Cases and authorities

Industrial law (Cth) – General protections – Adverse action – Section 346(b) of Fair Work Act 2009 (Cth) prohibits employer from taking adverse action against employee because employee engages in industrial activity or has engaged in industrial activity – Where appellant was industrial association – Where member of appellant engaged in industrial activity – Where officer of respondent employer took adverse action against member – Where officer gave evidence at trial that adverse action not taken for prohibited reasons – Whether adverse action taken for prohibited reason. Words and phrases – "because", "engages in industrial activity", "prohibited reason". Fair Work Act 2009 (Cth), ss 346(b), 347(b)(iii), 347(b)(v), 360, 361.

Alphapharm Pty Ltd v H Lundbeck A/S Intellectual property – Patents – Extension of term – Application to extend time for applying for extension of term of patent – Section 71(2) of Patents Act 1990 (Cth) required application for extension of term of patent to be made during term of patent and within six months after latest of three specified dates – First respondent made application for extension of term of patent during term of patent but more than six months after latest of three specified dates – Whether Commissioner of Patents had power to grant extension of time. Words and phrases − "filing, during the term of a standard patent", "prescribed action", "relevant act". Patents Act 1990 (Cth), ss 70(1), 71(2) and 223. Patents Regulations 1991 (Cth), reg 22.11(4)(b).

Migration – Refugees – Application for protection visa – Where applicant threatened by Taliban – Where Refugee Review Tribunal affirmed decision not to grant protection visa because risk of persecution would only arise on roads outside Kabul, which applicant could avoid – Whether Refugee Review Tribunal fell into error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 – Whether Refugee Review Tribunal failed to address whether it would be reasonable to expect applicant to remain in Kabul. Words and phrases – "internal relocation principle", "live discreetly", "real chance of persecution", "reasonable to expect", "well-founded fear of persecution". Migration Act 1958 (Cth), s 36(2)(a). Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Art 1A(2).

Constitutional law (Cth) – Standing – Plaintiff sought declaration that Vicious Lawless Association Disestablishment Act 2013 (Q) and provisions of the Criminal Code (Q), Bail Act 1980 (Q) and Liquor Act 1992 (Q) were invalid – Where certain provisions only operated where offence committed against existing unchallenged laws – Whether plaintiff had sufficient interest to bring action. Constitutional law (Cth) – Constitution, Ch III – Institutional integrity of State courts – Where ss 60A, 60B(1), 60B(2) and 60C of Criminal Code created offences elements of which involved being a "participant" in a "criminal organisation" – Where ss 173EB, 173EC and 173ED of Liquor Act created offences elements of which involved wearing symbols of membership of a "declared criminal organisation" – Where power, by regulation, to declare organisation a "criminal organisation" – Whether impugned provisions offended principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 – Whether Court enlisted to implement legislative or executive policy – Whether task given to Court incompatible with institutional integrity. Words and phrases – "association", "criminal organisation", "institutional integrity", "Kable principle", "participant", "standing", "sufficient interest". Bail Act 1980 (Q), ss 16(3A), 16(3B), 16(3C), 16(3D). Criminal Code (Q), ss 60A, 60B(1), 60B(2), 60C, 72(2), 72(3), 72(4), 92A(4A), 92A(4B), 92A(5), 320(2), 320(3), 320(4), 340(1A), 340(1B), 340(3). Liquor Act 1992 (Q), ss 173EB, 173EC, 173ED. Vicious Lawless Association Disestablishment Act 2013 (Q).

Procedure – Costs. FRENCH CJ, HAYNE, BELL, GAGELER AND KEANE JJ. On 15 October 2014, the Court allowed Ms Gray's appeal in part and made consequential orders[1]. The Court also directed the parties to make written submissions as to the orders for costs which should be made in relation to the proceedings in this Court and in the courts below. The disposition of costs is within the general discretion of the Court. Ordinarily, that discretion will be exercised so that costs are awarded to the successful party, but other factors may have a significant claim on the discretion of the Court[2]. The disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires. Costs in this Court As is apparent from the reasons for judgment in the appeal to this Court, Ms Gray enjoyed a substantial degree of success on the appeal. Although each party was successful on one of the two issues argued before the Court, the appeal resulted in Ms Gray recovering 82 per cent of the amount of damages in dispute. While Mr Richards was successful on one issue, the substantial success enjoyed by Ms Gray is sufficient to warrant an order in her favour in respect of her costs of the appeal to this Court having regard to two additional factors: first, Ms Gray was obliged to appeal in order to remedy the substantial disadvantage she had suffered as a result of the decision of the Court of Appeal; and secondly, it was not unreasonable to agitate the issue on which she was unsuccessful in that the primary judge had upheld this aspect of her claim. Costs in the Court of Appeal The consequence of this Court's determination of the appeal is that Mr Richards has maintained his success on only one of the four grounds of appeal he agitated in the Court of Appeal. The costs order made in Mr Richards' favour must be set aside. Given the substantial success enjoyed by Ms Gray in this Court, there is good reason to dispose of the costs in the Court of Appeal on the same basis. The outcome of the appeal to this Court also has implications for the elaborate order in respect of the costs at first instance which was made by the Court of Appeal. Costs at first instance The primary judge had ordered that Mr Richards pay Ms Gray's costs of the proceedings up to and including the trial, except for half of Ms Gray's costs from 19 August 2011 to 8 December 2011. That exception related to Ms Gray's failure on a subsidiary issue, which did not affect the level of her ultimate success. In the submissions filed on her behalf, Ms Gray accepted that she should not recover half her costs from 19 August 2011 to 8 December 2011. Accordingly, that order should be made. Orders The following orders should be made: 1. Mr Richards pay Ms Gray's costs of the appeal to this Court. Set aside orders 2 and 3 of the Court of Appeal made on 28 March 2014 and, in their place, order that: (a) Mr Richards pay Ms Gray's costs of the appeal to the Court of Appeal, excluding the costs associated with Mr Richards' challenge to the primary judge's judgment as to costs dated 13 April 2012; (b) the cross-appeal to the Court of Appeal be dismissed; (c) there be no order as to costs in relation to the cross-appeal to the Court of Appeal; and (d) Mr Richards pay Ms Gray's costs of the proceedings at first instance except for half of Ms Gray's costs from 19 August 2011 to 8 December 2011. [1] Gray v Richards [2014] HCA 40. [2] Stewart v Atco Controls Pty Ltd (In liq) (No 2) [2014] HCA 31; (2014) 88 ALJR 811 at 812 [4]; (2014) 311 ALR 351 at 352; [2014] HCA 31.

Intellectual property – Trade marks – Foreign words – Appellant was registered owner of trade marks "ORO" and "CINQUE STELLE" in respect of products including coffee – Respondent sought cancellation of appellant's trade marks – Whether trade marks inherently adapted to distinguish appellant's goods from goods of other persons. Words and phrases − "covert and skilful allusion", "directly descriptive", "inherently adapted to distinguish", "ordinary signification". Trade Marks Act 1995 (Cth), s 41.

Administrative law – Judicial review – Standing – Minister approved development application for commercial development – Appellants conducted businesses near site of proposed development – Appellants alleged development would adversely affect their economic interests – Whether appellants are persons aggrieved by the Minister's decision. Words and phrases – "person aggrieved", "person whose interests are adversely affected". Administrative Decisions (Judicial Review) Act 1989 (ACT), ss 3B(1)(a), 5(1).

Commissioner of State Revenue v Lend Lease Development Pty Ltd Commissioner of State Revenue v Lend Lease IMT 2 (HP) Pty Ltd Commissioner of State Revenue v Lend Lease Real Estate Investments Limited Stamp duty – Duties Act 2000 (Vic) charged duty on dutiable value of dutiable property that is subject of dutiable transaction – Section 20 provided that dutiable value was greater of "consideration ... for the dutiable transaction" and unencumbered value of dutiable property – Land transfers part of larger, single, integrated and indivisible transaction – Whether "consideration ... for the dutiable transaction" included amounts payable under larger transaction. Words and phrases – "consideration for", "dutiable transaction", "single, integrated and indivisible transaction". Duties Act 2000 (Vic), ss 20, 261.

Criminal law – Confiscation of property – Exclusion order – Where State sought forfeiture of proceeds of sale of jewellery given to appellant by deceased father – Where appellant sought exclusion from forfeiture under s 68(2) of Criminal Proceeds Confiscation Act 2002 (Q) ("Act") on ground money not "illegally acquired property" – Where "illegally acquired property" defined by s 22(2)(a) of Act to include "proceeds of dealing with illegally acquired property" – Whether sufficient for appellant to prove money was not proceeds of illegal activity on his part – Whether appellant discharged onus placed upon him by s 68(2)(b) to prove jewellery not illegally acquired by father. Words and phrases – "burden of proof", "civil standard of proof", "exclusion order", "forfeiture order", "illegally acquired property". Criminal Proceeds Confiscation Act 2002 (Q), ss 4, 22, 25, 26, 58(1), 68(2).

Migration – Refugees – Section 72(4) of Maritime Powers Act 2013 (Cth) authorised maritime officer to detain person for purpose of taking person to place outside Australia – Plaintiff on board vessel intercepted by Commonwealth officers in Australia's contiguous zone – Plaintiff detained on Commonwealth vessel which sailed to India in implementation of decision of National Security Committee of Cabinet ("NSC") – Where no agreement existed between Australia and India applicable to reception of plaintiff prior to commencement of taking of plaintiff to India – Where maritime officer implemented decision of NSC without independent consideration of whether plaintiff should be taken to India – Whether decision to detain and take plaintiff lawful – Whether power under s 72(4) subject to obligation to afford procedural fairness – Whether power constrained by Australia's international non-refoulement obligations. Constitutional law (Cth) – Executive power of Commonwealth – Whether Commonwealth has power derived from s 61 of Constitution to authorise maritime officer to detain person for purposes of taking person outside Australia – Whether any such power subject to obligation to afford procedural fairness. Words and phrases – "detain", "maritime officer", "non-refoulement obligations", "procedural fairness", "reasonable time", "take". Constitution, s 61. Maritime Powers Act 2013 (Cth), ss 5, 7, 16, 18, 69, 71, 72, 74, 97, 104(1). Migration Act 1958 (Cth), ss 42, 189(3).

Plaintiff S297/2013 v Minister for Immigration and Border Protection Migration – Refugees – Protection visas – Power of Minister under Sched 2, cl 866.226 of Migration Regulations 1994 (Cth) to decide application for protection visa if Minister satisfied that grant of visa "is in the national interest" – Whether cl 866.226 invalid – Whether cl 866.226 permitted Minister to refuse to grant protection visa solely on ground that application for visa made by unauthorised maritime arrival. Administrative law – Judicial review – Mandamus – Return of writ insufficient – Plaintiff sought order issuing peremptory writ of mandamus – Reg 2.08F of Migration Regulations 1994 (Cth) applied where court quashed decision of Minister in relation to application for protection visa and ordered Minister to reconsider application in accordance with law – Whether reg 2.08F applied. Words and phrases – "is in the national interest", "peremptory mandamus", "unauthorised maritime arrival". Migration Act 1958 (Cth), ss 45AA, 46A. Migration Regulations 1994 (Cth), reg 2.08F, Sched 2, cl 866.226.

Contribution – Requirement of coordinate liabilities – Where appellants and first and second respondents were co-sureties of guaranteed debt – Where first and second respondents paid creditor disproportionate amount of guaranteed debt – Where creditor gave appellants covenant not to sue – Whether first and second respondents entitled to contribution from appellants – Whether appellants and first and second respondents shared coordinate liabilities despite creditor's covenant not to sue. Words and phrases – "contribution", "contribution in equity", "coordinate liabilities", "covenant not to sue", "of the same nature and to the same extent".

Jurisdiction, practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Matters connected with conduct of defence – Where respondent charged with offence – Where appellant applied for forfeiture order under s 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act") against property that is proceeds of crime – Whether forfeiture proceedings should be stayed until criminal proceedings are finalised – Whether refusal to stay forfeiture proceedings creates risk of prejudice in criminal proceedings – Whether respondent must state specific matters of prejudice before stay will be granted. Statutes – Interpretation – Forfeiture of proceeds of crime – Stay of forfeiture proceedings – Where appellant applied for forfeiture order under s 49 of the Act – Where issues in forfeiture proceedings and criminal proceedings are substantially identical – Whether forfeiture proceedings should ordinarily continue. Words and phrases – "prejudice". Proceeds of Crime Act 2002 (Cth), ss 39A, 49, 80, 266A, 319.

Trusts – Express trust – Two companies, "the Forest Company" and "the Milling Company", operated timber plantation investment scheme – Forest Company sought investment in scheme – Forest Company entered into Trust Deed with Trustee Company as trustee for holders of interests Forest Company issued – Whether proceeds of the sale of standing timber and scheme land payable to Forest Company and Milling Company subject to express trust in favour of scheme investors. Words and phrases – "express trust". Companies Act 1962 (SA), s 80. Companies (South Australia) Code, s 168.

Grant Samuel Corporate Finance Pty Limited v Fletcher JPMorgan Chase Bank, National Association v Fletcher Corporations – Winding up – Voidable transactions – Section 588FF(3) of Corporations Act 2001 (Cth) provided that application with respect to voidable transactions under s 588FF(1) "may only be made" during period set out in s 588FF(3)(a) or "within such longer period as the Court orders" on an application made by liquidator during par (a) period – On application made by liquidators after par (a) period had expired, Supreme Court made order under r 36.16(2)(b) of Uniform Civil Procedure Rules 2005 (NSW) varying date by which liquidators could make application under s 588FF(1) – Whether UCPR could be utilised to extend time within which proceedings under s 588FF(1) could be brought – Whether s 588FF(3) "otherwise provided" within meaning of s 79(1) of Judiciary Act 1903 (Cth). Words and phrases – "otherwise provided", "picked up". Corporations Act 2001 (Cth), s 588FF. Judiciary Act 1903 (Cth), s 79(1). Uniform Civil Procedure Rules 2005 (NSW), r 36.16(2)(b).

Criminal law – Sentencing – Sentence increased on prosecution appeal under s 5D of Criminal Appeal Act 1912 (NSW) – Appellant charged with sexual assault of daughter – Director of Public Prosecutions referred appellant for assessment for pre-trial diversion program – During assessment appellant disclosed further offences committed against daughter – First set of offences dealt with under program – Appellant charged with further offences and sentenced to good behaviour bonds with condition appellant complete program – Attorney General filed notice of appeal – Court of Criminal Appeal allowed appeal and re-sentenced appellant to five years and six months' imprisonment – Whether Court of Criminal Appeal erred in not exercising residual discretion to decline to interfere – Whether Court of Criminal Appeal erred in placing onus upon appellant with regard to exercise of residual discretion to dismiss appeal and limiting purpose of Crown appeals – Whether Court of Criminal Appeal erred in application of s 23 of Crimes (Sentencing Procedure) Act 1999 (NSW) and principles regarding voluntary disclosure of otherwise unknown guilt. Words and phrases – "discretion not to intervene", "leniency", "manifestly inadequate", "onus", "proper sentence", "residual discretion", "restraint", "unreasonably disproportionate". Criminal Appeal Act 1912 (NSW), s 5D. Pre-Trial Diversion of Offenders Act 1985 (NSW). Crimes (Sentencing Procedure) Act 1999 (NSW), s 23.

Corporations – Winding up – Voidable transactions – Section 588FF(3)(b) of Corporations Act 2001 (Cth) empowers courts to make orders extending time for liquidator to make application under s 588FF(1) with respect to voidable transactions – Order extending time for respondents to make s 588FF(1) application did not refer to identified transaction – Respondents made s 588FF(1) application within extended time period – Whether courts can make order under s 588FF(3)(b) extending time to make s 588FF(1) application without identifying particular transaction or transactions to which it would apply. Words and phrases – "extension of time", "re-enactment presumption", "shelf orders". Corporations Act 2001 (Cth), s 588

Constitutional law – Constitution, s 51(xx) – "[T]rading or financial corporations formed within the limits of the Commonwealth" – Queensland Rail Transit Authority Act 2013 (Q) established right and duty bearing entity which "is not a body corporate" – Functions of entity included provision of labour hire services – Functions to be carried out as a commercial enterprise – Whether entity a trading corporation formed within the limits of the Commonwealth. Words and phrases – "is not a body corporate", "trading corporation". Constitution, s 51(xx). Queensland Rail Transit Authority Act 2013 (Q), s 6.

Duncan v New South Wales NuCoal Resources Limited v New South Wales Cascade Coal Pty Limited v New South Wales Constitutional law – Judicial power – Independent Commission Against Corruption produced reports which recommended passing legislation to cancel three exploration licences granted under Mining Act 1992 (NSW) – Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) ("Amendment Act") inserted Sched 6A into Mining Act 1992 (NSW), cancelling three licences without compensation – Whether Amendment Act involves exercise of judicial power in nature of, or akin to, bill of pains and penalties. Constitutional law – Constitution Act 1902 (NSW) – Legislative competence of New South Wales Parliament – Whether Amendment Act is "law" within meaning of s 5 of Constitution Act 1902 (NSW). Constitutional law – Inconsistency between Commonwealth and State laws – Provision of Amendment Act authorised use or disclosure of information contained in works – Whether provision of Amendment Act inconsistent with Copyright Act 1968 (Cth) and invalid to extent of inconsistency. Words and phrases – "bill of pains and penalties", "judicial power", "law". Constitution, Ch III, s 109. Constitution Act 1902 (NSW), s 5. Mining Act 1992 (NSW), Sched 6A. Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW).

Statutory bodies – Investigating commission – Independent Commission Against Corruption – Powers – Independent Commission Against Corruption Act 1988 (NSW), s 8(2) defines "corrupt conduct" as conduct that could "adversely affect" exercise of official function by public official – Whether conduct that could adversely affect efficacy, but not probity, of exercise of official function by public official "corrupt conduct". Statutes – Interpretation – Context and purpose – Statutory definitions – Effect of express statement of objects of Act – Where purpose of Act cannot be identified without reference to terms to be interpreted. Statutes – Interpretation – Extrinsic materials – Legislative history – Where legislation not amended after review of Act. Words and phrases – "adversely affect", "and which could involve", "corrupt conduct". Independent Commission Against Corruption Act 1988 (NSW), ss 2A, 8, 9, 12

Migration and citizenship – Visa cancellation – Character test – Administrative Appeals Tribunal – Migration Act 1958 (Cth), s 500(6H) precludes Tribunal from having regard to information presented orally in support of a person's case unless provided in written statement to Minister two days before Tribunal holds a hearing – Information arose regarding children during cross-examination of witness called on behalf of appellant – Tribunal required to consider best interests of minor children in Australia – Whether Tribunal erred in its application of s 500(6H) by not considering that information – Relevance of whether information could reasonably have been anticipated by appellant. Migration and citizenship – Visa cancellation – Character test – Administrative Appeals Tribunal – Whether Migration Act 1958 (Cth), s 500(6H) precludes Tribunal from adjourning hearing so that notice requirements may be met – Whether day on which Tribunal "holds a hearing" includes day on which hearing resumes. Words and phrases – "holds a hearing", "information presented orally in support of the person's case". Migration Act 1958 (Cth), ss 499, 500(6H), 500(6L), 501. Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 40(1)(c). FRENCH CJ, KIEFEL, BELL AND KEANE JJ. A delegate of the Minister for Immigration and Border Protection ("the Minister") cancelled the appellant's visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). The delegate was obliged, by directions given pursuant to s 499 of the Act, to have regard to the best interests of any minor children of the appellant who would be affected by the decision. The delegate exercised his discretion on the understanding that the appellant is the father of three children. During the hearing of the appellant's application for review of the delegate's decision before the Administrative Appeals Tribunal ("the Tribunal"), it became apparent that the appellant is also the father of two other, younger children in Australia. This information had not previously formed part of the appellant's case; it was adduced in the course of the cross-examination of a witness called on behalf of the appellant. Section 500(6H) of the Act provides that the Tribunal must not have regard to any information presented orally in support of an application for review unless it has been provided in a written statement to the Minister at least two days before the hearing. The Tribunal proceeded to determine the appellant's application on the footing that s 500(6H) of the Act precluded consideration by it of the interests of the appellant's two youngest children. The Tribunal affirmed the delegate's decision. The appellant appealed unsuccessfully to the Federal Court of Australia, and then to the Full Court of the Federal Court of Australia. The appellant appeals to this Court, contending that s 500(6H) did not, on its proper construction, preclude consideration by the Tribunal of the interests of all his children, and that the Tribunal's failure to consider their interests was a jurisdictional error on its part. The appellant's contention should be accepted and his appeal to this Court allowed. Section 500(6H) does not preclude the consideration of information which is not presented by or on behalf of an applicant for review as part of his or her case. In the present case, the Tribunal, acting upon its erroneous understanding of the effect of s 500(6H) of the Act, truncated the review which it was required to undertake. In particular, the Tribunal failed to have regard to whether the interests of the appellant's two youngest children would be best served by cancelling his visa. As a result, the Tribunal did not conduct the review required by the Act, and consequently acted beyond its jurisdiction[1]. The statutory framework The appellant is a citizen of New Zealand. He was born in Samoa and moved to New Zealand with his family when he was three years old. He moved to Australia in 1998 at age 14, but is not an Australian citizen. He was granted a Class TY Subclass 444 Special Category (Temporary) visa, which allows him to remain in Australia indefinitely while he is a citizen of New Zealand. The appellant's parents, partner, children and extended family live in Australia. Section 501 of the Act provides that the Minister has a discretion to refuse or cancel a visa on character grounds. In particular, s 501(2) of the Act provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the "character test" and the person does not satisfy the Minister that he or she passes the character test. The appellant failed to satisfy the Minister that he passed the character test. Pursuant to s 501(6)(a), a person fails to satisfy the character test if he or she has a "substantial criminal record", which is defined in s 501(7)(c) to include a prison sentence of more than 12 months. The appellant has a history of criminal offences. He has served various periods of imprisonment. On 6 December 2011, he was sentenced to 36 months' imprisonment for recklessly causing grievous bodily harm in company. This was the longer of two sentences of over 12 months' duration imposed on the appellant. On 3 September 2012, during the appellant's most recent term of imprisonment, a delegate of the Minister exercised the discretion conferred by s 501(2) to cancel the appellant's visa. On 6 September 2012, when the term of imprisonment ended, the appellant received notice of the cancellation and was placed in immigration detention. Section 500(1)(b) of the Act and s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") together provide that applications may be made to the Tribunal for review of a decision of a delegate of the Minister to cancel a visa under s 501 of the Act. The appellant made an application to the Tribunal for review of the delegate's decision. In the particular circumstances of the present case, a decision-maker under the Act was bound by written directions issued under s 499 of the Act, including Direction No 55 – Visa refusal and cancellation under s 501 ("Direction 55"), issued on 25 July 2012, when deciding whether a visa should be cancelled under s 501. Direction 55 states by cl 6.3(2) that a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia. Other circumstances are, however, also relevant to a decision in that regard. In particular, cl 6.3(6) states, inter alia, that: "the consequences of a visa refusal or cancellation for minor children ... in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled". Clause 7(1)(a) of Direction 55 provides that a decision-maker must take into account the considerations in Pt A or Pt B of Direction 55 "where relevant". Part A of Direction 55 is concerned with the considerations relevant to visa holders. Clause 8(4) provides that "primary considerations" should generally be given greater weight than "other considerations". The first of the primary considerations in Pt A is the protection of the Australian community from criminal or other serious conduct: cl 9(1)(a). Part A also includes cl 9.3(1) and (2), which provide that decision-makers "must make a determination about whether cancellation is, or is not, in the best interests of the child" if the child is under 18 years old at the time of the decision. Clause 9.3(4)(d) makes "[t]he likely effect that any separation from the person would have on the child" a primary consideration. In deciding to cancel the appellant's visa, the Minister's delegate was of the understanding that the appellant had three young children. The delegate accepted that the interests of these children would be best served if the appellant were to remain in Australia, but decided that the appellant's criminal conduct and the need for protection of the Australian community tipped the balance in favour of cancelling the appellant's visa. Of central importance in this matter was s 500(6H) of the Act, which provides that upon an application to the Tribunal for review of a decision made under s 501, the Tribunal: "must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review." The proceedings in the Tribunal The appellant had the benefit of legal representation at the hearing by the Tribunal. As a "body having functions or powers under [the] Act"[2], the Tribunal was obliged, as the Minister's delegate had been, to apply Direction 55. Accordingly, the Tribunal was obliged to consider the best interests of any minor children in Australia affected by the decision[3], and to have regard to factors including "[t]he likely effect that any separation from the person would have on the child"[4]. On 14 November 2012, the Tribunal affirmed the delegate's decision to cancel the appellant's visa for reasons similar to those given by the delegate[5]; but unlike the delegate, the Tribunal was aware that the appellant was the father of five children, not three as the delegate had understood the case to be. The interests, and indeed the existence, of the appellant's two youngest children, who at the time of the Tribunal hearing were four and five years of age[6], did not form part of the appellant's case before the Tribunal. Statements provided on the appellant's behalf to the Tribunal prior to the hearing referred to the appellant having three children with his partner, Ms Peta Fatai. In the course of the cross-examination of Ms Fatai by the Minister's representative, she said that the couple had been separated for a period, and that during this separation the appellant had fathered two further children with Ms Jessie Vakauta[7]. It is not apparent from the record whether the particular questions which elicited this information were asked by the Minister's representative or by the presiding member of the Tribunal; but neither party regarded this circumstance as significant. The existence of the two youngest children was confirmed in documents tendered by the Minister, which revealed that the children were amongst the appellant's visitors in prison. It was, and remains, unclear why the appellant did not acknowledge the existence of his two youngest children, or seek to make their relationship with him part of his case. The Tribunal merely noted that the appellant's legal representation had been arranged "at short notice"[8]; but before the Federal Court, at first instance[9] and on appeal[10], it was said that the appellant adopted this course on the basis of legal advice. The decision of the Tribunal The Tribunal regarded s 500(6H) of the Act as precluding consideration by it of the position of the appellant's two youngest children. In this Court, the Minister sought to argue that the Tribunal did take into account the information concerning those children. Given this contention by the Minister, it is necessary to refer to the detail of the Tribunal's reasons on this point. The Tribunal summarised[11] its view of the effect of s 500(6H) of the Act as follows: "The effect of s 500(6H) of the [Act], which was acknowledged by Mr Uelese's representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing." The Tribunal went on to conclude[12]: "As already stated, Mr Uelese has been involved in an on and off relationship with Ms Fatai for approximately 12 years, and they have three children aged eleven, eight and six. No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross-examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children." (emphasis in original) It can be seen from the Tribunal's reasons that the Tribunal did not take account of the information concerning the appellant's two youngest children. The Minister's contention in this respect is untenable. The Tribunal could not have made its position any clearer than by the explicit statement: "I cannot take any consideration of their situation into account". The Federal Court The appellant appealed to the Federal Court, and then to the Full Court of the Federal Court[13]. The decision of the Tribunal is a "privative clause decision" under s 474(2) of the Act; and so, pursuant to s 476A(1) and (2) of the Act, the Federal Court had jurisdiction to review it only for jurisdictional error[14]. Before the Federal Court (Buchanan J) the appellant submitted that the Tribunal erred in failing to consider the interests of his two youngest children. The appellant argued that his failure to disclose information about the two youngest children was a result of advice from his legal representative, and was therefore not his fault. Buchanan J rejected this argument, holding that there was no suggestion of fraudulent activity on the part of the appellant's legal representative and that, accordingly, the circumstance that the appellant might have been poorly advised was not a defect in the proceeding before the Tribunal[15]. The appellant also argued that the Tribunal should have adjourned the hearing to allow evidence to be led in accordance with s 500(6H). Buchanan J rejected this argument, holding, in reliance on observations in Goldie v Minister for Immigration and Multicultural Affairs[16], that an adjournment cannot overcome the requirement of s 500(6H) that information be presented by an applicant to the Minister in writing two days before a hearing[17]. The appellant's third argument was that the Tribunal should itself have pursued the issue of his two youngest children's interests when it became aware of the children's existence. As to this argument, Buchanan J held that the Tribunal was "confined in the steps it could take"[18] and "obliged at all stages of the hearing before it ... to disregard any material emerging in oral evidence concerning Mr Uelese's two youngest children."[19] Thus, it can be seen that Buchanan J accepted the Tribunal's view of the preclusory effect of s 500(6H) of the Act. The Full Court of the Federal Court In the Full Court (Jagot, Griffiths and Davies JJ), the first ground of appeal was that Buchanan J erred in not concluding that the Tribunal denied the appellant procedural fairness in failing to consider the best interests of the two youngest children. Secondly, it was said that Buchanan J erred in failing to conclude that the Tribunal committed a jurisdictional error in failing to warn the appellant that the best interests of the two children would not be considered, in circumstances where there was a legitimate expectation that those interests would have been considered. Thirdly, it was said that Buchanan J erred in failing to hold that the Tribunal was obliged, pursuant to Direction 55, to consider as a primary consideration the interests of all five of the appellant's children. The Full Court rejected the appellant's arguments, holding that s 500(6H) is a constraint on a decision-maker's obligations under s 499 to comply with Direction 55[20]; accordingly, there had been no denial of procedural fairness or disappointment of a legitimate expectation because "the content of the appellant's procedural fairness entitlements ... was necessarily affected by the statutory constraint imposed on the [Tribunal] by s 500(6H) of the Act."[21] The Full Court took the view, supported by dicta in Goldie[22], that the requirements of s 500(6H) of the Act are designed to prevent an applicant for review from changing the nature of his or her case[23], and concluded that the Tribunal was precluded from having regard to the oral evidence about the two children and could not adjourn the hearing to enable the requirement of two days' notice to be met[24]. The Full Court also held that the Tribunal was not obliged to make its own inquiries into the issue because the appellant's case was presented on the basis that he had only three children[25]. The grant of special leave to appeal On 17 October 2014, Gageler and Keane JJ granted the appellant special leave to appeal to this Court. The grant of special leave was limited to two questions: whether the Full Court erred in failing to find jurisdictional error in the decision of the Tribunal that s 500(6H) of the Act prohibited it from having regard to information concerning the appellant's two youngest children; and whether the Full Court erred in failing to find jurisdictional error in the Tribunal's view that s 500(6H) precluded the grant of an adjournment to overcome the preclusory effect of that provision. The appellant's arguments The appellant submitted that s 500(6H) did not preclude the Tribunal from having regard to the information provided by Ms Fatai about the appellant's two youngest children. It was argued that information provided in the course of cross-examination of a witness called by an applicant, whether in response to questions from the Minister's representative or from the presiding member of the Tribunal, is not information "presented orally in support of" the applicant's case. The appellant argued that that information is "presented orally in support of the person's case" only if it is proffered by or on behalf of an applicant as part of his or her case. In support of this submission, the appellant relied upon the recent decision of the Full Court of the Federal Court in Jagroop v Minister for Immigration and Border Protection[26], where it was said that the prohibition in s 500(6H) "would not preclude the [Tribunal] having regard to an applicant's answers in cross-examination", nor "information ... presented by an applicant in answer to the Minister's case, at least when the applicant could not reasonably have anticipated the evidence or issue raised". The appellant's second submission was that, even if s 500(6H) had the preclusory effect attributed to it by the Tribunal, it was open to the Tribunal to adjourn the hearing so that the requirements of s 500(6H) could be met. The appellant argued that "two business days before" the Tribunal "holds a hearing" means two business days before any day on which the Tribunal conducts a final hearing, including a day on which the Tribunal resumes hearing a part-heard proceeding adjourned at an earlier date. It was said that the language of s 500(6H) does not refer to two business days before the hearing commences but rather to when the Tribunal "holds a hearing" (emphasis added): a body holds a hearing on any day it sits. Parliament did not speak of "the hearing", in contrast to s 33(2) of the AAT Act, which uses the phrases "where the hearing ... has not commenced" and "where the hearing ... has commenced" (emphasis added). The Minister's arguments In response to the appellant's first submission, the Minister argued that the appellant could reasonably be expected to have put the interests of his two youngest children in issue if he thought his case would be assisted by doing so. It was also said that the Tribunal was under no obligation to consider matters which did not form part of the appellant's case. The Minister argued that no occasion for considering the appellant's second submission arises in this case. Given that the appellant did not make an application for an adjournment, the Tribunal had no obligation to consider whether to exercise its discretion to grant an adjournment, or to actually grant one. In addition, it was said that the view expressed in Goldie should be applied: once a hearing has commenced, "the entitlement of the appellant to rely on information and documents crystallised"[27] so that an adjournment may not be granted to allow an applicant to avoid the consequences of non-compliance with s 500(6H). The preclusory effect of s 500(6H) Considerations of text, context and legislative purpose[28] support the appellant's argument that the Tribunal misunderstood the preclusory effect of s 500(6H). Textual considerations Section 500(6H) is directed, in terms, at information presented orally in support of an applicant's case. It is not directed at any information, however that information may come before the Tribunal. As a matter of ordinary usage, the phrase "presented ... in support of the [applicant's] case" is apt to describe the active presentation of the case propounded by an applicant for review; but it is not at all apt as a description of the process of eliciting information under cross-examination. One would not ordinarily describe an answer given in response to a question posed on behalf of the Minister in the course of cross-examination as "information presented orally in support of the [applicant's] case". It is distinctly to strain the language of s 500(6H) to say that "information presented orally" in support of the case made by an applicant for review includes information elicited by the Minister's representative or by the Tribunal itself in the course of cross-examination of a witness called by the applicant. In addition, it is well settled that a construction "which appears irrational or unjust"[29] is to be avoided where the statutory text does not require that construction. The view of s 500(6H) taken by the Tribunal in this case may be expected to lead to irrationality or injustice. For example, it would be irrational to hold that s 500(6H) precludes the Tribunal from receiving and acting upon an admission by an applicant for review elicited in the course of cross-examination that important aspects of the case he or she had presented in chief were false. And it would be distinctly unjust if the Minister could rely upon any answer elicited in cross-examination but the applicant could not. In this Court, the Minister did not seek to sustain the Tribunal's view of the preclusory operation of s 500(6H). That view had been rejected by the Full Court of the Federal Court in Jagroop[30]. The Minister accepted that s 500(6H) will not generally preclude the Tribunal from having regard to information provided in response to questions put to a witness in cross-examination, whether by the Tribunal or by the representative of the Minister. It was said, however, that this general proposition was subject to the qualification that any information provided to the Tribunal in support of the case of the applicant for review (rather than merely in answer to the Minister's case) will be excluded by s 500(6H) where the information could reasonably have been anticipated to be supportive of the case of the applicant at least two business days prior to the date on which the Tribunal holds a hearing. This qualification was said to be supported by observations in Jagroop[31]. It may be said immediately that if the gloss on s 500(6H) urged by the Minister were to be accepted, that would mean that it was necessary for the Tribunal to determine whether the information provided by Ms Fatai could reasonably have been anticipated, at least two days before the hearing in the Tribunal, to be supportive of the appellant's case. And in this case the Tribunal made no such inquiry. As a matter of principle, however, the gloss on the statutory language urged by the Minister should not be accepted. This aspect of the Minister's argument gains no support from the text of s 500(6H). The qualification propounded by the Minister is so awkward in its formulation that it cannot be regarded as implicit in s 500(6H). In addition, to accept the Minister's gloss would add a level of uncertainty to the operation of s 500(6H). An attempt to determine whether an applicant might reasonably have anticipated certain information as being supportive of his or her case two days before the hearing is likely to encounter complications by reason of the applicant's entitlement to legal professional privilege in respect of instructions to his or her legal representatives, and their advice. Further in this regard, the question of whether new information could be anticipated to be supportive of the applicant's case two days prior to the hearing calls for an exercise in hindsight which may vary with the circumstances that obtain when the Tribunal is required to determine whether it may have regard to the new information. This point may be illustrated by reference to the circumstances of the present case. Ms Fatai's information that the appellant was the father of two children not previously mentioned by him in relation to his application was not necessarily supportive of the appellant's case. It did not necessarily advance the appellant's case to reveal that there were five, rather than three, children who were entitled to depend upon him for material and emotional support and advancement, where that revelation was made in circumstances which at the same time revealed that he had failed to acknowledge even the existence of two of them. Considered on its own, Ms Fatai's information that the appellant's relationship with her and their children had been interrupted by another relationship could be seen as detrimental to any attempt by the appellant to present himself as a responsible member of a stable parental relationship who could be depended upon to provide for the welfare of his children if he were allowed to remain in Australia. It may be that the appellant could have given a satisfactory explanation in response to these concerns; the sclerotic effect of the Tribunal's view of s 500(6H) prevented any such explanation emerging. The important point for present purposes, however, is that the gloss on the statutory language urged by the Minister would add a new and unacceptable level of complexity and uncertainty to the task of the Tribunal. The observations of the Full Court of the Federal Court in Jagroop[32] to which the Minister referred were tentative observations which were appropriate in the circumstances of that case. Those observations do not support the Minister's gloss on the language of s 500(6H). The conclusion that Ms Fatai's responses in cross-examination were not within the preclusory language of s 500(6H) of the Act is in accord with considerations of context and statutory purpose to which reference may now be made. Contextual considerations Section 500(6H) does not expressly limit the power of the Tribunal to conduct a review or authorise the Tribunal to give less than the "proper consideration of the matters before [it]" required by s 33 of the AAT Act. Section 33(1) of the AAT Act provides generally that in a proceeding before the Tribunal the procedure of the Tribunal is within its discretion, that it is not bound by the rules of evidence, and that the proceeding is to be conducted with as little formality and technicality as, inter alia, a proper consideration of the matters before it permits. Section 40(1)(c) of the AAT Act provides that, for the purpose of reviewing a decision, the Tribunal may "adjourn the proceeding from time to time." Section 500(6H) should not be construed to restrict the flexibility of the Tribunal to ensure procedural fairness to the parties to a review beyond what is required by its terms. Specific powers under the AAT Act that would be restricted in their operation on the Tribunal's understanding of s 500(6H) include: s 39(1), which obliges the Tribunal to "ensure that every party to a proceeding ... is given a reasonable opportunity to present his or her case"; s 33(1)(c), which allows the Tribunal to "inform itself on any matter in such manner as it thinks appropriate"; and s 33(2A)(a), which allows the Tribunal to "require any person who is a party to the proceeding to provide further information in relation to the proceeding". Considerations of purpose The apparent purpose of s 500(6H) was to prevent applicants from manipulating the system in an attempt to delay deportation. The Explanatory Memorandum to the Bill that led to the enactment of s 500(6A) to (6L) of the Act stated[33] that: "These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government's concern to expedite review of character decisions against the need to ensure that the [Tribunal] has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person's character." The purpose of ensuring the expeditious determination of applications for review under s 500 of the Act by requiring that the Minister be given "an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing"[34], which might result from a late change to the applicant's case, is not compromised by accepting that the preclusory effect of s 500(6H) is confined to information presented by or on behalf of the applicant for review in support of his or her case. Where information is adduced in cross-examination by the Minister or in response to inquiry by the Tribunal itself, it is inherently unlikely that the information is provided as part of an attempt to manipulate or delay the review process. The best interests of the appellant's children It is of particular importance that, in the circumstances of the present case, the Tribunal's erroneous understanding of s 500(6H) precluded it from making a determination about whether cancellation of the appellant's visa was or was not in the best interests of each of his children in Australia. Counsel for the Minister developed a submission that the interests of the appellant's two youngest children were not "relevant" to the Tribunal's review within the meaning of cl 7(1)(a) of Direction 55. It was said that because the appellant had not included their interests in the case he sought to present to the Tribunal, their interests were not relevant. This submission should be rejected for a number of reasons. First, it depends upon a misreading of cl 7(1)(a) of Direction 55: the best interests of an applicant's minor children in Australia are "relevant" if such children exist and that fact is known to the Tribunal. Secondly, the Minister's submission seeks to import into the inquisitorial review function of the Tribunal notions appropriate to adversarial proceedings conducted in accordance with formal rules of pleading. That approach is inappropriate to the kind of review undertaken by the Tribunal. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[35], this Court cautioned against transposing the language and mindset of adversarial litigation to inquisitorial decision-making of the kind authorised by s 500 of the Act[36]. It is true, as the Full Court of the Federal Court rightly observed in Jagroop[37], that both s 500 of the Act and the AAT Act "contemplate participation by both the applicant and the Minister in the [Tribunal] hearing." Section 500(6H) expressly contemplates that the applicant will present a "case"; and it is implicit that the Minister will also present a "case". That having been said, it would be to give undue weight to conceptions drawn from adversarial litigation to accept that the Tribunal was not required to take into account the interests of the appellant's two youngest children because he had not sought to advance their interests as a positive part of his case. Whether or not the appellant sought to make the interests of those children a positive aspect of his case, the Tribunal was obliged by s 499 of the Act and the terms of Direction 55 to take into account the interests of any minor children of which it was aware in determining his application for review. By virtue of s 499 and Direction 55, one of the primary considerations for the Tribunal concerned the interests of children who were not themselves represented in the proceedings before the Tribunal. The requirement of cl 9.3 of Direction 55 to consider the best interests of minor children in Australia affected by the decision is imposed on decision-makers in terms which are not dependent on whether an applicant for review argues that those interests are relevant as part of his or her "case". An aspect of the Minister's argument, developed by reference to the view that the Tribunal's functions were confined to a determination of issues relevant to the "case" presented by the appellant, was the contention that, if the Tribunal did misconstrue s 500(6H) by not considering the information adduced in cross-examination, that error did not affect the outcome of the review. The Minister argued that the paucity of evidence about the appellant's two youngest children in consequence of the way the appellant's case was presented meant that the Tribunal could not be satisfied one way or the other as to where the best interests of the appellant's children lay. This aspect of the Minister's argument must also be rejected. It is apparent that the paucity of evidence referred to in the last sentence of the passage from the reasons of the Tribunal cited above was not due to the unavailability of material evidence. The Tribunal not only declined to act upon the information which was put before it by Ms Fatai, but it also failed to make even the most cursory inquiry to follow up on this information. This is not a case like Paerau v Minister for Immigration and Border Protection[38], on which the Minister sought to rely; here, the paucity of evidence was a consequence of the view taken by the Tribunal of the preclusory effect of s 500(6H). It is not necessary here to seek to chart the boundaries of the Tribunal's obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a "determination about whether cancellation is, or is not, in the best interests of the child" (emphasis added). Sometimes the best decision "about" whether cancellation is, or is not, in the best interests of the child may be that it is neither. It is not necessary to canvass these possibilities further because the issue in this case is not whether the Tribunal failed to go far enough to discharge its obligation to conduct its review having regard to the interests of all the appellant's children; rather, the point is that the Tribunal, by reason of its misunderstanding of the effect of s 500(6H), failed to address one of the primary considerations affecting the decision required of it. It failed to conduct the review required by the Act, and thereby fell into jurisdictional error[39]. Section 500(6H) and the power to adjourn Because s 500(6H) did not apply to preclude the reception by the Tribunal of information concerning the appellant's two youngest children, it is, strictly speaking, unnecessary to determine the question whether the Tribunal could and should have granted him an adjournment to enable the Tribunal to examine Ms Fatai's evidence at a later date and so deal with it on the merits. In addition, no adjournment of the hearing before the Tribunal was sought by the appellant's representative. On behalf of the Minister, it was said that this is a further reason not to deal with the adjournment issue. It is a matter for concern, however, that the failure on the part of the appellant's representative to seek an adjournment seems to have reflected a view, common to all parties, that s 500(6H), as understood in Goldie[40], left the Tribunal no discretion to grant an adjournment to enable the parties to deal with Ms Fatai's "surprising" revelation. Further, the effect of s 500(6H) upon the power of the Tribunal to grant an adjournment was one of the principal issues agitated by the parties in this Court. In these circumstances, it is desirable that this Court should express its opinion on the issue[41]. In particular, it is desirable to make it clear that s 500(6H) does not fetter the power of the Tribunal to grant an adjournment in order to ensure that its review is conducted thoroughly and fairly. The source of the view that s 500(6H) restricts the power of the Tribunal to adjourn proceedings is the passage in Goldie[42] where Gray J said: "Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister ... at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing." Three points may be made in relation to this passage. First, the reference in Goldie to the "crystallisation" of an entitlement to rely on information is an inaccurate paraphrase of the language of s 500(6H). Section 500(6H) does not, on any view of its language, deny an applicant an "entitlement" to rely upon evidence adduced by the Minister or elicited by the Tribunal itself, if that evidence happens to be supportive of the applicant's case. Secondly, while s 500(6H) is obviously concerned to prevent the Minister being taken by surprise by late changes to an applicant's case, it does not suggest an intention to fetter the power of the Tribunal to grant an adjournment where the fair conduct of the review hearing requires it and where the applicant has not sought to surprise the Minister. Nothing in the text of s 500(6H) warrants the imposition of a rigid limit upon the otherwise flexible power of the Tribunal to ensure that the proceedings before it are conducted fairly to all parties. Thirdly, to say that the resumption of a hearing is not a new hearing is distinctly not to say that the notice requirements of s 500(6H) may not be satisfied by the exercise by the Tribunal of its power of adjournment where an appropriate case is made out for the exercise of its undoubted power in that regard under ss 33 and 40 of the AAT Act. If either party had sought an adjournment on the ground that it was surprised and disadvantaged by Ms Fatai's evidence and required an adjournment of the hearing to meet that disadvantage, then the question whether or not the fair determination of the application for review could only be achieved by granting the adjournment would have arisen for the Tribunal to resolve. It was argued by the Minister that applicants for review might cynically withhold oral evidence in order to have it presented later in the course of a hearing so as to precipitate an adjournment with its attendant delay. It may be noted immediately that delaying tactics of this kind would expose an applicant to the risk of a deemed affirmation of the decision under review by operation of s 500(6L). Section 500(6L) provides that, if the Tribunal has not made a decision upon the review within 84 days after the day on which the applicant was notified of the decision under review, the Tribunal is taken, at the end of that period, to have decided to affirm the decision under review. In any event, there is no reason to suppose that, in exercising its discretion, the Tribunal would not be mindful of the time frame established by s 500(6L) of the Act for the determination of review applications. In summary, the purpose of ensuring that reviews under s 500 are dealt with expeditiously does not require a blanket limitation on the Tribunal's power to adjourn a hearing. Section 500(6H) should not be given an operation beyond that warranted by its language in order to pre-empt the hypothetical possibility that the Tribunal might grant adjournments, supinely or unreasonably, to an applicant seeking to take cynical advantage of surprises occasioned by information introduced late in support of his or her case. Conclusion and orders The appeal should be allowed. Paragraphs 2 and 3 of the orders of the Full Court of the Federal Court dated 8 August 2013 should be set aside and, in their place, it should be ordered that: (a) the appeal to that Court be allowed; (b) the order of Buchanan J dated 18 April 2013 be set aside and in its place order that: (i) a writ of certiorari issue directed to the second respondent, quashing its decision made on 14 November 2012; (ii) a writ of prohibition issue directed to the first respondent, prohibiting him from giving effect to the decision of the second respondent made on 14 November 2012; (iii) a writ of mandamus issue directed to the second respondent, requiring it to determine the applicant's application for review according to law; and (iv) the first respondent pay the applicant's costs; and (c) the first respondent pay the appellant's costs in that Court. The first respondent is to pay the appellant's costs of the appeal to this Court.

Criminal law – Murder – Defences – Provocation – Where male Caucasian deceased made sexual advances towards male Aboriginal appellant at appellant's home in presence of appellant's de facto wife and family – Where open to jury to find that appellant killed deceased having lost self-control following advances – Where provocation left to jury at trial and appellant convicted of murder – Where Court of Criminal Appeal ("CCA") dismissed appeal against conviction because it concluded provocation should not have been left to jury as evidence, taken at highest, could not satisfy objective limb of provocation – Whether CCA erred in so concluding – Relevance of contemporary attitudes to sexual relations. Criminal law – Appeal – Appeal against conviction – Application of proviso – CCA dismissed appeal by applying proviso to s 353(1) of Criminal Law Consolidation Act 1935 (SA) – Where CCA not invited to apply proviso by prosecution – Whether CCA erred in invoking and applying proviso of its own motion. Words and phrases – "minimum powers of self-control", "ordinary person", "partial defence". Criminal Law Consolidation Act 1935 (SA), s 353(1).

Corporations – First and second respondents provided financial advice to appellants – First and second respondents found to have contravened various provisions of Corporations Act 2001 (Cth) ("Act") and Australian Securities and Investments Commission Act 2001 (Cth) – Whether liability should be limited to proportion of appellants' loss, having regard to comparative responsibility of other parties – Whether application of Div 2A of Pt 7.10 of Act limited to claims based on contravention of s 1041H of Act or also applies to other causes of action. Procedure – Costs – Costs order against non-party – Where professional indemnity insurer had conduct of respondents' defence at trial and made decision to appeal – Where insurer acting in own interests by bringing appeal – Where respondents' cover under insurance policy was capped – Whether circumstances justified costs order against insurer who was a non-party to proceedings. Words and phrases – "apportionable claim", "proportionate liability". Corporations Act 2001 (Cth), ss 1041H, 1041I(1B), 1041L, 1041N(1); Pt 7.10, Div 2A. Australian Securities and Investments Commission Act 2001 (Cth), ss 12DA, 12GP(1); Pt 2, Div 2, subdiv

Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger's brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability. Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath. Words and phrases – "accident", "duty of care", "incident", "present at the scene of the accident when the accident occurred", "proximity", "reasonably foreseeable". Civil Liability Act 1936 (SA), ss 33, 53(1)(a).

Administrative law – Natural justice – Bias – Reasonable apprehension of bias – Incompatibility of roles – Where respondent made order under s 84P(e) of Domestic Animals Act 1994 (Vic) for destruction of appellant's dog – Where there was panel hearing and deliberation prior to decision being made – Where member of panel had been involved in prosecuting related criminal charges – Whether fair-minded observer might reasonably apprehend that panel member might not bring impartial mind to decision – Whether interest of panel member might affect decision-making of others on panel. Words and phrases – "conflict of interest", "incompatibility of roles". Domestic Animals Act 1994 (Vic), s 84P(e).

Practice and procedure – Contempt of court – Discovery – Where proceeding brought under r 75.06(2) of Supreme Court (General Civil Procedure) Rules 2005 (Vic) ("Rules") to punish appellant for contempt of court – Where appellant is a corporation – Whether a corporation may be ordered to make discovery under r 29.07(2) of Rules in a contempt proceeding – Whether a contempt proceeding is a criminal proceeding or a civil proceeding. Words and phrases – "accusatorial proceeding", "civil proceeding", "companion principle", "criminal proceeding". Civil Procedure Act 2010 (Vic), s 3, Pt 4.3. Evidence Act 2008 (Vic), s 187. Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 29.07(2), O 75.

Property – Leases – Section 92(1)(d) of Liquor Act 2007 (NSW) provides that licensee must not grant lease over certain parts of licensed premises without approval of Independent Liquor and Gaming Authority – Where lease granted in breach of s 92(1)(d) – Whether lease void and unenforceable. Contracts – Statutory illegality – Where lease granted in contravention of s 92(1)(d) of Liquor Act 2007 (NSW) – Where Liquor Act imposes statutory penalty for breach – Whether lease void and unenforceable. Liquor Act 2007 (NSW), s 92(1)(d). Retail Leases Act 1994 (NSW), ss 6A, 8(1), 16(1), 16(2).

Migration – Unauthorised maritime arrivals – Section 5AA(1A) of Migration Act 1958 (Cth) provides that person is an unauthorised maritime arrival if "a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival" – Whether s 23 of Acts Interpretation Act 1901 (Cth) required "a parent" to be read as "both parents". Practice and procedure – Summary determination of action without trial – Whether affidavit evidence sufficient to create controversy which should be resolved by litigation – Where there would be no utility in a trial. Words and phrases – "unauthorised maritime arrival". Acts Interpretation Act 1901 (Cth), s 23. Migration Act 1958 (Cth), ss 5AA(1A), 46A(1).

Alqudsi v The Commonwealth Alqudsi v The Queen Remitter summons – Plaintiff sought declaratory relief that s 7(1)(e) of Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) is invalid in context of pending criminal proceedings – Whether proceedings should be remitted. Application for removal – Whether sufficient cause shown to remove pending criminal proceedings – Relevance of principle against fragmentation of pending criminal proceedings. Words and phrases – "fragmentation of pending criminal proceedings", "sufficient cause". Judiciary Act 1903 (Cth), ss 40(1)-(2), 44(1).

Taxation – Income tax – Allowable deductions – Charges were imposed on holder of electricity transmission licence pursuant to State regulatory framework – Taxpayer purchased assets of electricity transmission business including electricity transmission licence – Taxpayer required to pay charges to State of Victoria under asset sale agreement – Whether payments of charges were outgoings "of capital, or of a capital nature" and therefore not tax deductible. Words and phrases – "capital", "capital account", "of a capital nature", "revenue account". Electricity Industry Act 1993 (Vic), ss 163A, 163AA. Income Tax Assessment Act 1997 (Cth), s 8-1(2)(a).

Criminal law – Appeal – Appeal against conviction – Fair trial – Procedural fairness – Jury disclosed interim votes and interim voting patterns to judge – Judge did not disclose jury's interim votes or voting patterns to counsel – Judge's obligation to inform counsel of precise terms of jury's questions – Whether appellant denied procedural fairness by non-disclosure of jury's interim votes and voting patterns – Whether jury's interim votes and voting patterns relevant consideration to issue before court – Whether jury's interim votes and voting patterns relevant to discretion to permit majority verdict or discharge jury – Whether disclosure of jury's interim votes and voting patterns necessary for proper performance of jury's functions. Criminal law – Confidentiality of jury deliberations – Directions to jury – Directions not to communicate or reveal interim votes or interim voting patterns to court – Whether appropriate for trial judge to inquire of jury as to interim votes or voting patterns. Words and phrases – "capacity to influence the trial judge's exercise of discretion", "confidentiality of jury deliberations", "interim votes", "interim voting patterns", "necessary for the proper performance of the jury's functions", "procedural fairness". Jury Act 1995 (Q), ss 50, 59A, 60(1), 70. FRENCH CJ. I agree with Gordon J. KIEFEL J. I agree with Gordon J. BELL J. I agree with Gordon J. GAGELER J. I agree with Gordon

Estoppel – Issue estoppel – Appellant employed at abattoir operated by respondent – Appellant subsequently employed by third party providing labour services to respondent – Appellant complained to Fair Work Ombudsman that entitlements not paid upon termination of employment – Fair Work Ombudsman commenced proceedings in Federal Court of Australia against respondent – Federal Court determined respondent, not third party, was appellant's employer – Appellant commenced proceedings claiming damages from respondent for personal injury sustained at abattoir – Appellant argued third party, not respondent, was his employer – Respondent argued appellant was issue estopped by reason of Federal Court proceedings from denying that respondent was appellant's employer – Whether appellant was issue estopped by reason of declarations and orders made in Federal Court proceedings – Whether appellant was privy in interest with Fair Work Ombudsman in Federal Court proceedings. Words and phrases – "claim under or through", "estoppel", "issue estoppel", "on behalf of", "privity of interest", "privy in interest".

Criminal law – Appeal – Appeal against conviction – Trial by judge alone – Application of Criminal Appeal Act 1912 (NSW), s 6(1) in appeal from trial by judge alone – Application of "proviso". Criminal law – Appeal – Appeal against sentence – Aggravating and mitigating circumstances – Onus and standard of proof – Where not proved beyond reasonable doubt that appellant brought murder weapon to scene and not proved on balance of probabilities that deceased brought murder weapon to scene – Whether sentencing judge bound to take view of facts most favourable to offender. Words and phrases – "miscarriage of justice", "substantial miscarriage of justice". Crimes Act 1900 (NSW), s 23. Criminal Appeal Act 1912 (NSW), ss 5, 6(1). Criminal Procedure Act 1986 (NSW), s 133. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21

AstraZeneca AB v Apotex Pty Ltd AstraZeneca AB v Watson Pharma Pty Ltd AstraZeneca AB v Ascent Pharma Pty Ltd Intellectual property – Patents – Patents Act 1990 (Cth) – Inventive step – Obviousness – Patent disclosing method of treatment for hypercholesterolemia – Administration of rosuvastatin and its pharmaceutically acceptable salts at low dosage range in claims – Whether invention obvious in light of common general knowledge together with two prior art documents considered separately where another prior art document disclosed alternative compound – Whether prior art documents were ascertained, understood and regarded by person skilled in relevant art as relevant – Whether permissible to use information from other documents to determine relevance of information in prior art document – Use of prior art not within common general knowledge. Words and phrases – "ascertained, understood and regarded as relevant", "considered separately", "inventive step", "obviousness", "person skilled in the relevant art". Patents Act 1990 (Cth), s 7(2), (3), s 18(1)(b).

Torts – Negligence – Personal injury – Liability – Inferential fact-finding – Where appellant suffered severe injuries when he fell from train operated by respondent – Where primary judge found appellant fell from train as consequence of respondent's negligence – Whether New South Wales Court of Appeal erred in rejecting primary judge's finding on basis of alternative hypotheses about appellant's fall, not entailing negligence by respondent, being equally open – Whether Court of Appeal erred in rejecting primary judge's finding on basis appellant failed to exclude other possible explanations for known facts – Whether Court of Appeal erred in rejecting primary judge's finding on basis appellant failed to exclude hypothesis not explored in evidence. Words and phrases – "inferential fact-finding".

Statutes – Interpretation – Amending Acts – Independent Commission Against Corruption Act 1988 (NSW) – Meaning of corrupt conduct – Where High Court decision in Independent Commission Against Corruption v Cunneen [2015] HCA 14 declared meaning of "corrupt conduct" in ICAC Act – Where effect of Cunneen was to make invalid some past acts of respondent – Where Pt 13 of Sched 4 to ICAC Act inserted to validate otherwise invalid acts done by respondent before decision in Cunneen – Whether Pt 13 invalid. Constitutional law – Validity of legislation – Retrospective amendments – Relevance of Kable principle – Relevance of Kirk principle. Words and phrases – "corrupt conduct", "deem", "Kable principle", "legal consequences", "retrospective validity". Independent Commission Against Corruption Act 1988 (NSW), Sched 4, Pt 13, cll 34, 35.

Limitation of actions – When cause of action accrues – Negligence – Damage – Statute abolished cause of action unless accrued before 1 January 1987 – Whether compensable damage suffered upon changes to mesothelial cells following exposure to asbestos – Whether mesothelioma inevitable – Relevance of hindsight – Whether "trigger" for development of disease endogenous or exogenous. Torts – Negligence – Damage – Dust diseases – Mesothelioma – Whether changes to mesothelial cells compensable damage. Words and phrases – "compensable damage", "endogenous", "exogenous", "hindsight", "mesothelial cell changes", "trigger". Workers Rehabilitation and Compensation Act (NT), ss 52(1), 189(1).

Constitutional law – Implied freedom of communication on governmental and political matters – Provisions of Election Funding, Expenditure and Disclosures Act 1981 (NSW) impose cap on political donations, prohibit property developers from making such donations, and restrict indirect campaign contributions – Whether provisions impermissibly burden implied freedom of political communication. Words and phrases – "appropriate and adapted", "deference", "implied freedom of communication on governmental and political matters", "margin of appreciation", "proportionality". Constitution, ss 7, 24, 62, 64, 128. Election Funding, Expenditure and Disclosures Act 1981 (NSW), Pt 6, Divs 2A, 4A, s 96

Administrative law – Procedural fairness – Refugee Status Assessment – Independent Merits Review ("IMR") – Where first reviewer conducted interview with first respondent but did not complete IMR – Where second reviewer completed IMR without interview but with regard to transcript and audio recording of first reviewer's interview – Where first respondent not informed of change in identity of reviewer – Where second reviewer formed adverse view of first respondent's credibility – Whether first respondent denied procedural fairness. Words and phrases – "legitimate expectation", "opportunity to be heard", "oral hearing", "procedural fairness", "unfairness".

Statutory interpretation – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. Constitutional law (Cth) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution. Constitutional law (Cth) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts. Words and phrases – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction". Constitution, Ch III, s 122. Bail Act (NT), ss 16, 33. Fines and Penalties (Recovery) Act (NT), ss 9, 12B, 13, 21, 22. Police Administration Act (NT), Pt VII, Div 4AA; ss 123, 137, 138. Police Administration Regulations (NT), reg 19

Practice and procedure – High Court of Australia – Extension of time – Migration law – Migration Act 1958 (Cth), s 486A imposes 35 day limit on application for remedy in High Court's original jurisdiction in relation to migration decision – High Court may extend 35 day period if necessary in the interests of the administration of justice – Application for order to show cause in relation to migration decision made 16 months out of time – Whether order extending 35 day period should be made – Whether case for extension of time exceptional. Words and phrases – "interests of the administration of justice". Migration Act 1958 (Cth), s 486

Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for registration of a foreign judgment – Where appellant obtained judgment in Tokyo District Court against first respondent as guarantor of certain bonds – Where appellant obtained order from Supreme Court of New South Wales that the foreign judgment be registered under Foreign Judgments Act 1991 (Cth) – Whether first respondent entitled to foreign State immunity from jurisdiction under s 9 of Foreign States Immunities Act 1985 (Cth) – Whether exception in s 11(1) of Foreign States Immunities Act for proceedings concerning "commercial transactions" applies. Public international law – Foreign State immunity – Immunity from execution – Where appellant obtained garnishee order against Australian bank where first respondent held bank accounts – Whether first respondent entitled to foreign State immunity from execution under s 30 of Foreign States Immunities Act – Whether property "in use" or "set aside" – Whether exception in s 32(1) of Foreign States Immunities Act for "commercial property" applies. Statutory interpretation – Implied repeal – Where Foreign States Immunities Act provides for foreign State immunity from jurisdiction in certain proceedings and Foreign Judgments Act requires a foreign judgment be registered on satisfaction of applicable criteria – Whether the operations of the two statutes are inconsistent such that the earlier statute is impliedly repealed to the extent of inconsistency. Procedure – Service – Registration of foreign judgments – Where judgment debtor in registration proceedings is a foreign State – Whether Pt III of Foreign States Immunities Act requires service of summons prior to registration order being made under Foreign Judgments Act. Words and phrases – "commercial property", "commercial purposes", "commercial transactions", "concerns", "in use", "proceeding", "restrictive doctrine", "set aside". Foreign Judgments Act 1991 (Cth), ss 6, 7, 17. Foreign States Immunities Act 1985 (Cth), ss 9, 11(1), 11(3), 27(1), 30, 32(1), 32(3), 38, 41, Pt III. Uniform Civil Procedure Rules 2005 (NSW), Pt 53.

Employment law – Employer and employee – Independent contractor – Sham arrangements – Fair Work Act 2009 (Cth), s 357(1) prohibits representation by employer to employee that contract of employment under which individual is employed is contract for services – First respondent represented that employees performed work as independent contractors under contracts for services with second respondent – Whether first respondent contravened s 357(1). Words and phrases – "contract for services", "independent contractor", "sham arrangement". Fair Work Act 2009 (Cth), s 357.

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate Practice and procedure – Civil penalties – Whether submissions as to agreed penalty permissible – Whether Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 applies to civil penalty proceedings. Words and phrases – "agreed penalty", "appropriate penalty", "civil penalty". Building and Construction Industry Improvement Act 2005 (Cth), ss 38, 49.

Torts – Negligence – Contributory negligence – Section 47 of Civil Liability Act 1936 (SA) ("Act") presumes contributory negligence of injured person who relied on care and skill of intoxicated person and who was aware or ought to have been aware that other person was intoxicated – Section 47(2)(b) of Act establishes exception where injured person could not reasonably be expected to have avoided risk – Where respondent travelled in car with intoxicated driver and suffered serious injuries – Whether respondent could reasonably be expected to have avoided risk – Proper construction of s 47(2)(b) of Act – Relevance of respondent's capacity to make reasonable assessment of relative risks – Relevance of subjective characteristics. Torts – Negligence – Contributory negligence – Section 49 of Act presumes contributory negligence where person injured in motor vehicle accident not wearing seatbelt – Where respondent was not wearing seatbelt and suffered serious injuries in motor vehicle accident – Whether appellant's erratic driving prevented respondent from fastening seatbelt – Whether factual findings overturned on appeal – Relevance of "act of a stranger" defence. Words and phrases – "act of a stranger", "could not reasonably be expected to have avoided the risk", "reasonable assessment of risk". Civil Liability Act 1936 (SA), ss 3, 44(1), 47, 49.

Commissioner of Taxation v Australian Building Systems Pty Ltd (In Liquidation) Commissioner of Taxation v Muller and Dunn as Liquidators of Australian Building Systems Pty Ltd (In Liquidation) Taxes and duties – Income tax and related legislation – Obligations of agents and trustees – Where liquidators caused company to sell property resulting in a capital gain – Whether retention obligation in s 254(1)(d) of Income Tax Assessment Act 1936 (Cth) arises before assessment – Whether liquidators are trustees of trust estate for the purposes of Div 6 of Pt III of Act. Statutes – Construction – Same or similar phrases within a statute – Whether construction of a phrase in one provision controls construction of the same or similar phrase in another provision – Relevance of context and purpose. Words and phrases – "agent", "answerable as taxpayer", "assessment", "capital gain", "collecting provision", "due", "due and payable", "income, profits or gains", "is or will become due", "owing", "sufficient", "trustee". Income Tax Assessment Act 1936 (Cth), ss 6(1), 254, 255, Pt III, Div 6. Income Tax Assessment Act 1997 (Cth), ss 5-5, 104-10.

Migration – Visa cancellation – Migration Act 1958 (Cth), s 116(1)(b) provides that Minister may cancel visa if satisfied that visa holder has not complied with condition of visa – Where delegate cancelled plaintiff's visa on satisfaction that plaintiff had breached visa condition – Where delegate's satisfaction formed by process of fact-finding tainted by non-compliance of third party with imperative statutory duty – Whether delegate failed to make obvious inquiry as to critical fact – Whether decision affected by jurisdictional error. Migration – Original jurisdiction of High Court – Where plaintiff's application for remedy made outside time limit in Migration Act 1958 (Cth), s 486A(1) – Operation of s 486A. Words and phrases – "extension of time", "imperative duty", "jurisdictional error". Constitution, s 75(v). Education Services for Overseas Students Act 2000 (Cth), s 19. Migration Act 1958 (Cth), ss 116(1)(b), 119(1), 486

Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander Slip rule – Costs order – Special leave undertaking that insurer bear costs of application and appeal to High Court – Insurer successful in appeal – Whether costs order in orders of court appealed from should have been set aside. Words and phrases – "accidental slip or omission", "test case". High Court Rules 2004 (Cth), r 3.01.2.

Civil procedure – Costs – Where appellant succeeded on certain issues on appeal but unsuccessful in overall outcome – Whether costs order apportioning costs between parties or order that each party bear their own costs appropriate. Words and phrases – "costs follow the event".

Plaintiff M68/2015 v Minister for Immigration and Border Protection Migration – Regional processing – Where plaintiff was "unauthorised maritime arrival" upon entry into Australian migration zone – Where plaintiff was removed to regional processing centre on Nauru pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangement in relation to regional processing functions – Whether plaintiff was detained by Commonwealth at Nauru Regional Processing Centre – Whether principles in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 apply. Constitutional law (Cth) – Executive power of Commonwealth – Whether conduct of Commonwealth authorised by s 61 of Constitution – Whether conduct of Commonwealth authorised by s 198AHA of Migration Act. Constitutional law (Cth) – Legislative power of Commonwealth – Whether s 198AHA of Migration Act is a law with respect to aliens – Whether s 198AHA of Migration Act is a valid law of Commonwealth. Procedure – Standing – Whether plaintiff has standing to challenge lawfulness of conduct of Commonwealth with respect to plaintiff's past detention. Private international law – Act of State doctrine – Where plaintiff's detention imposed by laws of Nauru – Whether Australian court should pronounce on constitutional validity of legislation of another country. Words and phrases – "aliens power", "constraints upon the plaintiff's liberty", "control", "detention", "effective control", "memorandum of understanding", "non-statutory executive power", "regional processing country", "regional processing functions". Constitution, ss 51(xix), 61. Migration Act 1958 (Cth), ss 198AB, 198AD, 198