Cases and authorities

Immigration – Visa – Refugee and Humanitarian (Class XB) visa – Subclass 202 Global Special Humanitarian – Plaintiff Australian permanent resident, eligible proposer for and held Subclass 202 visa – Plaintiff's mother applied for Subclass 202 visa – Primary criteria for grant of visa in cl 202.211 of Sched 2 to Migration Regulations 1994 (Cth) included that applicant "member of the immediate family of the proposer" on date proposer's visa granted and that applicant "continues to be a member of the immediate family of the proposer" at time of applicant's application for visa – Applicant must continue "to satisfy the criterion in clause 202.211" at time of decision for applicant's visa – Mother "member of the immediate family" of proposer only until proposer 18 years old – Plaintiff proposed mother for visa before turned 18 but Minister's delegate's decision not made until after plaintiff turned 18 – Minister's delegate decided that mother ceasing to be member of plaintiff's "immediate family" after date of application but before date of decision required refusal of mother's application – Whether "continues to be a member of the immediate family of the proposer" is criterion to be determined at time of application or time of decision – Whether jurisdictional error. Words and phrases – "continues to be a member of the immediate family", "continues to satisfy the criterion", "criteria to be satisfied at time of decision". Migration Act 1958 (Cth), ss 31(3), 47(1), 65(1), 65A. Migration Regulations 1994 (Cth), regs 2.01, 2.03(1), Sched 1, item 1402, Sched 2, Div 202.2.

Amaca Pty Limited (Under NSW Administered Winding Up) v Booth Amaba Pty Limited (Under NSW Administered Winding Up) v Booth Evidence – Expert evidence – First respondent sued appellants in Dust Diseases Tribunal of New South Wales – First respondent claimed exposure to asbestos fibres in breach of each appellant's duty of care caused his mesothelioma – First respondent's expert evidence that cumulative exposure to asbestos contributed to mesothelioma accepted at trial – Appellants led epidemiological evidence disputing link between exposure to asbestos of members of first respondent's profession and risk of mesothelioma – Whether inference of fact concerning contraction of disease reasonably open on evidence. Negligence – Causation – Whether more probable than not that appellants' negligence was a cause of first respondent's disease – Whether issues of causation lie within common knowledge and experience – Role of expert medical evidence. Practice and procedure – Appeal – No evidence – Appeal from Dust Diseases Tribunal of New South Wales to Supreme Court of New South Wales – Section 32 of Dust Diseases Tribunal Act 1989 (NSW) confers a right of appeal to Supreme Court against decision of Tribunal "in point of law" – Whether Tribunal erred in point of law when deciding that appellants' negligence more probably than not a cause of first respondent's disease. Words and phrases – "causation", "cause and consequence", "epidemiological evidence", "manifest error", "mesothelioma". Dust Diseases Tribunal Act 1989 (NSW), s 32.

Criminal law – Appeal – Appeal against sentence – Prosecution appeal – Double jeopardy – Appellant pleaded guilty to importation of a marketable quantity of a border controlled drug contrary to s 307.2(1) of Criminal Code (Cth) – Appellant sentenced to three years' imprisonment to be released forthwith upon giving security to comply with a condition that appellant be of good behaviour for three years – Respondent appealed against sentence – Sections 289(2) and 290(3) of Criminal Procedure Act 2009 (Vic) ("Victorian provisions") provided that double jeopardy not to be taken into account in allowing appeal against sentence or imposing sentence – Whether ss 68(1) or 79(1) of Judiciary Act 1903 (Cth) ("Judiciary Act") rendered Victorian provisions applicable to prosecution appeal against sentence instituted by respondent – Whether a "common law principle against double jeopardy" picked up by s 80 of Judiciary Act – Whether ss 16A(1)-(2) of Crimes Act 1914 (Cth) required or permitted court determining sentence for federal offence to take into account double jeopardy. Words and phrases – "double jeopardy". Crimes Act 1914 (Cth), ss 16A(1)-(2). Judiciary Act 1903 (Cth), ss 68(1)-(2), 79(1), 80. Criminal Procedure Act 2009 (Vic), ss 289(2), 290(3).

Droudis v The Queen Constitutional law – Implied freedom of communication on government and political matters – Criminal offence under s 471.12 of Criminal Code (Cth) for person to use postal or similar service in way that "reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive" – Appellants allegedly sent communications to relatives of Australian soldiers and officials killed in Afghanistan and Indonesia – Communications criticised deployment of Australian troops in Afghanistan in terms critical of deceased – Appellants charged with using and aiding and abetting use of postal service in way that reasonable persons would regard as offensive – Whether s 471.12 in its application to "offensive" uses of postal service effectively burdens implied freedom of political communication – Whether s 471.12 in its application to "offensive" uses of postal service is reasonably appropriate and adapted to legitimate end in manner compatible with system of representative and responsible government. Statutes – Interpretation – Whether purpose of s 471.12 of Criminal Code (Cth) in its application to "offensive" uses of postal service is only to prohibit those offensive uses – Whether purpose of s 471.12 in its application to "offensive" uses of postal service is to prohibit misuse of service for intrusion of seriously offensive material into home or workplace – Whether s 471.12 in its application to "offensive" uses of postal service is limited to seriously offensive uses. Words and phrases – "effectively burden", "legitimate end", "offensive", "proportionality", "reasonable person", "reasonably appropriate and adapted". Constitution, ss 7, 24, 128. Criminal Code (Cth), Div 471, s 471.12.

Waller v Hargraves Secured Investments Limited Mortgages – Mortgagee's remedies – Farm Debt Mediation Act 1994 (NSW) ("Act") – Creditor must provide notice of intention to take "enforcement action" under "farm mortgage" ("Notice") – Notice must specify availability of mediation regarding farm debts – Creditor unable to take enforcement action until NSW Rural Assistance Authority ("Authority") issues certificate that Act does not apply because satisfactory mediation has occurred – Borrower mortgaged land to secure all monies owed under loan agreement – Borrower defaulted and lender provided Notice – Borrower requested mediation under Act – Following mediation parties executed second and third loan agreements, discharged previous debts and created new farm debts – Authority satisfied of successful mediation and issued certificate certifying that Act did not apply to farm mortgage – Borrower defaulted in making interest payments due under third loan agreement – Whether successive farm debts created new "farm mortgage" requiring satisfactory mediation before creditor could pursue enforcement action – Whether separate Notice required for enforcement action under subsequent loan agreements – Whether certificate issued by Authority void – Whether lender's entitlement to possession of secured land and outstanding monies barred. Words and phrases – "enforcement action", "farm debt", "farm mortgage", "in respect of the farm debt involved", "in respect of the farm mortgage concerned". Farm Debt Mediation Act 1994 (NSW), ss 3, 4(1), 5(1), 6, 8, 9, 10(1), 11(1), 14, 17. Real Property Act 1900 (NSW), s 3(1). Interpretation Act 1987 (NSW), s 34.

Strong v Woolworths Limited Negligence – Causation – Slip and fall injury – Absence of adequate system for periodic inspection and cleaning – Whether factual causation under s 5D of Civil Liability Act 2002 (NSW) ("Act") excludes notions of "material contribution" – Whether appellant had proved factual causation under s 5D(1)(a) of Act – Whether open on evidence to apply probabilistic reasoning in Shoeys Pty Ltd v Allan (1991) Aust Torts Reports 81-104. Words and phrases – "but for", "causation", "material contribution", "necessary condition", "slipping case", "system of periodic inspection and cleaning". Civil Liability Act 2002 (NSW), ss 5D, 5

ALH Group Property Holdings Pty Limited v Chief Commissioner of State Revenue Stamp duty – Agreement for sale or transfer of dutiable property – Cancelled agreement – Section 8(1)(b)(i) of Duties Act 1997 (NSW) ("Duties Act") charged duty on "an agreement for the sale or transfer of dutiable property" – Section 50(1)-(2) of Duties Act relevantly provided that cancelled agreement for sale or transfer of dutiable property not liable to duty and that respondent must refund duty paid on such agreement – Oakland Glen Pty Limited ("Oakland") entered into contract ("2003 contract") to sell property to Trust Company Fiduciary Services Limited ("Trust") – Oakland, Trust and appellant executed deed ("Deed of Consent") under which appellant assumed Trust's obligations under 2003 contract – Oakland and appellant executed deed ("Deed of Termination") which as rectified cancelled Deed of Consent – Whether Deed of Consent recorded agreement on which duty chargeable under s 8(1)(b)(i) of Duties Act – Whether Deed of Consent effected novation or assignment of Trust's rights under 2003 contract to appellant – Whether Deed of Consent rescinded 2003 contract – Whether Deed of Termination cancelled any agreement for sale or transfer of property recorded in Deed of Consent so that respondent must refund duty paid pursuant to s 50(2) of Duties Act. Words and phrases – "an agreement for the sale or transfer of dutiable property", "assignment", "novation", "rescission". Duties Act 1997 (NSW), ss 8(1)(a), 8(1)(b)(i), 50(1)-(2).

Equuscorp Pty Ltd v Haxton Equuscorp Pty Ltd v Bassat Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd Restitution − Restitution of benefits derived from unenforceable or illegal contracts − Recovery of money paid as money had and received − Respondents invested in tax driven blueberry farming schemes − Respondents borrowed funds to pay farm management fees − Each investment a "prescribed interest" under Companies Code of each respondent's home State ("Code") − Contrary to s 170(1) of Code, no valid prospectus registered when prescribed interests offered − Farming schemes collapsed − Respondents did not repay loan funds − Loan agreements unenforceable against respondents due to illegality − Whether restitution of loan funds available − Whether failure of consideration − Whether respondents' retention of loan funds unjust. Personal property − Alienation of personal property − Assignment of choses in action − Assignment of right to restitution − Deed of assignment included assignment of legal right to debts and "all legal and other remedies" − Whether right to restitution capable of assignment − Whether deed of assignment assigned right to restitution. Words and phrases – "bare right of action", "chose in action", "failure of consideration", "legal and other remedies", "money had and received", "prescribed interest", "unjust enrichment". Companies Code, ss 170, 174. Property Law Act 1974 (Q), s 199(1). Judicature Act 1873 (UK), s 25(6).

Intellectual property – Copyright – Sound recordings – Source of rights – Transitional provisions – Whether after commencement of Copyright Act 1968 (Cth), the Copyright Act 1911 (Imp) remained source of subsisting copyright in pre-1969 sound recordings. Constitutional law (Cth) – Validity of Commonwealth legislation – Acquisition of property on just terms – Whether fixing of a "cap" on compulsory licence fees in relation to copyright interests is unconstitutional – Application of s 51(xxxi) of Constitution. Words and phrases – "compulsory licence", "copyright", "Imperial legislation", "just terms", "licence fees", "validity". Constitution, s 51(xxxi). Copyright Act 1911 (Imp), ss 19, 24-26. Copyright Act 1912 (Cth). Copyright Act 1968 (Cth), ss 84-113C, 152, 204-248.

Criminal law — Evidence — Relevance — Propensity evidence — Applicant found guilty by jury of maintaining sexual relationship with child under 16, indecent treatment of child under 16 and sodomy of person under 18 — Complainant was applicant's daughter — Complainant's brother gave evidence of uncharged incident between applicant and complainant — Complainant's brother provided innocent explanation for incident — Whether brother's evidence admissible where complainant did not give evidence about incident — Whether evidence relevant to applicant's alleged sexual interest in complainant — Whether test for admissibility in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 applicable — Whether test satisfied. Words and phrases – "propensity", "rational view", "sexual interest". Criminal Code (Q), ss 208, 210 and 229

Criminal law – Rape – Mens rea – Directions to jury – Complainant penetrated anally while asleep – No evidence and no assertion that accused believed complainant consenting – Trial judge directed jury that mental element of offence in s 38(2)(a)(i) of Crimes Act 1958 (Vic) established if accused aware complainant was or might be asleep – Court of Appeal held trial judge's direction precluded jury from considering possibility that accused believed complainant was awake and consenting to intercourse – Whether open on evidence for jury to conclude that accused may have believed complainant to be awake – Whether trial judge permitted or required to direct jury about accused's belief in consent if no evidence or assertion that accused believed in consent. Words and phrases – "aware", "believed", "if evidence is led or an assertion is made". Crimes Act 1958 (Vic), ss 36-38.

Taxation – Income tax – Exemption from income tax under Div 50 of Income Tax Assessment Act 1997 (Cth) – Charitable purpose – Whether fund was applied for the purposes for which it was established – Whether application of fund viewed as a whole sufficient to qualify for exemption. Trusts – Trustees – Charitable trust – Breaches of trust – Mingling of trust monies with other monies – Use of trust monies by trustees in their personal capacity – Relevance of success on possible application under s 85 of Trustee Act 1925 (NSW). Words and phrases – "charitable trust", "income tax exemption", "misapplication of trust monies", "purposes for which it was established". Income Tax Assessment Act 1997 (Cth), Div 50. Trustee Act 1925 (NSW), s 85.

Betfair Pty Limited v Racing New South Wales Constitutional law (Cth) – Operation and effect of Constitution – Freedom of interstate trade, commerce, and intercourse – Validity of fees imposed for use of NSW race field information – Practical effect of fee structure – Prejudice upon trade and not upon particular traders – Competitive disadvantage – Whether Racing Administration Act 1998 (NSW), s 33A(2) must be read as not authorising provisions in Racing Administration Regulation 2005 (NSW) obnoxious to s 92 of Constitution – Whether demonstrating greater financial impact on appellant relative to competitors sufficient to establish protection of intrastate trade from interstate competition. Words and phrases – "competitive disadvantage", "discrimination", "protectionism". Constitution, s 92. Interpretation Act 1987 (NSW), s 31. Racing Administration Act 1998 (NSW), ss 33, 33A. Racing Administration Regulation 2005 (NSW), cll 16, 20.

Constitutional law (Cth) – Operation and effect of Constitution – Freedom of interstate trade, commerce, and intercourse – Approval of use of NSW race field information for fee on wagering turnover – Practical effect of imposition of fee – Connection between location of wagering operator business and turnover of that business – Prejudice upon trade and not upon particular traders – Whether power of approval under Racing Administration Act 1998 (NSW), s 33A confined by positive rule that trade and commerce between Territories and States shall be absolutely free – Whether legislation granting power of approval imposed discriminatory restraints and interferences of protectionist kind. Constitutional law (Cth) – Operation and effect of Constitution – Inconsistency of laws – Effect of Interpretation Act 1987 (NSW), s 31 on questions of inconsistency between Commonwealth and State law – Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 limits State legislative power – Whether Racing Administration Act, ss 33 and 33A inconsistent with Northern Territory (Self-Government) Act, s 49 and invalid to extent of inconsistency – Whether Northern Territory (Self-Government) Act, s 49 interpreted in accordance with s 92 of Constitution. Words and phrases – "free trade", "practical operation", "protectionism". Constitution, ss 92, 109. Interpretation Act 1987 (NSW), s 31. Northern Territory (Self-Government) Act 1978 (Cth), s 49. Racing Administration Act 1998 (NSW), ss 33, 33A. Racing and Betting Act (NT), s 90. Racing Administration Regulation 2005 (NSW), Pt 3.

Criminal law – Appeal – Jury misdirection – Application of "proviso" – Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) – Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue – Whether appellate court able to conclude that no substantial miscarriage of justice occurred – Whether judicial "discretion" in applying proviso. Words and phrases – "proviso", "substantial miscarriage of justice". Crimes Act 1958 (Vic), s 568(1). Occupational Health and Safety Act 2004 (Vic), s 21.

Criminal law – Evidence – Admissibility of evidence about DNA analysis – Appellant convicted of murder – Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased's thumbnail – Expert's statistical evidence given in form of frequency ratio and exclusion percentage – Whether evidence of exclusion percentage relevant given evidence of frequency ratio – Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant – Whether evidence of exclusion percentage misleading or confusing. Evidence – Judicial notice – Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice – Facts underpinning adoption of general rule not proved – Whether judicial notice can be taken of psychological research said to support adoption of general rule. Words and phrases – "evidence", "exclusion percentage", "frequency ratio", "judicial notice", "misleading or confusing", "unfair prejudice". Evidence Act 1995 (NSW), ss 135, 137, 144.

Statutes – Acts of Parliament – Interpretation – Presumptions as to legislative intention – Presumption against retrospective operation – Full Federal Court of Australia held that registration of Australian Principals Federation ("APF") under Workplace Relations Act 1996 (Cth) ("WR Act") invalid because of absence of "purging rule" terminating membership of organisation of persons no longer entitled to be members – WR Act renamed Fair Work (Registered Organisations) Act 2009 (Cth) and s 26A inserted validating purported registrations made invalid because of absence of purging rule – Whether s 26A operated to validate registration of APF. Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Whether s 26A in substance dissolved or reversed the orders of the Full Federal Court – Whether s 26A impermissibly usurped or interfered with exercise of Commonwealth judicial power – Whether s 26A invalid. Words and phrases – "registered organisation", "retrospective operation", "usurpation of judicial power". Constitution, Ch III. Acts Interpretation Act 1901 (Cth), s 8. Fair Work (Registered Organisations) Act 2009 (Cth), ss 26A, 171A. Workplace Relations Act 1996 (Cth), Sched 1

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Sentencing and parole procedure – Whether determination made under s 13A of Sentencing Act 1989 (NSW) is a "matter" within s 73 of Constitution – Whether s 154A of Crimes (Administration of Sentences) Act 1999 (NSW) invalid for setting aside, varying, altering or otherwise stultifying a judgment, decree, order or sentence of Ch III court. Words and phrases – "parole", "sentencing". Constitution, s 73. Crimes Act 1900 (NSW), s 463. Crimes (Administration of Sentences) Act 1999 (NSW), ss 143, 154A. Sentencing Act 1989 (NSW), s 13

Criminal law – Rape – Husband's immunity from prosecution for rape of wife – Presumption of consent to intercourse by wife in marriage – Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) – Alleged rapes committed in 1963 against then spouse – Legislative amendments enabled institution of proceedings despite lapse of time – Elements of offence of rape in 1963 supplied by common law – Whether in 1963 common law of Australia presumed consent by wife in marriage. Precedent – Judicial method – Development of common law – Whether presumption of consent by wife in marriage was part of common law of Australia – Whether statement of common law in R v L [1991] HCA 48; (1991) 174 CLR 379 applied to events alleged to have occurred in 1963. Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application". Criminal Law Consolidation Act 1935 (SA), s 48. Matrimonial Causes Act 1857 (UK) (20 & 21 Vict c 85).

High Court of Australia − Original jurisdiction − Matter arising under laws made by Parliament − Appeal from Supreme Court of Nauru pursuant to s 5 of Nauru (High Court Appeals) Act 1976 (Cth) − Supreme Court of Nauru held that transfer of land to appellant was invalid because President of Nauru had not approved transfer − After conclusion of proceeding in Supreme Court of Nauru appellant discovered document bearing President's signature and approving transfer to appellant − Whether fresh evidence can be received on appeal to High Court from Supreme Court of Nauru − Whether appellant could have discovered document by exercise of reasonable diligence at time of proceeding in Supreme Court of Nauru. Words and phrases – "appeal", "fresh evidence", "original jurisdiction". Constitution, s 76(ii). Nauru (High Court Appeals) Act 1976 (Cth), s 5.

The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal The National Competition Council v Hamersley Iron Pty Ltd The National Competition Council v Robe River Mining Co Pty Ltd Trade practices – Access to services – Minister's decision whether to declare services relating to railway lines in Pilbara pursuant to s 44F of Trade Practices Act 1974 (Cth) – Section 44H(4) required Minister to be satisfied of certain matters – Whether criterion for declaration of service in s 44H(4)(b) imposes test of private profitability – Whether public interest criterion in s 44H(4)(f) requires or permits inquiry into likely net balance of social costs and benefits – Whether any residual discretion. Administrative law – Application to Australian Competition Tribunal ("Tribunal") under s 44K for review of Minister's decision to declare pursuant to s 44F – Review by Tribunal is re-consideration of the matter – Nature of review to be undertaken by Tribunal – Whether Tribunal could consider any material parties considered relevant. Words and phrases – "public interest", "re-consideration of the matter", "re-hearing of the matter", "uneconomical for anyone to develop another facility to provide the service". Trade Practices Act 1974 (Cth), Pt IIIA, ss 44B, 44F, 44H, 44K, 163

Criminal law – Murder – Accessorial liability – Appellant convicted of murder – Crown accepted guilty pleas from five other participants to lesser offences – Trial judge left to jury Crown case based on accessorial liability – Whether appellant could be convicted as accessory to murder when Crown had accepted pleas from all other participants to lesser charges – Whether trial judge should have left accessorial case to jury – Whether Crown could lead evidence that other participants murdered the deceased – Whether inconsistency between convictions of other participants and accused – Whether exercise of prosecutorial discretion an abuse of process. Words and phrases – "abuse of process", "accessory", "aiding and abetting", "counselling or procuring", "principal", "prosecutorial discretion". Crimes Act 1958 (Vic), s 323. FRENCH CJ. I agree with the order proposed in the joint judgment and, subject to one reservation, with the reasons which their Honours give for that order. That reservation relates to an observation in the joint judgment concerning the reviewability of prosecutorial discretions. The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process[1]. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings[2]. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process. The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review. But as Gaudron and Gummow JJ also pointed out, the approach of earlier authorities which treated such decisions as unreviewable because they were seen as part of the prerogative of the Crown "may not pay sufficient regard to the statutory office of Director of Public Prosecutions which now exists in all States and Territories and in the Commonwealth."[3] Further as their Honours observed "it may pay insufficient regard to the fact that some discretions are conferred by statute"[4]. The statutory character of prosecutorial decision-making in Australia today does not lessen the significance of the impediments to judicial review of such decisions, which are created by the constitutional and practical considerations referred to above. However the existence of the jurisdiction conferred upon this Court by s 75(v) of the Constitution in relation to jurisdictional error by Commonwealth officers and the constitutionally-protected supervisory role of the Supreme Courts of the States[5] raise the question whether there is any statutory power or discretion of which it can be said that, as a matter of principle, it is insusceptible of judicial review. That question was not argued in this case and does not need to be answered in order to decide this case. It involves a question arising under the Constitution. I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice. Subject to the above reservation, I agree with the reasons of their Honours and the order they propose.

Fortescue Metals Group Ltd v Australian Securities and Investments Commission Corporations law – Misleading or deceptive conduct – Fortescue made agreements with Chinese state-owned entities to build, transfer and finance mining infrastructure – Forrest and Fortescue made public statements that binding agreements entered into – Whether statements were of opinion or fact – Whether ordinary or reasonable member of audience would understand statements as making representation about enforceability of agreements in Australian law – Whether statements misleading or deceptive or likely to mislead or deceive. Corporations law – Continuous disclosure – Fortescue made statements to Australian Securities Exchange about agreements without publishing actual agreements – Whether obliged to disclose actual terms of agreements. Practice and procedure – Pleadings – Statement of claim pleaded numerous allegations in alternative – Whether drafting of statement of claim in this manner desirable or appropriate. Words and phrases – "binding contract", "extreme or fanciful", "misleading or deceptive", "opinion", "ordinary or reasonable member of audience". Corporations Act 2001 (Cth), ss 180(1), 674, 1041

Penberthy v Barclay Negligence – Pure economic loss – Plane crash caused by engine failure and negligent response of pilot – Whether damages recoverable for pure economic loss suffered by employer due to injury to employees. Tort – Action per quod servitium amisit – Whether absorbed into tort of negligence – Whether action per quod servitium amisit exists under common law of Australia. Tort – Action per quod servitium amisit – Measure of damages – Remoteness –Whether damages recoverable calculated by price of substitute less wages no longer paid to injured employee. Tort – Rule in Baker v Bolton – Whether employer can recover for death of employee. Words and phrases – "per quod servitium amisit", "pure economic loss", "vulnerability".

Family law – Children – Family Law Act 1975 (Cth) – Family Law (Child Abduction Convention) Regulations (Cth) – Convention on the Civil Aspects of International Child Abduction – Wrongful removal – Order for return to country of habitual residence – Discretion to refuse to make return order – Objection of child to return – Ascertaining child's views and interests – Appointment of family consultant. Practice and procedure – Procedural fairness – Mother removed children from country of habitual residence in Italy – Father sought children's return – Family Court has discretion not to make return order if person opposing return establishes child objects to being returned with strength of feeling beyond mere preference or ordinary wish and child has attained appropriate age and maturity – Family Court made return order notwithstanding children objected to their return – Family Court received evidence and report by family consultant about children's views – Children unsuccessfully applied at late stage to intervene by case guardian in proceedings between mother and father – No evidence of exceptional circumstances to suggest Family Court should have ordered independent representation for children under s 68L of Family Law Act 1975 (Cth) – Whether children denied procedural fairness in making of return order – Whether procedural fairness required children to have independent legal representation. Words and phrases – "family consultant", "independent representation", "return order". Family Law Act 1975 (Cth), ss 62G, 68L, 68LA, 69ZT, 92, 111B. Family Law (Child Abduction Convention) Regulations (Cth), regs 14, 16, 19A, 26.

Equity – Trusts and trustees – Trust deed for discretionary family trust provided that "[i]f, and so long as any individual Appointor is a Beneficiary that individual shall not be eligible to be appointed as a Trustee" – Individual who was appointor of trust was also beneficiary of trust – Whether corporation of which appointor was sole director and shareholder eligible to be appointed trustee of trust.

Mansfield v The Queen Kizon v The Queen Corporations law – Insider trading – Appellants allegedly possessed inside information concerning listed public company – Appellants allegedly bought or procured purchase of shares in that company – Information was false – Corporations Act 2001 (Cth) prohibits certain conduct by person who possesses inside information about company – Whether person in possession of false information can contravene insider trading prohibitions. Words and phrases – "information". Corporations Act 2001 (Cth), Pt 7.10.

Criminal law – Appeal – Misdirection – Application of "proviso" – Appellant convicted of murder – Prosecution alleged at trial that either appellant hit and killed deceased or alternatively another person hit and killed deceased pursuant to joint criminal enterprise with appellant – Jury instructed to consider case of joint criminal enterprise as alternative to primary case that appellant hit and killed deceased – Court of Criminal Appeal held no evidence of joint criminal enterprise – Whether "no substantial miscarriage of justice" occurred. Words and phrases – "proviso", "substantial miscarriage of justice". Criminal Appeal Act 1912 (NSW), s 6(1).

Taxation – Income tax – Equity interests – Imputation system – Schemes to reduce income tax – Power of Commissioner under Income Tax Assessment Act 1936 (Cth), s 177EA to make determination that no imputation benefit to arise – Whether "having regard to the relevant circumstances" scheme entered into or carried out for purpose of enabling taxpayer to obtain imputation benefit – Whether purpose an "incidental purpose" – Relevance of distribution being traceable to source not taxed in Australia – Relevance of scheme resulting in reduced cost of capital to whether scheme results in "change" in financial position. Words and phrases – "change in financial position", "frankable distribution", "incidental purpose", "purpose", "relevant circumstances", "untaxed or unrealised profits". Income Tax Assessment Act 1936 (Cth), ss 177D, 177EA. Income Tax Assessment Act 1997 (Cth), Pt 3-6, Div 974. FRENCH CJ. I agree with the orders proposed by Gageler J for the reasons given by his Honour. HAYNE J. I agree with Gageler J. KIEFEL J. I agree with Gageler J. BELL J. I agree with Gageler

Family law – Family Court – Jurisdiction – Proceedings to alter property interests – Husband and wife lived apart after wife admitted into full time residential care – Husband continued to live in matrimonial home and provide financially for wife's care – Husband and wife had separate wills in favour of their children from earlier marriages – Wife by case guardian applied for order altering interests in marital property between husband and wife – Wife died before Full Court of Family Court delivered judgment and daughters continued proceeding as wife's legal personal representatives – Whether "matrimonial cause" within definition of Family Law Act 1975 (Cth) – Whether there was power to make property settlement order. Family law – Proceedings to alter property interests – Property settlement order – Death of either party to pending proceedings – Whether it would have been just and equitable to make property settlement order had wife remained alive – Whether still appropriate despite wife's death to make property settlement order. Constitutional law (Cth) – Powers of Commonwealth Parliament – Whether provision for adjudication of claim for property settlement order continued by legal personal representative is law with respect to marriage under s 51(xxi) or matrimonial causes under s 51(xxii). Words and phrases – "intact marriage", "involuntary separation", "just and equitable", "moral obligations". Constitution, s 51(xxi), (xxii). Family Law Act 1975 (Cth), ss 4(1), 39(2), 43(1), 74-75, 79.

Practice − High Court − Case stated − Questions reserved − Judiciary Act 1903 (Cth), s 18. Practice − High Court − Remitter − Judiciary Act 1903 (Cth), s 44. Constitution, ss 92, 99, 100. Judiciary Act 1903 (Cth), ss 18, 44. Water Act 2007 (Cth).

Defamation – Defences – Common law defence of qualified privilege – Respondent involved in proposal to invest funds in football club – Appellant was board member of affiliated club – Appellant opposed proposal – Respondent sent letter to appellant's employer conveying imputations defamatory of appellant – Defamatory statements made voluntarily and in protection of personal interests – Whether defence of qualified privilege required respondent to show "pressing need" to protect interests – Whether "pressing need" to be adjudged by reference to test of "reasonable necessity" – Consideration of Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366. Words and phrases – "community of interest", "fairly warranted by any reasonable occasion or exigency", "pressing need", "qualified privilege", "reasonable necessity". Defamation Act 2005 (NSW), ss 6(2), 24.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Institutional integrity of State court vested with federal jurisdiction – Section 146C(1) of Industrial Relations Act 1996 (NSW) provides that Industrial Relations Commission of New South Wales must "give effect to any policy ... that is declared by the regulations to be an aspect of government policy that is required to be given effect to by the Commission" when making or varying any award or order – Commission comprises judicial and non-judicial members – Judicial members of Commission sit as Industrial Court of New South Wales to exercise specific functions of Commission – Industrial Court is superior court of record and may be invested with federal jurisdiction – Whether s 146C(1) impairs institutional integrity of Industrial Court by requiring judicial members when sitting as Commission to comply with regulations when making or varying any award or order. Words and phrases – "institutional integrity", "policy". Constitution, Ch III. Industrial Relations Act 1996 (NSW), Ch 4, s 146C(1). Industrial Relations (Public Sector Conditions of Employment) Regulation 2011 (NSW).

Criminal law – Appeal – Error or irregularity in trial – Failure to sever counts – Appellant charged with numerous counts of blackmail of one victim and one count of blackmail of another victim – Trial judge refused application to sever trial of separate count – Court of Appeal held that trial judge erred in refusing application – Whether refusal to sever resulted in "substantial miscarriage of justice" within meaning of s 276 of Criminal Procedure Act 2009 (Vic). Words and phrases – "substantial miscarriage of justice". Criminal Procedure Act 2009 (Vic), s 276.

Negligence – Damages – Statutory limit on recoverability of damages – Section 7(1)(b) of Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) provides that person bringing more than one action in respect of damage suffered as the result of a tort cannot recover more than "the amount of the damages awarded by the judgment first given" – Settlement of claim against concurrent tortfeasor given effect by consent judgment – Subsequent claim brought against different concurrent tortfeasor – Whether statutory limitation on recoverability of damages applied to subsequent claim. Words and phrases – "award", "consent judgment", "damages awarded by the judgment first given". Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7(1)(b).

Immigration – Visa – Refugee and Humanitarian (Class XB) visa – Subclass 202 Global Special Humanitarian – Public interest criterion 4015 – Combined application by mother and dependent children as additional applicants – Where applicants citizens of Afghanistan living in Pakistan – Where children's father missing – Where delegate found children's "home country" to be Afghanistan – Where delegate not satisfied that father or relatives of father consented to grant of visa – Whether delegate's decision based on correct legal understanding of public interest criterion 4015 – Whether failure to disclose adverse material. Words and phrases – "home country", "person who can lawfully determine where the additional applicant is to live", "usually a resident", "usually resident". Migration Act 1958 (Cth), ss 31, 66. Migration Regulations 1994 (Cth), reg 1.03, Sched 2, Subclass 202, Sched 4, item 4015.

Trade practices – Misleading or deceptive conduct – Search engine operator displayed "sponsored links" on search results page – Sponsored links created by or at direction of advertisers – Sponsored links comprised advertising text which directed users to web sites of advertisers' choosing – Whether search engine operator engaged in misleading or deceptive conduct by publishing or displaying sponsored links which contained misleading representations made by advertisers – Whether search engine operator adopted or endorsed misleading representations. Words and phrases – "adoption", "endorsement", "intermediary", "misleading or deceptive conduct", "misleading representation". Trade Practices Act 1974 (Cth), ss 52, 85(3).

Jurisdiction – Subject matter jurisdiction – Industrial Relations Commission of New South Wales ("IR Commission") – Probationary police officer dismissed by Commissioner of Police under s 80(3) of the Police Act 1990 (NSW) – Probationary police officer applied to IR Commission under s 84(1) of the Industrial Relations Act 1996 (NSW) claiming dismissal was harsh, unreasonable or unjust – Whether IR Commission has jurisdiction under Pt 6 of Ch 2 of the Industrial Relations Act to determine unfair dismissal claim regarding dismissal under s 80(3) of the Police Act. Statutes – Statutory interpretation – Implied repeal – Part 6 of Ch 2 of the Industrial Relations Act 1996 (NSW) allows public sector employees to challenge dismissal as harsh, unreasonable or unjust – Section 80(3) of the Police Act 1990 (NSW) permits Commissioner of Police to dismiss probationary police officers from the New South Wales Police Force at any time and without reason – Inconsistency and incoherence between provisions of the Industrial Relations Act and the Police Act – Whether Parliament intended the general provisions of the Industrial Relations Act to affect the operation of the earlier specific provisions of the Police Act. Words and phrases – "generalia specialibus non derogant", "harsh, unreasonable or unjust", "implied repeal", "legislative intention", "probationary police officer", "unfair dismissal". Industrial Relations Act 1996 (NSW), Ch 2 Pt 6, s 84(1). Police Act 1990 (NSW), Pt 9 Div 1C, ss 80(3), 218.

Criminal law – Appeal – Appeal on ground jury verdict unreasonable or can not be supported having regard to evidence – Application of test in M v The Queen [1994] HCA 63; (1994) 181 CLR 487 – Whether error for appellate court to ask whether jury "must have had sufficient doubt" about complainant's evidence to warrant acquittal. Words and phrases – "unreasonable, or can not be supported". Criminal Code (Q), s 668

Constitutional law – Implied freedom of communication on government and political matters – Where by-law prohibited preaching and distributing printed matter on any road without permission – Whether by-law effectively burdened freedom of political communication – Whether by-law reasonably appropriate and adapted to achieving legitimate end in manner compatible with system of representative and responsible government. Local government – Where power to make by-laws "for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants" – Whether generally expressed by-law making power must be narrowly or restrictively construed – Whether by-law exceeded limitations on power delegated to local government under Local Government Act 1934 (SA) – Whether by-law complied with limitations and procedures prescribed by Local Government Act 1999 (SA) – Whether by-law was reasonable and proportionate exercise of by-law making power. Words and phrases – "could not reasonably have been adopted", "legitimate end", "licence", "political communication", "principle of legality", "proportionality". Constitution, ss 7, 24, 128. Electronic Transactions Act 2000 (SA), ss 9(1), 10(3). Local Government Act 1934 (SA), ss 667(1) 4 I, 667(1) 9 XVI. Local Government Act 1999 (SA), ss 4(1), 246(1)(a), 246(2), 248(1)(a), 249(4). By-law No 4 – Roads, pars 2.3, 2.8.

Immigration – Visa application – Plaintiff applied for Skilled (Provisional) (Class VC) Subclass 485 (Skilled – Graduate) visa requiring he have "competent English" – Plaintiff indicated his English was competent on visa application form and included reference number to a language test he had undertaken – The results of that test ("the first test results") did not achieve requisite score for competent English – Plaintiff sat second language test and achieved requisite score but results were not given to Department of Immigration and Citizenship – Using test reference number, departmental officer accessed first test results – Visa application refused on ground plaintiff did not satisfy criterion of competent English – Whether first test results were given by plaintiff for purpose of application – Whether first test results were "relevant information" for purposes of Migration Act 1958 (Cth), s 57(1) – Whether Tribunal breached Migration Act, s 57(2). Words and phrases – "competent English", "for the purpose of the application", "relevant information", "was not given by the applicant". Migration Act 1958 (Cth), s 57(1), (2). Migration Regulations 1994 (Cth), Sched 2, cl 485.215.

Mining – Ownership of minerals – Crown prerogative – Section 379 of the Mining Act 1992 (NSW) ("the Act") preserved any Crown prerogative in respect of mines of gold and silver – Ore mined on appellants' lands contained intermingled gold and copper, incapable of being separately mined – Royalty payable under the Act on gold and copper – Section 284 of the Act required Minister to pay seven-eighths of royalty paid on minerals not owned by or reserved to Crown to mineral owner – Whether intermingled copper owned by or reserved to Crown – Whether common law prerogative rights, as received in colony of New South Wales, included Crown ownership of intermingled copper – Whether Royal Mines Act 1688 (1 Wm & Mar c 30) excluded "mines of copper" from scope of prerogative recognised in Case of Mines (1568) 1 Plowden 310 [75 ER 472] – Whether mines on appellants' lands were "mines of copper". Words and phrases – "mine of copper", "mine of gold", "prerogative", "privately owned mineral", "publicly owned mineral", "royal mines". Royal Mines Act 1688 (1 Wm & Mar c 30), s 3. Statute 5 Wm & Mar c 6 (1693). Mining Act 1992 (NSW), ss 282, 284, 379.

Bankruptcy – Deed of Arrangement – Directors and officers liability policy of insurance – Equitable assignment of rights under policy of insurance to trustee under Deed of Arrangement – Trustee commenced proceedings in pursuit of rights under policy of insurance – Deed of Arrangement terminated – Effect of termination – Whether trustee had power to continue proceedings – Whether "loss" suffered under policy of insurance – Whether certain clauses of Deed of Arrangement survived termination. Trusts – Bare trust – Duties and powers of trustee. Words and phrases – "loss", "bare trust". Bankruptcy Act 1966 (Cth), Pt X. Conveyancing Act 1919 (NSW), s 12.

Defamation – Defences – Qualified privilege – Common law – Respondent bank mistakenly dishonoured cheques of appellant and communicated dishonour to payees of cheques – Communication defamatory – Whether communication made on occasion of qualified privilege – Rationale for defence of qualified privilege – Whether reciprocity of interest between respondent bank and payees – Whether public interest in privilege attaching to occasion of such communication – Relevance of mistake leading to communication – Relevance of statutory obligations. Words and phrases – "community of interest", "malice", "occasion of qualified privilege", "reciprocity of interest", "refer to drawer". Cheques Act 1986 (Cth), ss 67, 69. Defamation Act 1974 (NSW), s 11. Property, Stock and Business Agents Act 1941 (NSW), s 36.

Bashford v Information Australia (Newsletters) Pty Limited Defamation - Defences - Common law defence of qualified privilege - Matter published conveying imputation defamatory of appellant in subscription publication - Where matter involved report of judicial proceedings - Where no claim for qualified privilege made under Defamation Act 1974 (NSW) - Whether qualified privilege available as a defence - Whether matter published on occasion of qualified privilege - Publication for reward - Publication of matter concerning occupational health and safety - Publication to subscribers - Subscribers professionally concerned with matters of occupational health and safety - Whether reciprocity of duty or interest - Whether defamatory matter sufficiently connected to the privileged occasion - Whether absence of availability of defence of fair and accurate report of judicial proceedings precludes availability of defence of qualified privilege. Defamation Act 1912 (NSW), s 29(1)(d), (e). Defamation Act 1958 (NSW). Defamation Act 1974 (NSW), ss 11, 22, 24.

Evidence - Judicial notice - Whether judicial notice can be taken that institutions such as the respondent use a standard form of guarantee. Guarantee - Consequence of person named as co-surety not being shown to have executed guarantee. Practice and procedure - High Court - Determination of appeal - Appellants' ground of appeal succeeds - Notice of Contention - Whether respondent should have leave to amend contentions sought in motion filed immediately before appeal hearing - Whether outstanding issues should be determined in intermediate appellate court. Words and Phrases: "judicial notice", "common knowledge". Contracts Review Act 1980 (NSW). Evidence Act 1995 (NSW), s 144. Supreme Court Rules 1970 (NSW), Pt 15 r 13(2). GLEESON CJ, Mc

Alexander v Perpetual Trustees WA Limited Contribution - Statutory right of - Trusts - Money received by firm of solicitors from respondent trustees to be held for a specific purpose and in accordance with specific conditions - Misapplication of funds by firm - Breach of trust by firm - Respondent trustees sued by beneficiaries - Firm sued by respondent trustees - Cross-claim by firm against respondent trustees - Whether contribution available - Whether firm liable to beneficiaries for damage - Whether respondent trustees liable to beneficiaries for same damage - Nature of beneficiaries' rights against firm - Proper construction of Wrongs Act 1958 (Vic), Pt IV. Contribution - Statutory right of - Trade practices - Misleading and deceptive conduct - Money received by firm of solicitors from respondent trustees to be held for a specific purpose and in accordance with specific conditions - Misapplication of funds by firm - Misrepresentations by firm - Respondent trustees sued by beneficiaries - Firm sued by respondent trustees - Cross-claim by firm against respondent trustees - Whether contribution available - Whether firm liable to beneficiaries for damage - Whether respondent trustees liable to beneficiaries for same damage. Fair Trading Act 1985 (Vic), ss 11, 37. Wrongs Act 1958 (Vic), Pt

Putland v The Queen Criminal law - Sentencing - Offences against laws of the Commonwealth - Where offender tried in Territory court for indictable offences against laws of the Commonwealth - Judiciary Act 1903 (Cth), s 68(1) - Where Territory legislation permitted aggregate sentences for indictable offences - Whether aggregate sentences were permissible in the case of Commonwealth offences. Constitutional law - Discrimination - Whether Territory legislation permitting aggregate sentencing resulted in constitutionally impermissible discrimination between federal offenders. Words and phrases - "so far as they are applicable". Crimes Act 1914 (Cth), s 4K, Pt 1B. Judiciary Act 1903 (Cth), s 68. Sentencing Act (NT), s 52.

Kelly v The Queen Criminal Law - Evidence - Admissibility of statement made to police after video-recorded interview was completed - Where statement was not made in response to any police question - Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). Evidence - Admissibility - Statement made to police after video-recorded interview completed - Where statement was not made in response to any police question - Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas). Criminal Law - Appeal - Proviso - No substantial miscarriage of justice. Statutes - Construction - Purposive construction - Use of definition sections to aid statutory construction. Words and Phrases: "made in the course of official questioning", "confession or admission". Criminal Law (Detention and Interrogation) Act 1995 (Tas), ss 8(1), 8(2)(a). Criminal Code (Tas), s 402(2).

; Ryan v Pledge Negligence - Apportionment of liability - Assessment of causative factors in motor vehicle and pedestrian accident - Role of appellate court - Whether Court of Appeal justified in preferring own findings of fact to those of trial judge - Disadvantages faced by appellate court in assessing evidence - Where Court of Appeal made own assessment of photographs in evidence in preference to oral evidence of witnesses at trial - Where trial judge had undertaken viewing of accident site - Where Court of Appeal made speed, distance and timing calculations not proposed at trial. Words and phrases - "appeal". Evidence Act 1995 (NSW), s 54. Supreme Court Act 1970 (NSW), s 75A. McHUGH ACJ. The facts and the issues in these appeals are set out in the judgment of Callinan and Heydon JJ which I have had the advantage of reading. Their Honours hold that the Court of Appeal of New South Wales erred in three respects in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the harm suffered by the plaintiff. They were: (1) no proper basis for preferring observations of the photographic exhibits to the oral evidence of four witnesses whose evidence was accepted by the trial judge; (2) reliance on time, speed and distance calculations that involved so many imponderables as to make the calculations little more than speculation; (3) failing to give sufficient weight to the advantage that the trial judge enjoyed by viewing the scene of the accident. For the reasons given by Callinan and Heydon JJ, the Court of Appeal erred in these three respects. It follows that these appeals must be allowed and the matters remitted to the Court of Appeal to re-apportion liability between the three defendants and to determine the issues not dealt with by the Court of Appeal in the appeal to that Court. KIRBY J. I agree, for the reasons given by Callinan and Heydon JJ, that error has been shown on the part of the Court of Appeal of New South Wales in exculpating the Roads and Traffic Authority of New South Wales and the Blue Mountains Council from responsibility for the damage suffered by the plaintiff. I also agree with the additional reasons of Hayne J and his analysis of the issues raised in these appeals. It follows that I agree that the appeals must be allowed with costs. The proceedings must be remitted to the Court of Appeal to determine the outstanding issues and to reapportion liability between the three defendants in the light of the conclusions of the Court of Appeal with which this Court has agreed. These are the lack of causative negligence in (1) the absence of the propounded traffic sign; and (2) the provision of parking bays at an angle of 90 degrees to the service road. The orders proposed by Callinan and Heydon JJ should be made. HAYNE J. I agree with Callinan and Heydon JJ that the appeals should be allowed with costs and the matters remitted to the Court of Appeal. I agree generally with their Honours' reasons. I add something on my own account, first, in order to amplify what is said about the issues of causation that arise and, secondly, to say something more about what issues will have to be dealt with when the matters are remitted to the Court of Appeal. As is so often the case when a motor accident is examined closely, there were many features of the history of the event in which Nadia Ryan was struck by the vehicle driven by Mr Pledge which may be thought to have contributed to its happening. Neither the injured pedestrian, Nadia, nor the driver of the vehicle that struck her, Mr Pledge, saw the other until too late. The father of the injured pedestrian did not see the vehicle that struck her until too late. The driver's opportunity to see pedestrians, and the pedestrians' opportunity to see approaching traffic, was reduced by the foliage on the median strip which divided the highway from the service lane. The pedestrians (father and daughter) did not take enough care to look properly for oncoming vehicles. The driver's attention was distracted by the consequences of a vehicle coming out of the parking bays at the side of the service road. There were no signs warning drivers of pedestrians, or requiring, or suggesting, a reduction in speed. The driver was driving within the speed limit but at a speed which the trial judge found to be faster than was reasonable in all the circumstances. Many of these factors were under the control of either the pedestrians, or the driver. But not all were. The state of the foliage on the median strip had been brought about by either or both of the Roads and Traffic Authority of New South Wales ("the RTA") or the Blue Mountains Council ("the Council"). (Whether it was the RTA or the Council which was, or both which were, responsible for the state of the foliage will have to be determined on remitter of the matter to the Court of Appeal. So too will any question of apportionment of that responsibility.) It was the Council which designed and permitted the use of off-road parking, at 90 degrees to the direction of travel, in bays beside the service road. It was the Council which would have provided warning signs. Why then should there be a distinction drawn between the legal significance which is attached to the presence of the foliage and the significance attached to either the off-street parking or the absence of a warning sign? The distinction is not to be found by attempting to identify the cause of the event. Examination will usually reveal that the event came about as the result of a complex mixture of acts or omissions. It may be right to say of each of those acts or omissions that, but for its happening, the accident would not have happened as it did. It would be wrong, however, to argue from that observation to a conclusion that one or other of those acts or omissions (for example, the driver's failure to keep a proper lookout) is to be given special significance. Equally, it would be wrong to argue from the identification of every act or omission which played a role in the accident happening as it did to the conclusion that legal responsibility attaches to all of those responsible for every one of those acts or omissions. As Windeyer J said in Faulkner v Keffalinos[1], "lawyers must eschew this kind of 'but for' or sine qua non reasoning about cause and consequence"[2]. The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry - the attribution of legal responsibility[3]. It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable[4]. But that kind of policy inquiry apart, it is necessary to identify the nature of the role which the conduct in question played in bringing about the damage suffered. What role did the foliage, the parking bays, and the absence of signs have in the happening of this accident? It is convenient to deal first with the parking bays. To say that the driver was distracted by the vehicle coming out of the parking bays and the consequent reaction of the oncoming vehicle, is no more than a particular and positive statement of the negative proposition that he was not keeping a proper lookout. What attracted his attention was, as the Court of Appeal said, an event of an otherwise unremarkable kind, namely, the entry of one vehicle on to the carriageway from a point outside the bounds of that carriageway and the reaction of another vehicle into the path of which the first vehicle was moving. It was not suggested that the driver of either of those other vehicles caused or contributed to the happening of the accident. Rather, the trial judge found that the authority which had permitted cars to be put in the position from which the first vehicle had come was to some extent responsible for the accident. No doubt the positioning of the parking bays and their use on the day of the accident were events which form a part of the history which led to Nadia Ryan being struck by the vehicle which Mr Pledge was driving. But did the presence or design of the bays play a role which, in the context of an inquiry about negligence, can properly be described as causative? If the provision or the design of the parking bays (as distinct from driving in or out of one of them in a particular way, or at a particular point in the traffic flow) played any role in the happening of this accident it was so slight as properly to be discarded from consideration in assessing legal responsibility. There are at least two related reasons why that is so. First, the danger created by the presence of the parking bays was at all times evident. It was evident because any danger lay not in the fact that cars parked off the carriageway, it lay in the movement of cars into and out of the parking bays. And that was obvious. The bays stood at the side of a sufficiently long stretch of straight road for the view of vehicles entering or leaving them to be uninterrupted for a long distance. Secondly, what distracted the attention of Mr Pledge was, as I have said, the movement of the vehicle out of a parking bay and the reaction of another vehicle coming, past the emerging vehicle, towards Mr Pledge. All that the design and placement of parking bays did was provide the opportunity for this combination of events. In the circumstances of this case, that should not be held to have been a cause of the accident in which Nadia was injured. The issue about the parking bays may be contrasted with the foliage on the median strip. The foliage was as obvious as were the parking bays. But what was not obvious was that pedestrians could and did cross the median strip at an otherwise unmarked point in the strip. And as they did so, they were hidden from the view of drivers approaching that point, and cars were hidden from the pedestrians' view. It was the presence of the foliage (in its then state) which hid pedestrian from driver, and vehicle from pedestrian. The role which a particular act or omission played in the occurrence of an event can often be identified by asking what would have happened if the act or omission had not occurred. This kind of counterfactual inquiry may not always be easy. In this case, asking what would have happened if the foliage had been trimmed or cleared from the vicinity of the edge of the median strip led the Court of Appeal into attempting to calculate the time for which the pedestrians would have been visible to Mr Pledge. There were too many uncertainties in the evidence for the Court to make a calculation of that kind. Further, the conclusion drawn from the calculation (that Mr Pledge still would not have seen the pedestrians until too late) depended upon assuming that Mr Pledge's field of vision was very narrow, and directed to only one part of the roadway ahead. But vision and awareness of colour and movement are far less precise than the assumption that was made. It was well open to the trial judge to conclude that, had the foliage been less, Mr Pledge's attention would have been attracted to the pedestrians and the accident avoided or the impact lessened. The absence of a sign warning of the possibility of pedestrians crossing, or a sign requiring or suggesting a speed slower than the generally applicable speed limit on roads like the service road was dealt with by the trial judge very shortly and by way of conclusion rather than articulation of reasons. Evidence was given, at trial, that a sign reading "LOCAL TRAFFIC ONLY DRIVE SLOWLY" might have been erected in the area. Such signs were in use at the time and were usually accompanied by a speed restriction sign requiring a speed less than 60 kmh. But the trial judge made no clear finding that the Council had been negligent in failing to provide either the warning sign or a speed restriction sign. The trial judge said only that he was satisfied that there was "a need of warning signs or a notice limiting the speed of vehicles (or directing them to proceed slowly) etc" (emphasis added). This "need" was treated by the trial judge as a corollary of the likelihood of pedestrians crossing where the foliage was too dense and 90 degree parking bays were inappropriate. No doubt this treatment of the subject of warning signs owed much to the way the trial proceeded. At trial the chief focus of debate was upon three issues: first, the lookout kept by the driver; secondly, the significance of and responsibility for the state of the foliage on the median strip; and, thirdly, the provision of parking bays at 90 degrees to the direction of travel on the carriageway. These were the only subjects explored in the cross-examination of Mr Pledge, the driver. The subject of warning signs was not raised with him in the course of his evidence. In the Court of Appeal, the absence of signs was understood to present two issues: one about breach of duty and the other about causation. Ipp AJA concluded that it was "questionable" whether the Council was duty bound to have erected a sign of the kind suggested but that "there were insufficient grounds to hold that a sign of the kind postulated would have caused [the driver] to drive in any different way". I, too, would very much doubt that not to erect a sign of the kind suggested was a breach of any duty owed by the Council to the injured pedestrian[5]. But whether or not that is so, there was no evidence that the presence of a warning sign would have affected the way in which the driver drove on this day. There was, therefore, no basis in the evidence for concluding that the absence of a sign was a cause of the accident. And there was, in any event, no finding that the Council was negligent in failing to provide signs of the kind discussed. These conclusions do not dispose of all the issues that were raised in the proceedings in the Court of Appeal. As between the Council and RTA there remains undecided in this Court what role each played in designing or maintaining the foliage on the median strip. What has not been determined, therefore, is what responsibility each had for the state of the foliage at the time of the accident. That will be a matter for the Court of Appeal. It follows that whether the amount of any damages which the Council may otherwise be liable to pay is affected by Pt 6 of the Motor Accidents Act 1988 (NSW) is a question for the Court of Appeal. It also follows that apportionment of responsibility between the parties found to have been negligent is a matter which should be determined by the Court of Appeal. Finally, Mr Pledge's cross-appeal to that Court remains undecided.