Cases and authorities

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin to place where persecutors had little or no influence or power – Where Tribunal's reasons contained typographical error – Where Tribunal issued corrigendum correcting error – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether typographical error in Tribunal's reasons disclosed error – Whether ability of appellant's family reasonably to relocate relevant to assessing appellant's ability reasonably to relocate – Whether Tribunal erred in failing to consider whether appellant's family able reasonably to relocate in assessing appellant's ability reasonably to relocate – Whether Tribunal's finding that persecutors had little or no influence or power in place of relocation supported by evidence. Words and phrases – "complementary protection", "corrigendum", "freedom of movement", "internal flight alternative", "internal relocation", "non-refoulement", "reasonable internal relocation", "reasonable relocation", "refugee", "subsidiary protection", "typographical error", "well-founded fear of persecution". Convention Relating to the Status of Refugees (1951) as modified by the Protocol Relating to the Status of Refugees (1967), Art 1A(2). Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Art 3. International Covenant on Civil and Political Rights (1966), Arts 2, 6, 7, 12. Nauru (High Court Appeals) Act 1976 (Cth), s 5. Refugees Convention Act 2012 (Nr), ss 3, 4, 43.

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether Tribunal failed to take into account factors relevant to appellant's ability reasonably to relocate – Whether Tribunal required under Convention on the Rights of the Child (1989) to give primary consideration to best interests of appellant's child. Words and phrases – "best interests of children", "best interests of the child", "complementary protection", "internal relocation", "reasonable internal relocation", "reasonable relocation", "refugee", "well-founded fear of persecution". Convention on the Rights of the Child (1989), Arts 2, 3(1). International Covenant on Civil and Political Rights (1966). Nauru (High Court Appeals) Act 1976 (Cth), s 5. Refugees Convention Act 2012 (Nr), ss 4, 43.

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control of Nauru ("Secretary") determined appellant not refugee under Refugees Convention Act 2012 (Nr) – Where Secretary determined Nauru did not owe appellant complementary protection under Refugees Convention Act – Where Refugee Status Review Tribunal ("Tribunal") affirmed Secretary's determinations on basis appellant could reasonably relocate within country of origin – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether appellant's ability reasonably to relocate within country of origin relevant to claim for complementary protection – Whether Tribunal failed to raise issue of whether appellant could reasonably relocate – Whether Tribunal failed to take into account factors relevant to appellant's ability reasonably to relocate – Whether Tribunal misunderstood country information. Words and phrases – "complementary protection", "country information", "internal relocation", "reasonable internal relocation", "refugee", "well-founded fear of persecution". Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Art 3. International Covenant on Civil and Political Rights (1966), Arts 6, 7. Nauru (High Court Appeals) Act 1976 (Cth), s 5. Refugees Convention Act 2012 (Nr), ss 4, 22(b), 34(4), 40(1), 43.

Defamation – Publication – Capacity to defame – Where application for summary dismissal of defamation proceeding – Where allegedly defamatory matter includes search results of internet search engine – Where allegedly defamatory matter includes autocomplete predictions of internet search engine – Whether respondent published allegedly defamatory matter – Whether matter capable of conveying allegedly defamatory imputations – Whether proceeding had no real prospect of success. Words and phrases – "autocomplete", "capacity to defame", "composite publication", "defamation", "defamatory image", "no real prospect of success", "ordinary reasonable person", "publication", "search engine", "search results", "search terms", "summary dismissal", "summary judgment". Civil Procedure Act 2010 (Vic), ss 62, 63. Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 7.01, 8.09.

Criminal law – Trial by judge alone – Adequacy of reasons – Where appellant convicted of "[p]ersistent sexual exploitation of a child" – Where offence comprised of two or more acts of sexual exploitation separated by not less than three days – Where complainant alleged various acts of sexual exploitation over many years – Where alleged inconsistencies and implausibilities in complainant's evidence – Where trial judge regarded complainant as reliable witness as to "core allegations" – Whether trial judge's reasons inadequate because failed to identify two or more acts constituting offence – Whether trial judge's reasons inadequate because failed to explain process of reasoning. Words and phrases – "adequacy of reasons", "basis for decision", "conflict between evidence", "credibility", "inadequacy of reasons", "inconsistencies in evidence", "process of reasoning", "reasons", "trial by judge alone". Criminal Law Consolidation Act 1935 (SA), s 50(1).

Criminal law – Parole – Where s 74AAA of Corrections Act 1986 (Vic) imposes conditions for making parole order for prisoner convicted and sentenced to imprisonment for murder of person who prisoner knew was, or was reckless as to whether person was, police officer – Where s 127A inserted into Corrections Act 1986 (Vic) stating s 74AAA applies regardless of whether prior to commencement of s 74AAA prisoner became eligible for parole, prisoner took steps to ask Adult Parole Board of Victoria ("Board") to grant parole, or Board began consideration of whether prisoner should be granted parole – Where prior to commencement of s 74AAA and s 127A plaintiff became eligible for parole and applied for parole and Board began consideration of whether plaintiff should be granted parole – Whether s 74AAA and s 127A apply to plaintiff. Words and phrases – "non-parole period", "parole", "recklessness", "sentencing", "statutory construction". Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10, 22, 28, 31, 32. Corrections Act 1986 (Vic), ss 74AAA, 127A. Crimes Act 1958 (Vic), s 3.

Criminal law – Appeal against conviction – Application of proviso – Where appellant convicted of manslaughter – Where either of two acts of appellant may have caused death of deceased – Where trial judge erred in failing to direct jury as to requirement that it be unanimous as to specific act causing death – Whether "no substantial miscarriage of justice has actually occurred" – Whether absence of unanimity direction precluded application of proviso. Words and phrases – "fundamental defect", "nature and effect of the error", "presuppositions of the trial", "proviso", "reasonable doubt", "substantial miscarriage of justice", "unanimity direction", "unanimous". Criminal Appeal Act 1912 (NSW), s 6(1).

Shrestha v Minister for Immigration and Border Protection Ghimire v Minister for Immigration and Border Protection Acharya v Minister for Immigration and Border Protection Migration – Cancellation of visa – Student visa – Where Minister for Immigration and Border Protection empowered to cancel visa if satisfied that any circumstances which permitted grant of visa no longer existed – Where delegate of Minister decided to cancel visa – Review of decision by Migration Review Tribunal – Where each appellant granted visa as "eligible higher degree student" – Where definition of "eligible higher degree student" required that visa applicant who proposed to undertake another course of study before and for purposes of principal course of study be enrolled in that other course of study – Where visa holder was enrolled in another course of study for purposes of principal course of study at time of grant of visa – Where visa holder ceased to be enrolled in that other course of study – Where Tribunal concluded that visa holder no longer "eligible higher degree student" – Where Tribunal concluded that circumstance which permitted grant of visa no longer existed – Whether Tribunal made error of law by considering legal characterisation of circumstance rather than circumstance itself – Whether jurisdictional error. Words and phrases – "another course of study", "circumstances", "eligible higher degree student", "error of law", "factual circumstances", "jurisdictional error", "principal course of study", "reasonably and on a correct understanding and application of the applicable law", "satisfied". Migration Act 1958 (Cth), s 116. Migration Regulations 1994 (Cth), Sched 2, cll 573.111, 573.223.

Migration – Refugee Review Tribunal – Review of decisions – Where first and second respondents sought review by Refugee Review Tribunal ("Tribunal") of decision of delegate of appellant to refuse applications for protection visas – Where respondents failed to respond to invitations from Tribunal to appear or provide submissions – Where s 426A(1) of Migration Act 1958 (Cth) empowered Tribunal to proceed to make decision on review without taking further action to allow or enable respondents to appear – Where Tribunal made decision to proceed under s 426A(1) – Whether Tribunal's decision to proceed in absence of respondents was legally unreasonable. Appeal – Rehearing – Where primary judge held decision of Tribunal was legally unreasonable – Where Full Court of Federal Court dismissed appeal from primary judge's decision, holding that appellant was required to demonstrate error in reasoning of primary judge akin to that required in appeals from discretionary judgments – Whether principles stated in House v The King (1936) 55 CLR 499 apply to appeal from decision on judicial review that administrative decision is legally unreasonable. Words and phrases – "appeal by way of rehearing", "appealable error", "discretionary", "discretionary decision", "discretionary power", "evaluative approach", "evaluative judgment", "evaluative process", "legally unreasonable", "standard of appellate review", "unreasonable". Migration Act 1958 (Cth), ss 425, 425A, 426A, 441A, 441C, 476.

Federal Commissioner of Taxation v Thomas Federal Commissioner of Taxation v Martin Andrew Pty Ltd Federal Commissioner of Taxation v Thomas Nominees Pty Ltd Federal Commissioner of Taxation v Thomas Taxation – Division 207 in Pt 3-6 of Income Tax Assessment Act 1997 (Cth) – Where trustee passed resolutions purporting to distribute franking credits to beneficiaries of trust separately from and in different proportions to income comprising franked distributions – Where directions made by Supreme Court of Queensland pursuant to s 96 of Trusts Act 1973 (Q) concerning the resolutions – Whether directions determined against Commissioner of Taxation the application of Div 207. Words and phrases – "deemed assessment", "determine conclusively", "directions", "franked distribution", "franking credit", "imputation credit", "income tax return", "judicial advice", "notice of amended assessment", "notionally allocated", "streaming", "tax offset". Income Tax Assessment Act 1936 (Cth), ss 95, 97. Income Tax Assessment Act 1997 (Cth), Div 207. Taxation Administration Act 1953 (Cth), Pt IVC. Trusts Act 1973 (Q), s 96.

Criminal law – Appeal against sentence – Where appellant convicted of murder – Where primary judge found it probable that appellant acting under influence of some psychosis at time of offence – Where primary judge not satisfied appellant possessed intention to kill – Where primary judge's discretion miscarried by giving primary significance to standard non-parole period – Where Court of Criminal Appeal excised power to re-sentence – Where prosecutor conceded there was no issue with primary judge's factual findings – Where Court of Criminal Appeal found primary judge's findings open – Where Court of Criminal Appeal rejected primary judge's finding that appellant had suffered temporary psychosis which precluded forming intention to kill – Where Court of Criminal Appeal took into account evidence of appellant's progress since sentence on the "usual basis" as discussed in Betts v The Queen (2016) 258 CLR 420 – Where Court of Criminal Appeal failed to put appellant on notice of inclination not to act on concession made by prosecution – Whether denial of procedural fairness – Whether miscarriage of justice. Words and phrases – "circumstance of aggravation", "concession", "miscarriage of justice", "new evidence", "objective seriousness", "procedural fairness", "re-sentencing", "unchallenged factual findings", "usual basis". Criminal Appeal Act 1912 (NSW), s 6(3).

Parliamentary elections (Cth) – Senate – Court of Disputed Returns – Application to reopen perfected orders of Court declaring applicant was incapable of being chosen as a Senator – Where applicant alleges Senate was inquorate when Senate resolved to refer applicant to Court of Disputed Returns – Where arguments were available on original reference – Whether preconditions for reopening have been met. Words and phrases – "reopen". Parliamentary Privileges Act 1987 (Cth), s 16(3).

Practice and procedure – Appeals – Denial of procedural fairness – Where appellant unrepresented – Where nature of hearing altered at short notice – Where appellant's applications for adjournments refused – Whether appellant denied procedural fairness at trial – Whether denial of procedural fairness amounted to "substantial wrong or miscarriage" – Whether appellant denied possibility of successful outcome – Whether new trial should be ordered. Succession law – Wills, probate, and administration – Grant of probate – Where appellant claimed interest in challenging will – Where respondent granted probate of will in solemn form – Whether appellant had interest in challenging will. Words and phrases – "adjournment", "caveat", "denial of procedural fairness", "possibility of a successful outcome", "probate", "procedural fairness", "substantial wrong or miscarriage". Supreme Court Act 1970 (NSW), ss 75A, 101(1)(a). Supreme Court Rules 1970 (NSW), Pt 78 rr 42, 43, 44(4), 66, 69, 71. Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1).

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Supreme Court of Nauru held Tribunal made error of law – Where Supreme Court of Nauru dismissed appeal – Whether Supreme Court of Nauru erred holding remittal to Tribunal futile. Words and phrases – "dependant", "derivative status", "futile", "refugee", "Refugee Determination Record", "remit", "taken to have been validly determined". Refugees Convention Act 2012 (Nr), ss 3, 5, 6, 31(5). Refugees Convention (Amendment) Act 2014 (Nr). Refugees Convention (Derivative Status & Other Measures) (Amendment) Act 2016 (Nr).

Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control refused application for complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's decision – Where appellant claimed he would be subject to cruel, inhuman or degrading treatment if returned to Sri Lanka – Where basis for claim was that appellant may be remanded in prison if returned to Sri Lanka and prison conditions in Sri Lanka are poor – Whether Tribunal had regard to material before it concerning prison conditions in Sri Lanka – Whether reasons of Tribunal met standard required by s 34(4) of Refugees Convention Act 2012 (Nr). Words and phrases – "cruel, inhuman or degrading treatment", "duty to give reasons", "prison conditions". Refugees Convention Act 2012 (Nr), ss 5(1), 6(1), 34(4).

Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal made adverse findings as to credibility – Whether error in Tribunal's reasons. Words and phrases – "appeal", "credibility", "error". Refugees Convention Act 2012 (Nr). Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967). BELL J. I will ask Justice Gordon to give the first judgment.

Criminal law − Appeal against convictions − Where appellant convicted of five counts of sexual offending against single complainant being his sister − Where counts joined − Where s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − Where applications to have counts one and two tried separately and to prevent Crown from leading evidence of discreditable conduct against complainant dismissed − Where Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax and to show relationship between appellant and complainant − Where verdicts on counts one and three quashed on appeal − Whether evidence of appellant's other alleged sexual misconduct admissible on trial of each remaining count − Whether joinder occasioned miscarriage of justice. Evidence − Criminal trial − Sexual offences − Propensity evidence − Admissibility − Where Crown relied on uncharged acts as relationship or context evidence − Where evidence of one uncharged act improperly admitted − Whether miscarriage of justice. Words and phrases – "admissibility", "context evidence", "contextual use", "discreditable conduct evidence", "effluxion of time", "impermissible use", "non-propensity use", "other alleged sexual misconduct", "permissible use", "prejudicial effect", "probative value", "relationship evidence", "uncharged act". Evidence Act 1929 (SA), Pt 3 Div 3, s 34

Practice and procedure – Costs – Wills, probate, and administration – Where respondent sought and obtained grant of probate in solemn form – Where respondent resisted appeals to set aside grant of probate – Where grant of probate set aside on appeal – Where respondent applied for order that appellant's costs of trial and appeals be paid out of estate of deceased and on trustee basis – Where costs not shown to be other than properly and reasonably incurred by respondent in connection with administration of estate – Whether order sought by respondent should be made. Words and phrases – "administration of the estate", "costs payable from the estate", "executor", "litigation expenses", "properly and reasonably incurred".

AB (a pseudonym) v CD (a pseudonym) EF (a pseudonym) v CD (a pseudonym) Criminal law – Prosecution's duty of disclosure – Public interest immunity – Where legal counsel for several accused ("EF") was enlisted as police informer – Where EF provided information to police that had potential to undermine each accused's defences to criminal charges – Where each accused convicted of criminal offences – Where first respondent proposed to disclose to each convicted person information about EF's conduct – Whether information subject to public interest immunity – Whether first respondent permitted to make proposed disclosures. Practice and procedure – High Court – Special leave to appeal – Whether special leave to appeal ought to be revoked. Words and phrases – "adequately protect", "disclosure", "police informer", "integrity of the criminal justice system", "public interest immunity", "witness protection". Witness Protection Act 1991 (Vic), s 3B(2)(b).

Administrative law – Judicial review – Jurisdictional error – Usual requirement that error must be material – When error will be material – Where visa criterion that there is no evidence that plaintiff has given bogus document – Where delegate of Minister for Home Affairs refused visa application because plaintiff provided bogus document – Where plaintiff accepted that document is bogus – Where plaintiff's migration agent made errors in communications with delegate – Whether agent's errors fraudulent – Whether agent's errors material. Words and phrases – "bogus document", "compassionate or compelling circumstances", "deprived the plaintiff of the possibility of a successful outcome", "false or misleading statement", "jurisdictional error", "material", "materiality", "privative clause decision". Migration Regulations 1994 (Cth), Sch 2, cl 820.226, Sch 4, public interest criterion 4020.

Donald Galloway (a pseudonym) v Commonwealth Director of Public Prosecutions Edmund Hodges (a pseudonym) v Commonwealth Director of Public Prosecutions Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions Criminal practice – Abuse of process – Where Australian Crime Commission ("ACC") received information concerning allegations that company involved in criminal activity – Where allegations referred to Australian Federal Police ("AFP") – Where appellants declined to participate in cautioned record of interview with AFP – Where appellants compulsorily examined by ACC – Where examiner aware that appellants were suspects who may be charged with an offence – Where examiner permitted AFP officers to watch examinations from nearby room without disclosing their presence to appellants – Where examiner permitted dissemination of examination material to AFP and Commonwealth Director of Public Prosecutions – Where appellants subsequently charged with Commonwealth and Victorian offences – Where appellants sought permanent stay of prosecutions for abuse of process – Where primary judge permanently stayed prosecutions – Where Court of Appeal of Supreme Court of Victoria allowed appeals from orders of primary judge – Whether ACC conducted special investigation under Australian Crime Commission Act 2002 (Cth) – Whether examinations unlawful – Whether prosecution derived forensic advantage from examinations – Whether appellants suffered forensic disadvantage as result of examinations – Whether examinations unlawful infringement upon appellants' right to silence – Whether examiner's conduct reckless – Whether permanent stay necessary to prevent administration of justice falling into disrepute. Words and phrases – "abuse of process", "administration of justice", "coercive powers", "compulsive powers", "compulsory examination", "derivative use", "direct use", "dissemination of examination product", "fair trial", "forensic advantage", "forensic choice", "forensic disadvantage", "illegally obtained evidence", "improper purpose", "integrity of the court", "locked in", "may be charged", "non-publication directions", "permanent stay", "prejudice", "prosecution brief", "prosecutorial team", "reckless", "right to silence", "special investigation", "suspect", "trial directions", "unlawfully obtained evidence". Australian Crime Commission Act 2002 (Cth), ss 7C, 46A, Pt II Div 2.

Customs and excise – Customs control – Dutiable goods – Possession, custody or control of dutiable goods – Where company held warehouse licence under Customs Act 1901 (Cth) – Where dutiable goods stolen from company's warehouse before goods entered for home consumption – Where respondent employed by company as general manager and warehouse manager – Where s 35A(1) of Customs Act relevantly provided that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control and who fails to keep goods safely shall, on demand by Collector, pay amount equal to customs duty which would have been payable if goods had been entered for home consumption on day of demand – Where respondent served with demand by Collector under s 35A(1) – Where respondent applied to Administrative Appeals Tribunal for review of Collector's demand – Where Tribunal found respondent directed what was to happen to goods on day-to-day basis – Whether respondent was person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control. Words and phrases – "authority to deal with", "Collector", "customs control", "dutiable goods", "employee", "fails to keep the goods safely", "has, or has been entrusted with", "home consumption", "management or control", "operational control", "owner", "possession, custody or control", "power or authority", "warehouse licence". Customs Act 1901 (Cth), ss 30, 35A, 36, 37, Pt

Superannuation and pensions – Police pension – Disabled member of police force – Entitlement to additional allowance – Where respondent certified by appellant as incapable of personally exercising functions of police officer due to specified infirmities determined by Commissioner of Police to have been caused by being hurt on duty – Where respondent received annual superannuation allowance as disabled member of police force – Where s 10(1A)(b)(ii) of Police Regulation (Superannuation) Act 1906 (NSW) provided that annual superannuation allowance might increase by additional amount commensurate with member's incapacity for work outside police force – Where respondent sought additional amount by reason of supervening infirmity increasing respondent's incapacity for work outside police force – Where supervening infirmity increasing respondent's incapacity for work outside police force not subject of certification by appellant or determination by Commissioner of Police – Whether respondent entitled to additional amount of annual superannuation allowance. Statutes – Interpretation – Principles – Context – Cognate terms – Choice between textually available constructions – Where cognate terms "incapable", "incapacity" and "totally incapacitated" appearing in Act – Where alternative textual constructions as to whether infirmity increasing incapacity for work outside police force required to be caused by being hurt on duty – Whether cognate terms to be construed as bearing same meaning. Words and phrases – "additional amount", "annual superannuation allowance", "certified", "commensurate", "disabled member of the police force", "hurt on duty", "incapable of personally exercising the functions of a police officer", "incapacity for work outside the police force", "infirmity of body or mind", "member of the police force", "specified infirmity", "supervening infirmity or incapacity". Police Regulation (Superannuation) Act 1906 (NSW), ss 1, 1A, 3, 4, 5, 5A, 7, 8, 10, 10B, 14, 21. Superannuation Administration Act 1996 (NSW), s 57.

Interlocutory order – Application for stay or injunction – Where Parliamentary Joint Committee conducting inquiry – Where plaintiffs directed to appear before Committee – Where plaintiffs sought to restrain Committee's exercise of power – Whether plaintiffs established prima facie case for relief – Whether balance of convenience favoured relief. Words and phrases – "compel", "joint committee", "parliamentary privileges". Constitution, ss 49, 50. Parliamentary Privileges Act 1987 (Cth), ss 3, 16.

Minister for Immigration and Border Protection v SZMTA CQZ15 v Minister for Immigration and Border Protection BEG15 v Minister for Immigration and Border Protection Immigration – Refugees – Administrative Appeals Tribunal – Refugee Review Tribunal – Review by Tribunal under Pt 7 of Migration Act 1958 (Cth) – Where visa applicants sought review by Tribunal of decisions by delegates of Minister for Immigration and Border Protection to refuse visas – Where Secretary of Department of Immigration and Border Protection gave Tribunal documents considered relevant to Tribunal's review – Where Secretary or officer of Department purported to notify Tribunal that s 438 of Act applied to information contained in provided documents – Where s 438 applies if either of two preconditions concerning confidentiality or public interest in non-disclosure of documents or information met – Where s 438(3) conferred discretions on Tribunal, upon notification that s 438 applies to document or information, to have regard to matter in document or to information and to disclose such matter or information to applicant for review – Where fact of notification not disclosed to visa applicants during Tribunal's review – Where notifications incorrect and invalid – Whether procedural fairness required Tribunal to disclose fact of notification to visa applicants – Whether incorrect and invalid notification resulted in denial of procedural fairness. Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Materiality – Where denial of procedural fairness occurred – Whether denial constitutes jurisdictional error if and only if denial was material in that denial deprived applicant for review of possibility of successful outcome – Whether Tribunal's review affected by jurisdictional error. Words and phrases – "disclosure", "discretion to refuse relief", "document or information", "fact of notification", "incorrect and invalid notification", "jurisdictional error", "material", "onus of proof", "possibility of a successful outcome", "practical injustice", "procedural fairness", "s 438 certificate". Migration Act 1958 (Cth), Pt 7.

Constitutional law (Cth) – Powers of Commonwealth Parliament – Territories – Inconsistency between Commonwealth and Territory laws – Where Council empowered under Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) ("Land Grant Act") to grant leases over certain land within Jervis Bay Territory ("JBT") – Where Land Grant Act does not affect application of other laws to extent other laws "capable of operating concurrently" with Land Grant Act – Where Residential Tenancies Act 1997 (ACT) applies in JBT as if JBT formed part of Australian Capital Territory – Where Residential Tenancies Act provides that all leases to which it applies include "standard residential tenancy terms" including term requiring lessor to maintain premises in reasonable state of repair – Whether, and to what extent, Residential Tenancies Act is law which is not capable of operating concurrently with Land Grant Act. Words and phrases – "alter, impair or detract from", "anti-exclusivity provision", "capable of operating concurrently", "complete or exhaustive statement", "implicit negative proposition", "indirect inconsistency", "residential tenancy agreement", "standard residential tenancy terms", "statutory power". Constitution, s 109. Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth), ss 6, 7, 12, 38, 40, 41, 42, 46. Australian Capital Territory (Self-Government) Act 1988 (Cth), s 28. Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A. Residential Tenancies Act 1997 (ACT), ss 8, 9, 10, 54, 128, Sch 1.

Criminal practice – Trial – Summing-up – Where appellant convicted of drug-related offences – Where trial judge made comments on evidence that went beyond arguments advanced by prosecution – Whether comments apt to create danger or substantial risk that jury might be persuaded of appellant's guilt – Whether comments so lacking in balance as to be exercise in persuading jury of appellant's guilt – Whether comments unfair to appellant – Whether comments resulted in miscarriage of justice. Criminal practice – Trial – Summing-up – Whether trial judge may make comments which convey his or her opinion as to proper determination of disputed issue of fact to be determined by jury. Words and phrases – "comment on the facts", "discretion to comment", "disputed issue of fact", "duty to give fair and accurate instructions", "fair trial", "fairness", "fundamental task of a trial judge", "lacking in balance", "miscarriage of justice", "overawing the jury", "right to comment", "strong Crown case", "summing-up".

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [No 2] Judgments and orders – Interest – Interest on judgment – Whether pre-judgment interest, pursuant to s 100 of Civil Procedure Act 2005 (NSW), or post-judgment interest, under s 101 of Civil Procedure Act, should apply to judgment sum. Civil Procedure Act 2005 (NSW), ss 100, 101.

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd Aristocrat Technologies Australia Pty Ltd v Allam Evidence – Tendency rule – Section 97(1) of Evidence Act 1995 (Cth) – Failure to comply with tendency rule where evidence not characterised as tendency evidence at first instance – Applicants alleged that respondents refurbished and sold machines that incorporated pirated copies of material in which applicants held copyright, thereby infringing ss 36 and 38 of Copyright Act 1968 (Cth) – Email communications of respondents relied upon by primary judge to prove that respondents had knowledge of infringing conduct – Full Court of Federal Court held that email communications relied upon by primary judge to establish tendency to engage in infringing conduct without compliance with s 97(1) of Evidence Act 1995 (Cth) – Whether open to Full Court to conclude that email communications were relied upon by primary judge to establish tendency. Words and phrases – "tendency evidence". Copyright Act 1968 (Cth), ss 36, 38. Evidence Act 1995 (Cth), ss 94(1), 95(1), 97(1), 136.

Criminal law – Physical element of offence – Omission – Defendant charged on multiple counts of obtaining financial advantage from Commonwealth entity contrary to s 135.2(1) of Criminal Code (Cth) ("Code") – Defendant failed to advise Department of changes in income – Section 4.3(b) of Code provided that omission to perform act could not be physical element of Commonwealth offence unless offence committed by omission to perform act that by law there is duty to perform – Whether s 66A of Social Security (Administration) Act 1999 (Cth) ("Administration Act") created duty for purposes of s 4.3(b) of Code prior to date on which Act inserting s 66A received Royal Assent. Criminal law – Physical element of offence – Omission – Centrelink sent notices to defendant under ss 67(2) and 68(2) of Administration Act requiring defendant to perform certain actions – Section 74 of Administration Act made it offence to refuse or fail to comply with notices in certain circumstances – Defendant did not respond to notices – Whether notices issued under ss 67(2) and 68(2) of Administration Act capable of creating duty for purposes of s 4.3(b) of Code. Words and phrases – "engages in conduct", "obtains a financial advantage", "omission", "omission to perform an act that by law there is a duty to perform", "presumption against retrospectivity". Criminal Code (Cth), ss 4.3(b), 135.2(1). Social Security (Administration) Act 1999 (Cth), ss 66A, 67(2), 68(2), 74. Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth), s 2(1), Sched 1.

Negligence – Causation – Medical practitioner – Where medical practitioner failed to warn patient of two distinct material risks inherent in surgical procedure – Where only one risk eventuated – Where patient would have chosen not to undergo surgical procedure if warned of both risks – Where patient would have chosen to undergo surgical procedure if warned only of risk that eventuated – Whether failure to warn of both material risks was a necessary condition of injury caused by the risk that eventuated – Whether appropriate for scope of medical practitioner's liability to extend to that injury. Words and phrases – "but for", "factual causation", "scope of liability". Civil Liability Act 2002 (NSW), s 5

Immigration – Migration Review Tribunal – Review of decisions – Visa applicant sought review by Migration Review Tribunal ("Tribunal") of decision of Minister's delegate to refuse skilled residence visa – Section 363(1)(b) of Migration Act 1958 (Cth) gives Tribunal power to adjourn review of decision – Visa applicant requested Tribunal adjourn review until the outcome of a review of her skills assessment was finalised – Whether Tribunal's refusal to adjourn was unreasonable or plainly unjust. Words and phrases – "fair and just", "fair, just, economical, informal and quick", "jurisdictional error", "unreasonable or plainly unjust", "unreasonableness", "Wednesbury unreasonableness". Constitution, s 75(v). Migration Act 1958 (Cth), ss 349(1), 353, 357A, 360(1), 363(1)(b).

Torts – Malicious prosecution – Elements – Whether proof of innocence required where proceedings terminated by entry of nolle prosequi – Whether entry of nolle prosequi terminates proceedings in favour of accused – Whether Davis v Gell [1924] HCA 56; (1924) 35 CLR 275 should be followed – Whether direction that no further proceedings be taken against person under s 7(2)(b) of Director of Public Prosecutions Act 1986 (NSW) equivalent to termination by entry of nolle prosequi. Words and phrases – "favourable termination of the prosecution", "malicious prosecution", "nolle prosequi". Director of Public Prosecutions Act 1986 (NSW), s 7(2).

Taxation – GST – Application of margin scheme – Anti-avoidance – Respondent representative member of GST group of companies – Where margin scheme applied to supply of units in property development – Where respondent engaged in "scheme" and obtained "GST benefit" – Whether s 165-5(1) of A New Tax System (Goods and Services Tax) Act 1999 (Cth) engaged – Whether GST benefit "not attributable to" making by respondent of choice, election, application or agreement expressly provided for by the GST law. Words and phrases – "not attributable to". A New Tax System (Goods and Services Tax) Act 1999 (Cth), Div 165, ss 165-5, 165-10.

Corporations law – Shares – Redeemable preference shares – Shares issued as "redeemable preference shares" – No shares over which redeemable preference shares took preference then or later issued – Whether preference shares required ordinary shares to be issued – Whether redemption of shares effective. Words and phrases – "issued share", "ordinary share", "preference share", "redeemable". Companies Act 1961 (NSW), ss 61, 66. Corporations Act 2001 (Cth), ss 254A, 254

Corporations law – Management and administration – Directors and other officers – Appointment, removal and retirement of directors – Whether director validly appointed – Whether invalid appointment was "contravention" of company's constitution under s 1322(4) of the Corporations Act 2001 (Cth). Words and phrases – "appointment of director", "contravention of the constitution", "invalid appointment". Corporations Act 2001 (Cth), ss 1322(4), 1322(6).

Immigration – Refugees – Judicial review – Minister's delegate found appellant had well-founded fear of political persecution if returned to Indonesia – Minister's delegate concluded Australia owed no "protection obligations" to appellant because appellant convicted of "particularly serious crime" – Whether "protection obligations" in s 36(2)(a) of Migration Act 1958 (Cth) ("Act") limited to non-refoulement obligation in Art 33(1) of Convention relating to the Status of Refugees as amended by Protocol relating to the Status of Refugees – Whether s 91U of Act confines scope of Australia's "protection obligations" in s 36(2)(a) of Act – Whether Minister bound to consider if grant of visa not prevented by s 501 of Act. Words and phrases – "non-refoulement", "particularly serious crime", "protection obligations". Migration Act 1958 (Cth), ss 36, 91U, 501. Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees, Arts 1, 33. FRENCH CJ. I agree with the orders proposed by Keane J for the reasons given by his Honour. HAYNE J. I agree with Keane J. CRENNAN J. I agree with the orders proposed by Keane J for the reasons given by his Honour. KIEFEL J. I agree with the orders proposed by Keane J for the reasons given by his Honour. BELL J. I agree with Keane J. GAGELER J. I agree with Keane

Real property – Torrens system land – Easements – Registered proprietor of servient tenement requested Registrar-General remove easement from Register – Easement removed from Register without objection from registered proprietors of dominant tenement – Subsequent purchaser of dominant tenement requested that Registrar-General restore easement to Register – Registrar-General refused – Whether deliberate removal of easement from Register "omission" within meaning of s 42(1)(a1) of Real Property Act 1900 (NSW) ("Act") – Whether subsequent purchaser of dominant tenement barred from action against Registrar-General under s 12A(3) of Act for removal of easement – Whether subsequent purchaser "person who is dissatisfied" with Registrar-General's decision under s 122 of Act. Words and phrases – "in the case of the omission", "omission", "person who is dissatisfied". Real Property Act 1900 (NSW), ss 12(1)(d), 12A, 32(6), 41, 42(1), 42(1)(a1), 122, 136, 138.

Proportionate liability – Loan and mortgage transaction – Fraudsters induced lender to advance monies on security of mortgage – Solicitors negligently drafted mortgage – Lender unable to recover monies advanced – Whether damage or loss the subject of lender's claim against solicitors caused or materially contributed to by fraudsters' conduct – Whether solicitors concurrent wrongdoer together with fraudsters within Pt 4 of Civil Liability Act 2002 (NSW). Words and phrases – "apportionable claim", "causation", "caused or materially contributed to", "concurrent wrongdoer", "damage", "damages", "factual causation", "proportionate liability", "scope of liability". Civil Liability Act 2002 (NSW), Pt 4, ss 5D(1), 5D(4), 34, 35(1), 36.

Criminal law – Sentence – Detention during Governor's pleasure on expiration of sentence under s 662 of Criminal Code (WA) – Whether evidence capable of supporting conclusion that applicant a constant danger to community – Whether order demonstrably necessary to protect society from physical harm. Criminal Code (WA), s 662.

Constitutional law – Constitution, Ch III – Institutional integrity of State courts – Section 10(1) of Criminal Organisation Act 2009 (Q) ("Act") allowed Supreme Court of Queensland on application of commissioner of police service to declare organisation "criminal organisation" – Where criminal organisation application supported by "criminal intelligence" – Sections 66 and 70 of Act required closed criminal intelligence hearing with no notice given to respondents – Section 78(1) of Act required Supreme Court to close part of criminal organisation hearing when criminal intelligence considered – Whether provisions of Act denied procedural fairness to respondents to criminal organisation application – Whether provisions of Act repugnant to or inconsistent with continued institutional integrity of Supreme Court – Whether question of organisation being "unacceptable risk to the safety, welfare or order of the community" suitable for judicial determination – Whether ss 9 and 106 of Act prevented Supreme Court from extending time for respondents to file response to criminal organisation application. Words and phrases – "closed hearing", "continued institutional integrity", "criminal intelligence", "criminal organisation", "procedural fairness", "unacceptable risk to the safety, welfare or order of the community". Constitution, Ch III. Criminal Organisation Act 2009 (Q), ss 8-10, 63-66, 70, 71, 76-78, 80, 82, 106.

Duong v The Queen Sem v The Queen Criminal law – Directions to jury – Joint enterprise liability – Participation in joint criminal enterprise – Where participation in enterprise not live issue at trial – Whether necessary for trial judge to direct jury on elements of liability not in issue at trial. Criminal law – Summing-up – Joint trial – Where almost all evidence at trial admissible against each accused – Where trial judge identified criticisms of evidence and significance of criticisms to each accused's case – Whether trial judge obliged to deal separately with each accused's case when summing-up in joint trial.

Constitutional law – Judicial power of Commonwealth – Constitution, Ch III – Section 16(1) of International Arbitration Act 1974 (Cth) provided that UNCITRAL Model Law on International Commercial Arbitration ("Model Law") has "force of law in Australia" – Article 35 of Model Law provided that arbitral award shall be enforced upon application to "competent court" – Where Federal Court of Australia had no power to refuse to enforce arbitral award for error of law on face of award – Whether institutional integrity of Federal Court impermissibly impaired – Whether judicial power of Commonwealth vested in arbitral tribunals. Words and phrases – "arbitral award", "institutional integrity", "judicial power". Constitution, Ch III. International Arbitration Act 1974 (Cth), Pt III, ss 16(1), 19, Sched 2 Arts 5, 8, 28, 34, 35, 36.

Practice and procedure – Federal Court of Australia – Summary judgment – Application by respondent to dismiss proceedings summarily under s 31A(2) of Federal Court of Australia Act 1976 (Cth) – Applicant claimed New South Wales legislation, said to be enacted pursuant to informal arrangements with Commonwealth, effected an acquisition of property other than on just terms – Applicant sought declarations that intergovernmental agreements, and Commonwealth legislation authorising them, were invalid under s 51(xxxi) of Constitution – Whether Court could be satisfied applicant had no reasonable prospect of successfully prosecuting proceeding – Effect of ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140, delivered after decisions below, on prospects of success. Statutes – Construction – Summary judgment – "no reasonable prospect". Words and phrases – "no reasonable prospect". Federal Court of Australia Act 1976 (Cth), s 31

Corporations – Charge – Registration – First respondent ("Fortress") obtained fixed and floating charge over assets of second respondent ("Octaviar") – Charge secured all moneys payable under or in relation to certain documents, including such documents as Fortress and Octaviar agreed in writing – Fortress and Octaviar subsequently agreed by deed ("Deed") that charge secured liability of Octaviar to Fortress under guarantee – Whether charge void, to extent it secured Octaviar's guarantee, under s 266 of the Corporations Act 2001 (Cth) ("the Act") – Whether execution of Deed required notice to be lodged under s 268 of the Act – Whether Deed effected "variation in the terms of the charge" – Relevance of legislative policy expressed in Ch 2K of the Act – Whether Deed created new charge requiring registration under s 263 of the Act. Words and phrases – "charge", "terms of the charge", "variation in the terms". Corporations Act 2001 (Cth), ss 263, 266, 268.

Constitutional law – Inconsistency between Commonwealth and State laws – Direct inconsistency – Appellant convicted under State law of conspiracy to steal property belonging to a company – Commonwealth law made conspiracy to steal property belonging to Commonwealth an offence – Property stolen belonged to Commonwealth within meaning of Commonwealth law – Whether State law inconsistent with Commonwealth law – Whether State law altered, impaired or detracted from operation of Commonwealth law – Discussion of indirect inconsistency and intention to cover the field. Words and phrases – "conspiracy". Constitution, s 109. Crimes Act 1914 (Cth), s 4C. Criminal Code (Cth), ss 11.5, 131.1, 261.1. Crimes Act 1958 (Vic), ss 72, 321.

Trade practices – Misleading or deceptive conduct – Non-disclosure – Representation by supply of certificate of insurance and/or non-disclosure of nature of insurance – Whether provision of certificate by insurance broker to experienced premium lender misrepresented cancellability of underlying policy – Whether failure of broker to inform lender in terms that policy was non-cancellable constituted misleading or deceptive conduct. Appeal – Powers of appellate court – Review of trial judge's findings of fact – Where finding allegedly based on mistaken understanding of agreed fact and inferences arising from it – Whether finding "glaringly improbable" or contrary to "compelling inferences". Practice and procedure – Filing of submissions – Respondent filed submissions after hearing outside terms of leave granted – Whether permissible to file supplementary written submissions after hearing without leave. Words and phrases – "misleading or deceptive conduct". Trade Practices Act 1974 (Cth), ss 4(2)(a), 4(2)(c)(i), 52.

Criminal law – Defences – Provocation – Elements of provocation – Meaning of "sudden" – Whether accused's loss of self-control must immediately follow provocation – Scope of objective test – Whether there exists a discrete requirement that accused must commit fatal act before there has been time for loss of self-control to abate. Criminal procedure – Directions – Use of model directions – Duty to frame directions by reference to issues. Words and phrases – "loss of self-control", "sudden provocation", "time for passion to cool". Criminal Code (Q), s 304.

Superannuation – Construction of superannuation trust deed – Applicant applied for total and permanent invalidity ("TPI") benefit under superannuation trust deed – Definition of TPI required continuous absence from "all active Work" for six months – Whether "all active Work" limited to work for employer responsible for superannuation fund ("Telstra") – Whether period of absence assessed at date applicant left Telstra or date of trustee's determination. Trusts – Superannuation – Review of decisions of trustees of superannuation trusts – Trustee required to determine whether applicant was "unlikely ever to engage in any gainful Work" – Whether Karger v Paul [1984] VicRp 13; [1984] VR 161 applies to superannuation trusts – Whether trustee's decision discretionary – Whether trustee gave genuine consideration to application – Whether trustee failed to comply with duties to make inquiries. Practice and procedure – Whether Court should remit matter to trustee – Whether trustee incapable of forming opinion satisfactorily – Whether only one decision open. Words and phrases – "all active work", "genuine consideration", "total and permanent invalidity". Superannuation Industry (Supervision) Act 1993 (Cth), ss 3, 52. Superannuation (Resolution of Complaints) Act 1993 (Cth), s 14.

Insurance – Product liability insurance – Insurance policy – Indemnity – Exclusion clause – Appellant seed merchant sold contaminated seed – Planting of seed by third party resulted in damage to property – Exclusion of liability caused by or arising from "the failure of any Product to correctly fulfil its intended use or function" – Proper construction of exclusion clause – Whether liability for damage arose out of failure of product to fulfil its intended use or function – Distinction between product failing to fulfil intended use or function and causing positive harm. Words and phrases – "intended use or function".