Cases and authorities

Criminal law – Appeal – Verdict unreasonable or cannot be supported having regard to the evidence – Respondent found guilty by jury of murder and attempted murder by complicity – Court of Appeal quashed convictions on ground that verdicts "unsafe and unsatisfactory" in the sense that verdicts were unreasonable or could not be supported having regard to the evidence – Whether verdicts unsafe and unsatisfactory – Whether reasonably open to jury on the whole of the evidence to convict respondent of murder and attempted murder – Task of appellate court. Criminal law – Murder – Practice and procedure – Directions to jury – Whether alternative verdict of manslaughter sufficiently left to jury – Whether reasonably open to jury to return alternative verdict of manslaughter – Whether failure sufficiently to leave alternative verdict to jury constituted a wrong decision on a question of law – Whether no substantial miscarriage of justice actually occurred. Words and phrases – "unsafe and unsatisfactory", "substantial miscarriage of justice". Crimes Act 1958 (Vic), s 568.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Vesting of federal jurisdiction in State courts – Serious and Organised Crime (Control) Act 2008 (SA) ("Act") – Section 10(1) of Act permits Attorney-General to make declaration in respect of organisation, if satisfied members associate for purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity, and organisation represents risk to public safety and order – Section 14(1) of Act provides Magistrates Court of South Australia ("Court") must, on application by Commissioner of Police, make control order (contravention of which is a crime) imposing restrictions on freedom of association of defendant if satisfied defendant is member of declared organisation under s 10(1) – Section 35(1) of Act creates offence of associating with member of declared organisation or person the subject of control order on not less than six occasions during 12 month period – Whether making control order requires determination by Court of what defendant has done or may do, or any determination of criminal guilt – Effect of Attorney-General's declaration on adjudicative process – Whether Court enlisted to implement legislative and executive policy – Whether task given to Court repugnant to, or incompatible with, institutional integrity. Words and phrases – "control order", "institutional integrity", "judicial power", "member of declared organisation", "serious criminal activity". Constitution, Ch III. Serious and Organised Crime (Control) Act 2008 (SA), ss 10(1), 14(1), 17, 19, 22, 35, 41.

Income tax – Assessable income – Respondent received periodic payments of youth allowance under Social Security Act 1991 (Cth) – Whether receipts income according to ordinary concepts. Income tax – Allowable deductions – Respondent incurred certain expenses in undertaking university study – Respondent required to undertake full-time study to establish and retain entitlement to youth allowance – Whether expenses incurred in gaining or producing assessable income – Whether expenses of a private nature. Words and phrases – "incurred in gaining or producing", "ordinary income", "private or domestic nature". Income Tax Assessment Act 1997 (Cth), ss 6-5(1), 8-1, 51-1, 51-10, 51-35.

Plaintiff M61/2010E v Commonwealth of Australia Plaintiff M69 of 2010 v Commonwealth of Australia Administrative law – Procedural fairness – Error of law – Refugees – Migration – Offshore processing – Plaintiffs were "offshore entry persons" under Migration Act 1958 (Cth) ("Migration Act") – Plaintiffs detained under s 189(3) of Migration Act – Each claimed Australia owed him protection obligations under Refugees Convention as amended by Refugees Protocol – Each plaintiff precluded from making valid visa application unless Minister decided in public interest to allow: s 46A of Migration Act – Minister had power to grant visa in absence of valid application: s 195A of Migration Act – Each plaintiff subject to "Refugee Status Assessment" by departmental officer and subsequent "Independent Merits Review" by independent contractor – Each departmental officer and independent reviewer concluded plaintiff not a person to whom Australia had protection obligations – Powers under ss 46A and 195A "may only be exercised by the Minister personally" – Minister not under duty to consider whether to exercise power under s 46A or s 195A – Whether continuing detention lawful because assessment and review were steps taken under and for purposes of Migration Act – Whether Minister had decided to consider exercising power under s 46A or s 195A of Migration Act in every case where an offshore entry person claimed to be owed protection obligations – Whether those who conducted assessment and review bound to afford procedural fairness to plaintiffs and act according to law – Whether each review procedurally fair and undertaken in accordance with law. Constitutional law (Cth) – Validity of Commonwealth laws – Section 75(v) of Constitution – Whether s 46A of Migration Act invalid because consideration of exercise of power could not be enforced – Whether Minister's power arbitrary. High Court – Original jurisdiction – Constitutional writs and orders – Minister not bound to consider exercising powers under s 46A or s 195A of Migration Act – Whether mandamus available – Whether certiorari would have practical utility – Whether declaration would produce foreseeable consequences for the parties. Words and phrases – "Carltona principle", "excised offshore place", "Independent Merits Review", "offshore entry person", "Pacific Strategy", "Refugee Status Assessment", "unlawful non-citizen". Constitution, s 75(v). Migration Act 1958 (Cth), ss 46A, 189(3), 193(1)(c), 195A, 196(1), 198(2), 198A. Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth).

Taxation – Charitable institution – Appellant had object of promoting greater efficiency and effectiveness of foreign aid – Whether appellant "charitable institution" for purposes of Commonwealth tax exemptions and concessions – Whether meaning of "charitable institution" in revenue laws governed by law of charitable trusts – Whether meaning of "charitable institution" interpreted as at time of enactment – Whether appellant's main, predominant or dominant objects charitable – Whether for relief of poverty – Whether for advancement of education – Whether otherwise for purpose within spirit and intendment of preamble to Statute of Elizabeth 1601 (43 Eliz I c 4). Trusts – Charitable trusts – Political objects doctrine – Whether, and to what extent, doctrine recognised by common law of Australia. Words and phrases – "charitable institution", "political objects", "political purposes". A New Tax System (Goods and Services Tax) Act 1999 (Cth), s 176-1. Fringe Benefits Tax Assessment Act 1986 (Cth), s 65J(1)(baa). Income Tax Assessment Act 1997 (Cth), s 50-5.

Hili v The Queen Jones v The Queen Criminal law – Sentence – Principles – Federal offences – Applicants pleaded guilty to federal offences – Prosecution successfully appealed on ground of manifest inadequacy against head sentences and recognizance release orders imposed by sentencing judge – Court of Criminal Appeal stated that "the 'norm' for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66% [of head sentence]" – Whether any judicially determined "norm" for ratio between time to be served in custody by federal offender and length of head sentence imposed – How consistency in federal sentencing to be achieved – Whether sentences imposed by sentencing judge manifestly inadequate – Whether Court of Criminal Appeal's reasons sufficient. Words and phrases – "manifest inadequacy". Crimes Act 1914 (Cth), Pt IB. Judiciary Act 1903 (Cth), s 68.

Constitutional law (Cth) – Legislative power – Franchise – Constitutional limitations upon power of Parliament to regulate exercise of entitlement to enrol to vote – Date for close of Electoral Rolls in Commonwealth Electoral Act 1918 (Cth) amended – Amendments precluded consideration until after election of claims for enrolment received after 8 pm on date of writs and of claims for transfer of enrolment received after 8 pm on third working day after date of writs – Whether denial of enrolment effected by amendments contravened constitutional requirement that representatives be "directly chosen by the people" – Whether amendments operated as disqualification from entitlement to vote and, if so, whether disqualification for substantial reason – Relevance of Roach v Electoral Commissioner (2007) 233 CLR 162. Words and phrases – "directly chosen by the people", "disqualification", "substantial reason". Constitution, ss 7, 8, 9, 10, 24, 30, 31, 51(xxxvi). Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), Sched 1 Items 20, 24, 28, 41, 42, 43, 44, 45, 52. Commonwealth Electoral Act 1918 (Cth), ss 93, 94A(4), 95(4), 96(4), 101, 102(4), 102(4AA), 155.

Aktas v Westpac Banking Corporation Ltd [No 2] High Court – Practice and procedure – Judgments and orders – Costs – Power to vary orders not yet authenticated – Circumstances in which power should be exercised.

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") – RRT gave "no weight" to certain letters tendered in evidence by first respondent – RRT described the giving of certain oral evidence by first respondent as "baseless tactic" – Whether RRT fell into jurisdictional error by failing to give "proper, genuine and realistic consideration" to letters or by describing certain oral evidence of first respondent as "baseless tactic" – Whether RRT's reasons, including use of expression "baseless tactic", gave rise to reasonable apprehension of bias by reason of pre-judgment. Words and phrases – "jurisdictional error", "proper, genuine and realistic consideration", "reasonable apprehension of bias". Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6. Migration Act 1958 (Cth), s 474.

Courts and judges – Bias – Reasonable apprehension of bias by reason of pre-judgment – Where judge previously made finding on same issue in unrelated interlocutory proceeding – Knowledge and characteristics to be attributed to fair-minded lay observer – Whether fair-minded lay observer taken to understand rules of evidence and procedure – Whether later statements of judge in recusal application relevant to fair-minded lay observer's assessment – Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288. Words and phrases – "fair-minded lay observer", "reasonable apprehension of bias".

Real property – Conveyancing – Conveyancing Act 1919 (NSW), s 37A – Voluntary alienation to defraud creditors – Appellant sought to set aside registered transfer of land from second respondent to first respondent – Whether intent to defraud creditors satisfied by proof of "actual" or "predominantly" fraudulent intent – Whether satisfied by proof that transfer would "delay, hinder or defraud" creditors – Whether intent may be inferred where transfer is voluntary. Words and phrases – "delay, hinder or defraud". Conveyancing Act 1919 (NSW), s 37A. An Act against fraudulent Deeds, Gifts, Alienations, etc 1571 (Imp) (13 Eliz I c 5).

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts vested with federal jurisdiction – Section 42(1) of Serious Sex Offenders Monitoring Act 2005 (Vic) ("Act") allowed court to make "suppression order" preventing publication of evidence given, contents of documents adduced or information that might enable identification of offender in proceedings under Act, if court satisfied it is "in the public interest" to make order – Section 42(3) made publishing material in contravention of suppression order an offence – Defendant charged with publishing material identifying offenders in proceedings subject to suppression orders – Whether power conferred by s 42(1) impermissibly diminishes institutional integrity of State courts – Whether and to what extent there exists implication derived from Ch III that State and federal courts must be open to public and carry out activities in public. Constitutional law (Cth) – Implied freedom of political communication – Whether s 42 of Act impermissibly burdens implied freedom of political communication – Whether communication by defendant was communication about government or political matters – Whether implied freedom limited to communications about government or political matters at Commonwealth level – Whether s 42 reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government. Statutory interpretation – Principle of legality – Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Charter") – Interpretation of s 42 of Act in manner compatible with civil and political rights in Charter. Words and phrases – "open justice", "political communication". Constitution, Ch III. Serious Sex Offenders Monitoring Act 2005 (Vic), s 42.

High Court – Practice and procedure – Leave to issue proceeding – Application for order to show cause against Federal Court sitting as Court of Disputed Returns – Applicant's electoral petition dismissed by Court of Disputed Returns for failure to sufficiently set out facts relied upon to invalidate election as required by Commonwealth Electoral Act 1918 (Cth) ("Act"), ss 355(a) and 355(aa) – Whether application to show cause raises "real question to be determined". Administrative law – Electoral law – Electoral petitions – Applicant's electoral petition alleged contraventions of ss 184(1), 326(1)(c) and 327(1) of Act and error by Divisional Returning Officer invalidated election – Whether conclusion of Court of Disputed Returns that electoral petition does not sufficiently set out facts relied upon to invalidate election as required by ss 355(a) and 355(aa) of Act attended by doubt. Constitutional law (Cth) – Section 368 of Act provides that decisions of Court of Disputed Returns shall not be questioned in any way – Applicant contends s 368 of Act invalid – Whether question of validity arises. Words and phrases – "real question to be determined". Constitution, s 75(v). Commonwealth Electoral Act 1918 (Cth), ss 184(1), 326(1)(c), 327(1), 352(1), 355(a), 355(aa), 358, 362, 368. High Court Rules 2004, r 6.07.

Negligence – Duty of care – Illegality – Plaintiff and defendant illegally using stolen motor vehicle in contravention of s 371A of The Criminal Code (WA) ("Code") – Plaintiff twice asked defendant to be let out of vehicle – Requests not complied with – Whether plaintiff can recover damages for injuries sustained as result of defendant's negligent driving of vehicle – Whether defendant owed duty of care to plaintiff – Whether statutory purpose of s 371A of Code incongruous with duty of care between joint illegal users of vehicle – Whether plaintiff's requests sufficient to effect withdrawal from joint illegal enterprise – Whether reasonable steps available to plaintiff to prevent commission of offence. Words and phrases – "duty of care", "illegal use", "joint illegal enterprise", "statutory purpose". The Criminal Code (WA), ss 8, 371A. Criminal Code Act Compilation Act 1913 (WA), Appendix B, s 5.

Criminal law – Appeal – Appeal against sentence – Appeal by Crown – Where s 669A(1) of Criminal Code (Q) permitted appeal by Attorney-General against sentence and provided that appellate court "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper" – Where appellate court increased sentence without identifying any error by sentencing judge – Whether Crown must demonstrate error by sentencing judge before discretion to vary sentence enlivened. Words and phrases – "appeal", "unfettered discretion". Acts Interpretation Act 1954 (Q), s 14A(1). Criminal Code (Q), s 669A(1).

Negligence – Duty of care – Appellant injured while using high-pressure vacuum hose – Injury occurred after hose passed to appellant – Supplier of hose also directed and supervised appellant – Concession by first respondent of duty of care made in court below – Whether duty of care was dependent on increased risk. Negligence – Breach – Supplier of hose failed to install break box and failed to issue instructions not to pass hose while power was on – Relevance of subsequent changes to safety systems – Whether changes inordinately expensive or disadvantageous. Negligence – Causation – Whether evidence as to precisely how injury occurred is necessary before causation can be found – Relevance of ordinary human experience – Relevance of agreement on quantum of damages. Evidence – Implied admission or circumstantial evidence permitting adverse inference – Trial judge concluded that appellant had withheld evidence in examination-in-chief – Whether trial judge erred in failing to provide reasons for that conclusion – Whether trial judge erred in failing to provide appellant with opportunity to respond to criticism.

Criminal law – Evidence – Propensity evidence – Admissibility and relevance – Where appellant charged with assault occasioning bodily harm – Where trial judge admitted evidence of other assaults by appellant upon complainant during their relationship pursuant to s 132B of Evidence Act 1977 (Q) ("Act") making admissible relevant evidence of history of domestic relationship – Where s 130 of Act preserved trial judge's discretion to exclude evidence where admission would be unfair to accused – Whether rule in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 to be applied in determining admissibility under s 132B or exercising discretion under s 130 – If evidence admitted, whether jury ought to have been directed they could not rely upon evidence unless satisfied of its truth beyond reasonable doubt. Words and phrases – "domestic violence", "prejudicial", "probative", "propensity", "relationship evidence", "unfairness". Evidence Act 1977 (Q), ss 130, 132

Procedure – Joinder of third parties – Where liquidators of company brought action in Supreme Court of Victoria against company directors for order under s 588M(2) of Corporations Act 2001 (Cth) – Where liquidators sought to join third party insurer after directors' claim for professional indemnity rejected – Where directors not in position to challenge denial of liability under contract of insurance – Whether Supreme Court had jurisdiction to join third party insurer and grant declaratory relief in relation to private insurance contract between directors and third party insurer. Jurisdiction – Federal jurisdiction – Meaning of matter – Meaning of justiciable controversy. Words and phrases – "declaratory relief", "federal jurisdiction", "joinder", "justiciable controversy", "matter", "privity", "real interest". Constitution, s 76(ii). Bankruptcy Act 1966 (Cth), s 117. Corporations Act 2001 (Cth), ss 562, 588G, 588M(2). Judiciary Act 1903 (Cth), ss 39(2), 79. Supreme Court Act 1986 (Vic), s 36. Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 9.06.

Criminal law – Appeal – Appeal on ground jury verdict unreasonable, or cannot be supported, having regard to the evidence – Application of test in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 – Whether Court of Criminal Appeal made independent assessment of evidence. Criminal law – Appeal – Video evidence – Where Court of Criminal Appeal relied on transcript of evidence – Whether sufficient to rely on transcript of evidence. Criminal law – Appeal – Trial judge's opinion – Where trial judge considered a jury acting reasonably could not have been satisfied beyond reasonable doubt of accused's guilt – Whether regard should be had to trial judge's opinion. Words and phrases – "unreasonable, or cannot be supported", "unsafe or unsatisfactory". Criminal Appeal Act 1912 (NSW), s 6(1).

Criminal law – Evidence – Burden of proof – Defences – Directions to jury – Appellant charged with creating a false or misleading appearance of active trading in securities – Appellant deemed to have created false or misleading appearance of active trading if proved to have caused a sale of securities where, to his knowledge, there was no change in beneficial ownership of securities – Section creating offence included a defence to prove that the purpose or purposes of the trades was not or did not include purpose of creating a false or misleading appearance of active trading ("proscribed purpose") – Where appellant did not give direct evidence of whether subjective purpose or purposes included proscribed purpose – Trial judge ruled defence not raised and withheld defence from jury – Whether character evidence as to honesty and other evidence in defence case sufficient to require defence to be left to jury – Whether, taking evidence at its highest, jury could conclude on balance of probabilities that appellant lacked proscribed purpose. Corporations – Financial services and markets – Market misconduct and other prohibited conduct – False trading and market rigging. Words and phrases – "balance of probabilities", "evidential burden", "false or misleading appearance of active trading", "legal burden". Corporations Act 2001 (Cth), s 1401. Corporations Law, ss 998, 1311(1).

Real property – Compulsory acquisition – Compensation – Assessment – Section 25(2) of Transport Planning and Coordination Act 1994 (Q) empowered Chief Executive of Department of Main Roads ("Department") to acquire property "for the purposes of transport" – Section 20(3) of Acquisition of Land Act 1967 (Q) ("Acquisition Act") required that, in assessing compensation for acquisition, there be considered any enhancement of value of land adjoining acquired land "by the carrying out of the works or purpose for which the land is taken" – Appellants entered agreement to transfer certain land ("Transfer Land") to respondents for amalgamation with land held by Department in return for payment of compensation set in accordance with Acquisition Act – Nature of purpose for which land is acquired – Whether purpose for which Transfer Land was acquired would enhance value of appellants' adjoining land. Words and phrases – "purpose for which the land is taken". Acquisition of Land Act 1967 (Q), s 20(3).

Trade practices – Conditions and warranties in consumer transactions – Implied warranties – Limitation or preclusion of liability for breach of implied warranty – Section 74(1) of Trade Practices Act 1974 (Cth) ("TPA") provided that in every contract for supply by corporation of services there was an implied warranty that services will be rendered with due care and skill – Section 74(2A) of TPA provided that, where implied warranty breached and law of State was proper law of contract, that State law applied to limit or preclude liability for breach of implied warranty in same way as for breach of another term of contract – Section 5N(1) of Civil Liability Act 2002 (NSW) ("Civil Liability Act") provided that term of contract for supply of recreation services may exclude, restrict or modify liability for breach of implied warranty – Appellant and respondent entered contract for supply by appellant to respondent of tourism services in Europe – Proper law of contract was law of New South Wales – Contract contained clause exempting appellant from liability for claims arising from accident where passenger occupied motor coach seat fitted with safety belt if safety belt not being worn – While travelling by coach respondent left seat to retrieve item from overhead shelf – Coach braked suddenly causing injury to respondent – Respondent claimed damages for breach of implied warranty by appellant – Whether s 74(2A) of TPA picked up and applied State laws as surrogate federal laws – Whether s 74(2A) of TPA picked up and applied s 5N of Civil Liability Act – Whether s 5N a law that applies to limit or preclude liability for breach of contract. Negligence – Civil Liability Act – Whether provision of transport services in the course of tourism constitutes "recreation services" for purposes of s 5N. Statutes – Acts of parliament – Interpretation – Geographical limitation on legislative power of State parliament – Whether s 5N of Civil Liability Act subject to geographical limitation – Whether, if picked up by s 74(2A), s 5N applied to contract for supply of recreation services where supply occurred wholly outside New South Wales. Contracts – General contractual principles – Construction and interpretation of particular contracts – Exemption from liability – Whether appellant could rely on exemption clause in contract as answer to respondent's claim. Words and phrases – "applies to limit or preclude liability", "contract for the supply of recreation services", "geographical limitation", "recreational activity". Civil Liability Act 2002 (NSW), ss 5A, 5J, 5K, 5N. Interpretation Act 1987 (NSW), s 12(1)(b). Trade Practices Act 1974 (Cth), ss 68, 74(1), 74(2A).

Commissioner of Taxation v BHP Billiton Limited Commissioner of Taxation v BHP Billiton Petroleum (North West Shelf) Pty Ltd Commissioner of Taxation v The Broken Hill Proprietary Company Pty Ltd Commissioner of Taxation v BHP Billiton Minerals Pty Ltd Income tax – Allowable deductions – Funds advanced for construction of plant and facilities – Div 243 of Income Tax Assessment Act 1997 (Cth) ("Act") required taxpayer to include additional amount in assessable income at termination of limited recourse debt arrangement if limited recourse debt used to finance or refinance expenditure and certain other criteria met – "Limited recourse debt" relevantly defined in s 243-20(2) of Act as debt where creditor's rights against debtor in event of default capable of being limited to rights in relation to financed property or property provided as security for debt, having regard to various factors – Wholly-owned subsidiary ("BHPDRI") of parent company ("BHPB") partly financed capital expenditure for processing plant with monies borrowed from other wholly-owned subsidiary ("Finance") – Finance wrote off balance of loan as irrecoverable – BHPDRI and BHPB claimed capital allowance deductions for project expenditure – Appellant applied Div 243 of Act to reduce deductions – Whether loan from Finance to BHPDRI "limited recourse debt" under s 243-20(2) of Act – Whether BHPDRI and Finance dealing at arm's length – Meaning of "capable of being limited" in s 243-20(2) of Act. Words and phrases – "capable of being limited", "capital allowance deductions", "limited recourse debt". Income Tax Assessment Act 1997 (Cth), ss 243-15(1), 243-20(1), 243-20(2).

Corporations law – Winding up in insolvency – Application for winding up by Australian Securities and Investments Commission – Where respondent presumed insolvent under s 459C(2)(c) of Corporations Act 2001 (Cth) ("Act") – Where principle applying under former companies legislation that company will not be wound up where debt subject of bona fide dispute on substantial ground – Whether principle applicable to Act in light of presumption of insolvency – Whether respondent solvent – Where primary judge did not accept respondent's explanation for alterations to accounts and no further evidence relevant to solvency could be identified by respondent – Whether primary judge's exercise of discretion miscarried in refusing to dismiss or stay proceedings – Whether necessary to join other parties. Words and phrases – "except so far as the contrary is proved". Corporations Act 2001 (Cth), ss 459A, 459C, 459P, 467.

Mining – Compensation – Section 12A(1)(b) of Mine Subsidence Compensation Act 1961 (NSW) allowed claims by owners of improvements for payment from Mine Subsidence Compensation Fund ("Fund") for proper and necessary expense incurred or proposed in preventing or mitigating damage that, in opinion of Mine Subsidence Board, owner "could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place" – Appellant made claim for costs of preventative and mitigatory works performed on pipeline after receiving expert advice that such works would be necessary as result of certain underground longwall mining – Whether appellant entitled to compensation from Fund under s 12A(1)(b) – Whether entitled to compensation only if subsidence occurred before expense incurred in preventing or mitigating damage – Whether "from a subsidence that has taken place" in s 12A(1)(b) refers to actual past occurrence or hypothetical future occurrence of subsidence. Words and phrases – "from a subsidence that has taken place". Mine Subsidence Compensation Act 1961 (NSW), ss 11, 12A(1)(b), 13A, 14.

Criminal law – Procedure – Confiscation of proceeds of crime and related matters – Forfeiture and confiscation of property – Section 22 of Criminal Property Confiscation Act 2000 (WA) ("Act") relevantly required court to make crime-used property substitution declaration where crime-used property not available for confiscation because offender did not own, and did not have effective control of, property and more likely than not that offender made criminal use of crime-used property – Section 147 of Act provided offender makes criminal use of property if, alone or with anyone else, offender used or intended to use property in way that brings property within definition of crime-used property – Section 146(1)(c) provided property "crime-used" if any act or omission done, omitted to be done or facilitated in or on property in connection with commission of confiscation offence – Where DPP applied for crime-used property substitution declaration against appellant – Where not disputed that premises leased by appellant "crime-used" within s 146(1)(c) of Act – Whether definition of "criminal use" in s 147 of Act encompassed conduct within definition of "crime-used" in s 146(1)(c) of Act. Words and phrases – "crime-used property", "criminal use", "property". Criminal Property Confiscation Act 2000 (WA), ss 21, 22, 146, 147.

Corporations – Credit facility – Derivative – Financial product – Financial service and markets – Financial service providers – Licensing and regulation – Where litigation funding agreement purportedly rescinded by reason of the lack of a financial services licence – Whether litigation funding agreement a financial product – Whether litigation funding agreement a credit facility. Words and phrases – "credit facility", "financial product", "financial service", "litigation funding agreement". Corporations Act 2001 (Cth), ss 760A, 761A, 761D, 761EA, 762A-762C, 763A, 765A, 766A-766E, 911A, 924A, 925A, 925E. Corporations Regulations 2001 (Cth), reg 7.1.06.

Torts – Negligence – Applicability and effect of legislation – Plaintiff alleged she had suffered injury including psychiatric injury as result of employer's negligence – Plaintiff made claim against employer pursuant to s 98C of Accident Compensation Act 1985 (Vic) ("Act") for compensation for non-economic loss – Pursuant to s 104B(9) of Act, Victorian WorkCover Authority referred questions to Medical Panel about extent of plaintiff's impairment – As result of Medical Panel finding, plaintiff deemed to have a "serious injury" for purposes of Act – As entitled under s 134AB(2) of Act, plaintiff commenced common law proceedings against employer for damages – Section 68(4) of Act provided that "[f]or the purposes of determining any question or matter", opinion of Medical Panel was to be applied by "any court, body or person" – In pleadings, employer denied plaintiff had suffered injury, loss and damage – Whether employer precluded by operation of Act from making that and other contentions in evidence or argument – Whether employer so precluded as a matter of issue estoppel. Words and phrases – "for the purposes of determining any question or matter", "serious injury". Accident Compensation Act 1985 (Vic), ss 68(4), 98C, 104B, 134

Plaintiff M13/2011 v Minister for Immigration and Citizenship Immigration – Refugees – Well-founded fear of persecution – Relocation – Plaintiff applied for and delegate of defendant refused to grant Protection (Class XA) visa – Delegate found plaintiff's fear not well-founded due to possibility of relocation within country of residence – Delegate made no finding of where plaintiff had been resident or to where plaintiff could relocate – Delegate did not consider whether relocation was reasonable or practicable for plaintiff – Whether delegate required to consider particular circumstances of plaintiff and impact upon plaintiff of relocation. Practice and procedure – High Court of Australia – Original jurisdiction – Extension of time for commencing proceeding – Plaintiff sought writ of certiorari to quash decision of delegate of defendant – Proceeding commenced outside period prescribed by s 486A(1) of Migration Act 1958 (Cth) and r 25.06.1 of High Court Rules 2004 – Section 486A(2) of Act allowed extension of time where "necessary in the interests of the administration of justice" – Whether time for commencing proceeding should be extended. Words and phrases – "jurisdictional error", "necessary in the interests of the administration of justice", "particular circumstances", "relocation". Migration Act 1958 (Cth), ss 48B, 486A(1), (2). High Court Rules 2004, r 25.06.1.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State courts – Non-judicial functions conferred upon judges of State courts – Section 5 of Crimes (Criminal Organisations Control) Act 2009 (NSW) ("Act") provided that Attorney-General may, with consent of judge, declare judge of Supreme Court to be an "eligible Judge" for purposes of Act – Section 6(1) provided that Commissioner of Police ("Commissioner") may apply to eligible Judge for declaration that particular organisation is a "declared organisation" for purposes of Act – Section 9(1) provided that eligible Judge may make declaration if satisfied members of particular organisation "associate for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity", and that organisation "represents a risk to public safety and order" – Section 13(2) relevantly provided that eligible Judge not required to provide "any grounds or reasons" for making declaration – Part 3 of Act empowered Supreme Court to make, on application by Commissioner, control order against member of particular "declared organisation" – Whether function conferred by Act upon eligible Judge to make declaration without requirement to provide grounds or reasons repugnant to or incompatible with institutional integrity of Supreme Court – Whether substantial impairment of institutional integrity of Supreme Court. Words and phrases – "incompatibility", "institutional integrity", "persona designata", "reasons". Constitution, Ch III. Crimes (Criminal Organisations Control) Act 2009 (NSW), ss 5, 6(1), 9(1), 12, 13(2), 14, 19.

Equity – Trusts and trustees – Express trusts constituted inter vivos – Where respondent by deed declared one half of property held "upon trust" for second appellant – Whether respondent a trustee – Whether evidence extrinsic to deed relevant to intention to create trust. Equity – Trusts and trustees – Powers, duties, rights and liabilities of trustees – Liability for breach of trust – Where trustee leased trust property – Whether duty to collect rent – Whether breach of duty to fail to collect unpaid rent – Where beneficiary knew trustee failed to collect rent and was told trustee had duty to collect rent – Whether beneficiary consented to or acquiesced in breach – Whether trustee entitled to set-off outgoings and improvements to property in taking of accounts. Words and phrases – "acquiescence", "bare trust", "consent", "estoppel", "express trust", "intention", "upon trust". Law of Property Act 1936 (SA), ss 29(1)(b), 41. Trustee Act 1936 (SA), ss 6, 7, 8, 25A, 25

HIH Claims Support Limited v Insurance Australia Limited Equity – Doctrine of contribution – Requirement of co-ordinate liabilities – Sub-contractor insured under insurance policy ("HIH policy") issued by member of HIH corporate group ("HIH") and under insurance policy issued by respondent's predecessor in title – Sub-contractor held liable for damage caused to third party by collapse of scaffold – HIH accepted sub-contractor's claim for indemnity under HIH policy and paid portion of sub-contractor's legal costs – After collapse of HIH corporate group, sub-contractor assigned rights against HIH to appellant as trustee under government assistance scheme and appellant paid 90 per cent of amount HIH would have paid under HIH policy in satisfaction of sub-contractor's liability and defence costs, excluding amounts already paid by HIH – Whether appellant could claim equitable contribution from respondent – Whether liabilities of appellant and respondent co-ordinate. Words and phrases – "co-ordinate liabilities", "common burden", "common interest", "of the same nature and to the same extent". Appropriation (HIH Assistance) Act 2001 (Cth), ss 3, 4.

Plaintiff M70/2011 v Minister for Immigration and Citizenship Plaintiff M106 of 2011 v Minister for Immigration and Citizenship Citizenship and migration – Migration – Refugees – Plaintiffs "unlawful non-citizens" and "offshore entry persons" under Migration Act 1958 (Cth) – Plaintiffs detained under s 189(3) – Each plaintiff claimed asylum under Refugees Convention – Section 198(2) required officer to remove from Australia unlawful non-citizen in detention where no successful visa application made – Section 198A(1) empowered officer to take offshore entry person from Australia to country declared under s 198A(3) – Section 198A(3) empowered Minister to declare that specified country provides access for asylum-seekers to effective procedures for assessing protection needs, provides protection for asylum-seekers and refugees, and meets relevant human rights standards in providing protection – Whether s 198A only source of power to remove plaintiffs from Australia when asylum claims not assessed in Australia – Whether s 198(2) supplied power to remove plaintiffs from Australia. Citizenship and migration – Migration – Refugees – Minister declared Malaysia under s 198A – Whether criteria in s 198A(3)(a)(i)-(iv) jurisdictional facts – Whether declared country must provide access and protections as matter of domestic or international legal obligation – Whether Minister's declaration valid. Citizenship and migration – Migration – Refugees – Children – Second plaintiff entered Australia as unaccompanied minor and "non-citizen child" under Immigration (Guardianship of Children) Act 1946 (Cth) – Section 6 had effect that Minister guardian of second plaintiff – Section 6A provided that non-citizen child could not leave Australia except with consent in writing of Minister – No consent given – Whether taking of second plaintiff to another country lawful. Words and phrases – "declare", "meets relevant human rights standards", "non-citizen child", "offshore entry person", "provides access", "provides protection", "Refugees Convention", "unaccompanied minor", "unlawful non-citizen". Immigration (Guardianship of Children) Act 1946 (Cth), ss 4AAA, 6, 6A. Migration Act 1958 (Cth), ss 189, 198, 198

Constitutional law (Cth) – Inconsistency between Commonwealth instrument and State law – Appellants employed construction workers and were bound by certain federal industrial instruments ("federal instruments") made under Workplace Relations Act 1996 (Cth) ("Commonwealth Act"), which contained provisions regarding long service leave – Construction Industry Long Service Leave Act 1997 (Vic) ("State Act") provided for scheme of portable long service leave benefits for workers in construction industry – Commonwealth Act provided for paramountcy of industrial instruments made under federal legislation over State laws, to extent of any inconsistency – Whether State Act inconsistent with Commonwealth Act as embodied in federal instruments. Words and phrases – "alter, impair or detract from", "cover the field", "direct inconsistency", "indirect inconsistency". Constitution, s 109. Construction Industry Long Service Leave Act 1997 (Vic), ss 1, 3, 4, 6. Workplace Relations Act 1996 (Cth), ss 17(1), 152(1), 170LZ(1).

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("Drugs Act") – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency. Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) ("Charter") provided "[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights" – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court. Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution. Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act. Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined "traffick" to include "have in possession for sale" – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking by that person – Whether s 5 applicable to offence under s 71AC on basis of "possession for sale" – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs. Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36. Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant. Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order. Words and phrases – "declaration", "diversity jurisdiction", "evidential onus", "incompatibility", "institutional integrity", "interpret", "legal onus", "legislative intention", "matter", "possession", "possession for sale", "resident of a State", "right to be presumed innocent". Constitution, Ch III, ss 73, 75(iv), 77(iii), 109. Commonwealth of Australia Constitution Act 1900 (Imp), s 5. Crimes Act 1914 (Cth), s 4C(2). Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5. Judiciary Act 1903 (Cth), ss 39(2), 79. Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37. Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2). Interpretation of Legislation Act 1984 (Vic), s 6(1).

Constitutional law (Cth) – Taxation – s 51(ii) – Superannuation guarantee charge imposed upon employers who fail to provide to employees a prescribed level of superannuation – Charge debt due to Commonwealth and paid into Consolidated Revenue Fund for benefit of employees – Whether law imposing charge not a law with respect to taxation because charge is not imposed for "public purposes", and because it confers a "private and direct benefit" on employees of those employers who pay charge. Words and phrases – "charge", "compulsory exaction", "private and direct benefit", "public purposes". Constitution, s 51(ii). Superannuation Guarantee (Administration) Act 1992 (Cth), ss 16, 17. Superannuation Guarantee Charge Act 1992 (Cth), ss 5, 6.

Westport Insurance Corporation v Gordian Runoff Limited Arbitration – Judicial review of awards – Section 38(5) of Commercial Arbitration Act 1984 (NSW) ("Arbitration Act") provided that the Supreme Court shall not grant leave to appeal on any question of law unless it considers that, having regard to all the circumstances, the determination of the question of law could substantially affect the rights of a party to the arbitration agreement (par (a)), and there is a "manifest error of law on the face of the award" (par (b)(i)) – Reinsurance treaties between respondent and appellants included arbitration agreement which required that any dispute arising thereunder be referred to arbitration to be held in accordance with and subject to Arbitration Act – Appellants appealed to Supreme Court on questions of law arising out of award – Whether leave to appeal should have been granted – Whether error of law manifest on face of award. Arbitration – Reasons for award – Section 29(1)(c) of Arbitration Act required arbitrator to include in award a statement of reasons for making award, unless parties otherwise agreed in writing – Arbitrators delivered written award accompanied by "Reasons for Award" comprising 96 paragraphs – Nature and extent of reasons for award required by s 29(1)(c) of Arbitration Act – Whether reasons for award must be same standard as judicial reasons – Whether nature and extent of reasons for award depends upon circumstances of particular dispute. Insurance – Statutory construction – Statutory limitation on exclusion clauses – Section 18B of Insurance Act 1902 (NSW) prevented insurer from avoiding liability by relying upon exclusion clause in contract of insurance where operation of exclusion clause was triggered by event with no relationship to cause of event giving rise to particular loss and claim, unless in all the circumstances it was not reasonable for insurer to be bound to indemnify insured – Respondent sought to rely on s 18B to overcome finding by arbitrators that reinsurance treaties between respondent and appellants did not respond to certain policies of insurance underwritten by respondent – Whether s 18B applicable to reinsurance treaties between respondent and appellants. Words and phrases – "appeal", "arbitration agreement", "award", "considerations of general justice and fairness", "exclusion clause", "judicial standard", "manifest error of law on the face of the award", "question of law", "reasons", "reinsurance treaty". Commercial Arbitration Act 1984 (NSW), ss 22, 29, 38-40. Insurance Act 1902 (NSW), s 18

Contract – Construction – Dispute resolution clause – Parties to contract agreed to expert determination of claims for damages for breach of contract – Expert contractually obliged to give reasons – Whether inconsistency in expert's reasons – Whether court has power to review expert's determination made under contract. Words and phrases – "expert determination", "inconsistency", "issue", "valid and sufficient reasons". Commercial Arbitration Act 1984 (NSW), ss 24, 28, 33, 44. Corporations Act 2001 (Cth), s 500(2).

Criminal law – Sentencing – Mentally retarded appellant pleaded guilty to offence of sexual intercourse with a child under 10 years – Appellant sentenced to nine years' imprisonment and non-parole period of 96 days – Standard non-parole period for offence 15 years – Relevance of statutory provision of a standard non-parole period in sentencing of offenders – Whether "two-stage approach" to sentencing of offenders for offences with standard non-parole periods required or permitted – Whether R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 correctly decided with respect to operation of standard non-parole periods. Criminal law – Sentencing – Offender suffering mental retardation – Relevance of mental retardation – Relevance of availability of rehabilitative treatment. Criminal law – Sentencing – Community protection – Relevance of availability of orders under Crimes (Serious Sex Offenders) Act 2006 (NSW). Words and phrases – "objective seriousness", "standard non-parole period". Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 54A(2), 54

Constitutional law (Cth) – Duties of excise – Water Resources Act 1998 (ACT) and Water Resources Act 2007 (ACT) imposed licence fees upon first respondent for extracting water from Australian Capital Territory water catchments, and Utilities (Network Facilities Tax) Act 2006 (ACT) imposed charge upon first respondent calculated by reference to route length of its water infrastructure network – First respondent passed on cost of imposts to appellant – Territory-owned Corporations Act 1990 (ACT) provided that first respondent was a "territory-owned corporation" and regulated share ownership, corporate decision-making and corporate borrowing of first respondent – Section 8(1) also provided that first respondent is not "the Territory" only because of its status as a "territory-owned corporation" – Whether first respondent identified with government of Australian Capital Territory – Whether imposts are duties of excise – Whether imposts are financial arrangements internal to government of Australian Capital Territory. Words and phrases – "compulsory exaction", "duties of excise", "extensive control", "identified with the Territory", "tax". Constitution, ss 90, 122. Australian Capital Territory (Self-Government) Act 1988 (Cth), Pts III, IV, VII. Territory-owned Corporations Act 1990 (ACT), Pts 2, 3, 4, ss 6-8, Sched 4.

Plaintiff M47/2012 v Director General of Security Citizenship and migration – Migration – Refugees – Protection visas – Inconsistency between Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth) – Plaintiff found to be a refugee but refused protection visa due to adverse security assessment by Australian Security Intelligence Organisation – Clause 866.225(a) of Sched 2 to Regulations prescribes public interest criterion 4002 as criterion for grant of protection visa – Public interest criterion 4002 requires that applicant not be assessed by Australian Security Intelligence Organisation to be risk to security – Whether prescription of public interest criterion 4002 as criterion for grant of protection visa beyond power conferred by s 31(3) of Act. Administrative law – Procedural fairness – ASIO interviewed plaintiff – ASIO issued adverse security assessment in relation to plaintiff – Plaintiff therefore did not meet requirements for protection visa – Whether ASIO denied plaintiff procedural fairness. Citizenship and migration – Mandatory detention – Plaintiff held in detention as unlawful non-citizen – No third country currently available to receive plaintiff – Whether ss 189 and 196 of Act authorise plaintiff's detention. Words and phrases – "character test", "decision ... relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2)", "inconsistent", "protection obligations", "security". Australian Security Intelligence Organisation Act 1979 (Cth), ss 4, 37. Migration Act 1958 (Cth), ss 31(3), 36(2), 65, 189, 196, 500, 501, 504(1). Migration Regulations 1994 (Cth), Sched 2, cl 866.225(a), Sched 4, item 4002.

Tasty Chicks Pty Limited v Chief Commissioner of State Revenue State taxation – Pay-roll tax – Taxpayer dissatisfied with Chief Commissioner's determination of objection to assessments may apply to Supreme Court for "review" pursuant to Taxation Administration Act 1996 (NSW), s 97. Administrative law – Courts – Original jurisdiction upon statutory "appeal" and "review" in respect of administrative decision – Nature, power and duties of court in exercise of that jurisdiction. Words and phrases – "appeal", "review". Taxation Administration Act 1996 (NSW), ss 97, 101. Pay-roll Tax Act 1971 (NSW), Pt 4

AH v Western Australia Statutes – Construction – Gender reassignment – Applications for recognition certificates as males – Reassignment procedures undertaken to alter genitals and gender characteristics – Appellants adopted lifestyle and have physical appearance of males – Retain some female sexual organs – Whether requirement that person have "the physical characteristics by virtue of which a person is identified as male or female" met – Whether adverse social consequences or community standards and expectations permissible considerations. Words and phrases – "gender", "gender characteristics", "physical characteristics by virtue of which a person is identified", "reassignment procedure", "recognition certificate", "transsexual". Gender Reassignment Act 2000 (WA), ss 14(1), 15(1).

Criminal law – Physical element of offence – Omission – Respondent convicted of multiple charges of obtaining financial advantage from Commonwealth entity contrary to s 135.2(1) of Criminal Code (Cth) ("Code") – Respondent failed to advise Centrelink of receipt of payments of commission from employer – Whether omission to perform act that person not under legal obligation to perform can be physical element of offence created by s 135.2(1) of Code – Whether s 4.3 of Code gave expression to common law principle that criminal liability does not attach to omission unless it is omission to perform act that person is under legal obligation to perform. Words and phrases – "engages in conduct", "makes it so", "obtains a financial advantage", "omission". Criminal Code (Cth), ss 4.1(2), 4.3, 135.2(1). Social Security Act 1991 (Cth), Pt 2.10, s 1068A. Social Security (Administration) Act 1999 (Cth), s 74.

Hargraves v The Queen Stoten v The Queen Criminal law – Trial – Directions to jury – Appellants convicted of charges arising from tax avoidance scheme – Appellants' dishonesty only issue at trial – Appellants gave evidence – Prosecution called appellants' accountant as witness – Appellants' counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution – Trial judge told jury they could evaluate credibility by considering a witness's "interest in the subject matter of the evidence" including "self-protection" – Whether misdirection causing miscarriage of justice – Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants' guilt – Whether direction invited jury to test appellants' evidence according to appellants' interest in outcome of trial – Principles applicable to directions about evaluation of evidence. Criminal Code (Q), s 668

ACN 078 272 867 Pty Limited (In liquidation) (Formerly Advance Finances Pty Limited) v Deputy Commissioner of Taxation Binetter v Deputy Commissioner of Taxation Corporations – Reinstatement to register – Winding up – Companies deregistered under Corporations Act 2001 (Cth) ("Act") – Federal Court made orders reinstating companies to register pursuant to s 601AH(2) of Act and thereupon winding them up – Companies and former director sought writs of certiorari, to quash winding-up orders made by Federal Court, mandamus and prohibition – Whether Federal Court had jurisdiction to wind up companies – Whether Federal Court wound up deregistered companies – Whether Federal Court ordered that winding up take effect from date when companies reinstated – Whether s 601AH(5) of Act requires that company, when reregistered, come back into existence in same form as on deregistration. Procedural fairness – Whether companies should have been given opportunity to be heard before winding-up orders made – Discretionary nature of relief sought – Whether there was unfairness as matter of substance – Whether opportunity to be heard could have made difference to outcome. Words and phrases – "company", "jurisdictional error". Corporations Act 2001 (Cth), ss 459A, 459P, 601AH(2), 601AH(5). Corporations Law, s 574(1)(b).

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) ("Act") to give evidence regarding "federally relevant criminal activity" involving her husband – Witness declined to answer examiner's questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege. Words and phrases – "compellability", "competence", "spousal privilege".

High Court of Australia – Appellate jurisdiction – Procedure – Interveners and amicus curiae – Whether leave should be granted. Words and phrases – "Court significantly assisted", "interests directly affected".

Courts and judges – Bias – Apprehended bias – Appellant successfully applied ex parte to use respondents' affidavits for foreign proceedings and criminal investigations on several occasions – Judge relied on appellant's unchallenged affidavit evidence – Applications heard in closed court and orders made preventing respondents knowing about applications – Whether fair-minded lay observer might reasonably apprehend judge might not bring impartial and unprejudiced mind to resolution of issues at trial of action. Practice and procedure – Appeal – Trial judge refused respondents' pre-trial disqualification applications – Trial judge offered to make orders facilitating urgent appeal – Whether order on disqualification application capable of appeal – Respondents did not seek leave to appeal – Whether respondents permitted to raise disqualification on appeal from final judgment. Abuse of process – Multiple proceedings – Appellant commenced arbitration proceeding against solicitor in London for breach of fiduciary duty then proceeding against respondents in Supreme Court of New South Wales for knowingly assisting solicitor's breach and in tort – Loss from substantially same breaches of fiduciary duty alleged in both proceedings – Proceedings could not be brought in one venue – Supreme Court delivered judgment before arbitrators delivered award on liability – Findings about appellant's loss differed – Whether Supreme Court proceeding abuse of process. Equity – Remedies – Solicitor liable to appellant for breach of fiduciary duty – Respondents liable to appellant for knowingly assisting solicitor's breach – Whether respondents' liability ancillary to, coordinate with or necessarily limited by solicitor's liability – Equity against double recovery – Whether respondents have equity to prevent appellant enforcing Supreme Court judgment against them where particular loss satisfied pursuant to arbitral award against solicitor. Words and phrases – "abuse of process", "appeal", "apprehended bias", "arbitration", "disqualification", "double recovery", "ex parte application", "multiple proceedings", "order".

Handlen v The Queen Paddison v The Queen Criminal law – Appeal – Jury misdirection – Application of proviso – Appellants in joint trial each convicted of multiple drug-related offences under Criminal Code (Cth) ("Code"), including two counts of importing commercial quantity of border controlled drugs into Australia contrary to s 307.1 of Code ("importation offences") – Trial conducted on mistaken assumption that guilt of importation offences could be established by proof that appellants parties to joint criminal enterprise – Whether prosecution upon basis not known to law denied application of proviso under s 668E(1A) of Criminal Code (Q) – Whether directions to jury on "group exercise" distracted from real issues in trial of each count in indictment. Words and phrases – "aids, abets, counsels or procures", "joint criminal enterprise", "proper conduct of trial", "proviso". Criminal Code (Cth), Ch 2, ss 11.2, 307.1. Criminal Code (Q), s 668E(1A).