Cases and authorities

of Australia Constitutional Law (Cth) - Acquisition of property - Plaintiff formerly a member of the House of Representatives of the Parliament of the Commonwealth - Plaintiff entitled to a retirement allowance in accordance with s 18 of the Parliamentary Contributory Superannuation Act 1948 (Cth) ("Superannuation Act") - Plaintiff convicted after trial on indictment of offences answering the description of "corruption offence" within s 2(1) of the Crimes (Superannuation Benefits) Act 1989 (Cth) ("CSB Act") - Commonwealth Director of Public Prosecutions applied to the County Court of Victoria for a superannuation order in respect of the plaintiff pursuant to s 17 of the CSB Act - Effect of superannuation order would include cessation of all rights of and benefits payable to or in respect of the plaintiff under the Superannuation Act - Whether Pt 2 of the CSB Act invalid as providing for the acquisition of property otherwise than on just terms - Whether the acquisition effected by Pt 2 of the CSB Act of a kind with which "just terms" is an inconsistent or incongruous notion - Whether the operation of Pt 2 of the CSB Act reasonably incidental to the exercise of a head of power other than s 51(xxxi) - Whether the operation of Pt 2 of the CSB Act a reasonably proportional consequence of breach of the law in question. Words and phrases - "acquisition of property", "just terms". Constitution, ss 48, 51(xxxi), 51(xxxvi). Crimes (Superannuation Benefits) Act 1989 (Cth), ss 2(1), 7, 16, 17, 19, 21. Parliamentary Contributory Superannuation Act 1948 (Cth), ss 4B, 4C, 18, 19.

Sweeney v Boylan Nominees Pty Limited Negligence - Vicarious liability - Respondent engaged a repairer to perform maintenance on refrigerator installed at a petrol station - Respondent obliged under lease agreement with third party to service and maintain refrigerator - Refrigerator door negligently repaired - Appellant struck and injured by insecurely fastened door. Employer and employee - Independent contractor - Whether relationship between the respondent and repairer that of employment or independent contract - Repairer performed work for the respondent on a regular basis - Repairer performed work at the respondent's request and direction - Repairer frequently attended the respondent's premises to obtain parts with which to effect repairs - Repairer had no formal or written contract with the respondent - Repairer did not wear shirt bearing the respondent's insignia which the respondent required its employees to wear - Repairer did not receive wages or superannuation contributions from the respondent - Repairer had secured his own insurance policy for liability which he may incur in the course of his work. Negligence - Vicarious liability - Whether respondent vicariously liable for the negligence of the repairer on the basis that the repairer was a "representative" of the respondent - Respondent provided the repairer with invoices bearing the respondent's name for the repairer to give to customers upon completion of work - Invoices described the repairer as the respondent's mechanic - Repairer authorised to receive payments from customers on behalf of the respondent - Whether the principles in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41 apply. Negligence - Vicarious liability - Legal policy - Whether increasing reliance on independent contractors rather than employees relevant - Whether independent contractors taking out policies of insurance relevant - Whether vicarious liability on the basis of representation might encourage defendants to disclose the nature of commercial relationships with independent contractors in advance of trial. Evidence - Failure of the respondent to disclose until trial the nature of the commercial relationship which he had with the repairer - Administration of justice. Words and phrases - "vicarious liability", "representative", "representation", "agent", "principal", "employee", "independent contractor".

State of Queensland v Stephenson Reeman v State of Queensland State of Queensland v Wrightson Limitation of actions - Proceedings instituted after expiry of limitation period - Application for extension of limitation period - Under s 31(2)(a) of the Limitation of Actions Act 1974 (Q) ("the Act") a court may extend a limitation period if "a material fact of a decisive character relating to the right of action" was not within the applicant's means of knowledge until a date after the commencement of the year last preceding the expiration of the limitation period ("the relevant date") - Where the Act separately defines "material fact[s] relating to a right of action" and when those material facts are of a "decisive character" - Where material fact was within each applicant's means of knowledge before the relevant date but only attained a decisive character after that date - Whether par (a) of s 31(2) of the Act was satisfied, such that the court had power to extend the limitation period in respect of each applicant. Statutory interpretation - Remedial legislation - Purposive approach - Limitation of Actions Act 1974 (Q), s 31(2)(a). Words and phrases - "material fact of a decisive character relating to the right of action". Limitation of Actions Act 1974 (Q), ss 30, 31.

Davison v State of Queensland Limitation of actions - Personal injury - Personal Injuries Proceedings Act 2002 (Q) - Limitation of Actions Act 1974 (Q) - Appellants alleged serious physical and mental abuse suffered while in foster care under the supervision and care of the respondent - Application for extension of limitation period - Whether an applicant for leave to commence proceedings under s 43 of the Personal Injuries Proceedings Act 2002 (Q) must demonstrate a "reasonably arguable case for the granting of an extension" of time under s 31(2) of the Limitation of Actions Act 1974 (Q) - Whether evidence relied on by appellants established a prima facie case for extension of time under s 31(2). Statutory interpretation - Remedial legislation - Purposive approach - Provision for urgent interim relief - Personal Injuries Proceedings Act 2002 (Q), s 43. Limitation of Actions Act 1974 (Q), ss 30(1), 31(2). Personal Injuries Proceedings Act 2002 (Q), s 43.

Brighton und Refern Plaster Pty Limited v Boardman Workers' Compensation - Plaintiff did not comply with s 151C of the Workers Compensation Act 1987 (NSW) - Defendant did not take any point as to non-compliance until after an order for judgment had been made under Pt 11 r 1(1) of the District Court Rules - Whether proceedings commenced by the plaintiff invalid or a nullity because of non-compliance with s 151C - Whether procedural steps taken by the parties under the District Court Rules invalid or nullities because of non-compliance with s 151C - Whether defendant entitled to an order setting aside the order for judgment - Whether the concept of waiver relevant. Statutory construction - Where statute imposed a restriction upon the commencement of court proceedings but made no provision for consequences of non-compliance - Construction of s 151C of Workers Compensation Act 1987 (NSW). Workers Compensation Act 1987 (NSW), Pt 5, s 151

Industrial law (NSW) - Industrial Relations Commission - Jurisdiction - Power given to the Commission by s 106(1) of the Industrial Relations Act 1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract - Share purchase agreement which stipulated that the first appellant's entering an employment contract with a related company of the purchaser was a condition precedent to completion of the share purchase - Application to Commission for orders declaring share purchase agreement unfair, harsh and unconscionable, and contrary to the public interest, and orders varying the agreement - Whether the share purchase agreement was a "contract whereby a person performs work in any industry" - Whether share purchase agreement formed part of the arrangement between the parties - Relevance of changing nature of employment relationships - Relevance of availability of other remedies. Industrial law (NSW) - Industrial Relations Commission - Writ of prohibition sought to restrain the Commission from exercising jurisdiction - Entitlement of the Commission to determine its own jurisdiction in first instance - Absence of objection to jurisdiction raised before Commission - Whether trial held by Commission in Court Session. Prerogative writs - Prohibition - Excess of jurisdiction - Industrial Relations Commission (NSW) - Whether writ lies in the circumstances - Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court - Whether application for prohibition premature - Likelihood or danger of order being made in excess of jurisdiction - Relevance of privative provision purporting to exclude issue of writ - Relevance of failure of respondents to make jurisdictional objection before the Commission - Relevance of specialist subject-matter of disputes before the Commission. Statutes - Construction - Interpretation - Remedial statute - Purposive approach to construction - Objects of statute. Statutes - Privative clause - Industrial Relations Commission (NSW) - Whether privative provision applicable - Relevance of exclusion of the right to appeal to the Supreme Court and hence to the High Court. Statutes - Construction - Interpretation - Composite phrase incorporating technical words - Extrinsic matters - Legislative history - Minister's second reading speech - Relevance of Parliament's purpose of successive re-enactment in increasingly ample terms - Relevance of interpretation afforded to equivalent provisions in other jurisdictions. Words and phrases - "any contract whereby a person performs work in any industry", "any related condition or collateral arrangement", "arrangement", "decision or purported decision", "industry". Constitution, s 79. Industrial Relations Act 1996 (NSW), ss 105-109A, 152, 179, 187-188. Supreme Court Act 1970 (NSW), s 48.

Industrial law (NSW) - Industrial Relations Commission - Jurisdiction - Power given to the Commission by s 106(1) of the Industrial Relations Act 1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract - Option to acquire shares in company pursuant to an option deed - Option deed made as part reward to option holder as promoter of company - Application to Commission for orders declaring the option deed unfair, harsh, and unconscionable and contrary to the public interest, and orders varying the deed - Whether the option deed was a contract or arrangement according to which the first appellant performed work in any industry - Relevance of the fact that the work performed pre-dated the option deed. Industrial law (NSW) - Industrial Relations Commission - Writ of prohibition sought to restrain the Commission from exercising jurisdiction - Entitlement of the Commission to determine its own jurisdiction in first instance. Prerogative writs - Prohibition - Excess of jurisdiction - Industrial Relations Commission (NSW) - Whether writ lies in the circumstances - Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court - Whether application for prohibition premature -Likelihood or danger of order being made in excess of jurisdiction - Relevance of privative provision purporting to exclude issue of writ - Relevance of specialist subject-matter of disputes before the Commission. Statutes - Privative clause - Industrial Relations Commission (NSW) - Whether privative provision applicable - Relevance of interlocutory decision of the Commission dismissing a motion by the respondent for pre-emptive relief. Statutes - Construction - Interpretation - Remedial statute - Purposive approach to construction - Objects of statute. Statutes - Construction - Interpretation - Composite phrase incorporating technical words - Extrinsic matters - Legislative history - Relevance of Parliament's purpose of successive re-enactment in increasingly ample terms. Words and phrases - "any contract whereby a person performs work in any industry", "any related condition or collateral arrangement", "arrangement", "decision or purported decision", "industry". Industrial Relations Act 1996 (NSW), ss 105-109A, 152, 179. Supreme Court Act 1970 (NSW), s 48.

Old UGC, Inc v Industrial Relations Commission of New South Wales in Court Session Industrial law (NSW) - Industrial Relations Commission - Jurisdiction - Power given to the Commission by s 106(1) of the Industrial Relations Act 1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract - Upon termination of an employment agreement, compensation and release agreement made for the purpose of resolving any legal disputes with respect to the employment agreement - Compensation and release agreement governed by the laws of the State of Colorado - Application to Commission alleging the compensation and release agreement was unfair, harsh and unconscionable - Whether compensation and release agreement was a "contract whereby a person performs work in any industry" - Relevance of the availability of other remedies. Prerogative writs - Prohibition - Excess of jurisdiction - Industrial Relations Commission (NSW) - Whether writ lies in the circumstances - Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court - Whether application for prohibition premature - Likelihood or danger of order being made in excess of jurisdiction - Relevance of privative provision purporting to exclude issue of writ - Relevance of specialist subject-matter of disputes before the Commission. Contract - Construction - Provision requiring parties to act in good faith. High Court - Appeal - Appeal from New South Wales Court of Appeal - Respondent raised privative provision before the Court of Appeal but not before High Court - Whether High Court can consider privative provision in the circumstances. Natural justice - Procedural fairness - Entitlement to trial on the merits. Private international law - Jurisdiction - Industrial Relations Commission (NSW) - Contract in question governed by the laws of the State of Colorado - Whether the power afforded to the Commission under s 106(1) of the Industrial Relations Act 1996 (NSW) extends to contracts for which the proper law is other than the law of New South Wales. Statutes - Construction - Interpretation - Remedial statute - Purposive approach to construction - Objects of statute. Statutes - Privative clause - Industrial Relations Commission (NSW) - Whether privative provision applicable. Statutes - Construction - Interpretation - Composite phrase incorporating technical words - Extrinsic matters - Legislative history - Minister's second reading speech - Relevance of Parliament's purpose of successive re-enactment in increasingly ample terms Words and phrases - "any contract whereby a person performs work in any industry", "arrangement", "decision or purported decision", "industry". Industrial Relations Act 1996 (NSW), ss 105-109A, 152-153, 179. Supreme Court Act 1970 (NSW), ss 25, 38, 39, 42. GLEESON CJ. I would dismiss this appeal. I agree with the reasons of Gummow, Hayne, Callinan and Crennan JJ on the issue as to the territorial reach of the relevant legislation. However, on the principal issue in the case, I would uphold the reasoning of Spigelman CJ, with whom Mason P and Handley JA agreed, in the New South Wales Court of Appeal[1]. The matter is of some procedural and factual complexity. In his reasons for judgment Spigelman CJ accepted that the Summons filed in the Industrial Relations Commission of New South Wales ("the Commission") invoked the Commission's jurisdiction by seeking a variation, not of the relevant employment agreement, but of a later agreement. Spigelman CJ, who treated the later agreement as a variation of the employment agreement, regarded the claim for relief as misdirected in this respect but pointed out that the Court of Appeal "would not prohibit proceedings in the Commission where jurisdiction can be established by an amendment asserting that undisputed facts have a particular legal effect". It is important to keep this aspect of the case in mind when examining the reasoning by which his Honour related the facts of the case to the statutory provisions conferring jurisdiction on the Commission. Section 106 of the Industrial Relations Act 1996 (NSW) ("the Act") empowers the Commission to make orders of certain kinds with respect to any contract whereby a person performs work in an industry if the contract is found to be unfair. The Commission may find that the contract, although not unfair at the time it was entered into, became unfair because of any variation of the contract (s 106(2)). A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time (s 106(3)). "Contract" includes "arrangement" (s 105). In this statutory context, the concept of variation of a contract or arrangement, either by the parties, or by order of the Commission, is not to be given a formal or technical meaning. Mr McRann was employed, from 1995 until mid-1997, as Managing Director of the Australian affiliates of a group, headed by the first appellant, which conducted pay television operations in various countries. Mr McRann was in charge of the Australian operations. That Australian employment came to an end on 31 July 1997. Thereafter, until 31 December 1997, he was employed in Amsterdam as the Chief Operating Officer of the first appellant's Netherlands affiliate. Mr McRann's Australian employment was the subject of three contractual documents. The first was a letter of 21 February 1995 by which the first appellant offered him employment with a view to his being seconded to the television business of its Australian affiliates. He accepted on 3 March 1995. The "assignment" (or secondment) was to be for five years "subject to the terms of this agreement". Mr McRann was entitled to a base salary, an annual bonus and incentive compensation. (In this context, "compensation" means reward or remuneration, not recompense for harm.) That business was conducted by the Australian affiliates, later by Austar Entertainment Pty Ltd and, ultimately after a public float, by Austar United Communications Limited. The incentive compensation was related to the equity value of the Australian affiliates. In the event of Mr McRann's resignation, or the termination of his employment by the employer, he had the right to retain certain vested incentive entitlements. The incentive arrangements contemplated the possibility of options to acquire shares in the event of a public listing of an affiliate conducting the Australian business. Following certain disagreements with his employer, on 2 July 1997 Mr McRann entered into two further agreements. One was called a Compensation and Release Agreement ("the CRA"). The other was called a Termination of Employment Letter Agreement. These agreements were entered into "[i]n anticipation of [Mr McRann's] transfer to Amsterdam". The CRA was said to be for the purpose of resolving all disputes between Mr McRann and the first appellant and to provide him with certain compensation and benefits in exchange for his giving up all legal rights and claims arising out of the existing agreement. Included among such benefits was a provision that, if Austar went public, Mr McRann's incentive interest would be "restructured into stock options or any comparable incentive arrangement offered to then current employees of Austar". That provision is at the centre of the present dispute between Mr McRann and the first appellant. The substantive merits of that dispute are not presently in issue. The CRA varied, and in some respects advanced, Mr McRann's incentive entitlements. The Termination of Employment Letter Agreement said that, in anticipation of the transfer to Amsterdam, Mr McRann and the first appellant mutually agreed to termination of the 1995 agreement, as from 31 July 1997, that his "new assignment" would be the subject of a further agreement (which is presently irrelevant) and that Mr McRann would receive the benefits contained in the CRA. Spigelman CJ said: "When the Employment Agreement and [the CRA] are compared ... it appears clear that the latter is, in substance, a variation of the former in view of the circumstance that Mr McRann will be leaving to join the UGC Dutch affiliate. It is of significance that under the original Employment Agreement, Mr McRann's rights extended beyond the time of the expiry of his five year term. That his rights under the later Agreement also extend beyond the cessation of his employment with Austar, is not a distinguishing characteristic." He concluded that there was a single contract of employment constituted by reading together the 1995 employment letter and the CRA. This, he said, was a contract whereby Mr McRann performed work in an industry, and was a contract with respect to which the Commission could make orders under s 106 of the Act. I see no error in that analysis of the facts. If it be correct, then the case does not appear to me to give rise to a jurisdictional difficulty of the kind identified in Fish v Solution 6 Holdings Ltd[2] and Batterham v QSR Ltd[3]. Mr McRann's incentive entitlements were as much a part of the remuneration for which he worked in the Australian business of the group, headed by the first appellant, as his base salary. The circumstance that the alteration of those entitlements took place in the context of a resolution of certain disputes and a contemplated re-assignment from Australia to the Netherlands does not make the case different from, say, a consensual variation of the incentive arrangements a month after they were first entered into. The apparent jurisdictional problem arises because the Summons took the CRA as its focus of attention. Once the CRA is seen as effecting a variation of the original employment agreement and as altering the compensation (that is to say, remuneration) to which Mr McRann was entitled under that agreement, then it is the employment agreement as varied that should be the jurisdictional focus. Mr McRann performed work in an Australian industry. The employment agreement, including its terms and conditions as to compensation, was a contract whereby he performed that work. The appeal should be dismissed with costs.

XYZ v The Commonwealth Constitutional law (Cth) - External affairs - Plaintiff charged with three offences of engaging in sexual activity with a child under 16 years while outside Australia contrary to ss 50BA and 50BC of the Crimes Act 1914 (Cth) - Whether either of ss 50BA and 50BC of the Crimes Act are laws with respect to external affairs - Whether "external affairs" extends to any place, person, matter or thing lying outside the geographical limits of Australia - Whether "external affairs" is restricted to subjects having some connection with Australia - Whether "external affairs" is restricted to matters touching or concerning the relationships of Australia with other countries and international organisations - Whether "external affairs" extends to "matters of international concern" - Relevance of proposition that "external affairs" extends to implementation of treaty obligations. Constitutional law (Cth) - Constitutional interpretation - Whether permissible to consider separately the meaning of components of a composite phrase - Relevance of distorting or alarming possibilities - Relevance of possible lacuna in the plenitude of the combined legislative powers of the various Parliaments of the Australian federation - Relevance of original meaning of the Constitution - Relevance of development of Australian nationhood - Relevance of extra-territorial reach of other heads of legislative power in s 51 to the interpretation of s 51(xxix) - Relevance of principles of international law concerning extra-territorial legislation - Relevance of the federal character of the Commonwealth - Relevance of notion of proportionality. Constitutional law (Cth) - Overruling - Whether leave necessary to reopen such authority of the Court as upheld the geographical externality principle - Whether such authority should be overruled. Criminal law - Sexual offences - Child sex tourism offences - Crimes Act 1914 (Cth), ss 50BA, 50BC - Whether such offences valid laws under the Constitution. Words and phrases - "external affairs". Constitution, ss 51(xxix), 51(xxxviii). Australia Act 1986 (Cth), s 2. Crimes Act 1914 (Cth), ss 50AD, 50BA, 50BC. Criminal Code (Cth), s 11.1(1).

Negligence - Breach of duty - Appellant tree feller rendered paraplegic after a branch fell from a tree and hit him - Respondent, by its forestry officer, gave the appellant a direction that he was not to fell pulp trees as he normally would - Whether respondent was negligent in giving that direction and so causing appellant to place himself in a position of danger. Appeal - Approach to issues of negligence and contributory negligence - Trial judge finds that respondent, by its forestry officer, gave the appellant tree feller a direction that he was not to fell pulp trees as he normally would - Centrality of finding to conclusion of negligence - Full Court does not disturb that finding but finds no negligence - Whether finding of no negligence open to Full Court in the circumstances - Whether any error of judgment of the appellant a matter relevant to contributory negligence. Forestry Act 1920 (Tas). Forest Practices Act 1985 (Tas).

of Australia Constitutional Law - Naturalization and aliens - Meaning of "aliens" - Children born in Australia to parents who were neither Australian citizens nor permanent residents - Children entitled to acquire foreign citizenship by registration - Whether children are "aliens" within the meaning of s 51(xix) of the Constitution - Whether children are nationals of Australia for constitutional purposes. Constitutional Law - Construction and interpretation - Meaning of "aliens" - Relevance of possible statelessness to status of child - Whether Convention on the Reduction of Statelessness and other provisions of international law relevant. Citizenship, immigration and emigration - Detention and removal of unlawful non-citizens from Australia - Meaning of "aliens" - Children born in Australia to parents who were neither Australian citizens nor permanent residents - Children entitled to acquire foreign citizenship by registration - Provisions of Australian Citizenship Act 1948 (Cth) relating to stateless persons not alleged to be engaged - Status of children. Words and phrases - "aliens". Constitution, s 51(xix). Australian Citizenship Act 1948 (Cth), ss 10(2), 23D. Migration Act 1958 (Cth), ss 189, 198.

Avon Products Pty Limited v Commissioner of Taxation Taxation and Revenue - Sales tax - Credit for sales tax overpaid - Passing on - CR1 in Table 3 of Schedule 1 to the Sales Tax Assessment Act 1992 (Cth) - Taxpayer did not change its pricing policy when it learned a lower rate of tax applied - Burden of proof upon taxpayer to establish it has not passed on the overpayment - Whether taxpayer satisfied onus of proof - Whether an overpayment of sales tax is passed on only if the price is increased by the amount of the tax overpaid. Words and phrases - "passing on". Sales Tax Assessment Act 1992 (Cth), Pt 4, Sched 1, Table 3 CR1. Taxation Administration Act 1953 (Cth), Pt IVC, s 14

Kulkarni v Filipowski Criminal law - Double jeopardy - Autrefois acquit - Successive charges arising out of same facts - Charge brought against appellants under s 27(1) of the Marine Pollution Act 1987 (NSW) - Charge dismissed on basis that s 27(1) did not apply where a charge was available under s 8 - Charge subsequently brought against appellants under s 8 - Where s 27(1) offence included all elements of s 8 offence together with additional element - Whether second charge barred by principles of autrefois acquit - Whether appellants stood in jeopardy on first charge - Whether plea of autrefois acquit available if all elements of offence first charged not included in elements of offence charged second. Criminal law - Abuse of process - Delay - Where first prosecution brought more than two years after the relevant events - Where second prosecution brought eight months after first defective prosecution dismissed. Words and phrases - "abuse of process", "autrefois acquit", "double jeopardy", "in jeopardy". Marine Pollution Act 1987 (NSW), ss 8, 27(1).

SST Consulting Services Pty Limited v Rieson Trade Practices - Restrictive trade practices - Exclusive dealing - Trade Practices Act 1974 (Cth) ("TPA"), s 47(1) - Loan agreement obliged borrower to acquire services of a particular kind from third persons specified by the lender - Lender thereby engaged in "exclusive dealing" in breach of s 47(1) of the TPA - Guarantors of loan sought to avoid enforcement of guarantee on basis that contract was void and unenforceable for illegality - Whether contract void or unenforceable for illegality - Relevance of other forms of relief available under ss 87 and 87A - Whether severance an exceptional form of relief - Whether TPA, s 4L permitted or required severance of the prohibited provision. Statutes - Interpretation - Structure and meaning of s 4L - Whether s 4L engaged common law "rules" of severance - Whether identifiable "rules" of severance existed at common law - Relevance of rules of severance devised and applied in other contexts. Statutes - Interpretation - Statutory context of s 4L - Objects and purpose of the TPA - Relevance of legislative history of s 4L - Relevance of report of committee (Swanson Committee) appointed to review legislation prior to introduction of s 4L. Words and phrases - "exclusive dealing", "illegality", "in so far as", "making of a contract", "severance", "subject to", "third line forcing". Trade Practices Act 1974 (Cth), ss 4L, 47(1), 47(6), 87.

Workers' Compensation - Plaintiff did not comply with s 151C of the Workers Compensation Act 1987 (NSW) - Defendant did not take any point as to non-compliance until after it had made an offer of compromise pursuant to Pt 19A of the District Court Rules - Plaintiff accepted defendant's offer of compromise after the point as to non-compliance had been raised - Whether proceedings commenced by the plaintiff invalid or a nullity because of non-compliance with s 151C - Whether procedural steps taken by the parties under the District Court Rules invalid or nullities because of non-compliance with s 151C - Whether defendant entitled to an order that its offer of compromise be withdrawn - Whether the concept of waiver relevant. Statutory construction - Where statute imposed a restriction upon the commencement of court proceedings but made no provision for consequences of non-compliance - Construction of s 151C of Workers Compensation Act 1987 (NSW). Workers Compensation Act 1987 (NSW), Pt 5, s 151

Darkan v The Queen Deemal-Hall v The Queen McIvor v The Queen Criminal Law - Common intention to prosecute unlawful purpose - Aiding the commission of an offence - Counselling the commission of an offence - Assault causing death - Appellants tried together and convicted of murder - Where Crown case relied on ss 7, 8 and 9 of the Criminal Code (Q) - Jury directed by trial judge that for the purpose of ss 8 and 9 of the Criminal Code (Q) "a probable consequence" was one which was "a real possibility or a substantial chance or a real chance" - Meaning of "a probable consequence" - Whether "probable" connotes something more than "possibility" or "real possibility" or "real chance" - Whether jury was misdirected. Criminal Law - Application of the proviso under s 668E(1A) of the Criminal Code (Q) - Whether "substantial miscarriage of justice" has actually occurred - Whether trial fundamentally flawed - Relevance of unknown mode of jury reasoning - Relevance of the fact that the misdirection concerned the elements of the offences charged. Appeal - Court of criminal appeal - Proviso not considered by court of criminal appeal - Whether High Court should consider proviso in the circumstances - Role of court of criminal appeal - Role of High Court - Limitations on High Court considering the proviso without scrutiny of the record of evidence by court of criminal appeal - Defects of a trial on the record. Words and phrases - "a probable consequence", "substantial miscarriage of justice". Criminal Code (Q), ss 8, 9, 668E(1A).

Income tax - Allowable deductions - Respondent entered into contracts with the State of Victoria to design, construct, operate and maintain a major system of roads - The State conceded to the respondent rights to do all that was necessary to complete those tasks, with a view to transferring the infrastructure and all associated rights back to the State at the expiry of the concession period - Respondent paid concession fees as consideration for those rights - Whether concession fees were allowable deductions - Whether concession fees which accrued semi-annually were outgoings incurred in, and referable to, the relevant years of income, where the fees were "owing" but "not due for payment" - Whether payment was contingent or theoretical - Whether concession fees were on revenue or capital account - Whether concession fees were an outgoing in gaining or producing the taxpayer's assessable income - Whether the concession fees conferred a benefit on the taxpayer of an enduring nature - Whether acquisition of the benefit essential to the taxpayer's business - Whether concession fees were the purchase price paid for the road system as a capital asset - Whether concession fees were akin to a share of profits with the State or a dividend payable to a joint venturer - Whether payment of concession fees analogous to the payment of rent. Words and phrases - "incurred", "referable". Income Tax Assessment Act 1936 (Cth), s 51(1). Income Tax Assessment Act 1997 (Cth), s 8-1. GLEESON CJ. I agree with the orders proposed by Crennan J and with her reasons for those orders.

Courts and judges - Apprehended bias - Disqualification of judge - Right to trial by independent and impartial tribunal - Familial association - Brother of judge alleged to have an indirect pecuniary interest in outcome of proceedings - Associated party given access to judge's draft reasons in advance of delivery -Non-disclosure of association until conclusion of trial - Whether apprehension of bias reasonable - Whether connection between familial association and feared deviation from impartial decision articulated. Courts and judges - Apprehended bias - Disqualification of judge - Familial association - Brother of judge alleged to have an indirect pecuniary interest in outcome of proceedings - Failure to object promptly to judge's participation in the trial - Waiver of right to object. Legal practitioners - Barrister and client - Relationship of agency - Imputation to litigant of knowledge possessed by counsel. Words and phrases - "apprehended bias".

Limitation of Actions - Appellant alleged respondent had raped and assaulted her in 1971 - Appellant alleged that she suffered post-traumatic stress disorder of delayed onset in 2000 and became aware of the connection between this disorder and the rapes and assaults in the same year - Proceedings were commenced for trespass to the person in 2002 by which time the general limitation period of six years for commencing actions in tort stipulated in s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) ("the Act") had expired - Whether s 5(1A) of the Act applied to extend the limitation period from the date she first knew of those injuries and their causal connection - Whether a trespass to the person is an action for a "breach of duty" - Whether the injury alleged is a "disease or disorder contracted". Words and phrases - "breach of duty", "disease or disorder contracted". Limitation of Actions Act 1958 (Vic), ss 5(1)(a), 5(1A), 23

Bounds v The Queen Criminal Law - Appeal against conviction - Miscarriage of justice - Appellant presented in District Court on an indictment charging two offences - The first count, possession of child pornography, alleged an indictable offence - The second count, possession of indecent or obscene articles, was a simple offence only and was wrongly joined in the indictment - No objection taken to the indictment at the appellant's trial - Whether there was a substantial miscarriage of justice because of the wrongful joinder of count two - Whether the conviction on count one should be quashed because the jury had before it evidence on count two which, but for the wrongful joinder of count two, would not have been admissible - Whether the whole indictment was a nullity. Words and phrases - "indictable offence", "simple offence", "substantial miscarriage of justice". Censorship Act 1996 (WA). Criminal Code (WA), ss 3, 689(1). District Court of Western Australia Act 1969 (WA), ss 8, 42.

of Australia Extradition - Plaintiff remanded in custody pending determination of eligibility for surrender - Arrest warrant for plaintiff in force in Croatia on charge of certain war crimes - Arrest warrant constitutes relevant "supporting documentation" for purposes of s 19 of the Extradition Act 1988 (Cth) - Statement made by Croatian investigating authorities of a well-founded suspicion that plaintiff committed the offences alleged, including recitation of evidence provided by witnesses - Croatia declared to be an "extradition country" by Extradition (Croatia) Regulations 2004 (Cth), regs 3, 4 - Whether Pt II of the Extradition Act is a valid law of the Commonwealth. Constitutional law (Cth) - Judicial power of the Commonwealth - Plaintiff detained pending determination of eligibility for surrender - Extradition Act, s 19(1) provided power of an administrative nature to conduct proceedings to determine eligibility for surrender - Extradition Act, s 19(5) provided that the person to whom the proceedings relate is not entitled to adduce evidence to contradict allegations that the person has engaged in the conduct constituting an extradition offence - No prima facie evidence requirement applicable - Whether Pt II of the Extradition Act is invalid to the extent that it purports to confer a power to deprive an Australian citizen of liberty otherwise than in exercise of the judicial power of the Commonwealth - Whether Pt II of the Extradition Act when read together with the Extradition (Croatia) Regulations is invalid to the extent that it purports to confer a power to deprive an Australian citizen of liberty otherwise than upon a finding that there exists a prima facie case against that person of the commission of the offences alleged by the state requesting extradition - Whether law authorising such involuntary detention requires machinery for testing the validity of the charges made - Whether surrender proceedings are an integer of a "matter" for the purposes of Ch III of the Constitution. Constitutional law (Cth) - External affairs - Extradition (Croatia) Regulations not made pursuant to any treaty between Australia and Croatia - Whether, in the absence of a treaty, the declaration by the Extradition (Croatia) Regulations of Croatia as an extradition country is invalid for want of support by s 51(xxix) of the Constitution or any other legislative power of the Commonwealth - Whether Pt II of the Extradition Act and the Extradition (Croatia) Regulations operate by reference to the conduct of the plaintiff external to Australia or by reference to an untested and untestable allegation of such conduct - Whether the mere fact of a request by a foreign state makes the subject-matter of the request amenable to the exercise of the legislative power conferred by s 51(xxix). Constitution, s 51(xxix), Ch III. Extradition Act 1988 (Cth), ss 3(a), 5, 11, Pt II. Extradition (Croatia) Regulations 2004 (Cth).

Campbells Cash and Carry Pty Limited v Fostif Pty Limited Practice - Representative proceedings - Supreme Court Rules 1970 (NSW), Pt 8 r 13 - Representative proceedings brought in each case by a licensed tobacco retailer to recover from its wholesaler licence fees paid from the beginning of the financial year commencing 1 July 1997 until the decision in Ha v State of New South Wales which declared the licensing scheme invalid and which licence fees were not paid to the taxing authorities - Proceedings financed by litigation funder - Proceedings intended to be conducted by litigation funder on behalf of those retailers who "opted-in". Practice - Representative proceedings - Supreme Court Rules 1970 (NSW), Pt 8 r 13 - Whether provisions for representative proceedings in the Supreme Court Rules were validly engaged - "Same interest" - Common interest of fact or law - Whether there were, at the time the proceedings were commenced, numerous persons who had the same interest in the proceedings - Proceedings intended to be conducted on behalf of those retailers who subsequently "opted-in" - None had "opted-in" when proceedings commenced - Relationship between "same interest" and relief sought. Practice - Representative proceedings - Stay of proceedings - Abuse of process - Public policy - Proceedings financed by litigation funder - Litigation funder sought out possible claimants - Retailer gave up to funder one-third of its claim - Whether the representative proceedings should be stayed as contrary to public policy or an abuse of process - Maintenance, Champerty and Barratry Abolition Act 1993 (NSW). Practice - Discovery - Right to administer interrogatories in representative proceedings to identify others with the "same interest" in the proceedings. Constitutional law (Cth) - Judicial power of Commonwealth - Abuse of process - Consistency of common law doctrine of abuse of process with judicial process. Words and phrases - "abuse of process", "maintenance and champerty", "public policy", "representative proceedings", "same interest", "trafficking in litigation", "overriding purpose rule". Maintenance, Champerty and Barratry Abolition Act 1993 (NSW). Supreme Court Rules 1970 (NSW), Pt 1, r 3; Pt 8, r 13.

Mobil Oil Australia Pty Limited v Trendlen Pty Limited Practice - Representative proceedings - Supreme Court Rules 1970 (NSW), Pt 8 r 13 - Representative proceedings brought by petroleum retailer to recover licence fees paid to wholesaler - Proceedings financed by litigation funder - Whether proceedings champertous - Whether provisions for representative proceedings in the Supreme Court Rules were validly engaged - "Same interest" - Common interest of fact or law - Whether there were, at the time the proceedings were commenced, numerous persons who had the same interest in the proceedings - Proceedings intended to be conducted on behalf of those retailers who subsequently "opted-in" - None had "opted-in" when proceedings commenced. Practice - Representative proceedings - Stay of proceedings - Abuse of process - Public policy - Proceedings financed by litigation funder - Litigation funder sought out possible claimants - Retailer gave up to funder one-third of its claim - Whether the representative proceedings should be stayed as contrary to public policy or an abuse of process - Maintenance, Champerty and Barratry Abolition Act 1993 (NSW). Words and phrases - "abuse of process", "maintenance and champerty", "public policy", "representative proceedings", "same interest", "trafficking in litigation". Maintenance, Champerty and Barratry Abolition Act 1993 (NSW). Supreme Court Rules 1970 (NSW), Pt 8, r 13.

Constitutional law (Cth) - Chapter III - State Supreme Courts - Acting Judges - Section 37 of the Supreme Court Act 1970 (NSW) provided for appointments to act as a judge, for a period not exceeding 12 months - Former Federal Court Judge appointed as an Acting Judge of the Supreme Court of New South Wales under a series of commissions pursuant to s 37 of the Supreme Court Act - Whether the appointments as an Acting Judge were validly made - Whether s 37 of the Supreme Court Act was valid - Whether Acting Judges, when appointed other than on an occasional and exceptional basis, substantially impair public confidence in the Supreme Court's institutional integrity and impartiality and prevent that Court from answering to the constitutional description of "Supreme Court of any State" - Distinctions between permanent Judges and Acting Judges - Significance of a substantial increase in the number of Acting Judges appointed to the Supreme Court, the incidence of reappointing such Acting Judges and the duration of such appointments since 1989 - Whether changes in appointments of Acting Judges amounts to a fundamental alteration of the character and composition of the Supreme Court - Relevance of the fact that Acting Judges are typically retired Judges. Constitutional law (Cth) - No objection to the appointment of the Acting Judge in question taken at trial or on appeal to the New South Wales Court of Appeal - Whether parties contesting the validity of appointment prevented from doing so by reason of acquiescence or waiver - Opposing parties did not submit acquiescence or waiver, if any, prevented objection to validity of appointment - Whether High Court should consider effect of acquiescence or waiver. Constitutional law (Cth) - Judicial power of the Commonwealth - Vesting in State courts - Federal character of the Commonwealth - Power of State Parliament to confer function incompatible with exercise by State court of federal judicial power - Whether appointments of Acting Judges in large numbers consistent with judicial process and Chapter III of the Constitution. Judges - Acting Judges - Validity of orders made by Acting Judge - Whether such orders valid regardless of validity of appointment of the Acting Judge by reason of the de facto officers doctrine. Corporations law - Transitional provisions of Ch 10 of the Corporations Act 2001 (Cth) - ASIC brought proceedings, in 2001, against the parties contesting validity of the appointment of the Acting Judge in question alleging contravention, in 1998, of civil penalty provisions of the Corporations Law of New South Wales - Whether, after the repeal of the relevant civil penalty provisions of the State corporations law and the enactment of the Corporations Act, the proceedings alleging contravention could be brought. Words and phrases - "Acting Judges", "court", "impartiality", "institutional integrity", "judicial independence", "Supreme Court of any State". Constitution, ss 71, 72, 73, 75, 76, 77(iii). Corporations Act 2001 (Cth), Ch 10. Judiciary Act 1903 (Cth), s 39(2). Supreme Court Act 1970 (NSW), s 37.

Administrative law - Freedom of information - Statute conferring right of access to documents other than exempt documents - Documents exempt if relating to deliberative processes of government and if disclosure contrary to the public interest - Decision by Minister to issue certificate that disclosure of certain documents contrary to the public interest - Whether reasonable grounds exist for claim that disclosure contrary to the public interest. Words and phrases - "exempt document", "internal working documents", "conclusive certificate", "public interest". Freedom of Information Act 1982 (Cth), ss 3, 11, 36, 58(5), 58B, 58C, 58E, 64. Administrative Appeals Tribunal Act 1975 (Cth), ss 43, 44.

Defamation - Injunctions - Interlocutory injunctions - Interlocutory injunction to restrain publication - Appellant restrained from broadcasting documentary film making allegations including that respondent suspected of having committed notorious unsolved crime - Principles on which interlocutory injunction to restrain publication granted - Relevance of "flexible" or "rigid" approaches to granting interlocutory injunctions - Significance of value of free speech - Significance of avoiding "trial by media" - Whether relevant that only nominal damages likely to be awarded - Significance of status of respondent as convicted life prisoner. Injunctions - Interlocutory injunctions - Defamation - Whether general principles governing grant of interlocutory injunctions to restrain wrongs apply to interlocutory applications to restrain publication of allegedly defamatory matter - Relationship between Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 and American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396 - Whether respondent had made out an entitlement to an interlocutory injunction within the principles established by Beecham - Whether Full Court and primary judge shown to have erred in granting of interlocutory injunction. Defamation - Injunctions - Jurisdiction to grant interlocutory injunction to restrain publication of allegedly defamatory matter - Nature of equitable jurisdiction to grant injunctions to restrain publication - Effect of Common Law Procedure Act 1854 (UK) - Effect of Judicature Act 1873 (UK). Appeal - Interlocutory injunction in defamation proceedings - Necessity of demonstrating error in order to justify intervention by High Court - Whether error shown in approach and conclusion of Full Court and primary judge. Defamation - Defences - Justification - Whether avoiding "trial by media" relevant to determination of "public benefit" required by Defamation Act 1957 (Tas) s 15. Words and phrases - "public benefit", "public interest". Common Law Procedure Act 1854 (UK), ss 79, 82. Judicature Act 1873 (UK), s 25(8). Supreme Court Civil Procedure Act 1932 (Tas), s 11(12). Defamation Act 1957 (Tas), s 15.

Workers compensation - Injury and impairment - Liability of Comcare to pay compensation in respect of an injury which results in a permanent impairment pursuant to s 24 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") - Where Comcare required to determined the degree of permanent impairment resulting from an injury under the approved Guide - Where s 25(4) of the Act provides that no further compensation payable in respect of a subsequent increase of less than 10 percent in the degree of impairment where Comcare has made a final assessment of the degree of permanent impairment of the employee - Where the worker sustained a physical injury to the back and also a mental injury being a post traumatic stress disorder - Where the mental injury manifested itself later in time than the physical injury - Whether s 25(4) of the Act precluded Comcare from being liable to pay compensation in respect of the mental injury because it resulted in an increase of less than 10 percent in the degree of impairment of the employee. Statute - Statutory construction - Whether repugnancy arises between s 24 and s 25(4) of the Act in circumstances where something is both an injury and produces a subsequent increase in the degree of permanent impairment of the employee. Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 24, 25(4).

Immigration - Refugees - Application for protection visa - Fear of persecution - Persecution for reason of membership of particular social group - Family - Fear of persecution because of family involvement in blood feud - Whether decision-maker required by s 91S of Migration Act 1958 (Cth) to disregard fear of persecution - Albanian citizens subject to customary law - Whether a "particular social group". Migration Act 1958 (Cth), s 91S. Convention relating to the Status of Refugees 1951, Art 1A(2).

Gordon v Tolcher in his Capacity as Liquidator of Senafield Pty Ltd (in liq) Courts - Federal jurisdiction in State courts - Proceedings brought in New South Wales District Court - Section 1337E of the Corporations Act 2001 (Cth) ("Corporations Act") conferred federal jurisdiction on "lower courts" in "matters" under the Corporations Act - Section 588FF(3) of the Corporations Act provided for time limits on commencement of actions - Part 3 r 2 of the District Court Rules 1973 (NSW) ("the Rules") authorised extension of time - Whether s 79 of the Judiciary Act 1903 (Cth) "picked up" the provisions of the Rules relating to extension of time - Whether the Corporations Act was a Commonwealth law that "otherwise provided" to prevent the provisions of the Rules relating to extension of time being "picked up". Limitation of Actions - Proceedings brought under the Corporations Act - Proceedings deemed to be dismissed by Pt 18 r 9 of the Rules - Whether extension of time under Pt 3 r 2 of the Rules valid. Words and phrases - "otherwise provided", "dismissal", "picked up". Corporations Act 2001 (Cth), ss 9, 1337E, 588FF. District Court Act 1973 (NSW), ss 8, 161. District Court Rules 1973 (NSW), Pt 3 r 2(2), Pt 18 r 9. Judiciary Act 1903 (Cth), s 79.

Immigration - Refugees - Protection visa decision - Procedural fairness - Appellant claimed he feared persecution on basis of his conversion to Christianity if returned to Iran - Delegate of the first respondent refused to grant appellant protection visa because not satisfied of the genuineness of appellant's conversion to Christianity - Review by Refugee Review Tribunal - Appellant invited by Tribunal to give evidence relating to the issues arising in relation to the decision under review - Appellant gave evidence addressed to the delegate's concern regarding the genuineness of his conversion to Christianity - Tribunal affirmed the delegate's decision not to grant a protection visa on the basis that appellant's claims were not credible - Whether Tribunal failed to notify the appellant adequately of the issues to which its reasoning processes were directed - Whether failure of Tribunal to ask the appellant to address issues that it considered might be important amounted to a denial of procedural fairness. Words and phrases - "issues arising in relation to the decision under review", "procedural fairness". Migration Act 1958 (Cth), ss 424, 424A, 425.

ING Investment Management LLC v Margaretic Companies - Winding-up - Proof and ranking of claims - Claim by member against company for damages for misleading or deceptive conduct inducing purchase of shares - Relevance of Houldsworth v City of Glasgow Bank (1880) 5 App Cas 317 ("Houldsworth") - Whether Houldsworth established a principle of common law precluding a member from proving in the winding-up of a company for damages for misrepresentation inducing the acquisition of shares where the member has not rescinded the contract pursuant to which the shares were purchased and where rescission is no longer available by reason of the company's insolvency - Whether any such common law principle is part of Australian law. Companies - Winding-up - Proof and ranking of claims - Claim by member against company for damages for misleading or deceptive conduct inducing purchase of shares - Whether claim admissible to proof under s 553(1) of the Corporations Act 2001 (Cth) ("the Act") - Whether circumstances giving rise to claim occurred before the "relevant date". Companies - Winding-up - Proof and ranking of claims - Claim by member against company for damages for misleading or deceptive conduct inducing purchase of shares - Whether claim postponed by s 563A of the Act as a debt owed by the company to the member in that person's "capacity as a member". Statutes - Construction - Section 563A of the Act - Whether claim postponed as a debt owed by the company to a member in that person's "capacity as a member" - Relevance of history of previous statutory provisions - Relevance of apparent purpose and policy of the Act - Relevance of context of contested provision - Relevance of alternative and foreign statutory provisions - Relevance of coherent approach to construction of corporate insolvency provisions. Words and phrases - "capacity as a member". Corporations Act 2001 (Cth), ss 553(1), 563

Cornwell v The Queen Evidence - Competence and compellability of accused persons - Accused convicted following retrial of conspiracy to import cocaine - Accused gave evidence after indications that a certificate under s 128(6) would be granted - At retrial, Crown sought to tender cross-examination evidence from first trial - Evidence held to be admissible at retrial - Construction of s 128(8) - Whether s 128(8) precluded accused from relying on the certificate - Privilege against self-incrimination - Meaning of "fact in issue" under s 128(8) - Distinction between "facts in issue" and "facts relevant to facts in issue" - Whether evidence went to a "fact in issue" at the retrial - Whether retrial was a "proceeding" to which s 128(7) applied. Evidence - Criminal Procedure - Competency of Crown challenge to grant and issue of certificate - Significance of certificate granted under s 128 - Whether trial judge conducting retrial bound by evidentiary rulings in the first trial. Evidence - Criminal Procedure - Whether evidence should have been excluded on discretionary grounds - Whether retrial was unfair - Whether accused prejudiced by evidence tendered at retrial. Evidence - Criminal Procedure - Whether accused objected to giving evidence - Meaning of "objects" in s 128(1) - Whether s 128 applies where witness sets out to adduce evidence revealing offences other than the one charged. Criminal Law and Procedure - Appeal - Appeal against conviction - Verdict of acquittal - Appeal ground alleges that conviction unreasonable and contrary to evidence - Obligation of Court of Criminal Appeal to consider and decide ground of appeal - Necessity of independent assessment - Whether reasons sufficiently demonstrate such assessment. Words and phrases - "proceeding", "fact in issue", "fact relevant to a fact in issue" "objects", "interests of justice". Criminal Appeal Act 1912 (NSW), s 5F. Evidence Act 1995 (NSW), s 128(1), (6), (7), (8).

The Queen v Hillier Criminal law - Criminal appeals - The respondent appealed to the Court of Appeal of the Australian Capital Territory against his conviction for murder - The Court of Appeal quashed the conviction and entered verdict of acquittal - Whether Court of Appeal erred in quashing the verdict of the jury - Nature of appellate jurisdiction where no common form criminal appeal statute is enacted - Extent of duties and powers given to the Court of Appeal under Pt 2A of the Supreme Court Act 1933 (ACT) - Principles governing the exercise of those duties and powers - Whether in this case it would have been unjust or unsafe for the Court of Appeal to allow the verdict to stand. Criminal law - Criminal appeals - Prosecution appeal to the High Court of Australia against verdict of acquittal entered by intermediate appellate court - Circumstances in which special leave will be granted. Criminal law - Evidence - Circumstantial evidence - Whether the Court of Appeal erred in reasoning that, because evidence looked at in isolation from other evidence was consistent with innocence, the conviction should be quashed - Whether the Court of Appeal should have considered whether it was open to the jury, on consideration of the whole of the evidence, to be satisfied beyond reasonable doubt that the respondent was guilty. Words and phrases - "unjust or unsafe", "unsafe or unsatisfactory". Supreme Court Act 1933 (ACT), Pt 2A. GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Gummow, Hayne and Crennan JJ ("the joint reasons") and the reasons for judgment of Callinan J. They would allow the appeal from the decision of the Court of Appeal of the Supreme Court of the Australian Capital Territory, but on different grounds, and with a different outcome. I agree with the joint reasons, and with the orders they propose. The ground of appeal that succeeded in the Court of Appeal was that the verdict of the jury was unsafe and unsatisfactory. The sense in which that expression was relevantly understood in the Court of Appeal, both by counsel and the members of the Court, appears from the way in which the majority in the Court of Appeal expressed their conclusion. They held that it was "impossible ... to conclude that it was open to the jury to find that the guilt of the [accused] had been proven beyond reasonable doubt" and that, for that reason, "a miscarriage of justice may well have occurred". As to the ground upon which Callinan J proposes that the appeal be allowed, and a new trial ordered, I would note the following. Although the majority in the Court of Appeal, in the course of considering the evidence about motive, commented adversely on what they regarded as the "potential unfairness" of not putting to Mr Hillier in cross-examination a proposition that was put by prosecuting counsel in final address, that was not the ground on which they decided the case. As senior counsel for Mr Hillier acknowledged in the course of his argument in this Court, the suggested failure to put a matter in cross-examination was not the subject of a ground of appeal in the Court of Appeal, and had not been the subject of any complaint by trial counsel. If trial counsel had raised the suggested unfairness at trial, it is the kind of problem that could have been dealt with by the trial judge in his summing-up to the jury. Any unfairness of the kind now complained of could have been remedied at trial. It was not considered by Spender J in his dissenting judgment in the Court of Appeal even though, if it had been raised, he would have had to deal with it before concluding, as he did, that the appeal should be dismissed. If the point had been raised, and dealt with as a ground of appeal, I would have thought that the cross-examiner gave the witness a fairly blunt indication of what he was suggesting. He put to the witness that, at the time the telephone calls stopped, the witness was beginning to despair of his prospects of appeal (from a court order concerning custody of the children) and suggested that the witness had decided to take the law into his own hands. In context, that can only have meant the witness had decided to kill the victim. The failure of experienced trial counsel to complain that the submission put to the jury in final address was unfair, or unavailable, because of the course taken in cross-examination, strengthens this impression. Furthermore, if the point had been argued as a ground of appeal, and had been upheld, there would still have been a question whether, standing alone, it would have warranted a quashing of the conviction. That question was not addressed by any member of the Court of Appeal. As to the ground of appeal that succeeded in the Court of Appeal, I agree with what is said in the joint reasons. The result is that the respondent's case on appeal was not decided according to the applicable legal standards. It does not follow that his case was bound to fail. This court is not a court of criminal appeal. There is a reluctance to grant special leave to appeal against an acquittal such as occurred here, sometimes expressed by reference to a need to show "very exceptional circumstances"[1]. I would grant special leave, but for the purpose, upon allowing the appeal, of remitting the matter for further consideration as proposed in the joint reasons.

Constitutional law - High Court - Constitutional writs - Availability of constitutional relief in the High Court's original jurisdiction - A delegate of the respondent cancelled the plaintiff's visa - s 486A of the Migration Act 1958 (Cth) purported to place a time limit on applications to the High Court exercising its original jurisdiction - The plaintiff applied for relief outside this time limit - Whether s 486A applies to the plaintiff's application - s 51(xxxix) of the Constitution conferred on Parliament power to regulate procedures for seeking relief under s 75(v) of the Constitution - To what extent this power is limited by the constitutional purposes of s 75(v) - Significance of s 75(v) in the federal scheme - Whether s 486A of the Migration Act 1958 (Cth) is valid. Certiorari - Interrelationship with s 75(v) of the Constitution - Whether s 486A of the Migration Act 1958 (Cth) validly regulated the authority of the High Court to grant certiorari to the plaintiff. Immigration - Cancellation of visa - The plaintiff's visa was cancelled because of a failure to meet language skills qualifications in the Migration Regulations 1994 (Cth) - Whether the decision to cancel the plaintiff's visa amounted to jurisdictional error. Statutes - Statutory Construction - Presumption that words in the singular include the plural - Item 6A31 of the Migration Regulations 1994 (Cth) fixed on what transpired "in a test" - Whether presumption vitiated by the text of Item 6A31 of the Migration Regulations. Words and phrases - "purported privative clause decision", "migration decision", "in a test". Constitution, ss 51(xxxix), 73, 75(v). High Court Rules, rr 4.02, 25.06.1. Judiciary Act 1903 (Cth), ss 33, 32. Migration Act 1958 (Cth), s 486A. Migration Litigation Reform Act 2005 (Cth). Migration Regulations 1994 (Cth), reg 2.26A(2)(a)(iv), Sched 2, Item 880.222, Sched 6A, Pt 2, Sched 6A, Pt 3, Item 6A31.

Damages - s 45 of the Motor Accidents Act 1988 (NSW) obliged an insurer to make certain payments to or on behalf of the victim of a motor accident once the insurer admitted liability to the victim - Treatment of these payments in assessing damages - Whether these payments should be removed from the calculation before or after reducing on account of contributory negligence the amount of damages assessed - What onus of proof should apply to a dispute over such damages. Damages - Assessment of life expectancy - Whether reference should be made to "projected" or "historical" life expectancy tables. Words and phrases - "best evidence rule", "contributory negligence", "damages payable", "damages recoverable", "defence". Law Reform (Miscellaneous Provisions) Act 1965 (NSW). Motor Accidents Act 1988 (NSW), ss 2A, 45, 74. Motor Accidents Amendment Act 1995 (NSW). Workers' Compensation Act 1926 (NSW).

Negligence - Relationship between the Police Service Act 1990 (NSW) and the nature and extent of the duty of care owed by the "Crown" or Commissioner of Police to the respondent police officer. Negligence - Respondent police officer assisted a stabbing victim without support from nearby police officers - As a result the respondent suffered post-traumatic stress disorder - Whether the "Crown" or Commissioner of Police breached duty of care owed to the respondent by failing to establish a system of work whereby, when possible, the respondent was supported by another police officer - Whether failure of nearby police officers to provide support to respondent was a breach of duty. Negligence - Breach of duty - Foreseeability of risk of injury - Whether Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 should be overruled. Words and phrases - "breach of duty" - "calculus of negligence". Police Service Act 1990 (NSW), s 201.

Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [No 2] Intellectual property - Patents - Invalidity - Lack of inventive step - Obviousness - The respondent challenged the validity of the appellant's patent on the grounds of lack of inventive step - The patent concerned a key operated door lock combining known integers - The patent included both a broad claim (a bare combination of integers) and a narrow claim (a "preferred embodiment" of those integers) - Whether the claimed combination of integers was obvious to a person skilled in the relevant art - Whether some of the patent claims were invalid for lack of inventive step. Patents - Invalidity - Lack of inventive step - Whether inventive step is to be judged by reference to the claimed combination as a whole, or by reference to the addition of an integer to a known combination - Relevance of "idea" or "problem" underlying patent to the determination of inventive step. Patents - Invalidity - Distinction between want of novelty and lack of inventive step. Patents - Invalidity - Prior art base - Meaning of "common general knowledge" - Meaning of "prior art information" in s 7(3) of the Patents Act 1990 (Cth) - Whether "prior art information" differs as between a narrow claim and a broad claim in the one patent when assessing obviousness - Meaning of "regarded as relevant" - Meaning of "ascertained" - Meaning of "understood". Patents - Invalidity - Amendment - Construction of, and relationship between, dependent claims following determination of invalidity - Whether order for amendment should be made. Evidence - Patents - Lack of inventive step - Whether the patent specification contained an "implicit corollary admission" regarding common general knowledge - Whether that admission constituted evidence of obviousness and lack of inventive step. Evidence - Patents - Prior art base - Relevance of "secondary evidence" - Weight to be given to the failure of other skilled persons (both inventive and non-inventive) to arrive at the invention. Words and phrases - "common general knowledge", "lack of inventive step", "obvious", "person skilled in the relevant art", "prior art base", "prior art information". Patents Act 1952 (Cth), s 100. Patents Act 1990 (Cth), ss 7, 18, 22, 105, 128, 138, Sch 1.

Farah ConstructIons Pty Ltd v Say-Dee Pty Ltd Equity - Fiduciary duties - Joint venture to redevelop property between first appellant and respondent - Second appellant learnt that redevelopment would gain Council approval only if the property was amalgamated with adjoining properties - Adjoining properties purchased by the second appellant, his wife and children and another company controlled by the second appellant - Whether first appellant had an obligation to disclose to the respondent opportunities to purchase adjoining properties and information concerning the Council's attitude to redevelopment - Whether first appellant fulfilled any such obligation of disclosure. Equity - Recipient Liability - Whether property acquired through misuse of information by a fiduciary should be treated as trust property - Whether second appellant's wife and children were liable under the first limb of Barnes v Addy - Whether wife and children had notice of any breach of duty by the second appellant -Whether second appellant's knowledge could be imputed to wife and children - Whether second appellant was the agent of wife and children and, if so, whether information acquired outside scope of agency - Duty of principal to investigate conduct by agent. Equity - Assistance-based liability - Whether second appellant's wife and children were liable under the second limb of Barnes v Addy - Whether second appellant's wife and children were liable as knowing participants in a dishonest and fraudulent design - Knowledge requirement in the second limb of Barnes v Addy. Equity - Tracing - Whether property was the traceable proceeds of second appellant's breach of fiduciary duty - Whether wife and children of second appellant were volunteers. Equity - Remedies - Account of profits - Whether wife and children of second appellant were liable to account for profits made through their acquisition of the properties. Unjust enrichment - Restitutionary liability - Whether wife and children held their properties on constructive trust for the joint venture by reason of liability to make restitution based on unjust enrichment - Whether the notice test in the first limb of Barnes v Addy should be abandoned - Application of concept of unjust enrichment to recipient liability for breach of trust or fiduciary duty - Whether unjust enrichment at the expense of the respondent. Real Property - Indefeasibility - Second appellant's wife and children were registered proprietors - Whether their title was indefeasible pursuant to s 42 of the Real Property Act 1900 (NSW) - Whether registered title subject to an in personam claim - Whether registered title subject to a constructive trust - Whether title obtained by fraud within the meaning of s 42(1). Courts - Evidence - Appellate intervention - Whether Court of Appeal erred in reversing findings of fact made at trial - Weight to be given to trial judge's assessment of witness credibility by an intermediate court of appeal. Courts - Practice and procedure - Whether Court of Appeal erred in deciding the appeal on a ground not argued in that court - Whether Court of Appeal erred in deciding the appeal on a matter not pleaded by the respondent at trial. Words and Phrases - "dishonest and fraudulent design", "fraud", "in personam", "knowing receipt", "knowledge", "stock-in-trade", "unjust enrichment". Real Property Act 1900 (NSW), s 42.

Gould v Magarey Constitutional law (Cth) - Separation of powers - Judicial power - On the application of the Australian Securities and Investments Commission, the Companies Auditors and Liquidators Disciplinary Board ("the Board") suspended the registration of the appellants as liquidators pursuant to s 1292 of the Corporations Act 2001 (Cth) - Whether s 1292 of the Corporations Act 2001 (Cth) invalidly confers the judicial power of the Commonwealth upon the Board. Constitutional law (Cth) - Judicial power - Meaning of judicial power - Whether disciplinary proceedings involve the exercise of judicial power - Whether the determination of wrongdoing or impropriety involves the exercise of judicial power - Whether the capacity to affect the appellants' "status" as registered liquidators involves the exercise of judicial power. Insolvency - Liquidators - Suspension of registration as liquidator - Role and function of the Board - Whether the functions performed by the Board involved the ascertainment or enforcement of an "existing right or liability" - Whether the function performed by the Board involved the imposition of punishment - Relevance of the composition and membership of the Board - Relevance of the exercise of evaluative or discretionary power - Relevance of historical considerations - Relevance of chameleon principle - Whether the Board exercised judicial power. Insolvency - Liquidators - Suspension of registration as liquidator - Meaning of "adequately and properly" and "fit and proper" in s 1292(2) of the Corporations Act 2001 (Cth). Words and phrases - "adequately and properly", "chameleon principle", "disciplinary", "existing right or liability", "fit and proper", "functional analysis", "judicial power of the Commonwealth", "punishment", "registered liquidator", "separation of powers". Constitution, Ch III. Australian Securities and Investments Commission Act 2001 (Cth), ss 203, 204. Corporations Act 2001 (Cth), Pts 9.2, 9.6A; ss 448B, 532(1), 1292.

State of New South Wales v Corbett Police - Search warrants - Police conducted a search under apparent authority of a search warrant - Application for search warrant referred to offence under Firearms Act 1989 (NSW) when that Act had been repealed and replaced by Firearms Act 1996 (NSW) - An offence of unauthorised possession of a firearm existed under both Acts - Definition of "firearms offence" under the Search Warrants Act 1985 (NSW) continued to be identified by reference to the repealed Firearms Act 1989 (NSW) - Whether offence sufficiently stated in application - Whether search warrant valid - Savings and transitional provisions in Sched 3 to the Firearms Act 1996 (NSW). Police - Search warrants - Object of search and boundaries of search warrant unambiguous - Nature of offence critical - Whether transitional provisions require reference to repealed Act to be read as reference to corresponding provisions in the Firearms Act 1996 (NSW). Police - Search warrants - Whether applicant had reasonable grounds for belief in existence on premises of "a thing connected with a particular firearms offence". Statutory interpretation - Approach to interpretation of provisions regarding search warrants - Generally strict approach to interpretation of enabling provisions - Reasons for such strictness - Whether transitional provisions require reference to repealed Act to be read as reference to corresponding provisions in the Firearms Act 1996 (NSW). Words and phrases - "a thing connected with a particular firearms offence", "instrument", "corresponding provisions". Search Warrants Act 1985 (NSW), ss 4, 5(1)(b). Search Warrants Regulation 1994 (NSW), Form 1 in Sched 1. Firearms Act 1989 (NSW), s 5. Firearms Act 1996 (NSW), s 7(1), item 12 of Sched 3.

Constitutional law (Cth) - Div 104 of the Criminal Code (Cth) confers power on Ch III courts to make interim control orders imposing obligations, prohibitions and restrictions upon an individual for the purpose of protecting the public from a terrorist act - The plaintiff is subject to an interim control order made by the first defendant, Mowbray FM, at the application of the second defendant, an officer of the Australian Federal Police - Whether the interim control order was validly made against the plaintiff. Constitutional law (Cth) - Legislative power - Defence - Whether Div 104 is a law with respect to defence - Whether the defence power is limited to defence against external threats - Whether the defence power is limited to defence of the Commonwealth and the several States as bodies politic - Whether the defence power extends to defence against non-state actors - Relevance of purposive power. Constitutional law (Cth) - Legislative power - External affairs - Whether Div 104 is a law with respect to external affairs - Relevance of relations with foreign countries - Relevance of definition of "the public" in Div 104 including the public of a foreign country - Whether Div 104 concerns a "matter or thing" external to Australia - Whether Div 104 implements a treaty obligation. Constitutional law (Cth) - Legislative power - Matters referred by the Parliament of a State - Whether Div 104 is a law supported by the Terrorism (Commonwealth Powers) Act 2003 (Vic) - Presumption against alteration of common law rights. Constitutional law (Cth) - Judicial power - Meaning of judicial power - Justiciable controversy - Whether Div 104 confers jurisdiction upon a Ch III court to make an interim control order - Whether power conferred by Div 104 gives rise to a justiciable controversy - Whether Div 104 concerns non-justiciable matters - Relevance of political matters - Meaning of "non-justiciable". Constitutional law (Cth) - Judicial power - Meaning of judicial power - Whether interim control order proceedings involve the exercise of judicial power - Whether reposing the power to make an interim control order in a Ch III court imparts a judicial character to that power - Relevance of historical analogues to power conferred by Div 104. Constitutional law (Cth) - Judicial power - Meaning of judicial power - Discretion - Whether the criteria in Div 104 impermissibly concern non-judicial matters - Whether the criteria in Div 104 repose a discretion in the court making an interim control order - Relevance of "legal criteria" - Relevance of "policy" - Meaning of "may" - Meaning of "reasonably necessary". Constitutional law (Cth) - Judicial power - Meaning of judicial power - Future conduct - Whether Div 104 impermissibly confers power upon a Ch III court to make orders by reference to future risks or conduct rather than by reference to past conduct or existing rights and obligations. Constitutional law (Cth) - Judicial power - Exercise of judicial power - Whether Div 104 compels the exercise of judicial power in a manner contrary to Ch III - Relevance of ex parte hearing - Relevance of standard of proof - Relevance of withholding evidence - Relevance of restrictions upon personal liberty - Relevance of historical analogues to power conferred by Div 104. Evidence - Constitutional facts - Manner in which constitutional facts are to be established - Scope of judicial notice in constitutional cases. Words and phrases - "constitutional fact", "control order", "defence", "external affairs", "judicial notice", "judicial power", "jurisdiction", "legal criteria", "matter", "naval and military defence", "non-justiciable", "policy", "procedural fairness", "reasonably appropriate and adapted", "reasonably necessary", "terrorism", "terrorist act". Constitution, ss 51(vi), 51(xxix), 51(xxxii), 51(xxxvii), 68, 69, 71, 75, 76(ii), 76(iii), 77(i). Acts Interpretation Act 1901 (Cth), s 15C. Criminal Code (Cth), Div 104, s 100.8. Terrorism (Commonwealth Powers) Act 2003 (Vic). High Court Rules 2004, r 27.08.5.

Attorney-General for the Northern Territory of Australia v Chaffey Santos Ltd v Chaffey Constitutional law (NT) - Acquisition of property - The respondent was a worker entitled to compensation under the Work Health Act (NT) ("the WHA") - The Work Health Amendment Act 2004 (NT) amended s 49 of the WHA so as to exclude employers' superannuation contributions from the definition of a worker's "remuneration" - Whether the amendment to s 49 was an acquisition of property otherwise than on just terms. Constitutional law (NT) - The legislative power of the Northern Territory does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms - Statutory right to compensation - Whether amendment to the WHA amounted to an acquisition of property - Relevance of statutory right being "subject to" and "in accordance with" the statute as in force from time to time - Relevance of statutory obligation to provide "such compensation as is prescribed" - Inherent variability of statutory entitlements to workers' compensation. Words and Phrases - "acquisition of property", "just terms", "remuneration". Northern Territory (Self-Government) Act 1978 (Cth), ss 5, 6, 50. Work Health Act (NT), Pt 5, ss 49, 52, 53. Work Health Amendment Act 2004 (NT).

Immigration - Refugees - The Refugee Review Tribunal ("the Tribunal") affirmed a decision refusing the appellants' application for protection visas - The appellants did not attend the Tribunal hearing as a result of fraudulent advice given by a purported registered migration agent - Whether there was fraud "by" or "on" the Tribunal. Immigration - Refugee Review Tribunal - Inquisitorial process - Distinction between Tribunal process and inter partes litigation - Whether fraud practised by an agent upon the applicants for a protection visa subverted the operation of Div 4 of Pt 7 of the Migration Act 1958 (Cth) - Whether this fraud led to the jurisdiction of the Tribunal remaining constructively unexercised. Administrative law - Constitutional writs - Mandamus and certiorari - Availability of constitutional writs in cases of fraud. Words and Phrases - "bad faith", "does not appear", "fraud", "on the decision maker", "third party fraud". Migration Act 1958 (Cth), Pt 7 Div 4, ss 281, 422B, 425, 426

Immigration - Refugees - The appellant was a Ukrainian national who faced persecution in his home region on account of the expression of his political beliefs through journalism - Whether the principle of internal relocation is consistent with the Convention relating to the Status of Refugees - Whether the Refugee Review Tribunal erred in holding that it was reasonable for the appellant to relocate elsewhere in Ukraine - Whether postulated relocation involves denial of fundamental right to free expression of political beliefs protected by Convention. Immigration - Refugees - Well-founded fear of persecution - Whether a well-founded fear of persecution may be confined to a particular region of a country - Whether persecution may reasonably be avoided by relocation - Whether persecution may reasonably be avoided by living "discreetly" - Relevance of practicability - Relevance of territorial distinctions. Words and Phrases - "discreet", "owing to", "practicable", "protection", "refugee", "relocation", "well-founded fear of persecution". Migration Act 1958 (Cth), s 36(2). Convention relating to the Status of Refugees, Art 1A(2).

Immigration - Refugees - The appellant was an Indian national who faced persecution in his home region on account of his political beliefs - Whether the principle of internal relocation is consistent with the Convention Relating to the Status of Refugees - Whether the Refugee Review Tribunal erred in holding that it was reasonable for the appellant to relocate elsewhere in India. Immigration - Refugees - Well-founded fear of persecution - Whether a well-founded fear of persecution may be confined to a particular region of a country - Whether persecution may reasonably be avoided by relocation - Relevance of practicability - Relevance of territorial distinctions. Immigration - Refugees - See SZATV v Minister for Immigration and Citizenship. Words and Phrases -"practicable", "refugee", "relocation", "well-founded fear of persecution". Migration Act 1958 (Cth), s 36(2). Convention Relating to the Status of Refugees, Art 1A(2).

Negligence - Duty of care - Scope of duty - Roads authority - The first respondent was injured after jumping into shallow water from a bridge erected by the appellant's predecessor - Whether the scope of the appellant's duty of care encompassed the circumstances in which the first respondent was injured - Distinction between the exercise of reasonable care and the prevention of harm. Negligence - Breach - Standard of care - Prospective assessment of breach - Characterisation of relevant risk - Assessment of probability of risk - Assessment of gravity of risk - Assessment of practicability of precautions - Relevance of voluntary conduct and obviousness of risk - Relevance of "allurement" - Whether Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 was correctly applied. Negligence - Contributory negligence - Reduction of damages by Court of Appeal - Whether Court of Appeal erred in disturbing trial judge's assessment. Courts - Appeals - Limitations on appellate review of findings of fact - Meaning of "concurrent findings of fact". Costs - Sanderson orders - Circumstances in which it is appropriate to make a Sanderson order. Words and phrases - "allurement", "concurrent findings of fact", "reasonable care", "roads authority", "scope of duty". Civil Liability Act 2002 (NSW), s 5L. Roads Act 1993 (NSW), s 7(4). Transport Administration Act 1988 (NSW), Pt 6, Sched 7 Div 5.

Constitutional law (Cth) – Legislative power – Franchise – Before amendment by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) ("the 2006 Act"), the Commonwealth Electoral Act 1918 (Cth) ("the Electoral Act") prohibited a person serving a sentence of imprisonment of three years or longer from voting at an election for a House of the Commonwealth Parliament ("the three-year provisions") – The 2006 Act amended the Electoral Act to prohibit a person serving any sentence of imprisonment from voting – Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, were invalid – Whether a law disenfranchising prisoners was a law with respect to the "qualification of electors" within the meaning of ss 8, 30 and 51(xxxvi) of the Constitution. Constitutional law (Cth) – Legislative power – Representative government – Constitutional limitations upon the power of Parliament to prescribe the franchise – Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, were compatible with the system of representative government established by ss 7, 24 and 128 of the Constitution – Relevance of s 44(ii) of the Constitution – Relevance of constitutional history – Relevance of the franchise of colonial legislatures. Constitutional law (Cth) – Legislative power – Representative government – Whether disenfranchisement of persons serving a sentence of imprisonment was appropriate and adapted to serve an end which was consistent or compatible with the constitutionally prescribed system of representative government – Whether the three-year provisions were appropriate and adapted to that end – Relevance of prisoner culpability – Relevance and scope of legislative and political choice concerning the disenfranchisement of all prisoners serving any sentence of imprisonment. Constitutional law (Cth) – Legislative power – Franchise – Whether a federal law disenfranchising prisoners convicted under State law was invalid – Whether a sentence of imprisonment for an offence against the law of a State was a valid factum for the operation of federal law. Constitutional law (Cth) – Legislative power – Freedom of political communication – Whether participation as an elector amounted to political communication – Whether ss 93(8AA) and 208(2)(c) of the Electoral Act, as amended by the 2006 Act, burdened the freedom of political communication. Statutes – Construction – Amendment and repeal – Whether the invalidity of provisions amended by the 2006 Act left intact the repeal of the three-year provisions – Whether the three-year provisions continued in force. Words and phrases – "directly chosen by the people", "elector", "franchise", "qualification of electors", "reasonably appropriate and adapted", "representative government". Constitution, ss 7, 8, 24, 30, 44(ii), 51(xxxvi), 122, 128. Commonwealth Electoral Act 1918 (Cth), ss 93(8), 93(8AA), 208(2)(c). Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth), Items 14, 15 and 61 of Sched 1.

Defamation - Defences - Fair comment - Promotion of a future edition of a television programme alleged to be defamatory - Defendant pleaded fair comment on a matter of public interest - Whether the allegedly defamatory statements constituted fact or comment - Distinction between fact and comment - Whether the facts on which the comments were alleged to be based were sufficiently identified - Construction of the rule from Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 - Relevance of imputations conveyed by the promotion - Whether the alleged comments were fair - Whether reasonableness is a requirement of fairness. Defamation - Pleading and practice - Whether defence of fair comment should have been struck out - Whether defendant should be given an opportunity to re-plead defence of fair comment. Words and phrases - "comment", "fact", "fair", "imputation", "substratum of fact", "sufficiently indicated".

Real property - Torrens system land - Easements - An easement granted the right to go, pass and repass for all purposes to and from the appellant's dominant tenement over the respondent's servient tenement - The appellant sought to use the easement in order to access remoter properties adjoining the dominant tenement - Whether such use was permitted by the easement. Real property - Torrens system land - Easements - Construction - Whether the expression "to and from" encompassed access across the dominant tenement to remoter properties - Whether the expression "for all purposes" encompassed access across the dominant tenement to remoter properties. Evidence - Torrens system land - Easements - Construction - Whether evidence was admissible regarding the intention or contemplation of the parties at the time of, or subsequent to, the grant - Relevance of the Torrens Register. Words and phrases - "for all purposes", "to and from". Real Property Act 1900 (NSW), ss 31B, 96B. Conveyancing Act 1919 (NSW), ss 88B, 181