Cases and authorities

Network Ten Pty Limited v TCN Channel Nine Pty Limited Copyright - Infringement - Television broadcast - Television programme broadcast by appellant contained excerpts from programmes previously broadcast by respondent - Each excerpt of brief duration - Meaning of the "subject matter" of broadcast copyright - Whether each visual image capable of being observed as a separate image on a television screen and accompanying sounds is "a television broadcast" in which copyright subsists - Whether a "substantial part" of a television broadcast must be copied to constitute infringement. Statutes - Construction and interpretation - Relevance of legislative history and context - Relevance of legislative history and context of similar United Kingdom statute - Copyright Act 1968 (Cth), ss 25(4), 87. Words and phrases - "broadcast", "television broadcast", "re-broadcast", "programme", "subject-matter", "substantial part", "fixation". Copyright Act 1968 (Cth), ss 14(1), 25(4), 87, 91, 101. Broadcasting Services Act 1992 (Cth), ss 6(1), 14. Mc

Johnson v The Queen Criminal law - Sentencing - Federal offences - Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied - Whether sentencing judge applied peculiarly Western Australian sentencing principles - Whether express reference to relevant considerations in s 16A(2), Crimes Act 1914 (Cth) necessary. Criminal law - Sentencing - Federal offences - Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied - Totality principle where sentencing for commission of several offences - Whether sentencing judge must fix sentence for each offence and aggregate them before determining questions of totality or concurrence - Whether sentencing judge may in some circumstances lower each sentence before aggregation - Instinctive or intuitive synthesis approach to sentencing. Criminal law - Sentencing - Federal offences - Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied - One transaction rule - Where two offences contain common element - Effect of factual errors made by Court of Criminal Appeal - Whether factual errors made by Court of Criminal Appeal in dismissing appeal necessarily leads to conclusion that sentencing judge erred - Whether sentence properly reflects consideration of whether defendant was truly engaged upon one multi-faceted course of criminal conduct. Crimes Act 1914 (Cth), ss 16A, 16B, 19(2). Customs Act 1901 (Cth), s 233

Negligence - Duty of care - Where pure economic or financial loss - Whether engineer owed duty of care to subsequent owner of commercial premises - Salient features of relationship giving rise to duty - Vulnerability - Assumption of responsibility - Known reliance (or dependence) - Relevance of latent defects and structural defects. Negligence - Duty of care - Where pure economic or financial loss - Whether engineer owed duty of care to subsequent owner of commercial premises - Construction of dwellings and construction of other buildings - Relevance of the contract with the original owner - Relevance of statutory protection. Practice and procedure - Whether cause of action on agreed facts - Sufficiency of pleading - Limitations on determining separate questions. Words and phrases - "salient features", "vulnerability", "assumption of responsibility", "known reliance (or dependence)", "construction of dwellings and construction of other buildings". Home Building Act 1989 (NSW), ss 18A-18G, 90-99. House Contracts Guarantee Act 1987 (Vic), ss 5-8. Domestic Building Contracts Act 1995 (Vic), ss 8-10. Building Work Contractors Act 1995 (SA), ss 32-35. Building Act 1975 (Q), ss 52-53. Queensland Building Services Authority Act 1991 (Q), ss 68-69, Sched 2. Home Building Contracts Act 1991 (WA), ss 25A-25D. Housing Indemnity Act 1992 (Tas), ss 7-9, 11-14. Building Act 1972 (ACT), ss 62, 64-65.

Applicant S v Minister for Immigration and Multicultural Affairs Immigration - Refugees - Application for protection visa - Well-founded fear of persecution for reason of membership of particular social group - Particular social group identified as able-bodied young men from Afghanistan - Whether member of a particular social group - Whether Afghan society must perceive the particular social group - Whether well-founded fear of persecution - Whether enmity or malignity necessary to establish persecution - Whether facts reveal law of general application - Whether implementation of law of general application can amount to persecution - Whether implementation of ad hoc policy can amount to persecution. Words and phrases: "Particular social group", "well-founded fear of persecution", "law of general application", "legitimate national objective". Migration Act 1958 (Cth), s 36(2).

Income tax - Avoidance of tax - Tax benefit under Income Tax Assessment Act 1936 (Cth) - Whether scheme entered into for the dominant purpose of obtaining a tax benefit - Meaning of "scheme" - Split loan facility - Where money borrowed in part to purchase a principal place of residence and in part to refinance investment property used to produce assessable income - Where expenditure in relation to producing assessable income deductible - Where repayments on loan applied solely in satisfaction of that part of the loan not used to produce assessable income. Words and phrases - "scheme". Income Tax Assessment Act 1936 (Cth), ss 177A, 177C, 177D, 177F. GLEESON CJ AND Mc

High Court - Practice - Costs - Taxation - Counsel fees - Australian Government Solicitor ("AGS") providing services of both solicitor and counsel - Brief marked at a daily rate and an hourly rate delivered by AGS solicitor to AGS in-house counsel - Invoices of fee raised for performance of services in the role of counsel and consolidated with other charges - Whether allowances should be made for AGS in-house counsel fees where in-house counsel acting as counsel - Whether fees allowed under High Court Rules, O 71 r 91 - Whether AGS is a practitioner or firm of practitioners within the meaning of High Court Rules, O 71 r 93 - Whether AGS is the Commonwealth within the meaning of High Court Rules, O 71 r 93. Words and phrases - "Australian Government Solicitor", "in-house counsel", "practitioner or firm of practitioners", "the Commonwealth". Judiciary Act 1903 (Cth), ss 55A-55ZI and 64. High Court Rules (Cth), O 71.

Andar Transport Pty Ltd v Brambles Limited Employer and employee - Duty of care by employer to employee - Common law duty - Safe system of work - Relevance of corporate structure - Where employee is director of employer - Where employee responsible for day-to-day operation of the company - Where employee injured due to unsafe system of work - Where employee in part responsible for devising system of work - Whether employer liable to employee for breach of duty committed by employee in his capacity as director of employer. Employer and employee - Duty of care by employer to employee - Common law duty - Safe system of work - Meaning of "safe system of work" - Where existing system of work had been in place for many years - Whether employer took reasonable steps in ensuring that a safe system of work was created and maintained - Whether length of time in which system of work has been used is relevant in assessing whether system is safe. Contract - Construction - Indemnity clauses - Whether principles governing construction of contracts of guarantee also govern the construction of contracts of indemnity - Whether indemnity clause to be construed in favour of the indemnifier. Tort - Joint or several tortfeasors - Contribution between tortfeasors - Wrongs Act 1958 (Vic), ss 23B, 24(2) - Where appellant liable as employer - Where injured employee responsible for breach of duty by appellant - Where damages previously reduced to account for contributory negligence of employee - Whether previous apportionment based on contributory negligence relevant in assessing contribution under statute - Whether previous apportionment based on contributory negligence is ground for exemption from contribution under s 24(2). Words and phrases - "safe system of work". Wrongs Act 1958 (Vic), ss 23B, 24(2). Corporations Act 2001 (Cth), s 124. GLEESON CJ, Mc

Criminal law - Defences - Respondent charged with fishing for rock lobsters in a prohibited area while holding a commercial fishing licence, contrary to a regulation made under statute - Respondent made inquiries at an office of a State Government department and was provided with incomplete information relating to prohibited areas - Respondent believed he had been provided with complete set of relevant regulations and was therefore unaware that fishing in relevant area was prohibited by law - Whether respondent could rely on defence of "mistake of fact" under s 24, Criminal Code (WA) - Whether respondent's honest and reasonable, but mistaken, belief was one of fact or law - Effect of officially induced error of law - Relevance of rules concerning pleading and proof of regulations. Words and phrases - "mistake of fact", "mistake of law", "state of things". Criminal Code (WA), ss 22, 24. Fish Resources Management Act 1994 (WA), s 222. Fish Resources Management Regulations 1995 (WA), reg 34.

North Australian Aboriginal Legal Aid Service Inc v Bradley Statutes - Construction - Magistrates Act (NT), s 6 - Requirement that a magistrate be paid such remuneration and allowances as determined from time to time by the Administrator - Respondent appointed Chief Magistrate with 11 years to serve before age of compulsory retirement - Initial determination of remuneration by Administrator limited to a two year period - Whether appointment valid pursuant to Magistrates Act (NT). Constitutional law (Cth) - Judicial power of the Commonwealth - Vesting in State and Territory courts - Minimum requirements for the appearance of impartiality and independence - Whether contravened by appointment where salary determined for a limited period. Constitution, Ch III. Magistrates Act (NT), ss 4, 6, 7, 19A. Remuneration Tribunal Act (NT).

Immigration - Refugees - Procedural fairness - Refugee Review Tribunal - Jurisdictional error - Expert medical advice - Psychological state of applicant assumed to be possible explanation for unsatisfactory evidence - Whether denial of procedural fairness by failing to order further psychological assessment of applicant - Whether denial of procedural fairness by accepting that applicant suffered stress disorder - Whether denial of procedural fairness by acceptance of effects of disorder on applicant without expert medical advice. Statutes - Construction - Privative clause - Whether putative errors of the Refugee Review Tribunal fell within the operation of s 474 of the Migration Act 1958 (Cth). Migration Act 1958 (Cth), ss 65, 415, 474, 496.

Planning law - Compensation for alleged diminution in value of land - Appellant owned land in Noosa - Town planning scheme amended by a Development Control Plan ("DCP") - DCP constrained development potential of appellant's land thereby diminishing its market value - Appellant sought compensation from respondent pursuant to Local Government (Planning and Environment) Act 1990 (Q) ("the Act"), s 3.5(1) - Compensation not payable where land affected by a planning scheme which had the effect of prohibiting or restricting "use of land or erection or use of building or other structure thereon for a particular purpose" - Whether the Act precluded appellant's claim for compensation. Courts - Jurisdiction - Trial of one of several separate issues - Issue reserved for later determination - Appeal to Court of Appeal with respect to issue decided - Whether Court of Appeal erred in determining issue reserved for later determination. Local Government (Planning and Environment) Act 1990 (Q), ss 3.4, 3.5. Mc

Constitutional law (Cth) - Parliament - Elections - Registration of political parties - Requirement that political parties have 500 members in order to become registered or remain registered ("the 500 rule") - Prohibition on one person being counted as a member of two or more parties ("the no-overlap rule") - Constitutional validity of electoral scheme. Constitutional law (Cth) - Parliament - Elections - House of Representatives and Senate - Members and senators to be "directly chosen by the people" - Meaning of "directly chosen" - Whether the 500 rule and the no-overlap rule impair "direct choice" or the making of an informed choice by electors - Whether the 500 rule and the no-overlap rule unreasonably discriminate between candidates - Whether inconsistent with constitutional provision for filling of casual vacancies by persons "publicly recognized by a particular political party". Constitutional law (Cth) - Implied freedom of political communication - Whether the 500 rule and the no-overlap rule effectively burden freedom of communication about government or political matters - Whether laws reasonably appropriate and adapted to a legitimate purpose - Whether laws proportionate to constitutional provisions. Constitutional law (Cth) - Implied freedoms - Whether the Constitution contains an implied freedom of political association - Whether the Constitution contains an implied freedom of participation in federal elections - Whether the Constitution contains an implied freedom of political privacy - Whether the 500 rule and the no-overlap rule infringe any such implied freedoms. Words and phrases - "directly chosen by the people". Constitution, ss 7, 15, 24, 64 and 128. Commonwealth Electoral Act 1918 (Cth), Pt

Rich v Australian Securities and Investments Commission Practice and procedure - Discovery - Privileges against exposure to penalties and forfeitures - Proceedings brought by Australian Securities and Investments Commission seeking declarations of contravention under the Corporations Act 2001 (Cth), s 1317E, compensation orders pursuant to the Corporations Act 2001 , s 1317H and orders pursuant to the Corporations Act 2001 , ss 206C and 206E disqualifying each defendant from managing corporations - Rules of evidence and procedure for civil matters to apply - Where defendant ordered to make discovery - Where disqualification described as "civil penalty provision" by the Corporations Act 2001 - Whether exposure to disqualification order is exposure to a penalty - Whether order is "punitive" or "protective" and whether this classification is useful - Whether order for discovery should have been made. Statutes - Interpretation - Construction of Corporations Act 2001 - Provision for disqualification of company officers from managing corporations in the future - Disqualification contained in "civil penalty provisions" of the Corporations Act 2001 - Whether exposure to disqualification order is exposure to a penalty for purposes of the penalty privilege - Whether order for discovery should have been made. Words and phrases - "penalty", "civil penalty provision", "punitive", "protective". Corporations Act 2001 (Cth), ss 180(1), 206C, 206E, 1317E, 1317H, 1317

of Australia Constitutional law (Cth) - Legislative powers of the Parliament - Power to make laws with respect to naturalization and aliens - Meaning of "aliens" - Plaintiff born in Australia to non-citizen parents - Infant plaintiff not a citizen under the Australian Citizenship Act 1948 (Cth) - Plaintiff's parents citizens of India - Whether plaintiff an alien under s 51(xix) of the Constitution. Constitutional law (Cth) - Interpretation - Interpretive theories - Significance of historical context in constitutional interpretation - Use of Convention Debates. Constitutional law (Cth) - Legislative powers of the Parliament - Whether Migration Act 1958 (Cth), s 198 validly authorises the removal of a non-alien from Australia because that person is a non-citizen under the Australian Citizenship Act 1948 (Cth). Words and phrases - "alien". Constitution, s 51(xix). Migration Act 1958 (Cth), ss 196, 198. Australian Citizenship Act 1948 (Cth), ss 10(2), 14.

; Ex parte Alpert Constitutional law (Cth) - Defence - Offences by service members - Service offences - Offence of sexual intercourse without consent - Offence allegedly committed overseas - Service member on leave - Whether beyond legislative power to make conduct of a service member allegedly committed while overseas on leave a service offence triable before an Australian service tribunal. Defence - Military forces - Discipline - Service member on leave - Offence of sexual intercourse without consent - Offence alleged to have occurred in Thailand - Whether offence may be prosecuted before Australian service tribunal in Australia - Whether beyond constitutional power so to provide - Whether service connection sufficient within Constitution to found valid conferral of power upon tribunal. Constitution, s 51(vi), Ch III. Defence Force Discipline Act 1982 (Cth), ss 9, 61.

Chief Commissioner of State Revenue v Dick Smith Electronics Holdings Pty Ltd Stamp duty - Dutiable transactions - Sale of shares - Share acquisition agreement stipulated that a dividend would be declared on shares prior to transfer - Agreement stipulated that Purchaser was to fund dividend - Purchase price was calculated by deducting dividend amount from specified sum - Whether value of the dividend formed part of the consideration for the dutiable transaction. Words and phrases - "consideration". Duties Act 1997 (NSW), ss 8, 9, 11, 19, 21(1).

Negligence - Standard of care - Breach - Swimmer injured by diving into sandbank while swimming between flags - Jury finding of negligence on part of Council - Whether finding reasonably open on evidence. Appeals - Civil trial by jury - Function of appellate court - Appellate review of jury finding on issue of breach of duty of care. Words and phrases - "risk", "obvious", "reasonably practicable alternative".

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [No 2] Costs - Disposition of costs in an appeal to the High Court. GLEESON CJ, Mc

Immigration - Refugees - Refugee Review Tribunal - Decision - Judicial review - Tribunal found that appellants had genuine fear of persecution if returned to Russia - Tribunal concluded that Israel was a third country where appellants would have effective protection - Protection visa refused - Whether the Tribunal failed to observe the requirements in ss 36 and 65 of the Migration Act 1958 (Cth) - Whether each appellant was a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees - Whether this means anything other than "refugee" within the meaning of Art 1 of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees. Immigration - Refugees - International law - Construction of the Convention Relating to the Status of Refugees as amended by Protocol Relating to the Status of Refugees - Whether a non-refoulement obligation precludes removal to a safe third country. Words and phrases - "protection obligations", "to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". Migration Act 1958 (Cth), ss 36 and 65. Convention Relating to the Status of Refugees as amended by Protocol Relating to the Status of Refugees, Arts 1, 32 and 33. GLEESON CJ, Mc

Constitutional law – Constitution, s 99 – Prohibition on Commonwealth, by any law of revenue, giving preference to one State over another – Discrimination – Practical operation of law – Clean Energy Act 2011 (Cth), Clean Energy (Charges – Excise) Act 2011 (Cth), Pt 3, Clean Energy (Charges – Customs) Act 2011 (Cth), Pt 3, and Clean Energy (Unit Shortfall Charge – General) Act 2011 (Cth) established and imposed tax on certain greenhouse gas emissions – Schedule 1 ("JCP") to Clean Energy Regulations 2011 (Cth) provided for reduction of tax liability for emissions generated by certain activities – JCP, Pt 3, Div 48 defined "production of nickel" as an activity – Whether JCP, Pt 3, Div 48 discriminates between States because of differences between States in natural, business or other circumstances – Whether JCP, Pt 3, Div 48 contrary to Constitution, s 99. Words and phrases – "discrimination", "natural, business or other circumstances", "practical effect", "practical operation", "States or parts of States". Constitution, s 99. Clean Energy Regulations 2011 (Cth), Sched 1, Pt 3, Div 48. FRENCH CJ. I agree with the answers given by Nettle J to the questions posed in the Special Case for the reasons which his Honour gives. HAYNE J. I agree with Nettle J. KIEFEL J. I agree with Nettle J. BELL J. I agree with Nettle J. GAGELER J. I agree with Nettle J. KEANE J. I agree with the judgment of Nettle

Administrative law - Judicial review - Exclusion of respondent from PhD candidature programme conducted by appellant - Where appellant is a body created by statute - Power of appellant to function as a university and to confer higher education awards derived from statute - Whether exclusion was a decision to which the Judicial Review Act 1991 (Q) applied - Whether exclusion was a decision made under an enactment - Relevance of nature of relationship subsisting between parties. Words and phrases - "decision", "under an enactment", "of an administrative character", "required or authorised", "aggrieved by". Judicial Review Act 1991 (Q), ss 4, 5, 7(1)(a), 16(1), 20, 48. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5(1). Griffith University Act 1998 (Q), ss 5, 6, 8, 9, 11.

Ali v The Queen Criminal law - Trial - Miscarriage of justice - Competence of counsel - Joint trial of accused - Whether counsel should have applied for a separate trial - Whether application would have succeeded - Whether accused disadvantaged by joint trial - Whether counsel failed to object to evidence of bad character - Whether counsel failed to advance alternative case - Whether accused deprived of a fair chance of acquittal. Evidence - Criminal trial - Character of accused - Failure to object to evidence of bad character - Whether objection would have succeeded - Whether evidence admissible for other purpose. Criminal Code (Q), ss 579B, 668

Gribbles Radiology Pty Ltd v Health Services Union of Australia Industrial law (Cth) - Award - Transmission provisions - Binding to award new employer who is successor to or of the business or part of the business of employer party to dispute determined by the award - New employer granted a licence to run a radiology practice at a suburban clinic - New employer stopped providing radiographic services at the clinic and terminated the employment of the radiographers who worked there - Previous licensee of the radiology practice was an employer bound by an industrial award - Whether new employer was bound by the award - Whether new employer a successor to or of the business or part of the business of previous employer. Constitutional law (Cth) - Powers of Commonwealth Parliament - Conciliation and arbitration - Whether s 51(xxxv) of the Constitution supports a law providing for the declaration of a common rule for an industry. Words and phrases - "successor", "business". Workplace Relations Act 1996 (Cth), s 149(1)(d).

Amcor Ltd v Construction, Forestry, Mining and Energy Union; Minister for Employment and Workplace Relations v Construction, Forestry, Mining and Energy Union Industrial law (Cth) - Certified agreement - Corporate demerger - Business transferred to subsidiary and employees immediately re-employed on same terms and conditions - Change in identity of employer though no change in duties of employees - Whether positions in a business had become redundant and employees had been retrenched - Whether employees entitled to redundancy payments under the agreement - Relevance of termination and succession provisions of the Workplace Relations Act 1996 (Cth). Words and phrases - "position", "business", "position in a business", "redundant", "retrench". Workplace Relations Act 1996 (Cth), Pts VIA, VIB, ss 149(1)(d), 170MB, 170MD. GLEESON CJ AND Mc

Wilkie v Gordian Runoff Limited Insurance - Professional indemnity insurance - Directors and officers liability insurance policy - Criminal proceedings instituted against appellant insured - Following Royal Commission, appellant alleged to have permitted misleading information to be provided to company auditor - Appellant claimed for advance payment of defence costs under insurance policy - Availability of advance payment of insured's defence costs subject to respondent insurer not denying indemnity for a claim - Respondent purported to deny indemnity relying on exclusion under the policy for losses arising from dishonest, fraudulent, criminal or malicious conduct - Exclusion enlivened only where conduct admitted by the insured or established to have occurred following adjudication by a court, tribunal or arbitrator - Whether respondent had effectively denied indemnity for appellant's claim - Whether stated reliance upon exclusion sufficient to deny indemnity - Whether exclusion engaged in the circumstances. GLEESON CJ, Mc

In the Matter of an Application by the Chief Commissioner of Police (Vic) Practice and procedure - Appeal from order of trial judge to prohibit, for a limited time, the publication of methods and material used by police in murder investigations - Whether appeal to Court of Appeal barred by s 17A(3) of the Supreme Court Act 1986 (Vic) - Whether appeal lay as of right, or only by way of leave - Provision of additional written submissions following conclusion of hearing - Proper procedure to be observed. Procedural fairness - Whether Court of Appeal decided substantive issues without providing the Chief Commissioner of Police sufficient opportunity to present argument. Constitutional law (Cth) - Appeal to High Court - Manner of conduct of proceedings in Court of Appeal - Elaboration of record by affidavit evidence - Whether affidavit admissible - Whether orders subject to appeal - Whether disjoined from administration of the law - Whether statutory publication prohibition orders sufficiently connected with concluded criminal trials - Whether necessary and appropriate to consider questions. Words and phrases - "leave to appeal", "appeal as of right", "procedural fairness", "determination", "interlocutory", "in relation to". Supreme Court Act 1986 (Vic), ss 17A(3), 17A(4)(b), 18, 19. Crimes Act 1958 (Vic), s 567. GLEESON CJ, Mc

Thompson v Woolworths (Q'land) Pty Limited Negligence - Duty of care - Independent contractor delivering goods in pursuit of mutual commercial purpose - Delivery person suffered back injury attempting to move industrial waste bins blocking supermarket loading dock - Content of duty to exercise reasonable care for safety of entrants - Consideration of aspects of relationship between occupier and entrant. Negligence - Contributory negligence - Independent contractor - Relevance of failure to wait for assistance before attempting to move bins - Relevance of knowledge of previous injury. GLEESON CJ, Mc

Income tax - Allowable deductions - Loss carry forward provisions - Losses incurred by taxpayer company in preceding years - Requirement of continuity during year of income of beneficial ownership in shares in the taxpayer company that carry between them various rights - Winding-up order made in respect of parent of taxpayer company and subsequently in respect of taxpayer company - Liquidators appointed in each case - Whether shares in the taxpayer company still carried between them the rights required to be attached to those shares. Income tax - Allowable deductions - Loss carry forward provisions - Losses incurred by taxpayer company in preceding years - Requirement of continuity during year of income of beneficial ownership in shares in the taxpayer company that carry between them various rights - Winding-up order made in respect of parent of taxpayer company and subsequently in respect of taxpayer company - Liquidators appointed in each case - Whether, subsequent to winding up of parent company, the shares held by parent company in the taxpayer company were not "beneficially owned" by the parent company. Income tax - Allowable deductions - Loss carry forward provisions - Losses incurred by taxpayer company in preceding years - Discretion in Commissioner of Taxation to apply additional requirements for carrying forward previous tax losses - Requirement that voting power in taxpayer company be controlled, or capable of being controlled, by an individual or two or more persons not being companies - Ultimate holding company of parent of taxpayer company was trustee of two trusts administered for benefit of a family - Whether family still controlled voting power in taxpayer company. Statutes - Construction - Loss carry forward provisions in income tax legislation - Meaning of requirement that shares held in taxpayer company be "beneficially owned" by parent company - Effect of intervening winding-up orders and appointment of liquidators in each company - Meaning and purpose of the requirement of beneficial ownership in this context - Relevance and utility of analysis by reference to the law of trusts and equitable ownership of property. Corporations - Involuntary winding up - Whether company in liquidation divested of beneficial ownership of assets - Whether liquidator trustee for the benefit of creditors. Trusts - Whether liquidator trustee for the benefit of creditors. Appeal - Appeal before High Court - Application to amend notice of appeal to raise explicitly the application of statute to the facts and circumstances of the case - Whether amendment should be granted - Whether any procedural injustice involved in such amendment - Considerations relevant to the determination of application. Words and phrases - "beneficially owned", "trustee", "satisfaction". Income Tax Assessment Act 1936 (Cth), s 80

Criminal law - Evidence - Admissibility of in court demonstrations - An armed man wearing overalls, balaclava and sunglasses committed a robbery - During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber ("the in court demonstration") - Whether the in court demonstration was relevant - Whether the in court demonstration was unfairly prejudicial - Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views - Whether s 53 of the Evidence Act 1995 (NSW) ("the Act") applied to in court demonstrations - Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law. Criminal law - Evidence - Admissibility - Whether showing witnesses the overalls and balaclava found at the appellant's residence was relevant - Whether showing witnesses the overalls and balaclava was unfairly prejudicial. Criminal law - Appeals - Application of the proviso- Whether the trial judge's error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso - Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice - Whether the judicial warnings to the jury were adequate - Whether the in court demonstration was so prejudicial as to deny the application of the proviso - Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged. Words and phrases - "demonstration", "experiment", "inspection", "unfairly prejudicial", "reconstruction", "relevance", "view". Criminal Appeal Act 1912 (NSW), s 6(1). Evidence Act 1995 (NSW), ss 53, 55, 137.

Negligence - Standard of care - Breach - Respondent driver injured after car collided with wild horse on highway - Appellant a body corporate upon which care, control and management of highways was conferred - Whether appellant should have been aware of attraction of animals to water sources near accident site and exercised power to reduce speed limit and to erect warning sign. Courts - Appeals - Whether Full Court of the Supreme Court of Western Australia justified in overturning findings of trial judge on danger posed by animals straying on highway. Negligence - Causation - Whether, if speed limit reduced or warning sign erected, respondent's injuries would have been prevented. Practice - Discovery - Material discovered by appellant between trial and appeal - Whether availability at trial would have warranted different result.

Statutes - Construction - Pawnbrokers and Second-hand Dealers Act 1996 (NSW) - Lender charged with carrying on the business of lending money on the security of pawned goods whilst not being the holder of a licence - Lender made short-term secured loans - Loan documents recorded that title in goods passed to lender - Chattel mortgage security - Goods usually kept by the lender for term of loan - Characterisation of transaction - Whether chattel mortgage was a bill of sale under Bills of Sale Act 1898 (NSW) - Whether the lender's business was the "business of lending money on the security of pawned goods" - Meaning of "pawned goods" in the Pawnbrokers and Second-hand Dealers Act 1996 (NSW). Pawnbroking - History of meaning of "pawn" or "pledge" in Roman and common law - Understanding of "pawn" or "pledge" as one class of bailment of goods, distinct from mortgage and lien - Relevance of possession of goods. Statutes - Construction - Pawnbrokers and Second-hand Dealers Act 1996 (NSW) - Purposive construction - Contextual construction - Technical and common words - Relevance of Minister's Second Reading Speech - Relevance of consumer credit legislation - Relevance of sham arrangement. Words and phrases - "pawn", "pawned goods", "pledge". Pawnbrokers and Second-hand Dealers Act 1996 (NSW), s 6. Bills of Sale Act 1898 (NSW). Mc

Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs Administrative law - Judicial review - Immigration - Refugees - Appellant, an Iranian, sought a protection visa on the basis that he had converted to Christianity after leaving Iran - Refugee Review Tribunal twice affirmed decision to refuse the appellant a protection visa - Relying on information contained in a country profile, the Tribunal distinguished between Christians in Iran who quietly go about their devotions and those who actively or conspicuously proselytise, and considered that only the latter group would encounter a real chance of persecution - Whether Tribunal asked itself a wrong question by seeking to categorise the way in which the appellant expressed his beliefs - Whether Tribunal addressed whether appellant had a well-founded fear of persecution on the ground of religion - Whether Tribunal had committed jurisdictional error similar to the error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs. International human rights law - Refugees - Refugees Convention - Ground of religion - Freedom of religion as a basic human right. Migration Act 1958 (Cth), s 36(2). Convention relating to the Status of Refugees as amended by Protocol relating to the Status of Refugees.

Strong v The Queen Criminal law - Sentencing - Habitual criminal - Re-determination of sentence - Appellant sentenced for primary offences of stalking and intimidation - Appellant pronounced habitual criminal and sentenced to further concurrent term of imprisonment under the Habitual Criminals Act 1957 (NSW) ("the Act") - Sentences overturned by Court of Criminal Appeal (NSW) - Appellant re-sentenced for primary offences and as an habitual criminal - Whether whole sentence must be re-determined where one component of that sentence has miscarried - Whether appellate court required to determine for itself whether to pronounce appellant habitual criminal - Whether in doing so appellate court is exercising its own jurisdiction and powers - Whether appellate court made such determination - Whether appellate court correctly upheld sentencing judge's pronouncement of the appellant as habitual criminal - Whether appellate court's approach conformed to scrupulously thorough procedures for additional orders of preventative detention under the Act. Words and phrases - "habitual criminal". Habitual Criminals Act 1957 (NSW), ss 4 and 6.

Defamation - Pleading and practice - Application for summary judgment or alternatively to strike out part of a pleading - Test to be applied - Whether matter published capable of conveying defamatory imputations. Words and phrases - "defamatory meaning". GLEESON CJ, Mc

Commissioner of State Revenue v Karingal 2 Holdings Pty Ltd Land tax - Unit trusts - Registered proprietors of land were trustees of unit trusts in which taxpayers held issued units - Trustees also held issued units in similar trusts - Taxpayers assessed for land tax as owners of land - Whether holder of issued units in these trusts is an "owner" of the land for the purposes of the Land Tax Act 1958 (Vic) - Whether holder of issued units in a trust which itself holds issued units in a further trust, the trustee of which is the registered proprietor of land, is an "owner" of the land - Whether holder of only some of the issued units of a unit trust stands in a different position to a beneficiary owning all issued units - Relevance of the rule in Saunders v Vautier - Relevance of statutory definition of "joint owners". Trusts - Whether "unit trusts" form any distinct class of trust the characteristics of which inform the meaning of the statutory term "owner" - Whether whenever the legal estate in property is vested in a trustee there must be some person entitled to beneficial ownership. Trusts - Beneficiaries - Rule in Saunders v Vautier of beneficiaries' entitlement to terminate trust where sui juris and together absolutely entitled - Whether the rule applies when trust makes provision for trust property to be available for satisfaction of trustee's and manager's fees. Words and phrases - "owner", "joint owners", "unit trust". Land Tax Act 1958 (Vic), ss 3, 6, 8, 39, 49, 51, 52. GLEESON CJ, Mc

Private international law - Foreign tort - Choice of law - Appellant was injured in the People's Republic of China - Scope of the lex loci delicti - Where the lex loci delicti treats another connecting factor, such as nationality or domicile, as determining the applicable law - Whether Article 146 of the General Principles of Civil Law of the People's Republic of China was a relevant part of the lex loci delicti - Whether Article 146 of the General Principles of Civil Law of the People's Republic of China made the law of the parties' domicile the applicable law - Whether the doctrine of renvoi applies to international tort claims - Infinite regression of reference. Evidence - Foreign law - Principles governing admission of evidence of foreign law - Where there is a deficiency of evidence - Whether there is a presumption that foreign law is the same as the law of the forum. Words and phrases - "lex loci delicti", "choice of law", "renvoi", "single renvoi", "double renvoi", "infinite regression of reference".

McNamara (McGrath) v Consumer Trader and Tenancy Tribunal Landlord and Tenant - Applicability of the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the LTA Act") - Appellant was a tenant of the Roads and Traffic Authority of New South Wales ("the RTA") in respect of certain premises ("the Premises") - The RTA sought from the Consumer Trader and Tenancy Tribunal an order for vacant possession of the Premises pursuant to the Residential Tenancies Act 1987 (NSW) ("the Tenancies Act") - Appellant argued that Premises were "prescribed premises" under the LTA Act and therefore exempt from the application of the Tenancies Act - Whether the RTA entitled to the benefit of an exemption from the application of the LTA Act for "the Crown in right ... of the State". Statutes - Construction - The RTA was constituted under the Transport Administration Act 1988 (NSW) ("the Transport Act") - Transport Act, s 46(2)(b) provides that the RTA "is, for the purposes of any Act, a statutory body representing the Crown" - Whether "a statutory body representing the Crown" entitled to the benefit of a statutory exemption in favour of "the Crown in right ... of the State". Words and phrases - "the Crown in right of the State", "statutory body representing the Crown". Landlord and Tenant (Amendment) Act 1948 (NSW), s 5. Transport Administration Act 1988 (NSW), s 46(2)(b). GLEESON CJ. I agree with the orders proposed by McHugh, Gummow and Heydon JJ, and with their reasons for those orders. Section 46(2)(b) of the Transport Administration Act 1988 (NSW) ("the 1988 Act"), provides that, for the purposes of any Act, the Roads and Traffic Authority of New South Wales ("the RTA") is a statutory body representing the Crown. Section 5 of the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the LTA Act"), provides that the LTA Act does not bind the Crown in right of the State of New South Wales. The question is whether the combined effect of those two provisions is that the LTA Act does not bind the RTA. In Wynyard Investments Pty Ltd v Commissioner for Railways (NSW)[1] this Court, by a narrow majority[2], held that an identically worded provision in s 4(2) of the Transport (Division of Functions) Act 1932 (NSW) ("the 1932 Act"), in combination with the LTA Act, had the effect that the LTA Act did not bind the Commissioner for Railways. The competing views as to the meaning of s 4(2) were summarised in the dissenting judgment of Kitto J as follows[3]: "In the Supreme Court a majority of their Honours treated this provision as if it meant that, in considering the applicability of any provision of any Act to the commissioner, he shall be deemed to represent the Crown. If that were the true meaning, the result in this case would necessarily be that the immunity of the Crown from s 62 of the [LTA Act] would involve the immunity of the commissioner as a notional agent of the Crown in relation to the possession of the subject land. But the language of s 4(2) does not appear to me to bear this construction. It is, no doubt, more than a definition section, but its natural meaning would seem to be that whenever you find in an Act a provision dealing with statutory bodies described as representing the Crown, you are to deem the Commissioner for Railways to be such a body and apply the Act to him accordingly." There were, and still are, numerous provisions in Acts dealing with statutory bodies described as representing the Crown. In brief, Kitto J, with whom Fullagar J agreed, rejected the view that s 4(2) meant that any reference in any Act to the Crown included a reference to the Commissioner for Railways. (If the Commissioner were to be given all the privileges and immunities of the Crown, why would that be limited to those given by statute and not include those given by common law?) Rather, he considered it meant that, where a provision in an Act referred to statutory bodies representing the Crown, then that reference would include the Commissioner for Railways. Section 46(2)(b) of the 1988 Act presents the same question of construction as arose in relation to s 4(2) of the 1932 Act, and this case presents the same problem of the interaction with the LTA Act as arose in Wynyard Investments. Even though, technically, the decision in Wynyard Investments concerned a different statute, and therefore does not govern the present case directly, nevertheless a preference for the reasoning of the minority in that case would not of itself justify a different conclusion in the present case. The point of construction is one on which different views are fairly open. Having regard to the subject matter, it may readily be inferred that the 1988 Act was drafted with an understanding of the judicial interpretation that had been placed upon the words of the 1932 Act. This Court would undermine its own authority if it departed from the effect of a previous decision on a question of statutory construction merely because of a later preference for another view[4]. There is, however, more to it than that. First, as both Kitto J and Fullagar J emphasised, the outcome in Wynyard Investments is difficult to reconcile with the earlier decision of this Court in Rural Bank of NSW v Hayes[5]. Secondly, the issue runs deeper than the interpretation to be placed upon a particular statutory formula. As Kitto J pointed out in Wynyard Investments[6], the question that must be decided is whether the application to the subject (there, the Commissioner) who invokes the Crown's immunity (there, conferred by s 5 of the LTA Act) would be, in legal effect, an application of it to the Crown. It is not merely one of attributing to someone the status of a representative of the Crown. It concerns the relationship to the Crown in which the subject stands "in respect of the particular matter in which the impact of the relevant provisions is incurred". Thirdly, the correct approach to such a question is that stated by Gibbs CJ in 1982 in Townsville Hospitals Board v Townsville City Council[7]: "All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention." That was the approach that prevailed in this Court at the time of the enactment of the 1988 Act, and that has prevailed ever since. Fourthly, even if the minority view as to the meaning of s 4(2) of the 1932 Act had been accepted in Wynyard Investments, the statutory formula there employed would have had useful work to do, and would probably have been repeated in the 1988 Act. It is, therefore, far from clear that the New South Wales Parliament enacted s 46(2)(b) of the 1988 Act on the faith of the decision of this Court in Wynyard Investments. In argument in the present appeal, close attention was given to whether the New South Wales Parliament had so acted, but that was not shown to have been the case. In those circumstances, this Court should not be inhibited from giving effect to its own opinion on the issues of principle and of statutory construction that arise in the present case. Mc

Laybutt v Glover Gibbs Pty Limited t/as Balfours NSW Pty Limited Negligence - Duty of care - Employer and employee - Breach - Where employee requests instructions - Employer's duty to provide instructions. Practice and procedure - Civil trial by jury - Whether trial judge should have entered a directed verdict - Sufficiency of evidence to sustain verdict - Application of common knowledge and experience by jury to question of negligence - Circumstances justifying reversal of a jury's verdict by appellate court. GLEESON CJ. I agree that the appeal should be allowed for the reasons given by Gummow, Callinan and Heydon JJ, and that consequential orders should be made as they propose. A question for judgment at the trial was the reasonableness of the response, by the representative of her employer, to the appellant's requests for information as to how to carry out a particular procedure. The response was, in effect, that she should work it out for herself. She suffered an injury in the process of trying. There might be some workplace procedures for which that could be an adequate response. There are others for which it clearly would not. In the present case, the jury heard evidence of the nature of the task, which involved assembling an item of equipment. Having been told what the task was, the jury were well able to decide whether it was reasonable of an employer to leave an employee to work out for herself how to perform it. That is what juries are for. Mc

Torts - Negligence - Duty of care - Breach of duty - Foreseeability of risk of injury - Local authority - Power of care, control and management of natural reserve - Person suffered injury when diving into a body of water - Whether a reasonable local authority would have erected signs warning against the dangers of diving - Relevance of obviousness of risk to questions of duty and breach. Local Government Act 1919 (NSW). Ordinance No 52 under the Local Government Act 1919 (NSW), cll 8, 29(a)-(b).

Torts - Negligence - Duty of care - Breach of duty - Foreseeability of risk of injury - Local authority - Power of care, control and management of natural reserve - Person suffered injury when diving into a body of water - Whether a reasonable local authority would have erected signs warning against the dangers of diving - Relevance of obviousness of risk to questions of duty and breach. Marine Parks Act 1997 (NSW).

Negligence - Damages - Asbestos-related disease - Compensation for plaintiff's inability to provide domestic assistance to wife - Whether damages are recoverable where a personal injury prevents a plaintiff from providing gratuitous personal or domestic services for another person ("Sullivan v Gordon damages") - Whether Sullivan v Gordon damages are analogous to Griffiths v Kerkemeyer damages - Whether Sullivan v Gordon should be accepted as part of the common law of Australia - Whether Sullivan v Gordon damages could be recovered for those years in which services may have been provided after the plaintiff's death up until the expected date of death but for the tort. Costs - Resolution of legal point - Relevance of recurrent litigant - Relevance of plaintiff with no interest in legal position beyond litigation.

Stevens v The Queen Criminal law - Unlawful killing - Murder - Accident - Counsel for defence requested direction on defence of accident at trial - Whether trial judge erred in declining to direct jury on defence of accident - Whether defence of accident open on the evidence - Whether jury should have been instructed that appellant could not be convicted unless prosecution had satisfied jury beyond reasonable doubt that the operation of s 23 of the Criminal Code (Q) had been excluded - Relationship between defence of accident and murder - Whether defence of accident inconsistent with conviction of murder - Relationship between defence of accident and manslaughter. Criminal law - Unlawful killing - Manslaughter - Case left to jury on basis that only available verdicts were guilty or not guilty of murder - Whether manslaughter should have been left to the jury - Whether manslaughter was open on the evidence. Criminal law - Conviction - Whether substantial miscarriage of justice occurred as a result of trial judge's failure to give directions on accident. Statutes - Statutory construction - Criminal Code (Q). Words and phrases - "accident", "event". Criminal Code (Q), ss 23, 24, 25, 289 and 668E(1A).

Negligence - Breach of duty of care - Prison authorities - Respondent was a prisoner admitted to minimal supervision Work Release Programme - Respondent had been threatened by other prisoners - Appellant knew of threats - Respondent assaulted by a group of prisoners - Scope of duty of prison authorities to protect the safety of prisoners under its control - Whether the appellant breached its duty of care to the respondent - Whether effective measures were adopted to prevent a foreseeable risk of injury to the respondent.

Immigration - Refugee Review Tribunal - Substantial delay between first Tribunal hearing and Tribunal decision - Whether delay resulted in real and substantial risk of prejudice to appellants - Whether prejudice to appellants can be inferred - Whether delay by administrative tribunal constitutes denial of procedural fairness or failure to conduct review as required by law - Whether decision of administrative tribunal may be set aside following substantial delay - Effect of delay on question of assessing appellants' demeanour - Calculation of the period of delay. Immigration - Refugee Review Tribunal - Migration Act 1958 (Cth), s 420 provides for an objective of administrative review that is "fair, just, economical, informal and quick" - Relevance of s 420 to complaint of delay - Special considerations relevant to delay in asylum cases. Administrative law - Jurisdictional error - Whether denial of procedural fairness - Significance of delay - Grounds for judicial review - Whether delay affected the Refugee Review Tribunal's capacity to make a proper assessment of demeanour - Whether there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. Administrative law - Judicial review - Assessment of fairness of procedures followed by administrative decision-maker - Substantial delay between first Tribunal hearing and Tribunal decision - Limited role of courts performing judicial review - Relevance of general notions of fairness and justice - Relevance of authority on delay in context of appeals against judicial determinations - Importance of contextual factors in assessing complaint of delay. Administrative law - Jurisdictional error - Substantial delay between first Tribunal hearing and Tribunal decision - Appropriate remedy where denial of procedural fairness due to substantial delay - Failure by appellants to seek mandamus - Whether relief should be refused on discretionary grounds. Words and phrases - "delay", "jurisdictional error", "procedural fairness". Migration Act 1958 (Cth), ss 420, 425(1), 430.

Company law - Duties of directors - Claim against director for contravention of the Corporations Law, s 232(6) - Appellant was a director and shareholder of Doyle Capital Partners Pty Ltd ("DCP") and at the relevant times, either an alternate director or director of Chile Minera Ltd ("the Company") - DCP had been allotted shares in the Company in consideration of a payment of $400,000 with an assurance that its shares would rank pari passu with existing shareholders - Allotment was in breach of the listing rules of the Australian Stock Exchange - As an alternate director of the Company, appellant signed a circular resolution authorising the company secretary to procure the issue of a bank cheque for $400,000 payable to DCP, held pending further advice from ASX - Subsequently, as a director of the Company, appellant voted to cancel DCP's allotment of shares in the Company and to ratify the decision made in the circular resolution - Whether appellant made improper use of his position to gain an advantage for DCP - Whether appellant's conduct could be said to be improper if the other directors of the Company knew about his interest in DCP - Whether there could be any advantage to DCP if it had an arguable claim for return of the $400,000 on the basis that the Company's representation regarding DCP's shares ranking pari passu with existing shareholders had been denied effect by the intervention of ASX. Words and phrases - "improper", "advantage". Corporations Law, s 232(6).

Negligence - Accident - Respondent struck and injured by a vehicle driven by the appellant - Respondent lying on road carriageway at time of accident - Respondent heavily intoxicated at time of accident - Appellant's attention drawn to a third person at the side of the road - Appellant continued to drive vehicle at same speed - Appellant changed vehicle direction by veering to the centre of the road - Whether appellant had exercised reasonable care in carrying out his duty to other road users.

Buckley v The Queen Criminal Law - Sentencing - Indefinite sentence - Appellant pleaded guilty to serious violent and sexual offences - Whether the sentencing judge observed the correct principles in exercising the power to impose an indefinite sentence. Criminal Law - Sentencing - Whether the sentencing judge made material errors of fact requiring reconsideration of the sentencing discretion. Penalties and Sentencing Act 1992 (Q), Pt 10.

Private international law - Motor accident - Applicable law - Accident occurred in New South Wales between a car registered in Victoria and driven by a Victorian resident and a car registered in New South Wales and driven by a New South Wales resident - Accident assumed to have been caused by negligence of New South Wales driver - Victorian driver and passenger obtained compensation payments from the Transport Accident Commission pursuant to Transport Accident Act 1986 (Vic) - The Commission sued the New South Wales driver in the County Court of Victoria, exercising federal jurisdiction, for indemnity pursuant to Transport Accident Act, s 104 - Alternative avenue of redress was available to the Victorian residents under the Motor Accidents Act 1988 (NSW) - Whether the regime established by the Motor Accidents Act supplanted that of the Transport Accident Act - Whether identification of the law of Victoria as the applicable law by virtue of common law choice of law rules and the operation of Judiciary Act 1903 (Cth), s 80 would be inconsistent with the operation of the Constitution. Private international law - Choice of law - Applicable choice of law rule - Action brought on a statutory obligation of the appellant to indemnify the respondent - Statute provided no particular method of enforcing the obligation - Where appropriate action for enforcing the right of indemnity is an action in the nature of a quantum meruit - Where action brought in federal jurisdiction - Whether applicable law is the law of the State with which the obligation of the appellant to indemnify the Commission has the closest connection. Statutes - Construction - Motor accident - Where statutes of different States said to be capable of being invoked in relation to the same circumstances - Transport Accident Act invoked in proceedings in County Court of Victoria for an indemnity claim - Whether the provisions of the Motor Accidents Act spoke to, or in opposition to, those proceedings. Constitutional law - Inconsistency between laws of States - Where statutes of different States said to be capable of being invoked in relation to the same circumstances - Transport Accident Act invoked in proceedings in County Court of Victoria for an indemnity claim - New South Wales funds depleted in Victorian proceedings - Whether any inconsistency or clash between Victorian and New South Wales statutes - Whether State of New South Wales had the greater governmental interest in providing for the compelled financial consequences of a motor vehicle accident occurring in New South Wales - Whether any such inconsistency denied the operation of the Judiciary Act, s 80. Constitutional law (Cth) - Discrimination between residents - Resident of New South Wales subject to claim to indemnity under Victorian statute - Transport Accident Act, s 104(1) provided that that provision did not apply to a person entitled to be indemnified by the Commission under s 94 of that Act - Section 94 obliged the Commission to indemnify persons who have paid the transport accident charge levied upon owners of registered motor vehicles under Transport Accident Act, s 109(1) for the relevant period - New South Wales driver would not have been subject to claim to indemnity had she been resident in Victoria - Where New South Wales driver bound to hold third-party insurance pursuant to Motor Accidents Act, ss 8 and 11 - Whether Transport Accident Act, s 104(1) subjected New South Wales driver to any disability or discrimination which would not be equally applicable to her if she were resident in Victoria. Words and phrases - "inconsistency". Constitution, ss 75(iv), 92, 109, 117. Judiciary Act 1903 (Cth), ss 30, 39, 80. Motor Accidents Act 1988 (NSW), ss 2, 8, 11, 40-82A. Transport Accident Act 1986 (Vic), ss 1, 8, 27, 35, 94, 104, 109.

Nudd v The Queen Criminal Law - Trial - Miscarriage of justice - Competence of counsel - Alleged failure to take instructions - Alleged failure to understand elements of offence and relevant statutory provisions - Alleged failure to be familiar with applicable judicial decisions. Appeal - Criminal appeal - Miscarriage of justice - Competence of counsel - Application of "proviso" - Whether denial of fair trial may sometimes without more amount to miscarriage of justice. Legal practitioners - Criminal trial - Competence of counsel and of solicitor - Alleged failures to take instructions, to understand elements of offence and to consider applicable judicial decisions - Extent to which, if at all, alleged incompetence contributed to any miscarriage of justice - Whether in some circumstances miscarriage of justice includes denial of fair trial according to law without more. Words and phrases - "on any ground whatsoever there was a miscarriage of justice". Criminal Code (Q), s 668E(1).

Nominal Defendant v GLG Australia Pty Limited Statutes - Motor Accidents Act 1988 (NSW) ("the Act") - Scope of indemnity - Scope of definition of "injury" under s 3(1) of the Act - A system of work involving forklift vehicle produced vibrations causing boxes in container to fall and strike worker - Whether injury "is a result of and is caused during ... the driving of the vehicle" under par (a)(i) of the definition of "injury" - Whether Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 79 ALJR 1079; 215 ALR 385 required definition of "injury" to be construed consistently with s 69(1) of the Act - Whether injury "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle" - Whether fault in failing to devise a safe system of work can be invoked as basis of claim for indemnity under the Act - Causation - Whether direct and proximate relationship between the driving of the vehicle and the injuries. Statutes - Construction - Purpose of legislation - Extrinsic materials - Use of ministerial second reading speech - Whether any disparity between Minister's speech and law as enacted - Duty of courts to enacted law. Practice and procedure - Court of Appeal (NSW) - Orders disposing of appeal - Inclusion of orders for costs and interest - Whether such orders involved procedural unfairness in the circumstances. Words and phrases - "injury". Motor Accidents Act 1988 (NSW), ss 3(1), 69(1).