Cases and authorities

Criminal law - Evidence - Confessions and admissions - Discretionary grounds for exclusion - Unfairness discretion - Police covertly recorded a conversation with the appellant in a park - Appellant made certain admissions - Appellant not aware that he was being recorded - Appellant under mistaken belief that admissions to police could only be used against him in criminal proceedings if recorded electronically - Police deliberately omitted the second part of the standard caution, namely that anything said or done by the appellant could be recorded and used as evidence in court - Interpretation of s 90 of the Evidence Act 1995 (NSW) - Whether admitting evidence of admissions in these circumstances was unfair - Reliability of the admissions - Whether right to silence impugned - Whether jury should have been warned by the trial judge that an admission made in these circumstances may be unreliable. Words and phrases - "unfair". Evidence Act 1995 (NSW), ss 84, 85, 90, 137, 138.

Criminal law - Evidence - Admissibility of videotape evidence of admissions recorded without suspect's consent - Police videotaped conversation with appellant in the lockup section of the police station - Appellant was unaware lockup conversation was being videotaped - Appellant made certain admissions - Whether lockup conversation was an "interview" within the meaning of s 570(1) of the Criminal Code (WA) ("the Code") - Relevance of formality of the lockup conversation - Whether s 570D(4) of the Code excluded, by implication, admissibility of videotape evidence of admissions recorded without suspect's consent - Relevance of assumption in s 570D(4)(c) of the Code that consent required - Difference between implication and assumption - Whether an "admission" within the meaning of s 570D of the Code included only those admissions capable of being videotaped. Statutes - Interpretation - Purposive interpretation - Where the statutory provision reflects compromise between competing interests - Relevance of purpose or object of statute. Words and phrases - "admissibility", "assumption", "consent", "exceptional circumstances", "formality", "implication", "interview", "right to silence". Criminal Code (WA), Ch LXA, ss 570(1), 570D. Interpretation Act 1984 (WA), s 18. GLEESON CJ. I agree with Gummow, Heydon and Crennan JJ that the appeal should be dismissed. As to what their Honours describe as the second branch of the appellant's submissions, concerning the absence of consent to videotaping, I shall state my own reasons for not accepting those submissions of the appellant. Subject to that, I agree with the joint reasons. One preliminary matter should be noted. It is not a rule of the common law, and it was not suggested in argument, that the trial judge was bound to exclude the evidence in question because the police did not caution the appellant at the commencement of, or during, the events that occurred in the lockup. It is not a principle of the common law that evidence of an admission, or a confession, to a police officer is inadmissible unless a caution is first administered. If that were the common law, then the Judges' Rules of 1912 would have been based upon a misconception[1]. The true position is that failure to administer a caution may enliven a judicial discretion as to whether to receive or reject the evidence. Thus, in the reasons of Dixon CJ, Webb and Kitto JJ in Stapleton v The Queen[2], the following appears: "It was said that the learned judge should have excluded the evidence given by Sergeant Mannion of what the appellant said in answer to his question[s] when the appellant was brought to the police station after his arrest. As has already been said, although the accused was under arrest on a charge of murder, no warning was given before the questions were put. The answers were not, however, inadmissible at common law as involuntary. True it is that Sergeant Mannion was a person in authority within the meaning of that rule. But there was no pressure or insistence, no fear of prejudice raised or hope of advantage held out, no inducement raising a presumption against the voluntariness of the prisoner's statements. Counsel for the appellant did not contend to the contrary. What he maintained was that in the exercise of the judge's discretion he ought to have excluded the evidence." In this case, two of the grounds of appeal to the Western Australian Court of Appeal complained that the evidence in question should have been rejected, on discretionary grounds, because of the absence of a caution in the lockup. Those grounds of appeal were considered and rejected, and are not before this Court. If there were a common law rule of mandatory exclusion because of the failure to administer a caution, arguments about the construction of s 570D of the Criminal Code (WA) ("the Criminal Code") would be otiose. It was (for good reason) not argued that there was a common law principle that obliged the trial judge to exclude the evidence. The Court of Appeal ruled that considerations of fairness and public policy did not mean that the trial judge's decision to admit the evidence involved error. It is unnecessary to refer to the reasons of the Court of Appeal on that point, but the fact that discretionary arguments were raised and rejected should not be overlooked. The appeal to this Court turns entirely upon questions of statutory construction. To the extent that s 570D is to be understood and applied in the context of common law principles, one of the relevant common law principles is that there are discretionary grounds, related to considerations of fairness and public policy, upon which a trial judge may reject evidence of admissions made by a person suspected of crime[3]. Section 570D did not displace that principle, but provided an additional, statutory, ground of mandatory exclusion in specified circumstances. If the facts of a given case do not fall within the specified circumstances, the common law grounds of exclusion, including discretionary grounds relating to fairness and public policy, remain. Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen[4]. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen[5]. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth) ("the Acts Interpretation Act"). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. To take an example removed from the present case, it may be said that the underlying purpose of an Income Tax Assessment Act is to raise revenue for government. No one would seriously suggest that s 15AA of the Acts Interpretation Act has the result that all federal income tax legislation is to be construed so as to advance that purpose. Interpretation of income tax legislation commonly raises questions as to how far the legislation goes in pursuit of the purpose of raising revenue. In some cases, there may be found in the text, or in relevant extrinsic materials, an indication of a more specific purpose which helps to answer the question. In other cases, there may be no available indication of a more specific purpose. Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling. As explained in Kelly and Nicholls, the general purpose of legislation of the kind here in issue is reasonably clear; but it reflects a political compromise. The competing interests and forces at work in achieving that compromise are well known. The question then is not: what was the purpose or object underlying the legislation? The question is: how far does the legislation go in pursuit of that purpose or object? Section 570D, which took its place in the context of Ch LXA dealing with "Videotaped interviews", provided, in sub-s (2), that, on the trial of an accused person for a serious offence, evidence of any admission by the accused person should not be admissible unless either the evidence took a certain form (a videotape recording of the admission), or the prosecution proved that there was a reasonable excuse for there not being such a videotape recording, or there were exceptional circumstances which, in the interests of justice, justified the admission of the evidence. The section established a mandatory rule of exclusion of evidence of an admission unless the evidence was in the form of a videotape; but the rule was subject to two qualifications. That was the method chosen by the legislature to pursue the general purpose described in Kelly and in Nicholls. Subject to two qualifications, the section excluded evidence of an admission unless the admission was in a certain form. Other provisions of Ch LXA regulated certain aspects of dealing with videotapes and related matters, but we are concerned only with the statutory rule of exclusion of evidence. If the evidence of the admission was in the form referred to, that is to say, if the evidence was a videotape on which was a recording of the admission, then the statutory rule of exclusion did not apply. The qualifications to the rule did not arise for consideration. As noted earlier, there were and are potentially relevant common law rules that could result in the exclusion of the evidence, but they are not of present concern. Once the appellant's first argument concerning the meaning of "interview" is rejected (as it should be for the reasons given by Gummow, Heydon and Crennan JJ) then it follows that the evidence of the admission by the appellant was in the form of a videotape on which there was a recording of the admissions. According to the express terms of s 570D(2), the statutory rule of exclusion does not apply, and it is therefore unnecessary to consider the statutory qualifications to the rule. The argument that, because the appellant did not consent to the interview in the lockup being videotaped, s 570D (as distinct from some other statutory provision or rule of common law) required exclusion of the videotape depends upon reading s 570D as containing some rule of exclusion wider than that stated in s 570D(2). The express words of s 570D(2) did not require exclusion of the videotape. If, by implication, the exclusion effected by s 570D was wider than appears from its express terms, then it is necessary for the appellant to identify the terms of the implication, and to explain why it should be made, bearing in mind that what is involved is an exercise in construction, not legislation[6]. The appellant put an argument based on what was said in my reasons in Nicholls[7], not about an implication, but about an assumption. I pointed out that s 570D(4)(c) assumed that the consent of a suspected person was necessary if the police were to videotape an interview. That appeared to me to be so because, in elaborating one of the qualifications to the statutory rule of exclusion, the legislation provided that it was, by definition (ie in all circumstances), a reasonable excuse for there not being a recording of an admission on a videotape that the accused person did not consent to the interview being videotaped. Why it would always (rather than sometimes) be a reasonable excuse for not videotaping an interview that the interviewee did not consent to the videotaping is hard to explain unless it is assumed that consent is necessary. I went on immediately to point out that the assumption was not challenged in argument. It should be added, however, that the basis of the assumption was questioned from the Bench. The transcript of argument in Nicholls[8] records that counsel for the respondent, having accepted that videotaping required the consent of an interviewee, was asked to explain why that was so. He was asked whether it was because of some other legislation. He said he could not point to any other legislation. Section 570D did not say, and no other provision in Ch LXA said, that videotaping could not occur without consent. By making absence of consent always a reasonable excuse for there being no videotape, the legislation appeared to assume that consent was necessary, but there is a difference between an assumption and an implication. The difference between an implication and an unexpressed assumption was described as critical by Mason CJ, in a constitutional context, in Australian Capital Television Pty Ltd v The Commonwealth[9]. He said: "It may not be right to say that no implication will be made unless it is necessary. In cases where the implication is sought to be derived from the actual terms of the Constitution it may be sufficient that the relevant intention is manifested according to the accepted principles of interpretation. However, where the implication is structural rather than textual it is no doubt correct to say that the term sought to be implied must be logically or practically necessary for the preservation of the integrity of that structure. It is essential to keep steadily in mind the critical difference between an implication and an unexpressed assumption upon which the framers proceeded in drafting the Constitution. The former is a term or concept which inheres in the instrument and as such operates as part of the instrument, whereas an assumption stands outside the instrument." The task for the appellant is to show the existence of an implied rule of exclusion of evidence, that is to say, to show that the express statement of the rule of exclusion in s 570D(2) was incomplete, and that, by implication, the section also mandated the exclusion from evidence of a videotape to the making of which the interviewee had not consented. It is unnecessary to pursue the question of what is involved in the expression "did not consent to the interview being videotaped" in s 570D(4)(c). Whether it applied only to a case of refusal, or whether it covered any case of absence of consent, is a problem that does not arise. Here, there was a videotape, and therefore no need to show a reasonable excuse existed. In any event, I am prepared to accept that the appellant did not consent to the videotaping, whatever exactly that means. There may be cases in which one provision in an enactment throws light upon the meaning of another provision by indicating a legislative assumption about that meaning. An example is Meyer Heine Pty Ltd v China Navigation Co Ltd[10], where the general words of a statutory prohibition of conduct were silent on the territorial reach of the prohibition (a common circumstance in criminal legislation). There arose a question of construction as to whether the general words of prohibition applied to conduct outside Australia or applied only to conduct within Australia; that is, whether the prohibition operated extra-territorially. In deciding that the prohibition did not apply to conduct outside Australia, this Court relied strongly upon another provision of the statute, concerning aiding and abetting, which reflected an assumption that conduct which took place outside Australia could not amount to a contravention of the Act. That assumption was consistent with a view about the legislative competence of the Australian Parliament which was widely held at the time of the enactment. General words of prohibition were therefore construed so as to be given a limited territorial operation. That construction was assisted by a manifestation, elsewhere in the Act, of a legislative understanding that the prohibition's reach was limited territorially. Reading down general words in order to give them a limited effect territorially is a commonplace exercise in statutory construction. In this case, however, no such exercise is proposed. There are no words in s 570D whose meaning is said to be made clear by noting the assumption in s 570D(4)(c). What is involved in the appellant's argument is an attempt to elevate the assumption directly into an implied widening of, or addition to, the rule of exclusion stated in s 570D(2), but no process of construction by which that can occur has been shown. The assumption might be explained in a number of ways. It might reflect a view of the law. (This is what was questioned in the course of argument in Nicholls.) It might be the result of an oversight. It may be that the framers of Ch LXA did not advert to circumstances of the kind that arose in the present case. That would not be surprising. Whatever be the true explanation, it is beside the point unless, by some legitimate process of construction, s 570D could be given the meaning that, in addition to the rule of exclusion stated in s 570D(2), a videotape was to be excluded if the interviewee did not consent to the making of the videotape. It cannot be said that the implication for which the appellant contends resolves, consistently with the advancement of the underlying purpose or object of the legislation, some ambiguity in the language of s 570D(2). That is not an end of the matter. Statutory construction is not confined to the resolution of ambiguities in language[11]. Since the object of the appellant's argument is to add, by implication, a ground of mandatory exclusion of evidence to that stated expressly in s 570D(2), the appellant must show (to adopt the modern test) that to confine the grounds of exclusion to that stated in s 570D(2) would defeat the purpose of the statute[12], or (to adopt a test formulated in earlier times) that to read s 570D(2) according to its terms produces a result contrary to the necessary intendment of the language of the statute[13]. In the circumstances of the present case, I see no material difference between these two tests. The essential problem for the appellant is that of which I spoke earlier. Section 570D established a qualified, but otherwise specific, rule of exclusion of evidence of admissions. That, on any view of the matter, was only a limited step in pursuit of the object of protecting citizens against unfair police conduct, and protecting the integrity of the administration of criminal justice. To read s 570D as containing another ground of exclusion of evidence would only be to take a further limited step in pursuit of the same object. The legislation plainly did not attempt to deal with all possible problems of police misconduct or accusations of such misconduct. It cannot be said that the underlying purpose of the statutory provision would be defeated unless there were two limited rules of exclusion rather than one. The ground of exclusion stated in s 570D(2) was complete in itself. No additional ground of exclusion was implied.

Evidence - Admissibility - Relevance - Appellant convicted of conspiracy to possess a prohibited drug with intent to sell or supply it to another - Appellant had been previously acquitted of a conspiracy covering different times, parties and object, to possess a prohibited drug with intent to sell or supply it to another - Trial judge admitted evidence tending to show the appellant was a drug dealer (the "drug dealing evidence") - The drug dealing evidence had been adduced in the earlier trial in which the appellant was acquitted - Trial judge directed the jury not to use the drug dealing evidence to infer that a person who dealt in drugs on one occasion was more likely to do so subsequently - Whether the drug dealing evidence was relevant to the offence of which the appellant was convicted - Whether evidence that the appellant had been acquitted of the previous charge was relevant and admissible. Words and phrases - "the full effect of an acquittal", "the full benefit of an acquittal".

Contract - Repudiation - First respondent was held by the trial judge to have grossly departed from the terms of a contract with the first appellant - First appellant purported to accept a repudiation of that contract - Difference between renunciation of a contract, where a party evinces an inability or unwillingness to render substantial performance of a contract, and repudiation, in the form of a breach justifying termination - Classification of contractual terms for the purpose of determining the consequences of a breach - Whether case was one of breach of a condition or sufficiently serious breach of an intermediate term - Whether breach went to root of contract - Relevance of adequacy of damages as a remedy - Relevance of failure to complain of breaches. Contract - Termination for breach - Governing principles - Whether class of intermediate or innominate terms should be recognised. Words and phrases - "repudiation", "renunciation", "condition", "intermediate term".

Criminal procedure - Crimes and offences by children - Jurisdiction - A child was charged with a "serious children's indictable offence" as well as lesser offences - The child's committal hearing was in the Children's Court of New South Wales, but the proceedings were remitted to the District Court because the Children's Court did not have jurisdiction to deal with the "serious children's indictable offence" - In the District Court the prosecutor did not proceed with the "serious children's indictable offence" - Whether the District Court was required to remit the proceedings back to the Children's Court for determination - Whether the District Court had jurisdiction to deal with charges against a child not involving a "serious children's indictable offence". Criminal procedure - Crimes and offences by children - Powers of the New South Wales Director of Public Prosecutions with respect to filing an indictment against a child. Words and phrases - "serious children's indictable offence". Criminal Procedure Act 1986 (NSW), s 8. Children (Criminal Proceedings) Act 1987 (NSW), ss 7, 8, 26, 28, 31, 44.

Weston Aluminium Pty Limited v Environment Protection Authority Weston Aluminium Pty Limited v Alcoa Australia Rolled Products Pty Limited Environment and planning - Interpretation of development consents - Alcoa obtained development consent under the Environmental Planning and Assessment Act 1979 (NSW) ("the EPA Act") for an aluminium remelting facility on its Yennora land - Whether that development consent permitted treatment at the Yennora facility of aluminium dross not generated on the Yennora land. Environment and planning - Statutory interpretation - Whether variation of an existing licence under the Protection of the Environment Operations Act 1997 (NSW) was valid where the variation permitted a land use that required but had not been granted development consent under the EPA Act. Words and phrases - "development consent", "controlled development". Environmental Planning and Assessment Act 1979 (NSW), ss 76A(1), 91, 123. Protection of the Environment Operations Act 1997 (NSW), ss 50, 58(2).

Elliott v The Queen Blessington v The Queen Criminal law - Criminal appeals - Jurisdiction of Court of Criminal Appeal - The appellants were sentenced to life imprisonment and were subject to a non-release recommendation made by the sentencing judge - Whether the non-release recommendation was a "sentence" or "order" for the purposes of an appeal pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). Courts - Judgments - Circumstances in which judgments may be reopened - Earlier order not perfected - Relevance of subsequent legislative changes - Whether Court of Criminal Appeal erred in refusing leave to reopen judgment. Words and Phrases - "non-release recommendation", "order", "reopen", "sentence". Crimes Act 1900 (NSW), ss 19, 442. Criminal Appeal Act 1912 (NSW), ss 3, 5, 6. Sentencing Act 1989 (NSW), s 13A. Crimes (Sentencing Procedure) Amendment (Existing Life Sentences) Act 2005 (NSW), Sched 1 Item 1.

Criminal Law - Confiscation of Property - Exclusion order - Husband was sole registered proprietor of an apartment ("the property") which was the matrimonial home - Husband charged with trafficking in drug of dependence - Husband subsequently transferred the property to himself and his wife ("the respondent") as joint registered proprietors for consideration of "natural love and affection" - Director of Public Prosecutions for Victoria obtained a restraining order over the property pursuant to the Confiscation Act 1997 (Vic) ("the Act") for the purpose of automatic forfeiture upon conviction - Husband convicted - Respondent applied, pursuant to s 51 of the Act, for exclusion of the property from automatic forfeiture - Whether whole of the property, or only the respondent's joint interest in the property, could be excluded from forfeiture on the satisfaction of certain conditions - Whether respondent satisfied the condition in s 52(1)(a)(iii) of the Act that the circumstances in which she acquired her interest in the property were "such as not to arouse a reasonable suspicion that the property was tainted property" - Whether "reasonable suspicion" to be tested wholly objectively - Whether "natural love and affection" constituted "sufficient consideration" within the meaning of s 52(1)(a)(v) of the Act. Words and phrases - "good consideration", "interest", "natural love and affection", "property", "property in which the applicant claims an interest", "reasonable suspicion", "sufficient consideration", "valuable consideration". Confiscation Act 1997 (Vic), ss 51, 52(1), 52(2). GLEESON CJ. I have had the advantage of reading in draft form the joint reasons for judgment of Kirby and Crennan JJ. I agree with the orders proposed in those reasons. As to the first and third issues with which they deal (the scope of orders excluding property from forfeiture, and the matter of reasonable suspicion), I agree with what their Honours have said and have nothing to add. As to the second issue (sufficient consideration), I would add the following, and make particular reference to the factual basis on which the primary judge and all three members of the Court of Appeal decided the question. The relevant part of the evidence as to the motivation for the transfer, to the respondent, of an interest (as joint tenant) in the matrimonial home was laconic, and barely tested in cross-examination. The respondent was entirely dependent upon her husband. She said that she asked to be made a part owner of the matrimonial home because, if anything happened to her husband, she would have had nowhere to live and believed the property would pass to his children by a former marriage. The primary judge concluded: "Whilst natural love and affection may not be sufficient to justify a commercial contract between people at arm[']s length, it is a common 'consideration' in respect to the alteration of property interests between husband and wife, as is the case here. In any event, it would seem to me to be arguable that what Le was doing in transferring a moiety of his interest in the property was no more than fulfilling a matrimonial obligation. The implication that Mr Le did effect the transfer to avoid the consequences of his wrongdoing rests upon supposition, which supposition might have been more attractive had he sought to transfer the whole of his interest in the property to the Applicant. I am satisfied, in the circumstances, that the Applicant, as his wife, acquired her interests in the property for a sufficient consideration." All three members of the Court of Appeal upheld that conclusion. Maxwell P and Chernov JA, with whom Neave JA agreed on this point, said that "sufficient consideration" included both valuable consideration and good consideration, but added, in a footnote, that it did not encompass nominal consideration. They concluded that "[i]n the circumstances of this case as found by his Honour, 'natural love and affection' ... constituted 'sufficient consideration'". Both the primary judge and the Court of Appeal were careful to relate their conclusion that natural love and affection constituted sufficient consideration to the circumstances of this case. Maxwell P and Chernov JA quoted the passage in the reasoning of the primary judge set out above. The "matrimonial obligation" of Mr Le to the respondent was an important part of the circumstances. There was no detailed investigation of the extent of Mr Le's matrimonial obligations to the respondent. The primary judge, however, recorded a general impression that, in making the respondent a joint tenant, Mr Le was doing no more than fulfilling his obligations. The judge did not go beyond that, presumably because the issue was not the subject of more precise evidence or argument. I do not take the primary judge or the Court of Appeal to have accepted that a transfer of an interest in property in consideration of natural love and affection would always satisfy the requirements of s 52(1)(a)(v) of the Confiscation Act 1997 (Vic); and I would not accept that. There are circumstances in which a transfer in consideration of natural love and affection might reflect no legal or equitable obligation, matrimonial or otherwise. Such a consideration might move a transfer from one wealthy spouse to another who was even wealthier; or from a parent to a financially independent child. A transfer of property in consideration of natural love and affection may be "founded in motives of generosity, prudence, and natural duty"[1]. Goodwill or generosity towards persons in a certain class may form the basis of what the law regards as good consideration; obligation does not necessarily come into it. In the context of the Confiscation Act and, in particular, s 52, relating the meaning of "sufficient consideration", without further statutory definition, to concepts of "valuable" and "good" consideration as they apply to conveyancing or contract law is not easy. It is common ground that it does not include nominal consideration; yet to restrict it to commercial transactions supported by payment in money or money's worth goes beyond what is required by the legislative text and purpose. On the other hand, it is easy to imagine examples of transfers to near relatives[2] which are motivated purely by goodwill or generosity, and reflect no form of obligation. A transfer in consideration of natural love and affection may be for sufficient consideration within the meaning of the Act where it reflects a legal or equitable obligation of the transferor to the transferee. Such an obligation may arise out of a matrimonial relationship, and commonly does so. It is not necessary that it be capable of precise measurement, or that there be a search for exact equivalence between the obligation and the value of the interest transferred. A substantial parity will suffice. It is unnecessary to decide the issue that would arise in a case of a transfer for money or money's worth, but at a substantial undervalue. In the circumstances of the present case, the consideration was sufficient.

Evidence - Criminal law - Portions of "walk through" video tendered by defence at trial - Prosecution objected to tender of whole video - In closing prosecutor invited jury to draw adverse inferences from portions played - Trial judge refused to allow defence to re-open case to tender whole of video - Whether re-opening ought to have been allowed - Whether a direction to the jury was required to overcome prejudicial effects of the prosecutor's invitation. Criminal law - Practice and procedure - Directions to jury - Distinction between directions and comments - Whether trial judge's statements in summing up amounted to a direction. Evidence - Criminal law - Duty of prosecutor to tender all inculpatory statements - Whether prosecutor obliged to tender "walk through" video in whole or in part. Evidence - Criminal law - Evidence of blood stains in pocket - Whether accused had had opportunity to respond to blood-stain allegation - Whether judge's direction to the jury on this point was sufficient. Evidence - Criminal law - Evidence of blood stains in pocket not put to prosecution witnesses but mentioned by prosecutor in closing - Whether judge required to give a Jones v Dunkel direction. Criminal Appeal Act 2004 (WA), s 30.

Criminal law - Evidence - Video evidence of the complainant - Appellant charged with sexual offences against a child - Jury shown a videotape of the complainant's evidence in chief and cross-examination given at a preliminary hearing - Whether the videotape itself was admissible into evidence as an exhibit - Whether permitting the jury to replay the complainant's pre-recorded video evidence during its deliberations and in the absence of judge and counsel constituted a miscarriage of justice. Criminal law - Evidence - Admissibility of prior consistent statements - Whether the complainant's written statement to police was admissible despite the tender of the pre-recorded video evidence. Criminal law - Jury trials - Directions - Whether a direction that the jury not give undue weight to the complainant's pre-recorded video evidence or written statement to police was required. Criminal law - Appeals against conviction - Application of "proviso" - Nature of inquiry - Order of consideration of statutory criteria. Criminal Code (Q), s 668E. Evidence Act 1977 (Q), Div 4A of Pt 2, ss 93A, 98, 99.

Bankruptcy - Provable debt - Costs order - Trial judge gave judgment and awarded damages in favour of second respondent against first respondent and appellant - After judgment appellant became bankrupt upon presentation of own petition - After appellant's bankruptcy trial judge made order for indemnity costs against appellant - Whether costs order was a provable debt within the meaning of s 82 of the Bankruptcy Act 1966 (Cth) - Whether costs order was a debt or liability arising from an obligation before bankruptcy - Whether costs order was a contingent liability - Whether costs order was "incidental" to a provable debt. Bankruptcy - Stay of proceedings - Whether proceedings in which costs order was sought should have been stayed pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) - Whether leave to proceed should have been granted pursuant to r 72(1) of the Uniform Civil Procedure Rules 1999 (Q). Statutes - Interpretation - Relevance of legislative history and antecedent statutes - Relevance of decision in In re British Gold Fields of West Africa [1899] 2 Ch 7. Words and phrases - "contingent liability", "costs order", "incidental", "liability", "provable debt". Bankruptcy Act 1966 (Cth), ss 58(3), 82, 153. Uniform Civil Procedure Rules 1999 (Q), r 72(1).

Consumer credit - Precontractual disclosure - Contracts regulated by the Consumer Credit (Victoria) Code ("the Code") - Loans to consumers for payment of seminar fees - "Holdback" arrangement between the credit provider and seminar suppliers by which the credit provider retained for itself a portion of the moneys advanced - Whether, for the purposes of s 15(B)(a)(ii) of the Code, the holdbacks were part of "the amount of credit" and "amounts payable", and whether the credit provider was one of the "persons, bodies or agents (including the credit provider)" to whom the amount of credit was to be paid - Relevance of the legislative purpose of providing information to debtors - Relevance of "truth in lending" considerations. Statutes - Interpretation - Purposive interpretation - Ascertaining legislative purpose. Words and phrases - "amount of credit", "holdback", "precontractual disclosure", "truth in lending". Consumer Credit (Victoria) Code (Vic), s 15.

Criminal law - Offences - Elements of offence - Information - Section 49(3) of the Criminal Law Consolidation Act 1935 (SA) ("the Act") created the offence of having sexual intercourse with a person of or above the age of 12 years and below the age of 17 years - Section 49(4) of the Act provided a defence to the offence when the complainant was of or above the age of 16 years and the accused believed on reasonable grounds that the complainant was of or above the age of 17 years - The Particulars of Offence alleged that the appellant had sexual intercourse with the complainant when she was aged 13 - The appellant alleged that sexual intercourse occurred when the complainant was aged 16 and that he believed on reasonable grounds that she was of or above the age of 17 years - The jury convicted the appellant - Whether the date of the offence was a material particular that had to be proved beyond reasonable doubt - Relevance of the conduct of the trial to whether the date was a material particular - Relevance that the elements of the offence were admitted - Whether the prosecution should have amended the Particulars of Offence to allege alternative dates - Whether the defence in s 49(4) of the Act was available to the offence as alleged in the Particulars of Offence. Criminal law - Jury verdicts - Whether the verdicts were uncertain because it cannot be known whether the jury convicted the appellant for an offence committed when the complainant was aged 13 or 16 - Whether the verdicts were uncertain because different jurors may have reached the verdict by different processes of reasoning - Whether the trial judge misdirected the jury. Criminal law - Sentencing - Jury verdict - Basis for sentencing when jury have two routes to conviction and one involves less serious culpability. Words and phrases - "Information", "material particular", "Particulars of Offence". Criminal Law Consolidation Act 1935 (SA), ss 49(3), 49(4).

Constitutional law (Cth) - Judicial power - Meaning of judicial power - Takeovers Panel - Section 657A(2)(b) of the Corporations Act 2001 (Cth) allows the Takeovers Panel to make a declaration of unacceptable circumstances in connection with a finding of contravention of the takeovers provisions of the Act - Whether s 657A(2)(b) is invalid as involving the exercise of the judicial power of the Commonwealth by the Takeovers Panel. Constitutional law (Cth) - Judicial power - Meaning of judicial power - Whether function of Takeovers Panel was to resolve disputes about existing rights and obligations or to create new rights and obligations. Constitutional law (Cth) - Judicial power - Meaning of judicial power - Relevance of scope of Takeover Panel's power to make remedial orders - Relevance of inability to enforce Takeover Panel's orders without independent exercise of judicial power. Constitutional law (Cth) - Judicial power - Meaning of judicial power - Relevance of requirement that the Takeovers Panel consider public interest and policy considerations in deciding whether to make a declaration - Extent to which inclusion of policy considerations is indicative of non-judicial power. Practice and procedure - Parties - Interveners and amici curiae - The appellant intervened below as of right - After special leave was granted, the commercial controversy between the original parties was resolved and an order revoking special leave sought - Whether the appellant was a party to the proceedings - Whether the appellant had an interest in the appeal to this Court - Whether leave should be granted to amici curiae to appear to contradict the appellant's submissions. Constitution, Ch III. Corporations Act 2001 (Cth), s 657A. GLEESON CJ. I joined in the order allowing the appeal in this matter. My reasons were substantially the same as those that have been given by Hayne J, and Crennan and Kiefel JJ. My reasons for joining in the order concerning the limiting of the grant of special leave, the amendment of the notice of appeal, and leave to counsel to appear as amici curiae were substantially the same as those stated by Hayne J. I would add the following comments on the principal issue before the Court. There are two features of the statutory scheme which, in combination, strongly support a conclusion that the Takeovers Panel ("the Panel") does not exercise judicial power. The first is that, in deciding whether to make a declaration of unacceptable circumstances, and remedial orders, the Panel is required to take account of considerations and interests to which the judicial process is ill-adapted. The second is that a decision of the Panel creates new rights and obligations, and provision is made for their enforcement by a court in the independent exercise of judicial power. In Precision Data Holdings Ltd v Wills[1], this Court said: "In some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power ... However, where, as here, the function of making orders creating new rights and obligations is reposed in a tribunal which is not a court and considerations of policy have an important part to play in the determination to be made by the tribunal, there is no acceptable foundation for the contention that the tribunal, in this case the Panel, is entrusted with the exercise of judicial power." In decisions of this Court, there is a long history of treating power as non-judicial where an exercise of the power was, to use the words of Kitto J, "intended [by the Parliament] to be made upon considerations of general policy and expediency alien to the judicial method."[2] The breadth of the concept of policy sometimes creates difficulty in its use as a criterion for distinguishing between legitimate judicial action on the one hand and legislative or executive action on the other. For the purpose of such a distinction, it may be necessary to be more specific as to the nature of the policy involved. It also may be necessary to relate the considerations of wisdom or expediency involved in the formulation of a certain kind of policy to the constraints inherent in the judicial method, including the way in which issues are defined, and the rules of procedure and evidence according to which a court receives the information upon which it is to base its decision. When Kitto J spoke of "considerations of general policy and expediency alien to the judicial method", he was not suggesting that judging involves no more than the mechanical application of inflexible rules, without regard to questions of wisdom or expediency. The common law is judge-made, and its development and rationalisation necessarily involve attention to such questions. Furthermore, many of its settled principles, in their application to changing circumstances and social conditions, require judgment about what is wise and expedient. Statutes commonly confer upon judges discretionary powers which raise such matters for decision. Yet there are features of the judicial process, fundamental to its nature, that make it ill-suited to the application of certain kinds of policy and the exercise of certain kinds of power. Judges are appointed on the basis of their legal knowledge and experience. Individual judges may have other talents or interests, but what these might be is usually unknown, and is not the subject of any process of assessment, formal or informal. The material on which they base their decisions is provided, and tested, in accordance with rules of procedure and evidence. The decisions of the parties and their lawyers, made in an adversarial setting, impose limitations upon the information according to which a court legitimately may proceed. The parties to litigation, acting within the limits set by the law, define the issues to be resolved and the courses open to be followed by way of judicial order. These constraints, although not absolute or inflexible, influence the nature of the judicial process, and affect the suitability of that process for the exercise of certain forms of governmental power. It is to be expected that the Parliament, in deciding whether a certain kind of authority should be exercised judicially, or otherwise, would take account of the characteristics, and of the strengths, and the limitations, of the judicial method. Chapter 6 of the Corporations Act 2001 (Cth), in regulating takeovers, seeks to preserve an efficient, competitive and informed capital market, and to protect the legitimate interests of investors in that market. The purposes of the Chapter are declared in s 602, in terms that define the nature of the considerations at work in reaching a conclusion that circumstances in relation to the affairs of a company are unacceptable and that the public interest requires a certain form of regulatory intervention in the market. The matters to which the Panel may have regard in deciding whether, and in what way, it should exercise its powers, and the information and judgment it brings to bear upon the likely consequences of intervention, understood in the light of the purposes stated in s 602, are aspects of a decision-making process of an order quite different from that which may be involved where a litigant seeks from a court an injunction to restrain a contravention of the Act, or where a court is asked to penalise a contravention. The constitution of the Panel, the way in which it is intended to go about its business, the way in which it informs itself about matters that arise for its consideration, and the nature of the considerations according to which it acts or declines to act, all point against a conclusion that this is a judicial process. Various parts of the regulatory regime established by Ch 6 involve the exercise of judicial power, and the application of the judicial method to the determination of legal rights and liabilities. Judicial power is employed to enforce the rights and obligations which the Act attaches to actions of the Panel. On the other hand, the Panel's supervisory and regulatory function, having regard to the constitution of the body itself, the nature of the legislative purposes it pursues, and the consequences of what it does, is not an exercise of judicial power.

Contract - Construction - Agreements between the International Air Transport Association ("IATA") and participating airlines provided for the operation of a "Clearing House" in accordance with regulations ("the Regulations") - Pursuant to the Regulations IATA set off debits and credits that would otherwise exist between the airlines - The Regulations provided that no liability or right of action would accrue between participating airlines, including Ansett - Whether the effect of the Regulations was that IATA was the creditor of Ansett to the exclusion of other participating airlines. Insolvency - Voluntary administration under Pt 5.3A of the Corporations Act 2001 (Cth) ("the Act") - Deed of Company Arrangement - Public policy - Whether Pt 5.3A of the Act or a rule of public policy required that the whole of the debtor's estate be available for distribution to all creditors - Whether any such rule invalidated the effect of the Regulations properly construed. Insolvency - Voluntary administration under Pt 5.3A of the Act - Deed of Company Arrangement - Order of priorities - Relationship between contractual rights and obligations and the operation of Pt 5.3A - Whether the Regulations purported to circumvent the Deed or were otherwise repugnant to the Deed. Corporations Act 2001 (Cth), Pt 5.3

Statutes - Interpretation - Corruption and Crime Commission Act 2003 (WA) - The appellant sought review of a decision of the Commissioner of Police to issue a fortification removal notice in the Supreme Court of Western Australia - Section 76(2) of the Act provided that the Commissioner could identify any information provided to the Supreme Court for the purposes of review proceedings as confidential "if its disclosure might prejudice the operations of the Commissioner" with consequences for the use and disclosure of the information - Whether s 76(2) renders unexaminable by the Supreme Court the decision of the Commissioner - Relevance of the Constitution to statutory construction. Constitutional law (Cth) - Chapter III - Judicial power - Integrity of State Supreme Courts - Whether s 76(2) impairs the Supreme Court's character as independent and impartial or otherwise improperly controls the exercise of its jurisdiction contrary to Ch III of the Constitution - Effect of restriction on ability to ensure equality between litigants - Effect of restriction on publication of information in reasons for judgment - Effect of restriction on ability of party to bring appeal proceedings - Role of Executive officers in relation to the judicial process. Words and phrases - "confidential", "fortification removal notice", "publicly disclosed", "review". Constitution, Ch III. Corruption and Crime Commission Act 2003 (WA), s 76(2).

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority Real Property - Compulsory acquisition - Amount of compensation - Market value - Respondent acquired industrial zoned land by compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - Local council resisted attempts to rezone land for residential development before its acquisition - Whether effect of council's conduct on value of land should be disregarded in determining market value under s 56(1) of the Act. Statutes - Interpretation - Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - Section 56(1) of the Act defined market value - Pursuant to s 56(1)(a) any increase or decrease in the value of land caused by the carrying out of, or the proposal to carry out, the public purpose for which land was acquired was to be disregarded - Whether conduct of local council was part of proposal to carry out the public purpose for which land was compulsorily acquired by the respondent - Relevance of common law principles derived from other jurisdictions. Words and phrases - "market value", "proposal", "scheme". Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 56(1)(a).

Criminal law - Practice and procedure - New statutory offence provision in period particularised on the information - Need for amendment - No formal application by prosecutor to amend. Criminal law - Practice and procedure - Admission by accused to offence outside dates particularised on the information - Trial judge's findings follow admission. Criminal law - Practice and procedure - Whether trial judge has power to amend statutory provision without application by parties - Criminal Law Consolidation Act 1935 (SA), s 281(2) - Distinct functions of judge and prosecutor - Whether amendment conformed to prosecutor's intention. Criminal law - Practice and procedure - Procedural fairness - Whether amendment without opportunity for accused to make submissions. Criminal law - Practice and procedure - Correct offence not noted on information - Order for amendment incompletely noted on the information - Whether affects amendment of information - Whether administrative task. Criminal Law Consolidation Act 1935 (SA), ss 281(2) and 281(3).

Intellectual property – Patents – Patents Act 1990 (Cth) – Patentable subject matter – Patent claimed isolated nucleic acid coding for BRCA1 protein with specified mutations or polymorphisms indicative of susceptibility to cancer – Whether invention claimed is a patentable invention under s 18(1)(a) of Patents Act 1990 (Cth) – Whether invention claimed is a "manner of manufacture" within meaning of s 6 of Statute of Monopolies – Whether sufficient that invention claimed is artificially created state of affairs of economic significance – Utility of "artificially created state of affairs" criterion – Factors relevant to whether new class of claim falls within concept of manner of manufacture. Words and phrases – "artificially created state of affairs", "isolated nucleic acid", "manner of manufacture", "naturally occurring", "patentable invention", "product of nature". Patents Act 1990 (Cth), ss 18(1)(a), 40(2)(b). Statute of Monopolies (21 Jac I c 3), s 6.

Corporations law - Winding up in insolvency - Statutory demand - Extension of time - Application by appellant to set aside statutory demand under s 459G(2)(a) of the Corporations Act 2001 (Cth) dismissed by Master, but extension of time granted for compliance with the demand - After the expiration of the extension of time for compliance, the appellant applied for an order further extending the time for compliance with the demand - Presumption of insolvency where there was a failure to comply with a statutory demand - Whether Court had the power to extend the time for compliance after the period had expired - General interpretation provisions applied subject to contrary intention - Whether contrary intention sufficiently shown. Words and phrases - "extend", "period of compliance", "the last such order". Corporations Act 2001 (Cth), ss 9, 70, 459F(2), 459G(2)(a).

Contracts - Termination for breach - Damages - Ability to recover substantial damages after termination where termination based on express provision making contractual term essential. Contracts - Lease - Breach of term by lessee - Whether lessor entitled after terminating lease to recover loss of bargain damages where but for express contractual provisions providing for the consequences of breach the lessor would not have been entitled to terminate. Real property - Lease - Covenants that touch and concern the land - Whether the right to seek damages for breach of covenant to pay rent touches and concerns the land - Whether the assignee of a leasehold reversion is entitled to terminate a lease and recover loss of bargain damages, notwithstanding the absence of privity of contract between the assignee and lessee. Real property - Lease - Guarantors - Whether guarantor's covenant to guarantee payment of rent by the lessee touches and concerns the land and passes with the leasehold reversion. Conveyancing Act 1919 (NSW), s 117.

Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Betting and Racing Legislation Amendment Act 2006 (WA) inserted ss 24(1aa) and 27D(1) into Betting Control Act 1954 (WA) ("WA Act") - Section 24(1aa) of WA Act provides that a person who bets through use of a betting exchange commits an offence - Section 27D(1) of WA Act provides that a person who, in Western Australia or elsewhere, publishes or otherwise makes available a Western Australian race field in the course of business commits an offence unless the person is authorised to do so by an approval, and complies with the conditions of that approval - First plaintiff was granted a licence under Div 5 of Pt 4A of the Gaming Control Act 1993 (Tas) to operate a betting exchange - Second plaintiff used computer connected to internet to place with first plaintiff bets on the outcome of races and other sporting events in Western Australia - Whether ss 24(1aa) and 27D(1) of WA Act are valid. Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Whether ss 24(1aa) and 27D(1) of WA Act impose impermissible disadvantage on first plaintiff that is not imposed on Western Australian wagering operators - Whether ss 24(1aa) and 27D(1) of the WA Act impermissibly preclude, on the supply side, increase in competition within the national market for betting services provided, on the demand side, by second plaintiff. Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Interpretation - Source of present doctrine respecting s 92 of Constitution - Role of s 92 to create national markets expressive of national unity - Object of s 92 in application to trade and commerce among States is to eliminate protection - Performance of role and fulfilment of object of s 92 changes with developments in legal and economic context in which s 92 operates - Utility of concept of "people of a State". Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Significance for present operation of s 92 of general understanding of concepts of "free trade" and "protection" against which provision was framed - "Free trade" understood in Australian colonies and British Empire as antithesis of "protection" - Significance of debates about free trade at time of federation. Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Relevance of United States decisions decided before 1900 to understanding provenance of s 92. Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Relevance of presence of non-protectionist objectives in legislation the practical effect of which is to discriminate against interstate trade in protectionist sense. Constitutional law (Cth) - Freedom of interstate trade, commerce and intercourse - Limitations of proposition that each State legislature has power to enact legislation for "well-being" of people of State - Application of "appropriate and adapted" criterion to laws discriminating against interstate trade in protectionist sense - Application of criterion of "reasonable necessity". Words and phrases - "appropriate and adapted", "free trade", "proportionality", "protection", "reasonable necessity". Constitution, s 92. Gaming Control Act 1993 (Tas), Div 5 Pt 4A. Betting Control Act 1954 (WA), ss 24(1aa), 27D(1). Betting and Racing Legislation Amendment Act 2006 (WA).

Family Court of Australia – Jurisdiction under s 111B of Family Law Act 1975 (Cth) ("Family Law Act") and reg 16 of Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("Regulations") to make a return order – Whether Family Court was properly satisfied that removal of child from New Zealand to Australia was wrongful – Whether Access Order conferred rights of custody upon father – Whether right of access conferred by Access Order was right to determine place of residence of child. Family Court of Australia – Jurisdiction under s 111B of Family Law Act and reg 16 of Regulations to make a return order – Whether Family Court was properly satisfied that removal of child to Australia was wrongful – Whether Regulations accommodate application for return order by parent asserting breach of rights of custody vested in a court. Family Court of Australia – Jurisdiction under s 111B of Family Law Act and reg 16 of Regulations to make a return order – Whether Family Court was properly satisfied that removal of child to Australia was wrongful – Whether removal breached rights of custody held by father by operation of s 17 of Care of Children Act 2004 (NZ) – Whether mother living with father as de facto partner at time child was born. Family Court of Australia – Jurisdiction to make parenting orders under Pt VII of Family Law Act – Parens patriae or wardship jurisdiction. Family Court of Australia – Procedure – Power to make order permitting cross-examination in application for return order under reg 16 of Regulations. Care of Children Act 2004 (NZ), s 17. Convention on the Civil Aspects of International Child Abduction, Chs III, IV. Evidence and Procedure (New Zealand) Act 1994 (Cth), Pt 6. Family Law Act 1975 (Cth), Pt VII, s 111B. Family Law (Child Abduction Convention) Regulations 1986 (Cth). Family Law Rules 2004 (Cth). Interpretation Act 1999 (NZ), s 29

Courts – Jurisdiction and powers of Court of Appeal – Accident compensation – Appellant injured in course of employment – Appellant prevented by s 134AB of Accident Compensation Act 1985 (Vic) ("Compensation Act") from bringing proceedings for damages without leave of County Court – County Court obliged not to give leave unless satisfied on balance of probabilities that appellant's injury "serious injury" – County Court judge held appellant's injury not serious injury within meaning of s 134AB of Compensation Act – Appellant appealed to Court of Appeal – Section 134AD of Compensation Act required Court of Appeal to "decide for itself" whether injury serious injury – Court of Appeal dismissed appeal because not persuaded County Court was wrong – Meaning, effect, history and purpose of legislation – Significance of Court of Appeal's role as highest appellate court of State – Whether inconsistent with propounded appellate function – Whether Court of Appeal failed to exercise jurisdiction. Words and phrases – "appeal", "serious injury", "statutory grant of right of appeal". Accident Compensation Act 1985 (Vic), ss 134AA-134

HML v The Queen SB v The Queen OAE v The Queen Criminal law - Evidence - Similar facts - Sexual crimes - "Uncharged acts" - Relevance - Admissibility - Applicability of test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461. Criminal law - Evidence - Similar facts - Standard of proof - Whether "uncharged acts" must be proved beyond reasonable doubt - Directions to jury. Practice and procedure - Application to amend notice of appeal - Whether leave should be granted to amend notice of appeal to raise issue of admissibility of evidence, to which no objection was taken at trial. Words and phrases - "context", "guilty passion", "propensity evidence", "relationship evidence", "relevance", "similar fact evidence", "uncharged acts". Evidence Act 1929 (SA), ss 34CA, 34

Statutes - Interpretation - Mine Subsidence Compensation Act 1961 (NSW) ("the Subsidence Act") - Appellants claimed compensation from statutory fund for cost of works to prevent damage to pipeline from subsidence - Pursuant to s 15(5)(b) "no claim shall be entertained or payment made" where improvement erected without approval unless certificate is issued - Respondent Board found pipeline erected without approval and refused to issue certificate or entertain claim - Section 12B(b) conferred right of appeal to Land and Environment Court against "the decision of the Board as to the amount of the payment from the Fund" - Whether refusal of Board to entertain claim in absence of jurisdictional facts appealable under s 12B(b) or subject only to judicial review in Supreme Court. Courts and judicial system - Jurisdiction - Land and Environment Court - Appeals - Class 3 - Sections 16 and 19(fl) of the Land and Environment Court Act 1979 (NSW) conferred jurisdiction to hear and determine appeals under s 12B of the Subsidence Act - Whether jurisdiction to hear and determine appellants' appeal against Board's decision - Relevance of breadth of powers under s 39(3) to conduct de novo rehearing. Words and phrases - "amount", "appeal", "jurisdictional facts", "no claim shall be entertained or payment made". Land and Environment Court Act 1979 (NSW), ss 16, 19(fl), 39. Mine Subsidence Compensation Act 1961 (NSW), ss 12B, 15(5)(b).

Criminal law - Practice and procedure - Directions to the jury - Deliberations continued, without success, for more than ten hours - The trial judge suggested that, if invited by the jury, she could suggest ways for the jury to "move forward" - Jury requested assistance - Further direction suggesting how the jury could approach its deliberations -The jury returned its guilty verdict about half an hour after the further direction - Balance of further direction - Whether the further direction constituted a miscarriage of justice. Criminal law - Appeals - Application of the proviso - Whether no substantial miscarriage of justice actually occurred - Whether on the record of the trial an appellate court could conclude, beyond reasonable doubt, that the applicant was guilty - Relevance to the proviso of a separate consideration as to whether the trial was unfair - Relevance to the proviso of a consideration as to whether there has been such a departure from the essential requirements of the law that it goes to the root of the proceedings. Criminal law - Practice and procedure - Legal representation of an accused - At the applicant's trial for murder, counsel sought to appear for the applicant in relation only to a voir dire hearing concerning the admissibility of certain evidence - Statement by the trial judge that counsel could not appear on the voir dire if counsel did not then represent the applicant for the entire trial - Counsel withdrew and applicant conducted voir dire himself - Error of law - Whether error constituted a miscarriage of justice. Criminal Law Consolidation Act 1935 (SA), ss 288, 353. Criminal Law (Legal Representation) Act 2001 (SA), s 11.

Torts - Causation - Motor vehicle accident - Whether design of intersection a cause of the accident. Negligence - Causation of damage at common law - Causation in fact - Whether multiple causes of damage exist - Whether highway construction and design a material contribution to collision - Whether foreseeable risk of harm to persons such as the plaintiff - "But for" test in causation - Considerations relevant to deciding contested questions of causation - Whether correct approach taken to question of causation by Court of Appeal in reversing conclusion of primary judge - Whether existence of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) providing for contribution by tortfeasors relevant to causation in fact. Appeal - Advantages enjoyed by primary judge in deciding contested question of causation of motor vehicle collision - Decision on question of fact - Whether Court of Appeal erred in giving effect to its own conclusion about causation - Whether Court of Appeal fulfilling duty to conduct an appeal on disputed questions of fact by reaching its own independent conclusion on the facts - Whether advantages of primary judge ought to have restrained Court of Appeal from substituting its own conclusion - Whether Court of Appeal applied incorrect legal test for deciding question of causation of motor vehicle collision. Words and phrases - "a result of a tort" - "the extent of responsibility for the damage". Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5. Supreme Court Act 1970 (NSW), s 75

Real property - Compulsory acquisition - Section 43(1) of Lands Acquisition Act (NT) ("LAA") empowered Minister, subject to LAA, to compulsorily acquire land "for any purpose whatsoever" - Whether s 43(1) of LAA conferred power on Minister to acquire land solely to enable it to be sold or leased for private use. Aborigines - Native title - Compulsory acquisition of native title rights and interests - Section 11(1) of Native Title Act 1993 (Cth) ("NTA") provided that native title could not be extinguished contrary to NTA - At time of notification of compulsory acquisition appellants had commenced proceedings for determination of native title to lots - Lots otherwise consisted of vacant Crown land - Whether s 24MD(2) of NTA permitted extinguishment of native title by compulsory acquisition when no non-native title rights and interests subsisted. Statutes - Construction - Compulsory acquisition of native title interests - Whether s 43(1) of LAA conferred power on Minister to acquire interests including native title interests - Whether statute so providing is subject to interpretive principle that acquisition of native title interests must be stated in clear and plain terms - Whether distinction drawn between acquisitions for governmental and non-governmental purposes. Aborigines - Native Title - Compulsory acquisition of native title rights and interests - Nature of such native title interests in Australian law - Whether such interests do or may include special features arising from spiritual, cultural or social connection between native title owners and their land - Communal character of native title - History of denial and later recognition of native title rights and interests in land in Australia - Whether such special characteristics of native title rights and interests import requirement for express provisions in legislation for compulsory acquisition of such rights and interests - Whether the LAA sufficiently or at all provides for acquisition of native title rights or interests in circumstances of the present case. Words and phrases - "compulsory acquisition", "native title". Lands Acquisition Act (NT), ss 5A, 43(1). Native Title Act 1993 (Cth), ss 11(1), 24MD(2), 223. GLEESON CJ. I agree with the orders proposed by Gummow, Hayne and Heydon JJ, and with their reasons ("the joint reasons") for those orders. I would make the following additional observations about the second issue dealt with in those reasons, that is, the construction of s 24MD(2)(b) of the Native Title Act 1993 (Cth). Section 24MD(2) provides for the extinguishment of native title on just terms as to compensation if: "(a) the act is the compulsory acquisition of the whole or part of any native title rights and interests under a law of the Commonwealth, a State or a Territory that permits both: (i) the compulsory acquisition by the Commonwealth, the State or the Territory of native title rights and interests; and (ii) the compulsory acquisition by the Commonwealth, the State or the Territory of non-native title rights and interests in relation to land or waters; and (b) the whole, or the equivalent part, of all non-native title rights and interests, in relation to the land or waters to which the native title rights and interests that are compulsorily acquired relate, is also acquired (whether compulsorily or by surrender, cancellation or resumption or otherwise) in connection with the compulsory acquisition of the native title rights and interests; and (ba) the practices and procedures adopted in acquiring the native title rights and interests are not such as to cause the native title holders any greater disadvantage than is caused to the holders of non-native title rights and interests when their rights and interests are acquired[.]" The evident concern of these three conditions of the operation of the substantive provisions of s 24MD(2) relating to extinguishment of native title rights and interests, and compensation, is to avoid racial discrimination. Paragraphs (a), (b) and (ba) address potential kinds or sources of discrimination. The argument for the appellants fastens upon the word "all" in par (b). The appellants submit that the condition expressed in par (b) can only be satisfied where there are some non-native title rights and interests in the subject land, and they also are acquired. Textually, the argument is inconclusive. There are many contexts, including legislative contexts, in which the word "all" means "any and all". To say, for example, that a company may qualify for a certain order relating to the administration of its affairs only if it has paid all its debts does not disqualify a company that has never traded and therefore never had any debts. Context and purpose will determine whether satisfaction of a condition that all non-native title rights and interests also be acquired is rendered impossible by the circumstance that there are no such rights and interests to acquire. Such a circumstance, if it exists, would appear to be fortuitous, and unrelated to any discernible legislative object. There is, no doubt, a great deal of land in the Northern Territory in which there are no interests other than native title interests. The same is probably true of Western Australia. How would it advance a legislative purpose against discrimination to distinguish between such land and land where there is a single, perhaps relatively unimportant, non-native title right or interest? Why should the existence of, say, a short-term unregistered lease mean that, during the subsistence of the lease, par (b) could be satisfied, but, upon expiry of the lease, par (b) could not be satisfied? The legislative purpose is against discrimination and discriminatory acquisition. To make the presence or absence of a non-native title right or interest of any kind determinative of the application of s 24MD(2) does not advance that purpose. It may be added that whether or not any non-native title right or interest exists at any particular time could be a matter of uncertainty. Such rights and interests may not be known at the time of acquisition. It is difficult to accept that there was a legislative acceptance of a possibility with such obvious adverse consequences for reasonable certainty and predictability in land management. The construction for which the appellants contend appears to produce a curious, in fact inexplicable, new form of discrimination between different kinds of native title rights and interests: those that co-exist with non-native title rights and interests, and those that do not. The former, according to the appellants, are subject to extinguishment by s 24MD(2), whereas the latter are not. Discrimination is judged by making comparisons. The comparisons required by pars (a), (b) and (ba) respectively are different, but all are directed to the same ultimate question: whether, in the compulsory acquisition of native title rights and interests, there is equality of treatment between native title and non-native title rights and interests. That question is capable of being answered by postulating the existence of non-native title rights and interests and asking how they would be affected. It does not require the identification of actual rights or interests and demonstration of how they are affected. The aim of the legislation is not to ensure that every time some native title rights and interests (regardless of their nature and extent) are acquired there will also be some non-native title rights and interests (regardless of their nature and extent) that also must be acquired. That would be a crude form of equality, but not one that advanced any rational objective. The construction contended for by the first respondent and the interveners better fits the statutory context, the history (as explained in the joint reasons) and the legislative purpose.

Negligence - Causation - Pedestrian struck by motor vehicle - Possibility of a differential chance of injuries - Possibility not raised in argument in the courts below. Motor Accidents Compensation Act 1999 (NSW), s 83.

Income tax - Trust income - Present entitlement - Trust deed provided that beneficiaries entitled under default provision had immediate and indefeasible vested interest in income - Income never paid to or demanded by appellant as trustee of Unit Trust - Whether appellant as trustee of Unit Trust presently entitled to trust income - Whether entitlement of appellant under default provision reflected legal entitlements intended by parties creating trusts - Application of parol evidence rule - Whether entitlement of appellant under default provision a "sham". Income tax - Trust income - Present entitlement - Reimbursement agreement - Income Tax Assessment Act 1936 (Cth), s 100A provided that beneficiary otherwise presently entitled to income of trust estate deemed not to be presently entitled where entitlement arose out of, or arose by reason of act, transaction or circumstance that occurred in connection with, "reimbursement agreement" - Whether transactions between building companies and Development Trust "reimbursement agreement" - Whether other income of Development Trust distributed to Raftland Trust but not derived from agreement between building companies and Development Trust arose out of, or arose by reason of act, transaction or circumstance that occurred in connection with, "reimbursement agreement" - Whether, by operation of s 100A, appellant as trustee of Raftland Trust and not tertiary beneficiaries of Raftland Trust presently entitled to trust income. Income tax - Avoidance or minimisation of liability to tax - Proper analysis of documents and actions of appellant and other persons - Suggestion that certain actions constitute a "sham" - History and meaning of "sham" for the purposes of Australian law - Utility for legal purposes of conclusion that transactions constitute a "sham" - Whether in present case propounded documents expressed purposes and intentions of parties with legal consequences determined accordingly - Whether documents were a "sham" and may be disregarded with legal obligations of parties determined otherwise - Whether primary judge erred in references to and conclusions of "sham" - Whether Full Court erred in giving effect to different conclusion as to existence of "sham". Trusts - Trust income - Whether losses borne by capital in previous tax years must be recouped before trust income is available for distribution - Relevance of existence of successive interests, where interest in income followed by interest in capital - Relevance of Upton v Brown (1884) 26 Ch D 588. Words and phrases - "present entitlement", "reimbursement agreement", "sham". Income Tax Assessment Act 1936 (Cth), ss 99A, 100A, 226H, 260, Pt

Taxes and duties - Goods and services tax - Taxable supply - A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the Act"), s 9-10 - Contract for sale of land - Whether there is a taxable supply when a deposit held as security for the performance of a purchaser's obligations is forfeited for failure by the purchaser to perform its obligations. Vendor and purchaser - Deposit - Characteristics of deposit - Whether payment of deposit was "in connection with a supply" by vendor taxpayer for the purpose of s 9-15(1) of the Act - Whether forfeited deposit treated as consideration for a supply under s 99-5 of the Act. Words and phrases - "consideration for a supply", "deposit", "grant, assignment or surrender of real property", "in connection with a supply", "real property", "supply", "taxable supply". A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 9-5, 9-10, 9-15, 99-1, 99-5, 99-10. Property Law Act 1958 (Vic), s 49(2). Sale of Land Act 1962 (Vic), s 26(1)(a). Statute of Frauds 1677, s 17.

Plaintiff M64/2015 v Minister for Immigration and Border Protection Migration – Visa application – Clause 202.222(2) of Sched 2 to Migration Regulations 1994 (Cth) provides for grant of Refugee and Humanitarian (Class XB) (Subclass 202) visa if Minister satisfied there are compelling reasons for giving special consideration to granting visa – Where applications for Subclass 202 visas refused by delegate of Minister – Where delegate considered capacity of Australian community to permanently settle visa applicants – Where delegate considered departmental policy that established priorities to be accorded to visa applications – Construction of cl 202.222(2) – Whether decision affected by jurisdictional error. Words and phrases – "capacity", "compelling reasons", "irrelevant considerations", "jurisdictional error", "priorities policy", "special consideration". Migration Regulations 1994 (Cth), Sched 2, cl 202.222(2).

Torts - Trespass to land - Power of police to enter private premises - Police officers went to suburban flat after receiving report of male and female arguing - Police treated report as "violent domestic" - Occupier invited police to "look around the flat" - Occupier later asked police to leave premises - Police did not leave and remained on premises for longer than it would reasonably have taken them to leave - Whether statutory justification for police to remain on premises - Proper construction of Crimes Act 1900 (NSW) ss 357F and 357H - Whether express refusal by occupier immediately terminated authority of police "to so enter or remain" on premises, irrespective of fulfilment of purposes for which entry effected. Torts - Trespass to land - Power of police to enter private premises - Whether common law justification for police to remain on premises - Whether entry could be justified as directed to preventing a breach of the peace. Words and phrases - "enter or remain", "expressly refused", "breach of the peace". Crimes Act 1900 (NSW), ss 357F-357

Quantum meruit - Services performed and subcontractors paid - Entitlement to compensation - Appellants entered into oral agreement with building company for construction of domestic dwelling - Respondent performed some of the construction work - Appellants did not request respondent perform any services or pay any subcontractors - Whether claim for quantum meruit or money paid available. Restitution - Unjust enrichment - Appellants accepted benefit of construction work performed by and at the expense of respondent - Claim that it would be unconscionable for appellants to retain benefit - Appellants made no direct request of respondent - Whether restitutionary claim available. Contract - Domestic building contracts - "Cost plus" oral agreement between building company and owners - Informal reorganisation within building company's corporate group - Benefit and burden of oral agreement informally assigned by building company to related company - No notice given to owners of reorganisation or assignment - Some subcontractors paid directly by owners - Acknowledgement by building company that owners had met all progress claims made and paid all monies due under the oral agreement - Whether related company can demand compensation from owners for difference between amounts paid by owners and amounts outlaid by related company together with margin for supervision and profit. Words and phrases - "expense", "free acceptance", "incontrovertible benefit", "unjust enrichment", "windfall".

High Court - Original jurisdiction - Section 77(i) of Constitution gave the Parliament power to define jurisdiction of federal court other than High Court - Section 476(2)(a) of Migration Act 1958 (Cth) ("Migration Act") provided that Federal Magistrates Court ("FMC") had no jurisdiction in relation to "a primary decision" - Section 476B(2) of Migration Act provided that High Court must not remit matter relating to migration decision to FMC unless FMC had jurisdiction under s 476 - Decision of delegate of defendant to refuse application of plaintiff for protection visa "a primary decision" - Plaintiff applied for mandamus in original jurisdiction of High Court conferred by s 75(v) of Constitution, and also certiorari - Plaintiff sought to have application remitted to FMC - Whether High Court had implied power to remit matter commenced in original jurisdiction to FMC in absence of supporting law made by the Parliament - Whether ss 476 and 476B of Migration Act invalid to extent sections imposed barrier to remitter upon High Court - Whether FMC had authority to receive remitted application in absence of supporting law made by the Parliament - Whether implied constitutional power in High Court to remit, and in FMC or State court to receive, matter so as to protect constitutional jurisdiction of High Court - Whether necessity for implied power of remittal of matter demonstrated by facts in stated case and otherwise within judicial knowledge. Constitutional law (Cth) - Courts - Jurisdiction - Whether jurisdiction to make orders of certiorari and mandamus against officer of Commonwealth "belonged to" State courts in absence of law made by the Parliament investing State courts with federal jurisdiction - Whether s 109 of Constitution operated with respect to ss 38 and 39(1) of Judiciary Act 1903 (Cth) to render State laws otherwise providing for jurisdiction of State courts inoperative - Whether heads of jurisdiction in ss 75 and 76 of Constitution identifying controversies unknown before federation could be said to "belong to" State jurisdiction. High Court - Original jurisdiction - Whether there are limitations upon power of the Parliament under s 76(ii) of Constitution to burden exclusively High Court with original jurisdiction. Words and phrases - "federal jurisdiction", "original jurisdiction", "remitter". Constitution, ss 75(v), 76(ii), 77, 109. High Court Rules 2004, rr 4.02, 25.06.1, 25.07.2. Judiciary Act 1903 (Cth), ss 38, 39. Migration Act 1958 (Cth), ss 476, 476A, 476B, 484.

High Court practice - Bail - Power of High Court to grant bail as incident of application to invoke appellate jurisdiction - Application made prior to grant of special leave to appeal from orders of the Federal Court of Australia convicting the applicant and imposing order of imprisonment for contempt of court - Exhaustion of remedies in Federal Court both in respect of appeal against substantive orders and refusal of bail by that Court - Whether refusal by High Court to grant bail would render proceedings in High Court nugatory or lacking in utility - Whether special or exceptional circumstances shown - Estimate of prospect of success in application for special leave - Bail refused - Hearing of application for special leave expedited. Words and phrases - "special circumstances", "exceptional circumstances".

Insurance - Professional indemnity - Barrister's liability policy conforming with Legal Profession Act 1987 (NSW) - "Known Circumstance" exclusion - "Known Circumstance" defined to include any fact, situation or circumstance which a reasonable person in the insured's professional position would have thought, before the policy began, might result in someone making an allegation against an insured in respect of a liability that might be covered by the policy - Denial of liability by insurer - Meaning of exclusion clause - Relevance of what insured actually thought - Whether exclusion clause operated by reference to an objective standard. Legal practitioners - Barristers - Barrister's liability policy conforming to Legal Profession Act 1987 (NSW) - "Known Circumstance" exclusion - Meaning of exclusion clause - Whether operated by reference to objective standard - Whether a reasonable person in the insured barrister's professional position would have thought a fact, situation or circumstance known to him might result in someone making an allegation in respect of a liability that might be covered by the policy - Relevance of insured's state of mind - Proper approach to construction of the exclusion clause - Whether error on the part of primary judge demonstrated. Words and phrases - "a reasonable person in the insured's professional position", "would have thought might result in". Insurance Contracts Act 1984 (Cth), ss 21, 40(3). Legal Profession Act 1987 (NSW), s 38

Administrative law - Application for review by Administrative Appeals Tribunal ("Tribunal") - Decision by Migration Agents Registration Authority ("the Authority") to cancel registration of migration agent - Tribunal's task to determine what was the correct or preferable decision - Whether Tribunal should determine what was the correct or preferable decision when the Authority made its decision, or whether Tribunal should determine the correct or preferable decision as at the time of its own decision - Necessity for close attention to the applicable legislative provisions. Immigration - Migration agents - Registration and cautioning of migration agents - Power of the Authority to set out one or more conditions for the lifting of a caution given to registered migration agents - Tribunal (exercising for itself the powers and discretions conferred on the Authority) cautioned a migration agent and imposed conditions for the lifting of that caution - Conditions imposed restricted migration agent from providing assistance with protection visas and from working without supervision of another registered migration agent - Whether conditions could be imposed that seek to qualify a registered migration agent's right to use that registration - Whether conditions imposed were inconsistent with the legislative scheme for registration of migration agents. Statutes - Construction - Powers of Tribunal to substitute its decision for a decision of an administrator - Proper approach to ambit and application of power - Necessity for close attention to the applicable legislative provisions - Necessity for attention to purpose and history of legislation - Whether any general presumption as to determination of the rights of parties - Relevance of the constitution, functions and general powers of Tribunal. Words and phrases - "correct or preferable decision", "decision made in substitution for the decision so set aside". Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 43. Migration Act 1958 (Cth), ss 303, 304A, 306.

Income Tax - Review and appeals - Judicial review - Judiciary Act 1903 (Cth) ("the Judiciary Act"), s 39B - Appellant Commissioner issued amended assessments of income tax to respondent taxpayer - Taxpayer alleged Commissioner deliberately "double counted" amounts of assessable income -Taxpayer sought judicial review in Federal Court under s 39B of the Judiciary Act while "appeal" pending under Pt IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act") - Relationship between Constitution and proceedings under Pt IVC of the Administration Act and s 39B of the Judiciary Act - Scope of issues for determination in s 39B proceeding - Relevance of availability of remedy in Pt IVC proceeding to discretion to grant relief in s 39B proceeding. Income Tax - Validity of assessment - Judicial review - Finding of Full Court that Commissioner failed to exercise bona fide the power of assessment -Income Tax Assessment Act 1936 (Cth) ("the Act"), s 175 provided that failure to comply with provisions of the Act did not affect validity of assessment - Whether deliberate maladministration manifests jurisdictional error - Whether "double counting" manifested jurisdictional error where amended assessment issued on footing that compensatory adjustment could be made under s 177F(3) - Whether amended assessment "tentative" or "provisional" - Meaning of "bona fide" - Whether other grounds for judicial review of amended assessment relied on by the taxpayer and available in the proceedings. Income Tax - Validity of assessment - Judicial review - Section 177(1) of the Act provided for production of notices of assessment to be conclusive evidence of certain matters except in Pt IVC proceedings - Application of s 177(1) to proceedings under s 39B of the Judiciary Act - Whether s 177(1) a privative clause subject to "Hickman principle" - Relevance of Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168. Constitutional law (Cth) - Income tax - Criteria for valid law with respect to taxation - Absence of arbitrariness and susceptibility to judicial scrutiny - Role of judicial remedies under s 75(v) of the Constitution and s 39B of the Judiciary Act in upholding constitutional design - Discretionary character of such remedies derived from the Constitution. Income Tax - Review and appeals - Judicial review in Federal Court under the Judiciary Act, s 39B - Discretionary character of such review - Availability of proceedings under Pt IVC of the Administration Act - Institution of proceedings under Pt IVC of the Administration Act - Relevance of that step to exercise of discretion to decide proceedings under the Judiciary Act, s 39B - Whether proceedings under s 39B should be dismissed in exercise of discretion - Whether necessary and appropriate to consider application of ss 175 and 177 of the Act. Words and phrases - "assessment", "bona fide", "double counting", "good faith", "Hickman principle", "jurisdictional error", "privative clause", "provisional", "tentative". Judiciary Act 1903 (Cth), s 39B. Income Tax Assessment Act 1936 (Cth), ss 175 and 177(1). Taxation Administration Act 1953 (Cth), Pt

W.R. Carpenter Holdings Pty Limited v Commissioner of Taxation W.R. Carpenter Australia Pty Limited v Commissioner of Taxation Income tax - International agreements - Dealings between parties not at "arm's length" - Income Tax Assessment Act 1936 (Cth), s 136AD(1) deemed consideration equal to "arm's length consideration" to be received or receivable by taxpayer in certain circumstances if respondent Commissioner determined sub-section should apply - Commissioner determined s 136AD(1) should apply to appellant taxpayers and included "deemed" interest in assessable income - Whether Commissioner obliged to consider fairness and reasonableness to taxpayer and taxpayer purpose or motive when making determination - Relevance of Constitution to statutory construction where tax liability dependent on conclusion of Commissioner respecting particular circumstance or state of affairs. Income tax - Appeals - Pt IVC of the Taxation Administration Act 1953 (Cth) ("the Administration Act") - Appellants appealed to Federal Court under Pt IVC alleging assessments excessive - Proper issues for determination in Pt IVC proceedings where application of s 136AD(1) disputed. Practice - Particulars - Pt IVC of the Administration Act - Appellants sought particulars of matters taken into account by Commissioner - Proper role of particulars in Pt IVC proceedings - Whether appellants entitled to particulars. Words and phrases - "arm's length consideration", "excessive", "international agreement", "profit shifting motive", "substantive liability", "tax avoidance purpose". Income Tax Assessment Act 1936 (Cth), ss 136AC, 136AD, 136AF. Taxation Administration Act 1953 (Cth), s 14

Copyright Agency Ltd v New South Wales Intellectual property - Copyright - Crown use - Statutory licence scheme - Where survey plan lodged for registration at Lands and Property Information Division of Department of Lands (NSW) - Surveyor owned copyright in survey plan - Once registered, survey plan reproduced and communicated to the public for the services of the State of New South Wales - Whether statutory licence scheme in Copyright Act 1968 (Cth), Pt VII, Div 2 applied to authorise State to reproduce survey plan and communicate it to the public, and provided for terms upon which those acts could be done - Whether surveyor taken to have impliedly licensed reproduction and communication to the public of survey plan apart from statutory licence scheme - Comparison with provision for Crown use in foreign jurisdictions. Words and phrases - "Crown use", "equitable remuneration", "for the services of the State", "implied licence". Copyright Act 1968 (Cth), Pt VII, Div 2.

Courts - Appeal - Jurisdiction - Supreme Court of New South Wales (Court of Appeal) - Civil and criminal contempt of court - Character of contempt charged - Whether civil or criminal - Whether appeal to Court of Appeal precluded by findings and orders of primary judge acquitting alleged contemnors. Contempt of court - Where implied undertaking by corporate litigant not to use documents prepared by another party otherwise than for purpose of proceedings in which they were prepared - Whether appellants as servants and agents of corporate litigant bound by obligation - Meaning of "implied undertaking" - Whether knowledge of implied undertaking required or whether knowledge of facts generating an obligation imposed by law sufficient. Contempt of court - Supreme Court Act 1970 (NSW), s 101(6) - Whether breach of implied undertaking civil or criminal contempt - Whether statement of charge precluded appeal to New South Wales Court of Appeal. Contempt of court - Disclosure of documents filed in but not yet received in evidence by court - Whether implied undertaking attached to documents that they would not be disclosed to third parties without leave of court - Where documents disclosed to Minister, a member of Parliament, and staff whether such disclosure protected by law of Parliament - Whether such disclosure protected by public interest defence based upon right of communication with Parliament - Whether such questions should or could be decided by Court on basis of grounds of appeal and in face of disclaimer by alleged contemnors. Contempt of court - Implied undertaking not to disclose documents filed in court until received in evidence - Whether implied undertaking now a substantive rule of common law - Whether applicable law should be re-expressed - Whether such questions should or could be decided. Parliament - State Parliament (NSW) - Privileges of - Contempt of - Whether provision of documents to Minister, a member of Parliament, within privileges of Parliament or public interest defence based thereon - Whether such questions could or should be decided in light of record and arguments of parties. Words and phrases - "implied undertaking". Supreme Court Act 1970 (NSW), s 101(6). Supreme Court Rules 1970 (NSW), Pt 55 r 7.

Administrative law - Freedom of information - Exempt documents - Freedom of Information Act 1982 (Vic), s 50(4) empowered Tribunal to decide access should be granted to exempt documents if of opinion that public interest required access to be granted - Whether, in circumstances of this matter, Court of Appeal erred in concluding no basis for Tribunal to exercise power, when Court of Appeal did not examine documents. Practice and procedure - Legal professional privilege - Waiver - Legal advice obtained in relation to petition for exercise of prerogative of mercy - Whether issue of press release disclosing existence and effect of advice inconsistent with maintenance of confidentiality in content of advice. Words and phrases - "legal professional privilege", "mercy", "pardon", "public interest", "public interest override", "waiver". Freedom of Information Act 1982 (Vic), ss 30, 32, 50(4).

Contract - Illegality - Statute not complied with - Appellant franchisor contravened cl 11(1) of Franchising Code of Conduct ("Code") in entering into franchise agreement with respondent franchisee - Section 51AD of Trade Practices Act 1974 (Cth) ("TPA") provided that applicable industry codes must not be contravened by corporations in trade or commerce - Court of Appeal of New South Wales held franchise agreement to be unenforceable due to illegality at common law arising from contravention of Code and s 51AD - Whether contravention of Code and s 51AD resulted in illegality and unenforceability of franchise agreement - Whether legislative purpose of Pt IVB of TPA could be fulfilled without franchise agreement being unenforceable in light of remedies available in Pt VI for contravention of s 51AD. Words and phrases - "code of conduct", "franchise agreement", "illegality". Trade Practices Act 1974 (Cth), s 51AD, Pt IVB. Trade Practices (Industry Codes - Franchising) Regulations 1998 (Cth), Sched, cl 11.

Imbree v McNeilly Negligence - Standard of care - Definition of standard - Where unskilled and inexperienced driver with passenger who, aware of driver's lack of skill and experience, has undertaken to supervise driving - Whether "special relationship" between driver and supervising passenger such that standard of care required of driver in respect of supervising passenger is merely care reasonably to be expected of unqualified and inexperienced driver in the circumstances, rather than care to be expected of a reasonable driver - Whether Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 should still be followed. Negligence - Standard of care - Relevance of compulsory third party insurance to definition of standard of care in negligence in motor vehicle context. Insurance - Motor vehicles - Compulsory third party insurance - Compulsory provisions applicable throughout Australia - Relevance of such insurance to definition of standard of care in negligence in motor vehicle context - Whether such insurance immaterial to standard of care to be expected of learner driver - Whether common law of negligence affected in relevant way by existence of compulsory third party insurance. Words and phrases - "compulsory third party insurance", "duty of care", "proximity", "special relationship", "standard of care". GLEESON CJ. I have had the benefit of reading in draft form the reasons for judgment of Gummow, Hayne and Kiefel JJ. I agree with the orders proposed by their Honours, and with their reasons for those orders. The relationship that was said in Cook v Cook[1] to be special, and to require a departure from the normal objective standard of care, was that "between a driver who is known to be quite unskilled and inexperienced and a passenger who has voluntarily undertaken to supervise his or her driving efforts."[2] The injured passengers in Cook v Cook, Nettleship v Weston[3], and the present case, were not professional or qualified teachers. The occasion for the supervision was purely social. In practice, many, perhaps most, supervisors of learner drivers are relatives or friends acting in a voluntary capacity. In this case, as in Cook v Cook, the driver needed the supervising passenger's permission to drive the car. That permission was given subject to a stipulation that the driver should not exceed a certain speed. That is not uncommon. The ordinary traffic laws impose speed limits on inexperienced drivers. It is a basic precaution often adopted in informal situations of instruction or supervision. There may be any number of ways in which personal attributes, permanent or temporary, may affect a driver's capacity to exercise care for the safety of others. Knowledge of such attributes may be relevant to contributory negligence, or to a defence of voluntary assumption of risk, but the fact of such knowledge is not normally treated as a defining aspect of the circumstances, so as to modify the care that is required as a legal obligation. It was not so treated by the plurality in Cook v Cook. What, then, of the additional factor of undertaking supervision of an inexperienced driver? In the view of the plurality in Cook v Cook, even though all the passengers in a car may be aware of a driver's inexperience, it is generally only the supervising passenger to whom the lower standard of care is owed[4]. I say "generally" because the reasons in Cook v Cook[5] say that in rare cases the relationship between driver and passenger may fall into the special category postulated. There is nothing rare about a passenger knowing that a driver is inexperienced. There are, however, degrees of inexperience. In the ordinary case, the central feature of the relationship between the driver of a car and all the passengers, including a supervisor, is the vulnerability of the passengers. (An extraordinary case may be, for example, one in which the driver is driving under the legal or practical compulsion of the passenger.) The driver of a car has the capacity to cause death or serious injury because of the nature of the activity undertaken. If a passenger fails to take reasonable care for his or her own safety, the principles of contributory negligence apply. According to the argument for the respondents, logic demands recognition that a person who is being supervised by another owes a lower standard of care to the supervisor than to anybody else. The appellant's case is that logic demands no more than a recognition that, depending upon the circumstances, the supervisor may be more likely than others to be affected by contributory negligence. The second seems to me the better view. It will be necessary to return to the separate reasons of Brennan J in Cook v Cook. Those reasons attached decisive significance, not to the passenger's having undertaken to supervise the driver, but to the passenger's knowledge that the driver was inexperienced[6]. It appears that, in the present case, Brennan J would not have distinguished, in terms of the standard of care, between the various passengers, all of whom knew of the driver's lack of experience. Underlying the plurality reasons was a question of the relevance of skill to care. Taking care for the safety of another may involve the exercise of skill, caution, alertness, physical mobility and other qualities. These may interact. They may be missing, or temporarily or permanently diminished, to a greater or lesser degree. In the first edition of Sir Frederick Pollock's The Law of Torts[7], the learned author said: "Due care and caution ... is the diligence of a reasonable man, and includes reasonable competence in cases where special competence is needful to ensure safety." If an activity, in order to be performed safely, requires a certain degree of skill, undertaking the activity without the requisite skill may itself be a form of negligence[8]. While the ability to drive a motor car is nowadays a common skill, it requires a degree of technical competence. This is recognised by legislation, in all parts of Australia, which regulates learning to drive. Under such legislation, an unrestricted licence to drive is gained only over time, and by degrees, and the restrictions to which a holder of a restricted licence may be subject may include such matters as speed and alcohol consumption. It was not suggested in this case (or in Cook v Cook or in Nettleship v Weston) that the negligence of the driver consisted in undertaking the driving in the first place. There may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent. Where that would leave an instructor, or supervisor, or other passenger, who directed or permitted the act is not the present problem. According to the circumstances, it could mean that there is no duty of care, or voluntary assumption of risk, or a high degree of contributory negligence, or an absence of causation. In a case, like the present, where it is not claimed that there was such a degree of incompetence, resulting from inexperience, as to make taking control of the vehicle itself an act of negligence, then the hypothesis is that the driver, although inexperienced and potentially reliant on advice and information, was capable of driving the vehicle safely. In fact, in this case the first respondent drove safely for a substantial distance. In some respects, it may have been reasonable to expect him to be more cautious than an experienced driver. It was foreseeable that circumstances might arise in which his lack of experience would increase the risk of an accident. Yet he chose to drive. He thereby took on the capacity to cause death or serious injury to his passengers and others, and the legal responsibility that went with it. Inexperience is one of many attributes that may affect a driver's ability to avoid danger. As was pointed out by counsel for the appellant, a visitor from overseas, who had never previously driven on the left side of the road, or across a desert, may be described as inexperienced if placed in the same situation as the driver in this case. Many other factors may cause impairment of driving skills, in varying degrees. The question is whether, as a matter of legal principle, there is sufficient reason to single out inexperience, or to treat the relationship between an inexperienced driver and a supervisor as modifying the ordinary, objectively expressed, standard of care. To describe a case as special, or exceptional, implies existence of a principle by which it can be recognised, and distinguished from the ordinary. The plurality reasons in Cook v Cook accepted that, as a general rule, the standard of care owed by a driver to someone who might foreseeably be injured by lack of care is objective and impersonal, and is not modified by the personal attributes of the driver, which might include age, skill, alertness, physical or mental health, sobriety or even aspects of temperament, some of which, in the case of the one driver, may alter, perhaps over a short time. This is so because the care that is reasonably required of the driver of a car is a product of the harm that can result from failure to exercise care, and because the alternative would be an infinitely variable standard, responding to the particular combination of attributes possessed by a driver at any given time[9]. It was concluded in Cook v Cook[10] that, because the absence of skill, or experience, was the reason for the instruction or supervision that was undertaken, it was irrational to impose a standard of care owed by the driver to the instructor or supervisor that was not modified to take account of the lack of skill or experience. That, with respect, is not at all obvious. The factors described as special may be significant, in a given case, for issues such as the existence of a duty of care, contributory negligence, voluntary assumption of risk, or causation. Given, however, that it is accepted that the driver owes a duty to the supervisor to take reasonable care for the supervisor's safety; given the wide variability in degrees of inexperience; and given the interaction of experience, or lack of it, with other personal attributes that bear upon safe driving, it is not irrational to impose an objective standard of care rather than to attempt to adjust the standard of care to the level of experience of an individual driver. An alternative view, preferred by Brennan J in Cook v Cook, is that knowledge that the driver was inexperienced (in this case, a knowledge shared by all the passengers) is the key factor, with the result that the standard of care is "the standard of an inexperienced driver of ordinary prudence."[11] This approach, however, also raises the difficulty mentioned above. In Nettleship v Weston[12], Megaw LJ pointed to the problem of complex and elusive factors that might affect a particular person's ability to take care. I see no answer to the problem. It may be demonstrated by reference to The Insurance Commissioner v Joyce[13]. Dixon J, in successive sentences[14], referred to a "drunken driver" and a "driver affected by drink". It is now generally accepted that even a modest amount of alcohol may cause impairment of a driver's capacity, and the extent of the impairment may vary with other attributes of the driver, perhaps including experience. The difficulty of applying a standard of an inexperienced driver of ordinary prudence is shown by the decisions at trial and in the Court of Appeal in this case. Four judges, bound by authority to apply that standard, and to work out the extent to which the accident was the result of inexperience, as compared with some other deficiency, produced four different results. I agree with Gummow, Hayne and Kiefel JJ that Cook v Cook should not be followed, for the reasons and with the consequences they assign. It was not argued for the appellant that a reason for not following Cook v Cook is that the respondents were insured under a statutory scheme of compulsory insurance. Nor was there any argument about whether it would have made a difference if the respondents had been voluntarily insured, or uninsured, or if their insurer had become insolvent[15]. The insurance that applied was, of course, insurance against legal liability for negligence. The statutory insurance regime operated upon - it did not create - the legal liability. Schemes of compulsory insurance for third party liability in motor accidents are not new. They existed at the time of Cook v Cook, and for a long time before then. It is useful to consider the detail of Lord Denning MR's reasoning in Nettleship v Weston[16] in this respect. His Lordship examined the responsibility of a learner driver towards an instructor after first having discussed three other aspects of the driver's responsibility: his or her responsibility in criminal law; his or her responsibility to other persons on or near the highway; and his or her responsibility towards passengers in the car. His Lordship was addressing a matter of legal coherence[17]. As to the learner driver's responsibility in criminal law, insurance had nothing to do with it. In that respect, as his Lordship noted, it is no defence for a learner to be doing his or her incompetent best[18]. As to the learner driver's responsibility to persons on or near the highway, his Lordship again noted that it is no excuse that a defendant was only a learner. There was no attenuation of the duty of care. It was in that connection that his Lordship referred to the "high standard" imposed largely as "the result of the policy of the Road Traffic Acts."[19] In that part of his reasons his Lordship refers to five decided cases. The first[20] was a case about negligent management of a tea room. The second[21] was a case of damage caused by a skidding car. There is no reference to insurance, or to the policy of any legislation. The third[22] was a case of a pedestrian whose arm was bruised, coat torn, and shopping bag damaged by the protruding handle of a motor van. There was "abundant evidence"[23] of negligence of the driver. The plaintiff was awarded £10 damages. Again there was no reference to insurance, or the policy of any legislation. The fourth[24] was an Admiralty case about a collision between ships. There was no reference to insurance. The fifth[25] was a case of personal injuries resulting, not from negligent driving, but from brake failure of an inadequately maintained lorry. There was no reference to insurance. None of the motor vehicle cases referred to indicated, and none of them acknowledged, any "high standard", or addressed the problem of the inexperienced learner. Quite apart from those cases, however, his Lordship undoubtedly was correct to say that a learner's responsibility towards persons on or near the highway is not attenuated. The learner cannot say: "I was doing my best and could not help it." Having regard to the capacity of a motor vehicle to cause harm, and the vulnerability of others on or near the highway, that can be explained by considerations other than compulsory insurance. Indeed, it is probably the other way around: the capacity of a driver to injure others explains compulsory insurance. What is of present significance is that his Lordship referred to the policy of the Road Traffic Acts as a reason for requiring a high standard of care of drivers, not as a reason for declining to differentiate between learner drivers and others. His Lordship then went on to consider the responsibility of a learner driver towards passengers in the car, and again observed that the standard of care was objective[26]. Having done all that, his Lordship asked whether the care owed to a passenger who was also an instructor was less than the care owed according to the criminal law, or the care owed to people on or near the highway, or the care owed to other passengers. He answered that question in the negative, without further reference to insurance[27]. The respondents in the present case appeared to accept that the standard of care owed by an inexperienced driver to other people on or near the highway, and to passengers in the car, except the supervising passenger, is objective. The question of principle to be decided is whether the position is different in relation to the supervising passenger. The problem of the objectivity of the standard of care of an inexperienced person, or the comparative standards of care owed by an inexperienced person, or a person suffering from some other form of disability or impairment, and an "ordinary" person, is not one peculiar to the drivers of motor vehicles that are subject to a scheme of compulsory third party insurance. A similar problem would arise in many other contexts, where there is no compulsory insurance. If the answer to the problem in the present case depends upon the existence of compulsory insurance, then presumably a different answer would, or at least may, be given in a case where there is no compulsory insurance. The result is both "morally incoherent", as Professor Stapleton described it[28], and productive of legal confusion. The law governing the legal rights and obligations of motorists in all parts of Australia, although it varies significantly between different jurisdictions, is a combination of common law and statute. In some jurisdictions, common law principles as to damages have been replaced by detailed statutory regulation. Without doubt, insurance is a major factor in the practical operation of the law of negligence as it applies to motor vehicle accidents, and the various schemes governing insurance against third party liability, some of which include government regulation of the market, reflect legislative policy of great social importance. It may be that Lord Denning understated the position when he said that the standard of care expected of drivers reflected legislative policy. It may be fair to say that, without the availability of reasonably affordable insurance, the application of the principles of the common law of negligence to the risks involved in driving a motor vehicle would mean that few people would drive. The common law makes a defendant liable for all the harm of which his or her negligence is a cause, however slight the moral culpability involved in the negligence, and however extensive the harm. Momentary inattention can be a cause of harm for which few motorists could afford to pay compensation. In the present case, the damages of the appellant were assessed at $9,563,731. The Australian States and Territories have not followed the New Zealand example of dealing with the problem as an issue of social security. The common law continues to apply, but with a heavy overlay, varying in its detail, of statutory prescription and modification. Compulsory third party insurance is one aspect of that overlay. The question in the present case is one of common law principle. Is the standard of care owed by an inexperienced driver to a supervising passenger the same objective standard as that owed to third parties generally? That is a matter that could be regulated by statute[29]. There is no legislation relevant to these proceedings that touches the point. If the existence of a scheme of compulsory third party insurance is a reason for giving an affirmative answer, and not merely a basis for an inclination to be pleased with such an answer, then there must be a principled explanation for that. If it were not for insurance, the common law would operate with intolerable harshness in its application to driving. That is a sound reason in public policy for legislative intervention. If it were not for third party insurance, it may be assumed that the first respondent would not have been permitted, and (at least if well informed) would not have dared, to drive at all on the occasion in question. Such insurance does not, however, provide a step in a process of reasoning towards an answer to the particular question that arises for decision in this appeal. I agree that the appeal should be allowed, and consequential orders made as proposed by Gummow, Hayne and Kiefel

Deputy Commissioner of Taxation v MA Howard Racing Pty Ltd Deputy Commissioner of Taxation v Neutral Bay Pty Ltd Corporations law - Winding up in insolvency - Statutory demand - Corporations Act 2001 (Cth) ("Corporations Act"), s 459H(1) provided for setting aside of statutory demand where genuine dispute about existence or amount of debt - Deputy Commissioner of Taxation served statutory demands on respondent taxpayers in respect of debts - Debts were due and payable for assessments and declarations of goods and services tax, income tax, interest and penalties - Taxpayers instituted review proceedings under Taxation Administration Act 1953 (Cth) ("Administration Act"), Pt IVC and applied to Supreme Court under Corporations Act, s 459G to set aside statutory demands - Whether pending Pt IVC proceedings constituted "genuine dispute ... about the existence or amount of a debt" within meaning of s 459H(1)(a) - Whether primary judge erred in setting aside statutory demands. Corporations law - Winding up in insolvency - Statutory demand - Discretion to set aside statutory demand for "some other reason" in Corporations Act, s 459J(1)(b) - Scope of discretion - Whether pendency of Pt IVC proceedings proper basis for exercise of discretion - Whether disruption to taxpayers, creditors and contributories proper basis for exercise of discretion - Relevance of provision in Administration Act for recovery of tax while Pt IVC proceedings pending. Taxation - Recovery of tax - Scope of application of Corporations Act, Pt 5.4 to recovery of tax "debt" - Special character of tax "debts" as creatures of statute - Effect of conclusive evidence provisions in Administration Act, Sched 1, ss 105-100 and 298-30 and Income Tax Assessment Act 1936 (Cth), s 177(1) - Whether position different for "full self-assessment taxpayer" - Concession of Deputy Commissioner that pendency of Pt IVC proceedings relevant to hearing of winding up application. Words and phrases - "assessment", "debt", "full self-assessment taxpayer", "genuine dispute ... about the existence or amount of a debt", "some other reason", "tax debt", "tax-related liability". Corporations Act 2001 (Cth), Pt 5.4, ss 459G, 459H, 459J, 459S. Taxation Administration Act 1953 (Cth), ss 14ZZM, 14ZZR, Sched 1 ss 105-100, 255-5, 298-30. Income Tax Assessment Act 1936 (Cth), ss 177(1), 208, 209.

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand Trusts - Trustees - Judicial advice - Charitable trust - Entitlement of trustee to advice that it would be entitled to defend itself against allegations of breach of trust - Entitlement of trustee to advice that it could fund its defence from trust property. Trusts - Trustees - Judicial advice - Power of Supreme Court - Trustee Act 1925 (NSW), s 63(1) - Limitations on power to give advice - Nature of advice - Power to revoke order providing advice - Effect of revocation. Trusts - Trustees - Judicial advice - Factors relevant to discretion of Supreme Court to give advice under s 63 of Trustee Act 1925 (NSW) - Whether advice in best interests of trust - Whether trustee's financial position irrelevant - Whether Court required expressly to undertake exercise balancing advantages to trust in giving advice against disadvantages - Relevance of adversarial character of proceedings. Charities - Trustees - Judicial advice - Relevance of public benefit in giving advice. Practice and Procedure - Appeal from discretionary decision - Necessity of intermediate appellate court identifying particular House v The King [1936] HCA 40; (1936) 55 CLR 499 error - Whether error shown where trial judge said not to "expressly" consider particular matters not put at trial. Words and phrases -"all expenses incurred", "question respecting the management or administration of the trust property". Rules of Supreme Court 1883 (UK), O 55 r 3. Trustee Act 1925 (NSW), ss 59(4), 63, 85, 93(3).

Dowe v Commissioner of the New South Wales Crime Commission Criminal law - Evidence - Unlawfully obtained - Part IAB of Crimes Act 1914 (Cth) ("Crimes Act") provided that person not liable for offences under Commonwealth, State or Territory law committed for purpose of controlled operation - Section 15M of Crimes Act provided for issue of certificate authorising controlled operation if authorising officer reasonably satisfied that, inter alia, unlawful activity in course of controlled operation would not seriously endanger health or safety of person - Section 16 of Law Enforcement (Controlled Operations) Act 1997 (NSW) ("LECO Act") provided that activity for purpose of controlled operation not unlawful despite other Act or law - Section 3(1) of LECO Act defined "controlled activity" as activity that would be unlawful but for operation of s 16 - Section 7 of LECO Act provided that authority to conduct controlled operation must not be granted if, inter alia, participant in proposed operation would engage in conduct likely to seriously endanger health or safety of person - Section 138 of Evidence Act 1995 (NSW) conferred upon trial judges discretion to exclude evidence obtained illegally. Criminal law - Evidence - Unlawfully obtained - Commissioner issued authorities ("Authorities") under LECO Act authorising controlled operations - No authorities issued under Pt IAB of Crimes Act - Authorities authorised informer to sell cocaine to applicants - Cocaine not recovered by law enforcement officers - Applicants charged with taking part in supply of prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW). Criminal law - Evidence - Unlawfully obtained - Whether Commissioner had power to issue Authorities where sale of cocaine without recovery strategy was decided at trial or upon judicial review to seriously endanger health or safety of person - Whether reference to "any other person" in s 7 of LECO Act confined to person in physical vicinity of authorised conduct or extended to person subject to foreseen and expected consequence of proposed controlled operation - Whether "controlled activity" within meaning of LECO Act extended to conduct unlawful by reason of contravention of Commonwealth law. Judgments and orders - Judicial review - Declarations - Whether jurisdiction to entertain application to declare Authorities invalid - Whether discretion to do so should be exercised - Matters bearing on appropriateness of making declaration touching conduct of criminal proceedings. Words and phrases - "controlled operation", "declarations", "seriously endanger health or safety". Law Enforcement (Controlled Operations) Act 1997 (NSW). Crimes Act 1914 (Cth).

Aboriginals - Land rights - Whether land "claimable Crown land" under s 36(1) of Aboriginal Land Rights Act 1983 (NSW) ("Land Rights Act") - Whether land "lawfully used or occupied" under s 36(1)(b) of Land Rights Act - Whether steps taken preparatory to intended sale of land constituted lawful use and occupation of land. Statutes - Construction - Meaning of "lawfully used or occupied" - Whether "lawfully used or occupied" is compound expression with single meaning - Whether "used" and "occupied" to be considered separately - Meaning of "use" - Meaning of "occupied". Statutes - Construction - Meaning of "lawfully used or occupied" - Whether Land Rights Act to be interpreted beneficially and remedially - Whether reliance on beneficial and remedial purpose of Land Rights Act necessary and useful to resolve contested question of interpretation of Land Rights Act. Words and phrases - "claimable Crown lands", "lawfully used or occupied", "use", "occupied". Aboriginal Land Rights Act 1983 (NSW), s 36(1)(b).