Cases and authorities

Trusts – Trustees' powers – Power of advancement – Where trust property included shares in a company – Where value of shares recorded in "asset revaluation reserve" – Where trustee made resolution to distribute entire asset revaluation reserve to specified beneficiaries – Where trustee covenanted to pay specified beneficiaries on demand – Whether valid exercise of power to "advance" and "apply" trust capital or income – Whether trustee indebted to specified beneficiaries – Whether action for money had and received maintainable. Words and phrases – "advance", "apply", "pay", "pay or apply", "raise". Trustee Act 1925 (NSW), s 44. Trustee Act 1925 (UK), s 32.

Criminal law – Criminal liability – Criminal Code (Q), s 317(b) – Intent to cause specific result – Where appellant HIV positive – Where appellant lied to complainant about his HIV status – Where complainant diagnosed with HIV after frequent unprotected sex with appellant – Whether element of intent to cause specific result satisfied – Whether intent could be inferred from frequency of conduct giving rise to risk of specific result – Whether intent proved by evidence of awareness of risk. Words and phrases – "awareness of risk", "intent", "motive", "proof of intention", "recklessness", "serious disease", "specific intent". Criminal Code (Q), ss 23, 317(b).

Federal jurisdiction – Application of State laws – Service and Execution of Process Act 1992 (Cth) ("SEPA"), s 89(4) – Where appellant arrested in Victoria pursuant to warrant issued in New South Wales – Where order made under s 83(8)(b) of SEPA to return appellant in custody to New South Wales – Where appellant charged with attempting to escape lawful custody under s 310D of Crimes Act 1900 (NSW) ("Crimes Act") – Whether s 89(4) of SEPA applied s 310D of Crimes Act as surrogate federal law – Whether content of applied State law altered – Whether prosecution required to prove all elements of offence under State law. Words and phrases – "competent authority", "correctional centre", "court", "escape lawful custody", "inmate", "law of a State", "surrogate federal law". Constitution, ss 51(xxiv), 52(i). Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4. Judiciary Act 1903 (Cth), ss 68, 79. Service and Execution of Process Act 1992 (Cth), ss 8(4), 81A, 82, 83, 89. Children (Detention Centres) Act 1987 (NSW), s 33(1). Crimes Act 1900 (NSW), Pt 1A, ss 310A, 310D. Crimes (Administration of Sentences) Act 1999 (NSW), ss 3(1), 4. Interpretation Act 1987 (NSW), ss 5, 12.

Evidence – Admissibility and relevance – Evidence (National Uniform Legislation) Act (NT), ss 97(1)(b), 137 – Where appellant charged with indecent dealing with child and sexual intercourse with child – Where tendency evidence given by complainant that appellant ran his hand up complainant's leg – Where evidence tendered of complaints made by complainant concerning appellant – Whether probative value of evidence assessed on assumption that jury would accept evidence – Whether trial judge should have regard to credibility of witness or reliability of evidence in assessing probative value of evidence – Whether evidence from complainant adduced to show accused's sexual interest can have significant probative value. Words and phrases – "complaint evidence", "credibility", "danger of unfair prejudice", "probative value", "relevance", "reliability", "significant probative value", "tendency evidence". Evidence (National Uniform Legislation) Act (NT), ss 55, 56, 65, 66, 97(1)(b), 101, 137.

Statutes – Interpretation – Meaning of "land" – Meaning of "Crown lands" – Whether "Crown lands" in s 11(1) of Valuation of Land Act 2001 (Tas) includes seabed and waters above it – Whether s 11(1) of Valuation of Land Act and s 2 of Crown Lands Act 1976 (Tas) in pari materia. Words and phrases – "Crown lands", "in pari materia", "including", "land". Acts Interpretation Act 1931 (Tas), s 46. Crown Lands Act 1976 (Tas), ss 2, 29. Local Government Act 1993 (Tas), Pt 9, s 87(1). Valuation of Land Act 2001 (Tas), ss 3, 11.

Legal practitioners – Negligence – Advocate's immunity from suit – Advice given out of court – Where advice given by advocate led to agreed settlement of proceedings – Where terms of settlement reflected in consent orders made by court and court's noting of agreement – Where negligence proceedings issued in respect of advice – Whether advocate immune from suit. High Court – Stare decisis – Whether D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered. Words and phrases – "advocate's immunity", "collateral attack", "consent orders", "finality", "intimately connected", "judicial determination", "judicial power", "statement of agreed facts". Civil Procedure Act 2005 (NSW), ss 90, 133(1). Uniform Civil Procedure Rules 2005 (NSW), Pt 36.

Criminal law – Sentencing – Manslaughter – Excessive self-defence – Where deceased a police officer – Where appellant taken to have shot deceased in honest but mistaken belief that deceased was person posing as police officer with intent to rob appellant – Whether sentencing judge erred in assessment of objective gravity of offence by taking into account absence of circumstance which if present would render subject offence a different offence – Relevance of R v De Simoni (1981) 147 CLR 383. Criminal law – Sentencing – Totality principle – Where appellant convicted of manslaughter and wounding with intent to cause grievous bodily harm – Whether open to sentencing judge to impose wholly concurrent sentences – Whether appellate court erred in partially accumulating sentences – Whether sentence imposed manifestly inadequate. Words and phrases – "accumulation", "concurrency", "De Simoni principle", "manifestly inadequate", "objective gravity", "totality". Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(a), 21A(1).

Negligence – Duty of care – Scope of duty of care – Where solicitor received instructions from testator to prepare a will – Where entirety of testator's estate was to pass to respondent – Where testator's daughter brought successful proceedings under Testator's Family Maintenance Act 1912 (Tas) ("TFM Act") for provision out of testator's estate – Whether duty of care owed by solicitor to testator extended to advising testator of possible steps to avoid exposing testator's estate to a claim under TFM Act. Negligence – Duty of care – Existence of duty of care – Whether solicitor owed duty of care to intended beneficiary under testator's will – Whether Hill v Van Erp (1997) 188 CLR 159 applied – Whether interests of testator coincident with interests of intended beneficiary. Negligence – Causation – Whether, but for solicitor's failure to give advice, respondent would have received entirety of testator's estate – Whether relevant loss is a loss of chance. Words and phrases – "coincident", "duty of care", "interests of the intended beneficiary", "interests of the testator", "loss of a chance", "testamentary intention". Civil Liability Act 2002 (Tas), s 13(1)(a). Testator's Family Maintenance Act 1912 (Tas).

Workers compensation – Where employee vaccinated in course of employment and later felt unwell, described as "vertigo" – Where evidence did not establish nature and incidents of any physiological or psychiatric change – Whether employee suffered "injury" within meaning of s 4(1) of Safety, Rehabilitation and Compensation Act 1988 (Cth). Words and phrases – "ailment", "disease", "disturbance of the normal physiological state", "injury", "injury (other than a disease)", "physiological change", "psychiatric change", "sudden or identifiable". Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 14(1).

Day v Australian Electoral Officer for the State of South Australia Madden v Australian Electoral Officer for the State of Tasmania Constitutional law – Election of Senators – Validity of provisions of Commonwealth Electoral Act 1918 (Cth) as amended by Commonwealth Electoral Amendment Act 2016 (Cth) – Whether provisions for voting above or below dividing line on ballot paper prescribed more than one method of choosing Senators contrary to s 9 of Constitution – Whether indicating vote for party or group above dividing line contrary to requirement in s 7 of Constitution that Senators be "directly chosen by the people" – Whether prescription of "Droop quota" resulted in effective disenfranchisement – Whether instructions on ballot paper infringed implied freedom of political communication or system of representative government. Words and phrases – "above the line", "ballot paper", "below the line", "directly chosen by the people", "dividing line", "Droop quota", "free and informed vote", "group voting ticket", "method of choosing senators", "preferential voting". Constitution, ss 7, 9 and 24. Commonwealth Electoral Act 1918 (Cth), ss 4(1), 123, 124, 126, 168, 169, 209(1), 210, 214, 214A, 239, 268, 268A, 269, 272 and 273.

Bell Group N.V. (in liquidation) v Western Australia W.A. Glendinning & Associates Pty Ltd v Western Australia Maranoa Transport Pty Ltd (in liq) v Western Australia Constitutional law – Inconsistency between Commonwealth and State laws – Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA) – Where rights and obligations arose and had accrued to Commonwealth under Commonwealth law prior to commencement of State law – Where State law purports to create scheme under which Commonwealth tax debts stripped of characteristics ascribed to them by Income Tax Assessment Act 1936 (Cth) and Taxation Administration Act 1953 (Cth) – Whether State law invalid by reason of s 109 of Constitution – Whether State law alters, impairs or detracts from operation of Commonwealth law – Whether provisions can be read down or severed – Whether State law invalid in its entirety. Constitutional law – Standing – Where Attorney-General of Commonwealth intervened generally in support of plaintiffs – Whether plaintiffs have standing in their own right to challenge validity of State law. Words and phrases – "accrued rights", "alter, impair or detract from", "inconsistency", "justiciable controversy", "reading down", "severance", "standing". Constitution, s 109. Income Tax Assessment Act 1936 (Cth), ss 177, 208, 209, 215, 254. Taxation Administration Act 1953 (Cth), Sched 1, ss 255-5, 260-45, 350-10(1). Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2015 (WA).

Torts – Negligence – Personal injury – Breach of duty of care – Duty to take precautions against risk – Where first respondent seriously injured in crash of helicopter manufactured by appellant – Where crash resulted from defect caused by third party – Where helicopter subject to multiple routine inspections but defect not detected – Whether appellant's maintenance manual for helicopter provided sufficient instruction to facilitate detection of defect – Whether appellant breached duty of care. Torts – Negligence – Causation – Where majority of Court of Appeal found multiple possible causes of damage suffered – Whether open to majority of Court of Appeal to find one particular possibility more likely to have occurred than other possibilities – Whether causation established by failure to take precautions against risk other than that which in fact occurred. Appeal – Rehearing – Where primary judge drew inferences and made findings of fact based on lay and expert evidence – Whether majority of Court of Appeal erred by overturning primary judge's findings of fact. Words and phrases – "causation", "contrary to compelling inferences", "glaringly improbable", "incontrovertible facts or uncontested testimony", "real review". Civil Liability Act 2003 (Q), ss 9(1)(c), 12. Civil Aviation Regulations 1988 (Cth), regs 31, 42V(1), 42

Criminal law – Sentencing – Where appellant appealed against severity of sentences – Where additional material produced by appellant admitted on "usual basis" that it may be taken into account if appellate court came to re-sentence – Where additional material contained evidence inconsistent with appellant's case at sentence hearing – Where appellate court found error, engaged in re-sentencing appellant and refused to take into account additional material – Whether miscarriage of justice occasioned. Words and phrases – "fresh evidence", "miscarriage of justice", "power of remittal", "re-sentencing discretion", "supplemental powers", "usual basis". Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3), 12.

Contract – Collateral contract – Where tenants held five year leases under which they operated two restaurants – Where clause of leases required landlord to give notice that leases were to be renewed or continued or the premises were to be vacated – Where in course of negotiations for further leases landlord made statement to tenants that they would be "looked after at renewal time" – Where landlord required tenants to vacate premises on expiration of leases – Whether statement gave rise to collateral contract – Whether statement promissory in nature – Whether obligation uncertain. Estoppel – Whether statement to tenants that they would be "looked after at renewal time" could give rise to estoppel – Whether statement capable of conveying to reasonable person that tenants would be offered further lease – Whether expectation acted upon by tenants. Appeals – Procedure – Where question whether statement amounted to binding contractual promise – Whether question of fact or question of law. Words and phrases – "certainty", "collateral contract", "oral contract", "promissory estoppel", "proprietary estoppel", "question of fact", "question of law", "reasonable correspondence", "remittal". Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.

Criminal law – Appeal – Directions to jury – Where appellant convicted of attempted murder after firing shots during confrontation with man with knife – Where appellant relied on defence of self-defence under ss 271(1), 271(2) and 272(1) of Criminal Code (Q) – Where prosecutor suggested in closing address existence of "consensual confrontation" negated self-defence – Where trial judge did not direct jury that no evidence of consent – Where no redirection sought by defence counsel on this issue – Whether trial judge failed to properly direct jury as to self-defence – Whether trial judge erred in failing to direct jury as to defence of mistake under s 24 of Criminal Code. Words and phrases – "assault", "consensual confrontation", "consent to assault", "mistaken belief", "self-defence". Criminal Code (Q), ss 24, 245, 271, 272.

Banker and customer – Rule against penalties – Consumer credit card accounts – Late payment fees – Where late payment fees were $35 and $20 – Where costs actually incurred by respondent upon failure by first appellant to make timeous payment of amounts owing were approximately $3 – Where late payment fees not genuine pre-estimates of damage – Where respondent alleged it could conceivably have incurred loss provision costs, collection costs and regulatory capital costs as a result of first appellant's default – Whether late payment fees penalties – Whether late payment fees extravagant, exorbitant or unconscionable – Whether late payment fees out of all proportion to interests damaged – Whether respondent's legitimate interests confined to reimbursement of expenses directly occasioned by first appellant's default. Contract – Rule against penalties – Essential characteristics of a penalty – Whether sum disproportionate to actual loss suffered amounts to a penalty – Whether sum incorporating loss too remote to be recoverable in action for damages amounts to a penalty – Relevance of Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1; [1915] AC 79. Trade practices – Consumer protection – Late payment fees – Unconscionable conduct – Unjust transactions – Unfair terms – Whether late payment fees unconscionable, unjust or unfair. Precedent – Apex courts of foreign jurisdictions – Status of unwritten law of United Kingdom in Australia. Words and phrases – "exorbitant", "extravagant", "genuine pre-estimate", "in terrorem", "late payment fees", "liquidated damages", "out of all proportion", "penalty", "unconscionable", "unconscionable conduct", "unfair terms", "unjust transactions". Australian Securities and Investments Commission Act 2001 (Cth), ss 12BF, 12BG, 12CB, 12CC. National Consumer Credit Protection Act 2009 (Cth), Sched 1 s 76. Fair Trading Act 1999 (Vic), ss 8, 8A, 32W, 32

Minister for Immigration and Border Protection v SZSSJ Minister for Immigration and Border Protection v SZTZI Migration – Refugees – Protection visas – Procedural fairness – Where SZSSJ and SZTZI ("respondents") applied for protection visas – Where respondents' personal information published on Department of Immigration and Border Protection website and accessed from 104 unique IP addresses – Where IP addresses known to Department – Where Department conducted International Treaties Obligations Assessments ("ITOAs") to determine impact of publication on non-refoulement obligations – Where ITOAs conducted in accordance with publicly available "Procedures Advice Manual" – Where Department notified respondents of ITOAs and instructed officers conducting ITOAs to assume personal information may have been accessed by authorities in countries where respondents feared persecution or other relevant harm – Where Department neither disclosed IP addresses nor provided unabridged report relating to disclosure of personal information – Whether obligation to afford procedural fairness applied to ITOA processes – Whether ITOA processes procedurally fair. Courts and judges – Jurisdiction – Federal Circuit Court of Australia – Whether respondents' claims to relief engaged jurisdiction of Court – Whether jurisdiction excluded by s 476(2)(d) of Migration Act 1958 (Cth). Words and phrases – "conduct preparatory to the making of a decision", "International Treaties Obligations Assessment", "privative clause decision", "procedural decision to consider whether to grant a visa or to lift the bar", "substantive decision to grant a visa or to lift the bar". Migration Act 1958 (Cth), ss 48B, 195A, 417, 474, 476.

Miller v The Queen Smith v The Queen Presley v Director of Public Prosecutions (SA) Criminal law – Criminal liability – Complicity – Extended joint criminal enterprise liability – Where appellants and fourth man involved in violent altercation, during which fourth man fatally stabbed victim – Where appellants tried with fourth man for murder – Where bases on which murder left to jury included extended joint criminal enterprise – Whether liability for murder on basis of extended joint criminal enterprise should have been left to jury – Whether extended joint criminal enterprise proper basis for conviction of murder. Criminal law – Appeal – Where appeal against conviction on ground jury verdict unreasonable or cannot be supported having regard to evidence – Where evidence appellants intoxicated – Whether Court of Criminal Appeal of Supreme Court of South Australia reviewed sufficiency of evidence. Criminal law – Criminal liability – Complicity – Extended joint criminal enterprise – Consideration of McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 in light of R v Jogee [2016] UKSC 8; [2016] 2 WLR 681; [2016] 2 All ER 1 – Whether doctrine of extended joint criminal enterprise liability should be confined or abandoned. High Court – Stare decisis – Whether McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 should be reopened and overruled. Words and phrases – "accessorial liability", "common purpose", "complicity", "extended common purpose", "extended joint criminal enterprise", "joint criminal enterprise", "review of sufficiency of evidence", "unreasonable verdict", "verdict not supported by the evidence".

Occupational health and safety – Statutory duty – Occupational Health and Safety Regulations 2007 (Vic), regs 3.1.1, 3.1.2, 3.1.3 – Duties of employers in relation to hazardous manual handling tasks – Where primary school teacher tasked to use step ladder to remove papier mâché displays from pin-board on classroom wall – Where displays unstable or unbalanced, or difficult to grasp and hold – Where task constituted hazardous manual handling task – Where in course of task teacher fell from step ladder and injured knee – Whether evidence capable of supporting cause of action for breach of statutory duty – Whether risk of injury amounted to risk of musculoskeletal disorder "associated with a hazardous manual handling task" – Whether sufficient evidence for jury to infer it was reasonably practicable for employer to identify task as involving hazardous manual handling. Statutes – Interpretation – Remedial legislation – Occupational Health and Safety Act 2004 (Vic) – Where Act and Regulations intended to protect employees against risk of injury in course of work – Where legislation imposes civil penalties on employers for breach of statutory duty – Whether fact of civil penalty requires narrow interpretation of provision. Words and phrases – "associated with", "close connection", "combined in terms of circumstances", "combined in terms of classification", "hazardous manual handling task", "musculoskeletal disorder", "real risk", "reasonably practicable", "Shirt calculus". Occupational Health and Safety Act 2004 (Vic), ss 2(1), 4, 20, 21, 158. Occupational Health and Safety Regulations 2007 (Vic), regs 1.1.1, 1.1.5, 1.1.7, 3.1.1, 3.1.2, 3.1.3.

Criminal law – Criminal liability – Inconsistent verdicts – Where appellant drove person to brothel – Where person intended to commit robbery – Where person fatally stabbed victim and took money – Where appellant charged with murder and armed robbery with wounding – Where jury directions on armed robbery with wounding charge omitted element of foresight of use of knife to wound – Where appellant acquitted of murder and convicted of armed robbery with wounding – Whether conviction and acquittal inconsistent – Whether substituted verdict should be ordered – Whether new trial should be ordered. Evidence – Hearsay evidence – Evidence Act 1995 (NSW), s 65(2)(d) – Where person made representation that appellant gave him knife – Whether representation made in circumstances that made it likely that the representation was reliable. Words and phrases – "circumstances that make it likely that the representation is reliable", "hearsay evidence", "inconsistent verdicts", "merciful verdict", "misdirection", "new trial", "substituted verdict". Criminal Appeal Act 1912 (NSW), ss 7, 8. Evidence Act 1995 (NSW), s 65.

NH v Director of Public Prosecutions Jakaj v Director of Public Prosecutions Zefi v Director of Public Prosecutions Stakaj v Director of Public Prosecutions Criminal law – Appeal – Verdict – Not guilty of murder but guilty of manslaughter – Alleged mistake by foreperson – Requisite majority for verdict of not guilty of murder allegedly not reached – Report of foreperson to court officer disclosing alleged error – Statements as affidavits from jurors – Full Court quashed jury verdicts and ordered new trials on count of murder – Whether presumption of correctness of jury verdicts rebuttable in circumstances – Whether Full Court could reconsider perfected orders in original jurisdiction – Whether alleged mistake was material irregularity leading to unlawful verdicts – Whether alleged mistake by foreperson and acquiescence of jury an abuse of process – Whether inherent power to correct perfected orders in circumstances – Admissibility of jury statements to impeach verdicts – Consideration of distinction between verdict and judgment. Words and phrases – "abuse of process", "alternative offence", "functus officio", "inherent jurisdiction", "inherent power", "judgment", "majority verdict", "major offence", "material irregularity", "perfected", "unlawful verdict", "verdict". Criminal Law Consolidation Act 1935 (SA), ss 350, 351A, 352, 353. Juries Act 1927 (SA), s 57. Supreme Court Act 1935 (SA), ss 17, 48, 49.

Statutes – Delegated legislation – Validity – Migration Act 1958 (Cth) – Offshore resources industry – Where amendments to Migration Act had effect of extending migration zone to non-citizens participating in or supporting offshore resources activity – Where amendments created specified visa requirements for such persons – Where amendments conferred power on Minister to make determination excepting operations and activities from extended migration zone – Where Minister's determination purported to except from migration zone, and specified visa requirements, all operations and activities to extent certain vessels or structures were used – Whether determination entirely negated operation of general rule in extending migration zone to non-citizens participating in or supporting offshore resources activity – Whether determination beyond power and invalid. Words and phrases – "Australian resources installation", "exception", "migration zone", "offshore resources activity". Legislation Act 2003 (Cth), s 42. Migration Act 1958 (Cth), ss 5, 8, 9A, 13(1), 41. Migration Amendment (Offshore Resources Activity) Act 2013 (Cth). Offshore Minerals Act 1994 (Cth), s 4, Ch 2. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), s 7, Chs 2, 3.

Criminal law – Criminal liability – Where respondent's wife disappeared and body later found – Where respondent involved in sexual affair with another woman – Where some injuries to respondent's cheek likely caused by fingernails – Where respondent gave evidence at trial denying involvement in killing wife and disposing of body – Where jury convicted respondent of murder – Where Court of Appeal held hypothesis of unintentional killing not excluded by prosecution and substituted verdict of manslaughter – Where common ground on appeal that respondent killed his wife – Whether hypothesis consistent with innocence of murder open – Whether jury's verdict unreasonable – Whether jury entitled to be satisfied beyond reasonable doubt that respondent acted with intent to kill or cause grievous bodily harm when he killed his wife. Words and phrases – "circumstantial evidence", "hypothesis consistent with innocence", "intention", "intractably neutral", "lies", "motive", "post-offence conduct", "role of the jury", "unreasonable verdict", "whole of the evidence". Criminal Code (Q), s 668E(1).

Constitutional law (Cth) – Legislative power – Franchise – Power of Parliament to regulate exercise of entitlement to enrol to vote – Provisions of Commonwealth Electoral Act 1918 (Cth) precluding consideration of claims for enrolment or transfer of enrolment and amendment of Electoral Rolls during "suspension period" from 8pm on day of closing of Electoral Rolls until close of polling for election – Whether burden on constitutional mandate that Parliament be "directly chosen by the people" – Whether burden justified by substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162; [2007] HCA 43 and Rowe v Electoral Commissioner (2010) 243 CLR 1; [2010] HCA 46. Words and phrases – "adequacy in its balance", "burden", "constitutional mandate of popular choice", "directly chosen by the people", "franchise", "necessity", "obvious and compelling alternative", "reasonably appropriate and adapted", "structured proportionality", "substantial reason", "suitability". Constitution, ss 7, 10, 24, 30, 51(xxxvi). Commonwealth Electoral Act 1918 (Cth), ss 94A(4), 95(4), 96(4), 101, 102(4), 103A(5), 103B(5), 118(5).

Limitation of actions – Extension or postponement of limitation periods – Extension of time in personal injury matters – Principles upon which discretion exercised – Where extraordinary delay – Where deficiencies in evidence due to passage of time – Where absence or death of witnesses – Where loss of documentary evidence – Where earlier decision by claimant not to institute proceedings – Whether just in all the circumstances to grant extension of time. Tort – Vicarious liability – Course of employment – Where boarding school employed housemaster – Where housemaster sexually abused boarder – Consideration of correct approach to vicarious liability of employer for intentional criminal acts of employee – Whether employment gave "occasion" for wrongdoing – Whether employee placed in special position vis-à-vis victim – Whether features of special position warrant finding of liability. Procedure – Courts and judges generally – Determination of issues – Whether appropriate for trial judge to determine all litigated issues. Words and phrases – "authority", "close connection", "control", "course or scope of employment", "extension of time", "extraordinary delay", "fair and just", "intimacy", "occasion", "opportunity", "power", "special features", "special position", "trust", "vicarious liability". Limitation of Actions Act 1936 (SA), s 48.

Discrimination law – Disability discrimination – Where deaf person summoned for jury service – Where deaf person required assistance of Auslan interpreters to participate as juror – Where deaf person excluded from jury panel – Whether exclusion was unlawful discrimination. Juries – Persons constituting jury – Jury deliberations – Whether permissible for interpreter to be present in jury room during deliberations – Whether deaf person who requires assistance of interpreter in jury room eligible for jury service under Jury Act 1995 (Q). Words and phrases – "deaf person", "direct discrimination", "functions of a juror", "indirect discrimination", "jury deliberations", "jury service", "separation of the jury". Anti-Discrimination Act 1991 (Q), ss 10, 11, 101. Jury Act 1995 (Q), ss 4(3), 54, 70.

Cunningham v Commonwealth of Australia Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Where amendments to Parliamentary Contributory Superannuation Act 1948 (Cth) and Remuneration Tribunal Act 1973 (Cth) and Determinations by Remuneration Tribunal modified method by which allowances paid to retired members of Parliament calculated – Where enactment of and subsequent amendment to Members of Parliament (Life Gold Pass) Act 2002 (Cth) modified entitlement conferred on retired members of Parliament to payment of travel expenses – Whether amendments and Determinations constitute or authorise acquisition of property otherwise than on just terms within meaning of s 51(xxxi) of Constitution. Words and phrases – "acquisition of property", "inherently defeasible", "inherently liable to variation", "just terms", "Life Gold Pass", "parliamentary allowance", "property", "retiring allowance", "subject to this Act", "until the Parliament otherwise provides". Constitution, ss 48, 51(xxxi), 51(xxxvi), 66. Members of Parliament (Life Gold Pass) Act 2002 (Cth), s 11(2). Members of Parliament (Life Gold Pass) and Other Legislation Amendment Act 2012 (Cth), s 3. Parliamentary Contributory Superannuation Act 1948 (Cth), ss 18, 22T. Remuneration and Other Legislation Amendment Act 2011 (Cth), s 3. Remuneration Tribunal Act 1973 (Cth), ss 7(1A), 7(1B), 7(1C), 7(2A).

Real property – Community titles scheme – Use of common property – Body Corporate and Community Management Act 1997 (Q) – Dispute between owners of lots in community titles scheme – Where one lot owner sought to use common property airspace to expand balconies – Where proposal put to body corporate for alteration of rights of lot owners to allow lot owner exclusive use of common property – Where proposal required resolution without dissent – Where motion defeated – Where proponent applied for dispute resolution – Where adjudicator concluded that opposition by other lot owners to proposal unreasonable – Whether adjudicator erred in approach to decision – Whether grounds for opposition to motion by individual lot owners unreasonable – Whether necessary to balance competing interests. Words and phrases – "adjudicator", "body corporate", "common property", "original design intent", "resolution without dissent", "unreasonable in the circumstances". Body Corporate and Community Management Act 1997 (Q), ss 94(2), 276, Sched 5, Item 10.

Income tax – Assessable income – Where taxpayer participated in employee incentive profit participation agreement – Taxpayer granted claim to deferred compensation calculated on basis of company profit – Amount payable under agreement to taxpayer on termination of employment and execution of declaration of assignment and release – Whether amount income according to ordinary concepts or capital gain. Words and phrases – "deferred compensation", "Genussscheine", "incentive profit participation agreement", "ordinary income", "pecuniary account". Income Tax Assessment Act 1936 (Cth), s 26(e). Income Tax Assessment Act 1997 (Cth), s 6-5(1), (4). Swiss Code of Obligations, Art 657.

Workers compensation – Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A(1) – Meaning of injury – Where employee suffered aggravation of mental condition in reaction to perceived consequence of failure to obtain promotion – Whether aggravation suffered "as a result of" reasonable administrative action. Words and phrases – "as a result of", "'common sense' approach to causation", "disease", "injury". Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5

Timbercorp Finance Pty Ltd (in liquidation) v Collins Timbercorp Finance Pty Ltd (in liquidation) v Tomes Estoppel – Anshun estoppel – Where appellant provided loans to investors to fund investments in managed investment schemes – Where appellant placed in liquidation – Where group proceeding against appellant under Pt 4A of Supreme Court Act 1986 (Vic) by lead plaintiff on behalf of himself and group members alleging misrepresentations and failure to disclose information about risks – Where respondents group members in group proceeding – Where group proceeding unsuccessful – Where subsequent proceedings by appellant against respondents seeking recovery of outstanding principal and interest – Where respondents pleaded number of defences in recovery proceedings – Whether lead plaintiff in group proceeding respondents' privy – Whether defences precluded by reason of estoppel which arises by reference to principle in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. Practice and procedure – Whether defences sought to be raised in recovery proceedings an abuse of process. Words and phrases – "abuse of process", "Anshun estoppel", "control", "estoppel", "group member", "group proceeding", "lead plaintiff", "opt out notice", "privy", "unreasonable". Supreme Court Act 1986 (Vic), Pt 4

Bywater Investments Limited v Commissioner of Taxation Hua Wang Bank Berhad v Commissioner of Taxation Taxation – Income tax – Residence of company – Income Tax Assessment Act 1936 (Cth), s 6(1) – Where directors of appellant companies resident abroad – Where meetings of directors of appellants ostensibly held abroad – Where directors acted at direction of Australian resident who controlled appellants and made decisions then implemented by directors – Whether appellants residents of Australia for income tax purposes – Whether "central management and control" of appellants located abroad in place where boards of directors met – Whether, as question of fact and degree, real business and operations of appellants controlled and directed from Australia – Whether functions of appellants' boards of directors usurped – Effect of Esquire Nominees Ltd v Federal Commissioner of Taxation [1973] HCA 67; (1972) 129 CLR 177. Taxation – Income tax – Residence of company – Double taxation agreements – Tie-breaker provisions – Whether appellants entitled to protection from Australian income tax under relevant double taxation agreements – Whether "place of effective management" of appellant companies other than in Australia. Words and phrases – "Australian resident", "central management and control", "company's constitutional organs", "corporate residence", "formal organs", "place of effective management", "real business", "residency", "rubber-stamp", "superior or directing authority", "usurp". Income Tax Assessment Act 1936 (Cth), ss 6(1), 25A, Pt X. Income Tax Assessment Act 1997 (Cth), ss 6-5, 995-1. International Tax Agreements Act 1953 (Cth), Scheds 1, 15.

Trade practices – Restrictive trade practices – Substantially lessening competition – Price fixing – Where travel agent sold international airline tickets on behalf of airlines – Where travel agent attempted to induce airlines to agree not to discount price at which international airline tickets offered directly to customers – Whether travel agent acting as agent for airlines – Whether travel agent and airlines "in competition" notwithstanding travel agent supplied as agent for airlines – Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(3), 45A. Trade practices – Restrictive trade practices – Market definition – Relevance of "functional approach" to market definition. Words and phrases – "agency agreement", "agent", "competition", "functional approach to market definition", "international air carriage", "market", "price fixing", "substantially lessening competition". Trade Practices Act 1974 (Cth), ss 4E, 45, 45

Aboriginal and Torres Strait Islander peoples – Land rights – Claimable Crown lands – Crown land dedicated for public purposes – Where State recorded as registered proprietor – Where Crown land dedicated for gaol purposes – Where Crown land proclaimed as correctional complex and correctional centre – Where gaol closed but dedications continued in force – Where proclamations revoked – Where Crown land held pending decision as to future use – Where activities on Crown land not inconsistent with dedications – Whether land "lawfully used or occupied" under s 36(1)(b) of Aboriginal Land Rights Act 1983 (NSW). Constitutional law (NSW) – Executive power – Power over Crown lands – Whether executive power abrogated by s 2 of New South Wales Constitution Act 1855 (Imp) – Whether statutory authorisation required for lawful occupation of Crown lands. Words and phrases – "actual occupation", "beneficial and remedial legislation", "beneficial construction", "claimable Crown lands", "Crown lands", "dedication", "lawfully used or occupied", "lawful occupation", "the Crown". Aboriginal Land Rights Act 1983 (NSW), s 36. New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54), s 2. Real Property Act 1900 (NSW), ss 13D, 13

Taxation – Unit trusts – Public trading trust – Where trust settled by deed – Where employers become members of industry severance scheme created by trust – Where members of scheme obliged to make payments to trustee – Where trustee credits payments to accounts in name of individual employees – Where trustee makes payment to employee upon termination of employment – Whether unit trust within meaning of Div 6C of Pt III of the Income Tax Assessment Act 1936 (Cth). Words and phrases – "beneficial interest", "ordinary acceptation", "prescribed trust estate", "public trading trust", "unit", "unit trust". Income Tax Assessment Act 1936 (Cth), ss 102M, 102P, 102R, 102S, 102

Construction Pty Ltd Statutory Construction – Building and Construction Industry Security of Payment Act 1999 (NSW), s 13(1) – Whether existence of reference date under construction contract precondition to making of valid payment claim. Contract – Construction of terms – Where construction contract made provision for contractor to "claim payment progressively" by making a "progress claim" – Whether it was the parties' intention that the contractor's right to make a progress claim under construction contract was to survive termination. Words and phrases – "payment claim", "progress claim", "progress payment", "reference date". Building and Construction Industry Security of Payment Act 1999 (NSW), ss 8, 13.

Constitutional law (Cth) – Judicial power – Election of Senator – Validity – Court of Disputed Returns – Power to hear petition – Whether non-judicial –Constitution, Ch III – Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div 2. Practice and procedure – High Court of Australia – Failure to raise argument at hearing – Principles applicable – Validity – Commonwealth Electoral Act 1918 (Cth), Pt XXII, Div 2. Constitution, ss 44(ii), 44(iii), 45, 47. Commonwealth Electoral Act 1918 (Cth), Pt

Parliamentary elections (Cth) – Senate – Reference to Court of Disputed Returns – Where at date of nomination person convicted of offence punishable by term of imprisonment for one year or longer – Where person liable to be sentenced – Where person elected as Senator – Where conviction subsequently annulled – Whether annulment of conviction of retrospective effect – Whether person incapable of being chosen as Senator under s 44(ii) of Constitution – Whether vacancy should be filled by special count of ballot papers. Words and phrases – "annulment", "convicted and is under sentence, or subject to be sentenced", "incapable of being chosen", "retrospective effect", "special count", "void ab initio". Constitution, s 44(ii). Commonwealth Electoral Act 1918 (Cth), ss 364, 376. Crimes Act 1900 (NSW), s 117. Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 9, 10. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 25.

Palmer v Ayres Ferguson v Ayres Constitutional law (Cth) – Judicial power – Mandatory examination of persons about corporation's examinable affairs – Where plaintiffs former directors of corporation in voluntary liquidation – Where liquidators applied for and obtained order for issue of summons under s 596A of Corporations Act 2001 (Cth) requiring plaintiffs to attend for examination about corporation's examinable affairs – Whether s 596A invalid as contrary to Ch III of Constitution – Whether s 596A gives rise to "matter" that engages judicial power of Commonwealth – Whether power conferred by s 596A incompatible with or outside judicial power of Commonwealth. Words and phrases – "examinable affairs", "federal jurisdiction", "judicial power", "matter". Constitution, Ch III. Corporations Act 2001 (Cth), ss 596A, 597.

Taxation – Land tax – Where land tax assessments were paid – Where Commissioner did not amend assessments after error detected – Whether Commissioner under duty compellable by mandamus to amend and refund excess land tax – Whether Commissioner's refusal to amend amounted to conscious maladministration – Whether amended assessment had effect that excess tax was never land tax – Whether proceedings were barred under Land Tax Act 1958 (Vic). Words and phrases – "amended assessment", "charged, levied and collected", "completeness and accuracy", "conscious maladministration", "land tax", "tax paid under, or purportedly paid under". Land Tax Act 1958 (Vic), ss 19, 90AA, 92

Family law – Family Law Act 1975 (Cth) – Parenting orders – Where children taken overseas by father – Where children stayed with father overseas in breach of parenting orders – Where mother applied for order for return of children – Where children expressed preference to stay with father overseas – Where primary judge made interim orders for return of children to Australia and for living arrangements upon return – Whether erroneous to discount weight given to views expressed by children – Whether father's breach of parenting orders relevant to children's best interests – Whether necessary to ascertain children's views as to living arrangements – Whether parenting orders could be made in favour of strangers to proceedings. Words and phrases – "best interests of the child", "judicial discretion", "parenting orders", "views expressed by the child". Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CD, 60CE, 64C, 65C, 65D, 68L, 68

Criminal law – Appeal against conviction – Directions to jury – Where discreditable conduct evidence admitted under s 34P of Evidence Act 1929 (SA) – Relevance of discreditable conduct evidence – Whether trial judge adequately directed jury as to permissible and impermissible uses of discreditable conduct evidence in accordance with s 34R. Criminal law – Appeal against conviction – Application of proviso – Criminal Law Consolidation Act 1935 (SA), s 353(1) – Where majority of Full Court found miscarriage of justice occasioned by misdirection to jury – Where majority of Full Court divided as to whether misdirection occasioned substantial miscarriage of justice for purposes of applying proviso – Whether appeal could be dismissed pursuant to proviso. Words and phrases – "discreditable conduct evidence", "error of law", "opinion of majority", "permissible and impermissible use", "proviso", "substantial miscarriage of justice", "sufficiency of direction". Criminal Law Consolidation Act 1935 (SA), ss 349, 353(1). Evidence Act 1929 (SA), ss 34P, 34

Criminal law – Procedure – Apprehension and detention – Reasonable grounds – Where appellant drinking alcohol in public place near shops selling alcohol – Where appellant intoxicated and behaving belligerently towards police – Where appellant apprehended on basis of police officer's belief that appellant would commit offence of drinking liquor in regulated place – Whether belief held on reasonable grounds – Whether policing experience valid basis for reasonable grounds for forming belief. Criminal law – Procedure – Apprehension and detention – Statutory powers of apprehension – Where appellant apprehended on basis of police officer's belief that appellant would commit offence of drinking liquor in regulated place – Where maximum penalty for offence forfeiture of liquor and issue of contravention notice – Whether decision to apprehend exceeded limits of apprehension power. Words and phrases – "likely to commit an offence", "policing experience", "reasonable grounds". Liquor Act (NT), s 101U(1). Police Administration Act (NT), s 128(1).

Statutes – Interpretation – Acts Interpretation Act 1901 (Cth), s 36(2) – Where first respondent's application for visa received and taken to be made on Monday 13 January – Where first respondent able to meet visa criteria in Migration Regulations 1994 (Cth) if first respondent held valid second visa at time of application – Where first respondent's second visa expired on Sunday 12 January – Whether s 36(2) of Acts Interpretation Act allowed application to be assessed as if it had been made before expiry of first respondent's second visa. Words and phrases – "an Act requires or allows", "last day", "prescribed or allowed by an Act", "state of affairs", "thing to be done", "time of application". Acts Interpretation Act 1901 (Cth), s 36(2). Migration Act 1958 (Cth), ss 31, 45, 46, 47, 65. Migration Regulations 1994 (Cth), Sched 2, cl 572.211.

Procedure – Enforcement of Australian judgment debt in foreign jurisdiction – Where respondents obtained certificate under s 15(1) of Foreign Judgments Act 1991 (Cth) certifying finality of Australian judgment – Where application for such certificate may not be made until expiration of any stay of enforcement of judgment in question – Where judgment debtor bankrupt – Whether certificate valid – Whether s 58(3) of Bankruptcy Act 1966 (Cth) operated to impose a stay of enforcement for purposes of Foreign Judgments Act 1991 (Cth). Words and phrases – "enforcement by execution", "stay of enforcement of the judgment". Bankruptcy Act 1966 (Cth), ss 58(3), 60(1)(b), 60(2). Foreign Judgments Act 1991 (Cth), ss 3(1), 15.

Migration – Unlawful non-citizens – Power to detain – Where plaintiffs unauthorised maritime arrivals – Where plaintiffs brought to Australia from regional processing country for temporary purpose of medical treatment – Where plaintiffs detained under ss 189 and 196 of Migration Act 1958 (Cth) until removal from Australia – Whether ss 189 and 196 validly authorise detention while in Australia for temporary purpose – Whether plaintiffs detained for lawful purpose – Whether duration of detention capable of objective determination. Words and phrases – "detention of non-citizen", "duration of detention", "opinion, satisfaction or belief of officer", "purpose of detention", "temporary purpose", "transitory person", "unauthorised maritime arrival", "unlawful non-citizen". Constitution, s 51(xix). Migration Act 1958 (Cth), ss 189, 196, 198, 198AD, 198AH, 198

Criminal law – Justification and excuse – Resisting actual and unlawful violence threatened to person – Where appellant stabbed deceased – Where appellant acquitted of murder but convicted of manslaughter – Where s 31(1) of Criminal Code (Q) not left to jury – Whether appellant able to rely on s 31(1) to deny criminal responsibility in relation to offence of manslaughter – Whether s 31(2) renders s 31(1) unavailable wherever evidence discloses that act of accused constitutes offence described in s 31(2) regardless of charge. Words and phrases – "act", "criminally responsible", "liable to punishment", "offence". Criminal Code (Q), s 31.

Criminal law – Infliction of grievous bodily harm – Meaning of "inflicts" – Where appellant caused complainant to contract human immunodeficiency virus – Whether infliction requires force and immediate physical injury – Whether communication of infection or disease amounts to infliction – Consideration of R v Clarence (1888) 22 QBD 23 and R v Dica [2004] EWCA Crim 1103; [2004] QB 1257. Criminal law – Fault element – Recklessness – Foresight of risk – Where appellant diagnosed with human immunodeficiency virus – Where appellant knew of possibility of transmitting virus through unprotected sexual intercourse – Whether foresight of possibility of risk sufficient to establish recklessness. Words and phrases – "always speaking", "contemporary ideas and understanding", "grievous bodily harm", "inflicts", "maliciously", "recklessly". Crimes Act 1900 (NSW), ss 5, 35(1)(b), 36.

Evidence – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where appellant charged with 11 sexual offences against five female children aged under 16 years – Where prosecution permitted to adduce evidence of each complainant and other witnesses as tendency evidence – Where alleged tendencies identified as having sexual interest in underage girls and as using relationships to gain access to underage girls in order to engage in sexual activities with them – Whether tendency evidence required to display features of similarity with facts in issue in order to have "significant probative value" – Whether tendency evidence had "significant probative value". Words and phrases – "modus operandi", "pattern of conduct", "probative value", "significant probative value", "tendency evidence", "underlying unity". Evidence Act 1995 (NSW), s 97(1)(b).

Air New Zealand Ltd v Australian Competition and Consumer Commission PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission Trade practices – Restrictive trade practices – Price fixing – Market identification – Location of market – Meaning of market "in Australia" – Where airlines competed to supply unidirectional air cargo services from ports of origin outside Australia to destination ports within Australia – Where airlines arrived at understanding to impose various surcharges and fees for supply of air cargo services – Whether market for air cargo services "in Australia" for purposes of Trade Practices Act 1974 (Cth). Trade practices – Restrictive trade practices – Price fixing – Foreign state compulsion – Where airlines contravened s 45 of Trade Practices Act 1974 (Cth) – Whether conduct compelled by foreign law or foreign regulator's administrative practices. Statutory interpretation – Inconsistency – Where s 13(b) of Air Navigation Act 1920 (Cth) required airlines to comply with "agreement or arrangement" – Where Australia-Indonesia Air Services Agreement "agreement or arrangement" within meaning of ss 12(2) and 13(b) of Air Navigation Act – Where Australia-Indonesia Air Services Agreement required agreement between international airlines on minimum tariffs – Where ss 45 and 45A of Trade Practices Act 1974 (Cth) prohibited arriving at understandings concerning prices with competitors – Whether ss 12 and 13 of Air Navigation Act inconsistent with ss 45 and 45A of Trade Practices Act such that latter did not apply to contravening conduct. Words and phrases – "competition", "foreign state compulsion", "market identification", "market in Australia", "otherwise competitive with", "practically and operatively inconsistent", "price fixing", "rivalrous behaviour", "substitutability", "supply and demand". Air Navigation Act 1920 (Cth), ss 12, 13. Trade Practices Act 1974 (Cth), ss 4, 4E, 45(2), 45(3), 45