within the meaning of s 1(1) of the 1971 UK Act by their separation from the upright. Impairment of value or usefulness as a test In Morphitis, Auld J said the authorities show that "damage" is to be widely interpreted so as to include not only permanent or temporary physical harm but also permanent or temporary impairment of value or usefulness[35]. Mr Morphitis' appeal was allowed because the charge as framed did not allege damage to the barrier. Had the allegation been of damage to the barrier, Auld J considered it was clear on the authorities that the offence could have been proved[36]. The analysis took into account decisions holding that dismantling a thing and removing a part from it amounts to criminal damage even where no other physical damage is done to the thing or the part removed[37]. In the earliest of these decisions, R v Tacey, the prisoner in company with others forcibly broke into a shop, where he and others dismantled two frames used for making knitted stockings and carried away an essential component of each known as the half-jack. The question of whether this amounted to damage to the stocking frames within the meaning of an eighteenth century statute[38] was reserved for the consideration of the common law judges. Their Lordships were unanimously of the view that the taking out and carrying away of the half-jack was "damaging" as it made the frame "imperfect and inoperative"[39]. The conclusion that the dismantling and carrying away of the half-jack damaged the frame may be thought to accord with the ordinary meaning of the word. Nothing in the brief report of the reasoning in Tacey suggests that, in stating that the frame had been made "imperfect and inoperative", the common law judges were articulating a disjunctive test[40]. Auld J's analysis also took into account Fisher, in which the Court for Crown Cases Reserved, in an ex tempore judgment, held that stopping-up the feed pipe of a boiler by thrusting a stick into it, thereby preventing water passing into the boiler, amounted to damage to the boiler within the meaning of s 15 of the 1861 UK Act[41]. The removal of the half-jack in Tacey and the introduction of the stick in Fisher were acts which undoubtedly involved impairment of the function or usefulness of the property. Equally undoubtedly the impairment of function or usefulness in each case was the result of a physical alteration to the integrity of the property albeit that in each instance the alteration was remediable. The English Court of Appeal in Whiteley approved Auld J's statement that damage is to be "widely interpreted so as to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness"[42]. Mr Whiteley, a computer hacker, appealed against his conviction for the malicious damage to discs in a computer system. Mr Whiteley had gained unauthorised access to the system and he had issued commands, impulses magnetising or de-magnetising particles, so as to alter data that had been written to the discs. Mr Whiteley contended that his activity had affected only intangible information contained on the discs. Lord Lane CJ rejected the argument, stating[43]: "What the Act requires to be proved is that tangible property has been damaged, not necessarily that the damage itself should be tangible. There can be no doubt that the magnetic particles upon the metal discs were a part of the discs and if [Mr Whiteley] was proved to have intentionally and without lawful excuse altered the particles in such a way as to cause an impairment of the value or usefulness of the disc to the owner, there would be damage within the meaning of section 1". The impairment of the value or usefulness of the discs was brought about by a physical, albeit unseen, alteration to the magnetic particles on the discs. The Court of Appeal of England and Wales returned to the scope of the concept of "damage" in Fiak[44]. Mr Fiak appealed against his conviction for malicious damage contrary to s 1(1) of the 1971 UK Act. While he was held in a police cell Mr Fiak stuffed a blanket into the toilet and repeatedly flushed the toilet causing his cell and the adjoining cells to be flooded. The charge was particularised as damage to the blanket and the cells. The Court of Appeal referred to Auld J's statements in Morphitis and to the analysis in Whiteley and held that, while the effect on the property was remediable, the blanket could not be used until it was dried out (and cleaned) and the flooded cells were "out of action" until the water cleared[45]. Mr Fiak's appeal was dismissed. It will be recalled that Simpson J identified Henderson and Battley as a possible exception to the requirement for "physical derangement" of the property damaged. In that case, the Court of Appeal (Criminal Division) confirmed the defendants' convictions for criminal damage occasioned by the deposit of some 30 lorry-loads of soil, rubble and mud on a building site[46]. Their Lordships rejected an argument that there had been no damage because the condition of the land beneath the rubble had not been altered. Whether damage was done was said to be a question of fact and degree for the jury's assessment. Lord Lane CJ explained Henderson and Battley in Whiteley, observing[47]: "The trial judge['s] ... decision was upheld on appeal, on the grounds that damage can be of various kinds and that the definition found in the Concise Oxford Dictionary ... namely 'injury impairing value or usefulness,' was appropriate to cover the facts of the case." (emphasis added) The deposit of 30 lorry-loads of rubble on a site may be thought to have occasioned a temporary alteration to land beneath, which had been "cleared flat" in readiness for construction work[48]. So understood, in none of the decisions which have used, or been explained by, Auld J's formulation has the impairment of function or usefulness not been occasioned by some injury in the sense of some alteration to the physical integrity of the property, even if relatively slight as in Fiak. Has the property been rendered inoperative? There was no dispute that there must be some form of physical connection to the property. However, the decision in Hammond, where the Court stated that inoperability of the property alone could be considered "damage" under s 195(1), was influential in the reasoning of the Court of Criminal Appeal below. It is therefore necessary to address inoperability or "temporary functional derangement" as a possible test under s 195(1). Hammond was a case stated to the New South Wales Court of Criminal Appeal which asked whether the facts stated were capable of supporting Mr Hammond's conviction for a s 195(1)(a) offence[49]. Those facts were that Mr Hammond spat on a stainless steel seat located in the dock of a police station. As the Court of Criminal Appeal noted[50], the facts bore similarity to those in "A" (a Juvenile) v The Queen, in which the defendant was charged with criminal damage for spitting on the back of a police officer's raincoat[51]. "A" appealed against his conviction in the Juvenile Court to the Kent Crown Court. The Kent Crown Court acknowledged that spitting on a garment may damage the garment and instanced spitting on a satin wedding dress which leaves a mark or stain. In "A"'s case the spittle landed on a garment that was designed to resist the elements and there was no likelihood that if wiped with a damp cloth any trace of it would remain. The Kent Crown Court contemplated that criminal damage to a garment may be sustained if the garment is rendered "inoperative" until it is dry-cleaned. "A"'s conduct had not rendered the raincoat imperfect or inoperative and his appeal was allowed and his conviction quashed. In Hammond, the Court of Criminal Appeal said that a "new judicial approach" to the determination of criminal damage had been identified in "A" (a Juvenile): applying this approach, the court considers (i) whether the physical appearance of the property has changed as a result of the defendant's act so that it may be described as "imperfect"; or (ii) whether as a result of the defendant's act the property was rendered "inoperative"[52]. The stainless steel seat was not rendered imperfect or inoperative as the result of Mr Hammond's act and the Court of Criminal Appeal answered the question reserved in the stated case "no". Although not strictly necessary to the decision, their Honours said that interference with the functionality alone, even without physical harm to, or "derangement" of, property may suffice to establish damage within the meaning of s 195(1)[53]. As the Court of Criminal Appeal observed in Mr Grajewski's case, the decision in "A" (a Juvenile) has proved to be influential despite its limited precedential authority[54]. Important to acceptance of the "new judicial approach" was its approval by the Court of Criminal Appeal of Queensland in R v Zischke[55]. In Zischke[56] the issue for the Queensland Court of Criminal Appeal was whether slogans spray painted on buildings, walls and footpaths at the Townsville Mall constituted criminal damage under the Criminal Code (Qld). Mr Zischke argued that an adhesive substance applied to a structure does not, without more, damage the structure. The Court of Criminal Appeal rejected the argument, observing that the authorities show that an article may be damaged even though the damage is remediable. Their Honours cited "A" (a Juvenile) with approval and concluded that the formula which "most nearly embraces all the attempts at definition [of criminal damage] is that a thing is damaged if it is rendered imperfect or inoperative"[57]. Their Honours considered that this formula accommodated the test which had been applied by the Supreme Court of South Australia in Samuels v Stubbs, which equates the "temporary functional derangement" of property with damage to the property[58]. The graffiti was held to have rendered the surfaces on which it was sprayed "imperfect"[59]. "Temporary functional derangement" Samuels v Stubbs was an appeal from the dismissal of a complaint that charged the respondent with criminal damage to a police constable's cap[60]. The Special Magistrate found that the cap had fallen to the ground as the constable was attempting to arrest a demonstrator and that the respondent kicked the cap and jumped on it with both feet. The Special Magistrate recorded "it was crushed under his weight, it didn't spring back into its original shape; [and] it remained in a semi-crushed condition"[61]. The Special Magistrate dismissed the complaint, holding that the evidence did not establish "actual damage" to the cap. Walters J observed that it is difficult to lay down a "precise and absolute rule" as to what amounts to "damage" and that it is necessary to be guided by the circumstances of each case[62]. His Honour concluded that it suffices for the prosecution to establish "a temporary functional derangement" of the property. The cap was damaged in that it was "injured or harmed in such a way to cause temporary derangement of its function and of the purpose which it was normally to serve"[63]. Applying the ordinary meaning of the language of the provision[64], the conclusion that the cap was damaged might be thought inevitable; it was crushed out of shape. The foundation for the test of "temporary functional derangement" as a criterion of criminal damage to property is less clear. Immediately before articulating the test, Walters J commented that "damage" in the context of property offences may not necessarily be employed interchangeably with "injury" in the context of offences against the person[65]. It may be that his Honour took the test from the rejection of counsel's argument in Fisher. Counsel is reported to have submitted unsuccessfully, by analogy with a decision of the Court for Crown Cases Reserved dealing with proof of the offence of occasioning bodily injury dangerous to life, that a "temporary functional derangement" of the boiler did not suffice to constitute criminal damage to property[66]. In Heyne the test of "temporary functional derangement" was approved as a criterion of criminal damage. The question arose in somewhat unlikely circumstances and the Court of Criminal Appeal's consideration of the criterion was brief. Mr Heyne was convicted of the manslaughter of his wife, who had died in consequence of being trapped inside their burning home. Mr Heyne had poured petrol on the carpet inside the house but the cause of its ignition was unknown. The prosecution contended that Mr Heyne was guilty of manslaughter by unlawful and dangerous act or criminal negligence. On the former case, the unlawful act was the malicious damage occasioned by pouring the petrol onto the carpet. The jury was directed that it was open to find that this act amounted to criminal damage in any of a number of ways, including by (i) wetting the carpet with petrol, which was temporary, (ii) any permanent staining of the carpet by the petrol, and (iii) the "temporary functional derangement" of the house occasioned by the presence of the petrol. On appeal against his conviction, Mr Heyne argued the trial judge erred in law in leaving the third basis for the jury's consideration since it could not support a finding that the act amounted to criminal damage. Handley JA, giving the leading judgment, saw no reason to doubt that the "temporary functional derangement" of property may suffice for liability for the s 195(1) offence. His Honour said the formulation is consistent with Hardman and Morphitis[67]. There could be no serious question that the pouring of the petrol on the carpet in Heyne occasioned damage to the carpet and, as Mr Grajewski argues, the three ways in which the trial judge invited the jury to consider that the foundational offence was made out might be thought to be cumulative. In any event, viewing the third way in isolation, the presence of the petrol vapour in the house occasioned a temporary physical alteration to the house. Neither Hardman nor Morphitis requires recourse to the concept of "temporary functional derangement" to explain the decision. As earlier noted, the analysis in Morphitis is that the dismantling and removal of a part of a thing damages the thing. In Hardman painting graffiti on a pavement with water soluble whitewash was held to damage the pavement notwithstanding that the whitewash would eventually have been eradicated by rainwater and pedestrian traffic. It is not apparent that there was any functional derangement of the pavement; however, the surface of the pavement was undoubtedly altered by the graffiti even though the damage thereby occasioned was not permanent. Whatever its origin, the concept of "temporary functional derangement" is not a useful criterion for the determination of criminal damage to property. It is an effect or product of damage. Interference with functionality alone can hardly be said to amount to damaging the thing; and, as indicated, this was not the contention of either party. If it were otherwise, as Simpson J has pointed out, removal of the ignition key of a motor vehicle might be within the reach of the s 195(1) offence[68]. The only other decision on which the respondent's submission, that there is no requirement that there be any "physical derangement" to property, is based is Neasey J's decision in Griffiths v Morgan[69]. Mr Griffiths filled his mouth with water before taking a breathalyser test and when asked to blow into the breathalyser machine he released the water or saliva or both into the tube thereby rendering the machine inoperative. It was sent to Hobart where it was dismantled, cleaned and adjusted before it became operational again. Neasey J held that the machine was injured within the meaning of s 37(1) of the Police Offences Act 1935 (Tas). Contrary to the respondent's submission, the introduction of the fluid into the machine brought about a physical albeit temporary alteration to the machine. As Neasey J reasoned, the case was analogous to Fisher. The Court of Criminal Appeal's test in Mr Grajewski's case In Mr Grajewski's case, the Court of Criminal Appeal was not prepared to embrace Hammond's conclusion that interference with functionality alone suffices to establish damage. The Court of Criminal Appeal said that there must be "some physical interference with the property" before liability under s 195(1) can be engaged. In this respect the Court of Criminal Appeal discerned a material distinction between the protestor who ties herself to the wheel or blade of a bulldozer and the protestor who lies down in front of the bulldozer. In each case the result may be the stopping of the bulldozer but it is only in the former case that there is a combination of "physical interference and temporary inoperability" which suffices to satisfy the "destroys or damages" physical element of the offence[70]. Inoperability may be the product of damage done to property but it does not, of itself, constitute damage to property. Nothing in the authorities justifies an interpretation of the expression "destroys or damages" as extending to conduct which does not in any respect alter the physical integrity of the thing said to be damaged. The attempt to overcome the evident difficulty in the conclusion in Hammond, that interference with functionality alone suffices to establish the offence, by the addition of a requirement of "physical interference" does not solve the difficulty. The protestor who ties herself to the blade of the bulldozer does not damage the bulldozer just as the protestor who lies in front of the bulldozer does not damage the bulldozer. It may be that in each case the bulldozer is stopped while the protestor remains in position but that is not because of anything done by the protestor to affect the functioning of the bulldozer. It is because of the desire of the operator not to injure the protestor. Application to Mr Grajewski At this point the facts and the questions of law for determination stated by Judge Bright should be set out in full: "In determining the appeal against conviction by Paul Olaf GRAJEWSKI on 29 May 2017 I was satisfied of the following beyond reasonable doubt: Paul Olaf GRAJEWSKI was a protestor who attended the Carrington Coal Terminal on 8 May 2016. At 7:50am a machine known as Ship Loader 2 was being used to load a vessel on Dyke 5. Paul Olaf GRAJEWSKI climbed the stairs to the top of Ship Loader 2. As Paul Olaf GRAJEWSKI commenced to climb Ship Loader 2 the machine was shut down due to safety concerns. He then used a harness and roping device to lock himself to Ship Loader 2. He then lowered himself down to about 10 metres above the platform. The actions of Paul Olaf GRAJEWSKI and his position posed a potential risk of serious harm to himself. The machine was inoperable whilst he remained in that position. NSW Police Rescue successfully removed Paul Olaf Grajewski from Ship Loader 2 at approximately 9:40am. Carrington Coal Terminal Ship Loading Operations recommenced at 10:15am. QUESTION OF LAW FOR DETERMINATION The question I now submit is: Can these facts support a finding of guilt for an offence contrary to section 195(1)(a), Crimes Act, 1900. In particular, was the evidence capable of proving beyond reasonable doubt that Ship Loader 2 had been damaged by the conduct of Paul Olaf GRAJEWSKI." The Court of Criminal Appeal said that fact 4 established that Ship Loader 2 ceased operations because of a decision in the control room; fact 5 established that, thereafter, Mr Grajewski locked himself to the machine; fact 6 established that he lowered himself so that he was ten metres above the platform; and fact 8 established that Ship Loader 2 was inoperative while Mr Grajewski remained in that position. Notably, the Court did not refer to fact 7, that Mr Grajewski's actions and his position posed a potential risk of serious harm to him. The Court of Criminal Appeal's determination that the first question submitted by Judge Bright should be answered "yes" reflected their Honours' conclusion that Mr Grajewski caused Ship Loader 2 to cease operating by physically attaching himself to it and that this conduct sufficed to satisfy the physical element of the offence in s 195(1)(a) of the Crimes Act[71]. The Court of Criminal Appeal considered that once the conclusion is reached that physical interference causing property to be inoperable is within s 195(1), "there is no occasion to imply fine distinctions based on precisely how that is achieved"[72]. The Court said that it would seem absurd to hold that letting out the air in a vehicle's tyre amounts to damage for the purposes of s 195(1) but that attaching a wheel clamp does not[73]. Equally, it may be thought absurd to hold that the protestor who ties herself to the wheel or to the blade of a bulldozer commits an offence contrary to s 195(1) while the same protestor who lies in front of the bulldozer does not. The physical element of the offence created by s 195(1) is conduct that "destroys or damages" some article of tangible property. A person does not damage a thing by conduct which does not bring about any alteration to the physical integrity of the thing. The alteration may be relatively minor and temporary as in letting the air out of a tyre, which physically alters the tyre and renders it imperfect[74]. By contrast, unless the attachment of a wheel clamp to the tyre causes some physical alteration to the tyre it has not damaged the tyre even though the vehicle may be inoperable while the clamp remains in place. The Court of Criminal Appeal's conclusion that Mr Grajewski's physical presence attached to Ship Loader 2 caused it to continue to be inoperable for some two hours does not establish that Mr Grajewski damaged Ship Loader 2. On the facts stated, nothing done by Mr Grajewski brought about any alteration to the physical integrity of Ship Loader 2. The decision to shut down Ship Loader 2 was taken due to safety concerns for Mr Grajewski (fact 4) and those same concerns led to Ship Loader 2 remaining shut down until Mr Grajewski was removed from it (facts 7 and 8). For these reasons the appeal must be allowed. As noted, the Court of Criminal Appeal has power to quash the conviction or sentence of the District Court on the appeal to the District Court. Section 37 of the Judiciary Act 1903 (Cth) permits this Court to give such judgment as ought to have been given in the first instance. The facts stated by Judge Bright cannot support Mr Grajewski's conviction. The conviction and the sentence of the District Court on the appeal to the District Court must be quashed. Mr Grajewski seeks an order for costs. The proceeding is not relevantly to be distinguished from an appeal and there is no reason to depart from the usual practice of making no order as to costs in criminal proceedings. Orders For these reasons, there should be the following orders: 1. Appeal allowed. Set aside the order of the Court of Criminal Appeal of the Supreme Court of New South Wales dated 24 October 2017 and in lieu thereof order that the questions submitted to the Court of Criminal Appeal by Judge Bright be answered as follows: Can these facts support a finding of guilt for an offence contrary to section 195(1)(a), Crimes Act, 1900? No. In particular, was the evidence capable of proving beyond reasonable doubt that Ship Loader 2 had been damaged by the conduct of Paul Olaf GRAJEWSKI? Unnecessary to answer. Quash the conviction and sentence of the District Court at Newcastle on 29 May 2017 on the appeal to the District Court.

Criminal practice – Trial – Jury directions – Prasad direction – Where accused charged with murder – Where Prasad direction given over objection at close of Crown case – Where another Prasad direction given at close of defence case – Whether Prasad direction contrary to law and should not be administered to jury determining criminal trial. Criminal practice – Jury – Reserve jurors – Where one of 13 jurors balloted off to consider response to Prasad direction – Where jury wished to hear more – Where juror balloted off re-joined jury – Where second ballot conducted to reduce jury to 12 jurors again – Where jury delivered verdicts of not guilty of murder and not guilty of manslaughter after second ballot – Whether ballot conducted at time at which "jury required to retire to consider its verdict". Words and phrases – "fair trial", "fairness to the prosecution", "jury's suggested right to stop the case", "no case submission", "power of the trial judge", "practice of inviting the jury to stop the case", "Prasad direction", "retire to consider its verdict". Criminal Procedure Act 2009 (Vic), ss 66, 213, 234, 238, 241. Juries Act 2000 (Vic), s 48.

Criminal practice – Appeal against conviction – Application of proviso that no substantial miscarriage of justice actually occurred – Criminal Appeals Act 2004 (WA), s 30(4) – Where jury found appellant guilty of indecently dealing with child under 13 years of age – Where credibility and reliability of complainant's evidence central issue at trial – Where complainant admitted and was alleged to having lied – Where trial judge directed jury not to reason that complainant's lies meant that all her evidence dishonest and could not be relied upon – Where Court of Appeal found direction by trial judge was wrong decision on question of law – Where Court of Appeal found no substantial miscarriage of justice occurred – Whether error in application of proviso. Words and phrases – "misdirection", "natural limitations of proceeding on the record", "no effect upon the jury's verdict", "proviso", "substantial miscarriage of justice", "sufficiency of evidence to prove guilt", "very significant weight", "weight to the verdict of guilty", "wrong decision on a question of law". Criminal Appeals Act 2004 (WA), s 30(4).

Clubb v Edwards Preston v Avery Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Where s 185D of Public Health and Wellbeing Act 2008 (Vic) and s 9(2) of Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibit certain communications and activities in relation to abortions within access zone of 150 m radius around premises at which abortions are provided – Where appellants engaged in communications and activities in relation to abortions within access zone – Whether communications and activities in relation to abortions are communications about governmental and political matters – Whether provisions effectively burden implied freedom – Whether provisions imposed for legitimate purpose – Whether provisions reasonably appropriate and adapted to that purpose – Whether provisions suitable, necessary and adequate in balance. Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Severance, reading down and disapplication – Where appellant charged and convicted of offence against s 185D of Public Health and Wellbeing Act 2008 (Vic) – Where it was not contended that appellant's conduct involved political communication – Where substantial overlap with issues raised in proceedings in relation to interstate Act – Whether s 185D able to be severed, read down or partially disapplied so as to have valid operation in respect of appellant – Whether appropriate to proceed to determine constitutional validity of s 185D. Words and phrases – "access zone", "adequate in its balance", "calibration", "compatible with the maintenance of the constitutionally prescribed system of representative and responsible government", "compelling purpose", "dignity", "discriminatory", "legitimate purpose", "necessary", "partial disapplication", "political communication", "privacy", "prohibited behaviour", "proportionality testing", "protest", "rational connection", "reading down", "reasonably appropriate and adapted", "safe access zone", "severance", "structured proportionality", "suitable", "undue burden", "viewpoint neutral". Interpretation of Legislation Act 1984 (Vic), s 6. Public Health and Wellbeing Act 2008 (Vic), ss 185A, 185B, 185C, 185D, 185E. Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9.

Tjungarrayi v Western Australia KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia Aboriginals – Native title rights – Extinguishment of rights – Where s 47B of Native Title Act 1993 (Cth) provides that any historic extinguishment of native title rights and interests is to be "disregarded" for purposes of claim for determination of native title rights and interests over vacant Crown land – Where s 47B(1)(b)(i) provides that provision does not apply if relevant area is covered by "lease" – Where s 242(2) relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence ... or an authority" – Where native title claim groups sought native title determinations over land including parcels of unallocated Crown land – Where claim areas intersected with areas covered by petroleum exploration permits granted under Petroleum and Geothermal Energy Resources Act 1967 (WA) or mineral exploration licence granted under Mining Act 1978 (WA) ("exploration tenements") – Where native title right to exclusive possession had been extinguished – Whether exploration tenements were "lease[s]" within exclusion in s 47B(1)(b)(i). Words and phrases – "declared to be or described as a lease", "disregarded", "extinguishment", "historic extinguishment", "in the case only of references to", "lease", "mineral exploration licence", "mining lease", "native title", "non-extinguishment principle", "petroleum exploration permit", "principle of non-discrimination", "textual reference". Mining Act 1978 (WA), Pt IV Div 2. Native Title Act 1993 (Cth), ss 47B, 242, 243, 245, 253. Petroleum and Geothermal Energy Resources Act 1967 (WA), Pt III Div 2.

Rinehart v Hancock Prospecting Pty Ltd Rinehart v Rinehart Contract – Construction – Dispute resolution clause – Arbitration – Where arbitral clause in deeds provided for confidential arbitration in event of any dispute "under this deed" – Where deeds came into existence against background of claims and threats of litigation made publicly by one party to deeds against others – Where deeds contained releases, acknowledgments and covenants not to sue, and promises not to make further claims – Where deeds contained assurances they were entered into without undue influence or duress – Where appellants brought proceedings alleging breaches of equitable and contractual duties against other parties to deeds – Where appellants asserted they were not bound by deeds because their assent procured by misconduct of other parties to deeds ("validity claims") – Where respondents sought orders that matter be referred to arbitration and proceedings be dismissed or permanently stayed – Whether validity claims subject to arbitral clause. Arbitration – Parties – Where s 8(1) of Commercial Arbitration Act 2010 (NSW) ("NSW Act") provided that court before which action is brought in matter which is subject of arbitration agreement must in certain circumstances refer parties to arbitration – Where s 2(1) of NSW Act defined "party" to include any person claiming "through or under" party to arbitration agreement – Where trustees and beneficiaries party to arbitration agreement – Where beneficiaries alleged breaches of trust against trustees and knowing receipt against third party companies as assignees of trust property – Where third party companies asserted beneficial entitlement of trustees to property as essential element of defence – Where third party companies sought order that claims against them be referred to arbitration pursuant to s 8(1) of NSW Act – Whether third party companies claiming "through or under" party to arbitration agreement. Words and phrases – "arbitral clause", "arbitration agreement", "claiming through or under a party", "confidential processes of dispute resolution", "context and purpose of deed", "dispute under this deed", "party", "privity of contract". Commercial Arbitration Act 2010 (NSW), ss 2, 8.

Aviation – Carriage of passengers by air – Accident – Carrier's liability – Where respondent engaged by appellant to carry out survey using helicopter – Where passenger aboard helicopter killed in crash – Where Pt IV of Civil Aviation (Carriers' Liability) Act 1959 (Cth) applied – Where s 28 provided that carrier liable for damage sustained by reason of death of passenger – Where s 35(2) substituted liability under s 28 for any civil liability of carrier under any other law in respect of death of passenger – Where s 34 imposes time limit on availability of right of action created by s 28 – Where widow, daughter and son of passenger brought claims in tort against appellant and respondent for damages for negligently inflicted psychiatric harm resulting from death of passenger – Where claims brought outside time limit prescribed by s 34 – Whether claims precluded by Act. Words and phrases – "any civil liability of the carrier under any other law", "by reason of the death of the passenger", "claim", "damage sustained", "Hague Protocol", "in respect of the death of the passenger", "Montreal Protocol No 4", "negligently inflicted psychiatric harm", "tort", "Warsaw Convention". Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 28, 34, 35(2), 37.

Plaintiff M47/2018 v Minister for Home Affairs Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where s 189 of Migration Act 1958 (Cth) requires unlawful non-citizen be detained – Where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention – Where plaintiff an unlawful non-citizen – Where plaintiff arrived in migration zone using false passport and personal details – Where plaintiff kept in immigration detention since arrival in migration zone – Where plaintiff previously used false personal details – Where plaintiff's identity and nationality not known – Whether ss 189 and 196 authorise plaintiff's detention – Whether ss 189 and 196 constitutionally valid in application to plaintiff. High Court – Original jurisdiction – Practice – Special case – Drawing of inferences – Where factual basis of questions of law depends on drawing inferences under r 27.08.5 of High Court Rules 2004 (Cth) – Where inferences concern likelihood of plaintiff's future removal from Australia – Where prospects of plaintiff's future removal depend on information provided by plaintiff and cooperation by plaintiff – Where plaintiff made false statements and failed to assist and cooperate – Where plaintiff gave inconsistent accounts of personal and family background – Where plaintiff seeks to take advantage of falsehoods and non-cooperation – Whether inferences can be drawn. Words and phrases – "habeas corpus", "identity", "immigration detention", "inferences", "onus of proof", "prospects of removal", "real prospect", "reasonably foreseeable", "special case", "unlawful non-citizen". High Court Rules 2004 (Cth), r 27.08.5. Migration Act 1958 (Cth), ss 189, 196, 198.

Trade practices – Consumer protection – Unconscionable conduct – Where s 12CB(1) of Australian Securities and Investments Commission Act 2001 (Cth) relevantly prohibited "unconscionable" conduct in trade or commerce in connection with supply or possible supply of financial services – Where respondent provided "book-up" credit to Anangu customers of general store – Where book-up credit allowed deferral of whole or part of payment for goods subject to respondent retaining customer's debit card and personal identification number – Where respondent used debit card to withdraw whole or nearly whole of wages or Centrelink payments shortly after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate and often illegible – Where customers vulnerable due to remoteness, limitations on education, impoverishment and low levels of financial literacy – Where book-up system "tied" Anangu customers to general store – Where customers had understanding of basic elements of book-up system – Where withdrawals authorised by customers – Where customers generally supportive of book-up and respondent's business – Where book-up protected customers from cultural practices requiring sharing of resources with certain categories of kin – Where book-up ameliorated effects of "boom and bust" cycle of expenditure and allowed purchase of food between pay days – Whether respondent's conduct unconscionable within meaning of s 12CB(1) of Act. Words and phrases – "agency", "book-up", "credit", "cultural practices", "demand sharing", "dishonesty", "exploitation", "financial literacy", "humbugging", "inequality of bargaining power", "legitimate interests", "moral obloquy", "passive acceptance", "power imbalance", "special disadvantage", "standard of conscience", "system or pattern of conduct", "transparency or accountability", "unconscientious conduct", "unconscionable conduct", "undue influence", "unfair", "unjust", "unwritten law", "victimisation", "voluntary", "vulnerability". Australian Securities and Investments Commission Act 2001 (Cth), ss 12CA, 12CB, 12

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples Commonwealth of Australia v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where expert evidence and gender restricted evidence of senior males of Ngaliwurru and Nungali Peoples admitted in support of compensation claims in native title proceedings – Whether suppression or non-publication orders in respect of such evidence necessary to prevent prejudice to the proper administration of justice. Words and phrases – "administration of justice", "gender restricted knowledge", "suppression order". Judiciary Act 1903 (Cth), ss 77RD, 77RE, 77

Corporations – External administration – Receivers and other controllers of property – Priority debts – Where corporation carrying on business solely as trustee created circulating security interest over trust assets in favour of bank – Where receivers and managers appointed by bank realised trust assets and satisfied obligations to bank – Whether surplus proceeds required to be paid in accordance with Corporations Act 2001 (Cth), s 433 – Whether corporation's right of indemnity is property of the company "comprised in or subject to a circulating security interest" within meaning of s 433 – Whether trust assets themselves are such "property of the company" – Whether statutory order of priorities for payment of debts applicable to distribution of surplus proceeds from trust assets among trust creditors – Whether proceeds from exercise of insolvent corporate trustee's right of exoneration to be applied only in satisfaction of trust liabilities to which it relates. Trusts – Trustees – Right of indemnity – Whether trustee's right of indemnity confers beneficial interest in trust assets – Whether such interest is "property" within meaning of Corporations Act, s 9. Words and phrases – "beneficial interest", "circulating asset", "circulating security interest", "floating charge", "insolvent corporate trustee", "payment of creditors out of property", "power of exoneration", "PPSA security interest", "priority payments", "property", "property comprised in or subject to a circulating security interest", "property held by the bankrupt on trust", "property of the company", "right of exoneration", "right of indemnity", "taking possession or assuming control of property", "trust asset", "trust liabilities". Corporations Act 2001 (Cth), ss 9, 51, 51C, 433, 555, 556, 560. Personal Property Securities Act 2009 (Cth), ss 10, 12, 340.

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction. Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s 60H – Whether s 60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor". Words and phrases – "artificial conception procedure", "complete upon its face", "federal courts", "federal jurisdiction", "implicit negative proposition", "inconsistency", "irrebuttable presumption", "jurisdiction", "matter", "ordinary meaning", "otherwise provided", "parent", "parentage", "parenting orders", "picked up and applied", "power", "presumptions", "regulates the exercise of jurisdiction", "sperm donor", "State jurisdiction", "State legislative power", "status". Constitution, s 109. Family Law Act 1975 (Cth), ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA. Judiciary Act 1903 (Cth), s 79(1). Status of Children Act 1996 (NSW), Pt 3 Div 1.

Practice and procedure – Costs – Where respondent commenced defamation proceedings against appellant – Where appellant wholly successful on appeal and at first instance – Where appellant sought order that respondent pay its costs – Where Court of Appeal made no order as to costs because respondent's impecuniosity would likely render order futile – Whether appellant entitled to order for costs – Whether impecuniosity of unsuccessful party can alone justify decision to deny successful party its costs. Words and phrases – "award", "costs", "discretion as to costs", "futility", "impecuniosity", "indemnity", "litigant-in-person", "litigation", "matters relating to costs", "successful party", "unmeritorious litigation", "unsuccessful party". Northern Territory Supreme Court Act 1961 (Cth), s 18. Supreme Court Act 1979 (NT), ss 14(1), 55(1), 71. Supreme Court Rules 1987 (NT), r 63.03.

Privilege – Legal professional privilege – Where documents identified by plaintiffs as having been created by law practice for sole or dominant purpose of provision of legal advice to plaintiffs – Where privileged documents stolen from electronic file management system of law practice and disseminated – Where documents obtained by defendants – Where defendants refused to return documents to plaintiffs and provide undertaking not to refer to or rely upon documents – Where plaintiffs sought injunctive relief in equity's auxiliary jurisdiction solely on basis of legal professional privilege – Where plaintiffs did not seek injunctive relief on basis of confidentiality or other area of law – Where defendants demurred on basis that no cause of action disclosed – Whether legal professional privilege operates only as immunity or is also actionable legal right – Whether policy considerations justify creation of new actionable right in respect of documents subject to legal professional privilege. Words and phrases – "actionable legal right", "basis for relief", "breach of confidence", "cause of action", "common law right", "confidentiality", "development of the law", "immunity", "injunction", "legal professional privilege", "policy of the law", "public interest", "remedy".

Limitation of actions – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d). Words and phrases – "Barnes v Glenton", "claim in rem", "limitation of actions", "overlap between limitation periods", "personal claim", "real claim", "sums secured by mortgage or charge", "what claims are within limitation statutes". Limitation of Actions Act 1974 (Qld), ss 10(1)(d), 26(1).