Cases and authorities

Intellectual property - Patents - Infringement - Contributory infringement - Respondents owned patent for methods of producing oils from species of a particular genus of tree - Appellant Territory licensed third party ("ACOC") to enter Crown land and remove timber from trees of this species - Patents Act 1990 (Cth), s 117(1) provided that, if "use of a product by a person" would infringe a patent, "supply" of that product by one person to another was an infringement by supplier - Respondents alleged Territory infringed patent by supply of timber to ACOC - Relationship between exclusive rights to exploit patent and s 117 - Meaning of "product" in s 117 where patent said to be infringed is for method or process - Whether "product" confined to product that itself results from use of a patented method or process. Intellectual property - Patents - Infringement - Contributory infringement -Meaning of "supply" in s 117 - Whether grant of licences to sever and take timber from Crown land constituted "supply" of timber by Territory for purposes of s 117(1) - Relevance of classification of interest of ACOC as realty or personalty. Intellectual property - Patents - Infringement - Contributory infringement -Section 117(2)(b) provided that "use of a product by a person" in s 117(1) meant "any use" if product was not a "staple commercial product" - Meaning of "staple commercial product" - Whether timber taken by ACOC under licences a "staple commercial product". Words and phrases - "exploit", "method or process", "product", "staple commercial product", "supply", "use of a product by a person". Patents Act 1990 (Cth), ss 13, 117 and Sched 1.

Citizenship and migration - Visa - Spouse visa - Non-judicially determined claim of domestic violence - Grant of relevant permanent visa required visa applicant to remain spouse of sponsor at time of grant - Exception where relationship had ceased and visa applicant had suffered domestic violence committed by sponsoring spouse - Minister's delegate not satisfied applicant was spouse of sponsor - Grant of visa refused - After Minister's refusal, applicant claimed to have suffered domestic violence - Timing of claim - Whether domestic violence exception can be engaged where applicant first raises domestic violence claim in application to Migration Review Tribunal ("Tribunal") for review of Minister's refusal - Whether Div 1.5 of Migration Regulations 1994 (Cth) ("Regulations") applies to review by Tribunal or confines criteria for grant of visa to claims before original decision-maker. Citizenship and migration - Visa - Spouse visa - Non-judicially determined claim of domestic violence - Conduct of review by Tribunal - Tribunal to exercise powers and discretions conferred by Migration Act 1958 (Cth) ("Act") on Minister - Under Div 1.5 of Regulations, Minister must be satisfied applicant suffered domestic violence - If not satisfied, Minister must take opinion of independent expert as correct - Whether Tribunal can reach state of non-satisfaction without permitting applicant to appear before Tribunal to give evidence and present arguments under s 360 of Act - Whether review conducted in accordance with requirements of Div 5 of Pt 5 of Act - Whether opinion of independent expert dispositive. Words and phrases - "non-judicially determined claim of domestic violence", "not satisfied", "relevant domestic violence", "spouse". Migration Act 1958 (Cth), ss 348, 357A(1), 359, 360. Migration Regulations 1994 (Cth), reg 1.15A, Div 1.5, Sched 2 cl 100.221.

Torts - Causation - Road accident - Whether road deceptive due to defendants' maintenance - Whether driver error constituted contributory negligence - Whether driver error sole cause of accident. Courts - Jurisdiction and powers on appeal - Court of Appeal of Supreme Court of New South Wales - Whether rehearing under Supreme Court Act 1970 (NSW), s 75A(5) properly conducted - Whether failure to conduct real review of trial. Courts - Jurisdiction and powers on appeal - Court of Appeal of Supreme Court of New South Wales - Conduct of rehearing - Whether evidence and trial judge's findings adequately considered - Whether original photographs relied upon - Whether inconsistent evidence taken into account. Words and phrases - "appeal", "rehearing". Supreme Court Act 1970 (NSW), s 75

Cesan v The Queen Mas Rivadavia v The Queen Criminal law – Appeals – Trial judge asleep for periods during trial – Whether "miscarriage of justice" under Criminal Appeal Act 1912 (NSW), s 6(1) – Whether consequences of conduct of trial judge a departure from proper conduct of trial – Whether trial judge exercised sufficient supervision and control over trial process to ensure jury paid attention to evidence – Whether supervision and control over trial so indispensable to trial by jury that failure itself gives rise to miscarriage of justice – Whether trial judge's conduct distracted jury from attending to evidence – Whether distraction of jury resulted in miscarriage of justice – Whether appearance of unfairness sufficient to constitute miscarriage of justice – Duties of trial judge and counsel in trial by jury. Criminal law – Appeals – Proviso – Whether no substantial miscarriage of justice actually occurred – Demonstration to appellate court from record of trial that accused guilty beyond reasonable doubt necessary but not sufficient condition for application of proviso – Natural limitations of appellate court acting on record of trial – Relevance of letter sent to trial judge by accused, after jury returned guilty verdict, but before sentence passed, to determining whether there was no substantial miscarriage of justice. Words and phrases – "miscarriage of justice", "substantial miscarriage of justice". Criminal Appeal Act 1912 (NSW), s 6(1).

Income tax – Allowable deductions – Respondent taxpayer incurred legal expenses in defending charges under the Public Service Act 1922 (Cth) – Income Tax Assessment Act 1997 (Cth) ("ITAA"), s 8-1(1) allowed deductions from assessable income of losses or outgoings incurred "in gaining or producing ... assessable income" – Whether legal expenses incurred "in gaining or producing" assessable income – Connection requisite – What is productive of income. Public service – Disciplinary procedures – Standards of conduct required of an "officer" of the Australian Public Service ("the Service") – Role and duties of officer of the Service – Relevance of incidents of public office to whether legal expenses incurred in gaining or producing assessable income. Income tax – Allowable deductions – ITAA, s 8-1(2) provided that losses or outgoings of "private or domestic nature" could not be deducted – Whether legal expenses incurred by respondent of private nature. Words and phrases – "deductibility", "incurred in gaining or producing ... assessable income", "in the course of", "legal expenses", "private or domestic nature". Income Tax Assessment Act 1997 (Cth), s 8-1. Public Service Act 1922 (Cth), Pt III, Div 6.

Private international law - Stay of proceedings - Forum non conveniens - Governing law - Law of the place of the tort - Whether place of the tort was New Zealand, where holding company of employer based, or in Malaysia and Belgium, where employee inspected factories owned by third parties and inhaled asbestos fibres - Whether material available on stay application sufficient to enable court to determine governing law - If governing law cannot be determined, how should discretion to grant stay be exercised. Private international law - Stay of proceedings - Forum non conveniens - Whether test in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 correct or to be re-opened. Private international law - Stay of proceedings - Forum non conveniens - Meaning of "clearly inappropriate forum" - Whether fact that governing law is foreign law, coupled with other factors suggesting foreign forum more appropriate, sufficient to render Victorian court clearly inappropriate forum - Additional considerations where foreign law in question is law of New Zealand. Private international law - Governing law - Importance of pleading foreign law clearly and with appropriate particulars. Words and phrases - "clearly inappropriate forum", "forum non conveniens", "governing law", "lex causae", "lex loci delicti", "place of the tort".

Commissioner of Taxation of the Commonwealth of Australia v Word Investments Ltd Taxation – Income tax – Charities – Entity engaged in investment business and funeral business – Profits distributed to religious organisations – Whether entity exempt from income tax as "charitable institution" – Income Tax Assessment Act 1997 (Cth), ss 50-1, 50-5, 50-50, 50-52. Taxation – Income tax – "Charitable institution" – Whether sufficient for entity to have solely charitable purposes – Whether necessary for entity to engage in charitable activities directly – Whether necessary that distributed profits applied for charitable purposes. Taxation – Income tax – "Charitable institution" – Whether entity's objects in fact confined to charitable purposes. Taxation – Income Tax – Special condition for "charitable institution" income tax exemption – Income Tax Assessment Act 1997 (Cth), s 50-50(a) – Whether entity has physical presence in Australia – Whether entity "incurs its expenditure and pursues its objectives principally in Australia". Words and phrases – "charitable institution", "incurs its expenditure and pursues its objectives principally in Australia", "institution". Income Tax Assessment Act 1936 (Cth), s 23(e), (j). Income Tax Assessment Act 1997 (Cth), ss 50-1, 50-5, 50-50, 50-52, 50-55, 50-57, 50-60, 50-65, 50-105, 50-110, 50-115, 50-140, 50-145, 50-155.

Criminal law - Jurisdiction, practice and procedure - Bail - Bail pending application for special leave to appeal.

Constitutional law – High Court – original jurisdiction – defence power – military justice system – application for show cause order – whether arguable – notice to Attorneys-General – Judiciary Act 1903 (Cth), s 78B – requirement of notice – not to include proposed argument

Criminal law – Criminal responsibility – Criminal Code (Q), s 8 provided that, where common intention to prosecute unlawful purpose, and in prosecution of such purpose offence committed of such a nature that commission was a probable consequence of prosecution of unlawful purpose, each person deemed to have committed offence – Meaning of "offence ... of such a nature" – Whether "offence ... of such a nature" limited to precise acts committed. Criminal law – Criminal responsibility – Nature of connection between unlawful purpose and offence ultimately committed – Determination of unlawful purpose – Relevance of means by which offence committed – Whether purpose may be infliction of level of harm – "Probable consequence" as objective test – Distinction between offence of such a nature that commission was probable consequence of prosecution of unlawful purpose, and precise acts that parties to common intention foresaw might be committed. Criminal law – Practice and procedure – Directions to jury – Directions required in connection with charge under s 8 – Identification of real question for jury – Relevance of R v Barlow (1997) 188 CLR 1 – Whether directions given gave rise to miscarriage of justice. Criminal law – Practice and procedure – Directions to jury – Whether circumstances required direction that jury can only find, by inference, element of offence charged if no other inference favourable to accused reasonably open on facts – Standard of proof. Criminal law – Practice and procedure – Directions to jury – Whether circumstances required that alternative charge of grievous bodily harm simpliciter be put to jury – Whether failure to put alternative charge to jury constituted miscarriage of justice. Criminal law – Practice and procedure – Where alleged miscarriage arising from jury direction – Appropriate course on appeal – Whether Court of Appeal should have ordered new trial rather than entering verdict of acquittal. Words and phrases – "common intention", "common purpose", "offence of such a nature", "probable consequence", "unlawful purpose". Criminal Code (Q), ss 2, 7, 8, 10

Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Whether power to make laws for government of Territory under s 122 of Constitution limited by s 51(xxxi) – Scope of application of s 51(xxxi) where law of dual character – Relevance of notion of "abstraction" of power of acquisition of property from other powers – Whether Teori Tau v The Commonwealth [1969] HCA 62; (1969) 119 CLR 564 should be overruled or departed from – Circumstances in which previous constitutional decision should be overruled. Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Northern Territory National Emergency Response Act 2007 (Cth) ("Emergency Response Act"), Pt 4 provided for grant of leases of land in Northern Territory to Commonwealth, including land at Maningrida ("Land") – Second defendant ("Land Trust") held estate in fee simple in Land for benefit of Aboriginals pursuant to Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") – Whether grant of Commonwealth lease an acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution – Nature of estate in fee simple under Land Rights Act – Circumstances where acquisition of property rights of statutory origin – Whether no acquisition of property because rights of Land Trust inherently susceptible to statutory modification. Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Land Rights Act, s 71 conferred entitlement on first and second plaintiffs to enter upon, use or occupy Land in accordance with Aboriginal tradition – Whether s 71 entitlements diminished by grant of Commonwealth lease or preserved by s 34 of Emergency Response Act so that no acquisition of any property constituted by those entitlements – Whether Commonwealth empowered by s 37 of Emergency Response Act to terminate s 71 entitlements – Relationship between Pt 4 of Emergency Response Act and offence of entry onto sacred sites in s 69 of Land Rights Act – Whether "property" includes traditional rights required by the general law – Use of international legal materials. Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Saving provision – Emergency Response Act, s 60 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied – Reasonable compensation determined, absent agreement, by court – Meaning of "just terms" – Whether Emergency Response Act, s 60 afforded "just terms" or mere "contingent rights" – Whether acquisition of non-compensable interests – Whether no just terms absent express provision for interest – Whether "just terms" extend to consultation requirement – Relevance of requirement for court to consider Commonwealth-funded improvements. Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) ("FCSIA Act"), Sched 4, Items 12 and 15 amended Land Rights Act by inserting provisions conferring certain rights of access to Land – Whether FCSIA Act resulted in acquisition of Land Trust property for purposes of s 51(xxxi) of Constitution. Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Saving provision – FCSIA Act, Sched 4, Item 18 made Commonwealth liable to pay reasonable compensation for acquisitions of property to which s 51(xxxi) applied – Reasonable compensation determined, absent agreement, by court – Whether FCSIA Act, Sched 4, Item 18 afforded "just terms". Practice and procedure – Demurrer – Function and purpose of demurrer – Extent to which facts expressly or impliedly averred in statement of claim might be taken as admitted for purposes of demurrer. Practice and procedure – High Court – Amicus curiae – Criteria for acceptance of submissions. Words and phrases – "acquisition of property", "fee simple", "for the benefit of", "just terms", "property". Constitution, ss 51(xxxi), 122. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 4, 12, 69, 70, 71. Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth), Sched 4, Items 12, 15, 18. Northern Territory National Emergency Response Act 2007 (Cth), ss 31, 32, 34-37, 50, 52, 60-62.

Wong v Commonwealth of Australia Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Provision of medical and dental services (but not so as to authorize any form of civil conscription) – Meaning of "civil conscription". Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Provision of medical and dental services (but not so as to authorize any form of civil conscription) – Health Insurance Act 1973 (Cth) – Whether ss 10, 20, 20A or Pt VAA or any provision thereof amount to "civil conscription" – Meaning of "inappropriate practice" as defined in s 82(1). Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Provision of medical and dental services (but not so as to authorize any form of civil conscription) – Health Insurance Act 1973 (Cth) – Pt VAA – Professional Services Review Scheme – Whether Pt VAA invalid as imposing a form of "civil conscription" – Whether provisions imposing obligation on medical practitioners to avoid "inappropriate practice" to remain in Medicare scheme invalid. Constitutional law (Cth) – Legislative power – Constitution, s 51(xxiiiA) – Relevance of extrinsic materials and legislative history in construction of Constitution – Manner of construction where provision inserted by referendum under Constitution, s 128. Words and phrases – "civil conscription", "(but not so as to authorize any form of civil conscription)". Constitution, s 51(xxiiiA). Health Insurance Act 1973 (Cth), ss 10, 20, 20A, Pt

K-Generation Pty Ltd v Liquor Licensing Court Constitutional law (Cth) – Chapter III – Judicial power – Vesting of federal jurisdiction in State courts – Licensing Court of South Australia established under Liquor Licensing Act 1997 (SA) ("Licensing Act") – Licensing Court constituted by District Court judge – Whether Licensing Court "court of a State" within meaning of s 77(iii) of Constitution – Whether Licensing Court invested with federal jurisdiction by s 39(2) of Judiciary Act 1903 (Cth) ("Judiciary Act") – Significance of absence of express power of punishment for contempt. Constitutional law (Cth) – Chapter III – Judicial power – Vesting of federal jurisdiction in State courts – Integrity of State courts – Requirement of impartiality and independence for repository of federal jurisdiction – Licensing Act, s 28A required Licensing Court to take steps to maintain confidentiality of information classified by Commissioner of Police as "criminal intelligence" in proceedings under Licensing Act – Steps included receipt of evidence and argument in absence of parties – Whether s 28A invalid for denying Licensing Court character of independent and impartial tribunal. Statutes – Interpretation – Licensing Act, s 28A – "Criminal intelligence" defined to include information which "could reasonably be expected" to prejudice criminal investigations – Whether classification by Commissioner of Police of information as "criminal intelligence" amenable to review by Licensing Court – Whether mandatory for Licensing Court to hear evidence and argument in absence of parties. Constitutional law (Cth) – Chapter III – Judicial power – Vesting of federal jurisdiction in State courts – Integrity of State courts – Whether consequence of impairment of integrity is that Licensing Court no longer "court of a State" to which s 77(iii) of Constitution applies – Whether s 39(2) of Judiciary Act ambulatory and would cease to apply – Whether States may establish "court of a State" then subsequently deprive court of independence and impartiality. Constitutional law (Cth) – Chapter III – Judicial power – Nature of judicial power – Whether exercise by Licensing Court of judicial or administrative power. Practice and procedure – Interveners – Procedure where interveners seek remedy and assert arguments opposed by immediate parties. Words and phrases – "could reasonably be expected", "court of a State", "criminal intelligence". Constitution, Ch III, s 77. Judiciary Act 1903 (Cth), s 39. Liquor Licensing Act 1997 (SA), s 28

Criminal law – Jurisdiction, practice and procedure – Stay of proceedings – Abuse of process – Applicant convicted of wounding with intent to cause grievous bodily harm and sentenced to 7 years' imprisonment with 4 years' non-parole period – Sentence and non-parole period to commence on date applicant first taken into custody – Victim since deceased – Applicant now charged with murder after serving most of sentence for wounding with intent to cause grievous bodily harm – Generally court must impose mandatory minimum non-parole period of 20 years if convicted – Whether proceedings on information alleging murder should be permanently stayed as abuse of process – Whether administration of justice brought into disrepute – Whether prosecution for murder unjustifiably oppressive – Whether conviction for murder would constitute double punishment for conduct – Whether double punishment to be determined by reference only to non-parole period – Fixing of non-parole period. Criminal law – Jurisdiction, practice and procedure – Stay of proceedings – Abuse of process – Backdating sentence and non-parole period – Whether any double punishment alleviated or eliminated by exercise of any power to backdate – Whether non-parole period could be backdated to commence at date applicant first taken into custody – Whether "time in custody in respect of an offence" included time spent in custody for wounding with intent to cause grievous bodily harm – Whether backdating commencement of sentence for murder equivalent to ordering service of that sentence concurrently with sentence for wounding – Relevance of legislative intention. Criminal law – Jurisdiction, practice and procedure – Stay of proceedings – Abuse of process – Court must impose mandatory minimum non-parole period of 20 years unless satisfied that "special reasons" exist for fixing shorter period – Court may have regard to a plea of guilty in deciding whether "special reasons" exist – Whether applicant denied free choice about plea in answer to murder charge, because if convicted on plea of not guilty, applicant subject to mandatory minimum non-parole period, whereas if convicted on guilty plea, applicant can argue "special reasons" exist for fixing shorter non-parole period. Words and phrases – "special reasons", "time in custody in respect of an offence". Criminal Law Consolidation Act 1935 (SA), s 11. Criminal Law (Sentencing) Act 1988 (SA), ss 30, 32, 32

Practice and procedure – Appeals – Procedural fairness – Respondent issued a warrant under s 214 of Customs Act 1901 (Cth) authorising seizure of documents relating to single bottle of brandy – Officers of respondent seized documents relating to "other goods" imported within previous five years – District Court decided in In the matter of the appeal of Lawrence Charles O'Neill (unreported, District Court of New South Wales, 18 August 1988) that warrants issued under s 214 did not permit seizure of five year documents – Court of Appeal decided O'Neill "mistaken" without affording appellant opportunity to make submissions – Whether appellant denied procedural fairness in Court of Appeal – Scope of principles respecting procedural fairness in curial proceedings – Whether appellate court required to afford parties opportunity to be heard on non-binding decision. Practice and procedure – Appeals – Procedural fairness – Court of Appeal went on to decide appeal on footing O'Neill correct – Whether lack of opportunity to make submissions with respect to O'Neill caused prejudice to appellant and affected outcome in Court of Appeal. Evidence – Illegally or improperly obtained evidence – Evidence Act 1995 (NSW) ("Evidence Act"), s 138 – Respondent admitted condition precedent to execution of warrant not satisfied – Whether wilful disregard of Act in execution of warrant – Whether additional fact of seizure of five year documents relevant to exercise of discretion under s 138. Practice and procedure – Appeals – Procedural fairness – Function of appellate court upon review of exercise by trial judge of discretion under s 138 of Evidence Act. Words and phrases – "procedural fairness", "relating to the goods", "the goods". Customs Act 1901 (Cth), s 214, Sched V. Evidence Act 1995 (NSW), s 138.

Practice and procedure – Appeals – Availability of appeal where trial in District Court of New South Wales conducted with jury – Where trial judge entered "verdict" for defendant following jury's answers to questions – Whether appellant a party "dissatisfied with a Judge's ... judgment or order in an action" within meaning of District Court Act 1973 (NSW), s 127(1) – Relevance of absence in Supreme Court Act 1970 (NSW) of express provision conferring power on Court of Appeal in relation to appeals from District Court trial with jury. Practice and procedure – Appeals – Where right of appeal exists in respect of "a Judge's ... judgment or order in an action" – Relevance of cases dealing with phrase "all judgments, decrees, orders, and sentences" in Constitution, s 73. Words and phrases – "all judgments, decrees, orders, and sentences", "Judge's ... judgment or order in an action". Defamation Act 1974 (NSW), s 7A. District Court Act 1973 (NSW), ss 126, 127(1). Supreme Court Act 1970 (NSW), ss 22, 75

Contract – Damages – Lease – Tenant's covenant – Covenant not to make any substantial alteration to premises without consent – Appropriate measure of damages for tenant's breach. Contract – Damages – Lease – Principle in Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850 [154 ER 363] – Whether costs of rectification available – Whether rectification must be reasonable – Relevance of commercial character of premises – Whether landlord entitled only to damages for diminution in value of reversion. Words and phrases – "costs of repair", "rectification costs".

Family Law – Children – Family Law (Child Abduction Convention) Regulations – Whether children habitually resident in convention country immediately before retention in Australia – Relevance of past and present intentions of each parent – Relevance of habitual residence of each parent – Weighting of relevant criteria – Appropriate time for determining habitual residence. Family Law – Children – Family Law (Child Abduction Convention) Regulations – Meaning of "habitually resident" – "habitual residence" distinct from connecting factors of domicile or nationality – Whether intention decisive of habitual residence or whether consideration of wide variety of circumstances permitted – Relevance of a finding of "settled purpose" – Meaning of "settled purpose" – Whether parent ceased habitual residence in Israel without making a final decision not to return there. International law – Treaties – Interpretation – Convention on the Civil Aspects of International Child Abduction – Consistent construction of terms by courts of contracting states. Words and phrases – "habitual residence", "habitually resident", "settled intention", "settled purpose", "wrongful retention". Family Law Act 1975 (Cth), s 111B(1). Family Law (Child Abduction Convention) Regulations, regs 4, 15, 16(1A). Convention on the Civil Aspects of International Child Abduction. FRENCH CJ, GUMMOW, HAYNE, HEYDON AND KIEFEL JJ. A husband and wife, married and living in Israel, separated in September 2005. The four children of the marriage continued to live with the mother in the matrimonial home. All four children had been born in Israel but were entitled to Australian citizenship by descent from their mother[1]. In May 2006, the mother and the four children, then aged between 15 months and 8 years, travelled by air from Israel to Australia. They held return tickets to Israel for 27 August 2006. Before the mother and the children left Israel, the father knew, and accepted, that they intended to travel to Australia. The father knew, and accepted, that the mother left Israel on the footing that she would return if she and her husband were reconciled, but would not if the husband persisted in his then stated intention to live separately from her. Both before she left Israel and immediately after arriving in Australia, the mother took steps for her and her children to establish a home in this country. Just over two months after the mother and children had arrived in Australia, the husband told the mother that he wanted the children to return to Israel but that, as he had said previously, he wanted a divorce. Were the children then habitually resident in Israel? That question of habitual residence is the dispositive issue in this appeal from orders of the Full Court of the Family Court of Australia[2]. By those orders, the Full Court (Bryant CJ, Coleman and Thackray JJ) dismissed the mother's appeal against orders[3] of a single judge of the Family Court of Australia (Kay J) ordering the return to Israel of the four children pursuant to provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"). Those orders of the primary judge were made in proceedings commenced by the Director-General, Department of Community Services, as the State Central Authority appointed pursuant to reg 8(1) of the Regulations for the purposes of the Regulations. The Director-General's application to the Family Court responded to a request by the Central Authority for the State of Israel for the return of the children. The Full Court should have held that the children were not habitually resident in Israel when the father asked the mother to return them to Israel. The appeal to the Full Court should have been allowed and the orders made by the primary judge set aside. The appeal to this Court should therefore be allowed and consequential orders made to the effect described. The Regulations The Convention on the Civil Aspects of International Child Abduction ("the Abduction Convention") was signed at The Hague on 25 October 1980. The Abduction Convention entered into force for Australia on 1 January 1987 and for Israel on 1 December 1991. Section 111B(1) of the Family Law Act 1975 (Cth)[4] ("the Act") provides for regulations making "such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit" under the Abduction Convention. The Regulations (made in accordance with s 111B(1) of the Act[5]) provide (reg 1A(2)) that they are to be construed having regard to the principles and objects mentioned in the preamble to and Art 1 of the Abduction Convention and recognising: "that the appropriate forum for resolving disputes between parents relating to a child's care, welfare and development is ordinarily the child's country of habitual residence". Regulation 14 provides for the making of applications to a "court"[6] for any of several forms of order including[7] an order for the return of a child under the Abduction Convention "[i]f a child is removed from a convention country to, or retained in, Australia". Application for an order of that kind may be made by "the responsible Central Authority". Regulation 16(1) provides that if an application is made under reg 14(1) for an order for the return of a child, the application is made within one year of the child's removal or retention, and the applicant satisfies the court that "the child's removal or retention was wrongful under subregulation (1A) [of reg 16], ... the court must, subject to subregulation (3), make the order" (emphasis added). In this appeal, the chief focus of attention is upon the third of those conditions: that the child's removal or retention was wrongful under reg 16(1A). Regulation 16(1A) provides: "For subregulation (1), a child's removal to, or retention in, Australia is wrongful if: (a) the child was under 16; and (b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and (c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and (d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and (e) at the time of the child's removal or retention, the person, institution or other body: (i) was actually exercising the rights of custody (either jointly or alone); or (ii) would have exercised those rights if the child had not been removed or retained." It will be observed that the requirements of each of the five paragraphs of reg 16(1A) must be satisfied if it is to be shown that a child's removal to, or retention in, Australia is wrongful. The first two requirements look to the age of the child (par (a)) and to whether the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia (par (b)). The remaining requirements hinge about the notion of "rights of custody in relation to the child". The rights that are to be considered are rights "under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia". Although, as indicated at the start of these reasons, it is the application of the second requirement of reg 16(1A) (habitual residence) that is dispositive, it is as well to say something more about the requirements which refer to "rights of custody". The provisions of reg 16(1A) about "rights of custody" are to be understood by reference to the terms of reg 4: "(1) For the purposes of these regulations, a person, an institution or another body has rights of custody in relation to a child, if: (a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and (b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately before his or her removal or retention. (2) For the purposes of subregulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child. (3) For the purposes of this regulation, rights of custody may arise: (a) by operation of law; or (b) by reason of a judicial or administrative decision; or (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country." Argument of the present matter in the courts below proceeded without the parties directing close attention to questions of breach of rights of custody. There was some evidence before the primary judge about Israeli statute law governing guardianship and custody of minor children. The general tenor of the statute – the Capacity and Guardianship Law 1962 – is that parents have joint custody of their minor children. Argument proceeded, at least in this Court, upon the assumption that, if Israeli law were to be applied, the retention of the children by one joint guardian (the mother) against the expressed wish of the other joint guardian (the father) would be in breach of the rights of custody of the father. Approaching the matter in that way makes some assumptions about the content of Israeli law which it is neither necessary nor appropriate to examine further. They need not be examined because questions of breach of rights of custody given by Israeli law would arise only if the children habitually resided in Israel immediately before their removal to, or retention in, Australia. It is important to add, nonetheless, that if the parties were right to give Israeli law the operation that was assumed, their approach to the present matter properly reflected what was said by the plurality in DP v Commonwealth Central Authority[8]: "Nothing in the definitions of 'removal' and 'retention' or of 'rights of custody' requires that, before removal or retention, there shall have been any judicial decision about rights of custody and nothing in those definitions requires that at some later time there be any application to a court to determine who shall have future rights of custody in relation to the child. All that the definitions require is that by the law of the place of habitual residence immediately before removal or retention, the child's removal to Australia or the child's retention in Australia is in breach of the rights of custody of some person, institution or body. Often enough, that will be so where, by operation of the law of the place of habitual residence, both parents have joint rights of custody of children of their union. Sometimes, before any application to the courts in Australia, the parent who has not removed or retained the child will have approached the courts of the place of habitual residence for interim or permanent orders about custody of the child but that will not always be so." The courts below Both the primary judge[9] and the Full Court[10] concluded that, immediately before the retention of the children in Australia, they were habitually resident in Israel. The primary judge treated the retention of the children as beginning when the father withdrew his consent to their remaining in Australia and identified[11] this withdrawal of consent as occurring "no later than July 2006". Whether that withdrawal of consent was seen as requiring the immediate return of the children or only their return by use of the bookings made for 27 August 2006 was not explored. On its face the latter seems more likely but it is not necessary to examine that question further. The Full Court proceeded[12] on the basis that it had been conceded at first instance that retention in Australia occurred either when the mother did not use the return air tickets that had been booked for 27 August 2006, or when the mother told the father, in December 2006, that she did not intend to return to Israel. In the particular circumstances of this case it will not be necessary to decide what date should have been fixed as the date of retention. That will not be necessary because even if that date was as early as July 2006, it should have been found that at that time the children were not habitually resident in Israel. It is convenient to notice two points about the proceedings in the courts below. First, the initiating process filed by the Director-General in the Family Court did not distinctly identify whether it was alleged that this was a case of wrongful removal of the children or wrongful retention. And in so far as it was alleged that there was a wrongful retention, neither the initiating process nor the supporting material identified when the retention was alleged to begin. Of course, it was open to the Director-General to seek to make alternative cases and there may well be circumstances (of which this may have been one) in which that is at least desirable, even inevitable. It is ordinarily to be expected, however, that the case (or cases) which an applicant seeks to make will be distinctly identified. The second point to make about the procedures followed at first instance concerns the resolution of disputed questions of fact. Three members of this Court pointed out in MW v Director-General, Department of Community Services[13] that the requirements of the Regulations[14] that applications by a Central Authority for an order for the return of a child are dealt with expeditiously does not yield any general, let alone inflexible, rule prohibiting cross-examination of deponents of affidavits filed in support of or opposition to the application. As the plurality reasons said[15], "prompt decision making ... is one thing, and a peremptory decision upon a patently imperfect record would be another". In the present case (which was decided by the primary judge before MW), the affidavits before the primary judge deposed to conflicting accounts of what had been said between the mother and the father both before and after the mother travelled to Australia. Although no deponent was cross-examined, the primary judge found that "the mother's version of events is more probable than the father's"[16]. This finding was accepted[17] in the Full Court of the Family Court and was not challenged in this Court. Both at first instance and on appeal to the Full Court, the intentions of the mother (perhaps the intentions of both parents) about where the children should live were treated as critical to the identification of the place of their habitual residence. It was said[18] that the determination of the "settled intention" or "settled purpose" of the mother was a necessary and integral part of determining the place of habitual residence of the children. The conclusion that the mother was not shown to have a "settled intention" or "settled purpose", before the date of the return booking, of abandoning her Israeli place of residence was treated[19] by the Full Court as determinative. It will be necessary to examine what is meant in this context when reference is made to "settled purpose". It is convenient to introduce that consideration by reference to a particular submission made in the Full Court. Counsel for the mother submitted in the Full Court that the Family Court should depart from earlier decisions in Australia[20] and the United Kingdom[21] about what matters are to be taken into account in deciding questions of habitual residence, and instead follow what was said to be a different approach adopted in New Zealand[22]. The approach adopted in Australia and the United Kingdom was identified[23] as treating questions of "settled purpose" as a necessary and integral part of the determination, whereas that adopted in New Zealand was described as requiring "a broad factual inquiry" into all factors relevant to determining the habitual residence of a child, of which the settled purpose or intention of the parents is an important but not necessarily decisive factor. The Full Court concluded[24] that it did not need to resolve "the apparently significant departure of the New Zealand courts" from previous Australian and United Kingdom authorities. Yet as noted earlier, it is clear that the Full Court treated the finding that the mother did not have a settled purpose or intention to abandon habitual residence in Israel as dispositive. These reasons will demonstrate that the Full Court erred in treating the absence of a "settled purpose" of abandoning habitual residence in Israel as determining the issue in this case about the habitual residence of the children. To do that it will be necessary to begin by saying something about the term "habitual residence" as it is used in the Abduction Convention and in other instruments, then to examine some of the difficulties and ambiguities which can arise in a search for a settled purpose or intention about a place of residence or its abandonment, and lastly deal with the proposition that New Zealand cases considering the Abduction Convention take a different path from that taken in Australia or in the United Kingdom. Habitual residence The expression "habitual residence", and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law[25]. Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896[26], and has since been frequently used in other Hague Conventions[27], none of those instruments has sought to define the term. Rather, as one author[28] has put it, the expression has "repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts". Thus the Explanatory Report commenting on the Abduction Convention said[29] that "the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile" (emphasis added). To approach the term only from a standpoint which describes it as presenting a question of fact has evident limitations[30]. The identification of what is or may be relevant to the inquiry is not to be masked by stopping at the point of describing the inquiry as one of fact. If the term "habitual residence" is to be given meaning, some criteria must be engaged at some point in the inquiry and they are to be found in the ordinary meaning of the composite expression. The search must be for where a person resides and whether residence at that place can be described as habitual. Having regard, however, to the stated determination to eschew definition of the expression in its use in the Abduction Convention, and other instruments derived from the work of the Hague Conference, it would be wrong to attempt in these reasons to devise some further definition of the term intended to be capable of universal application. Rather, it is sufficient for present purposes to make two points. First, application of the expression "habitual residence" permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person's connections with a particular place of residence. Use of the term "habitual residence" to identify the required connection between a person and a particular municipal system of law amounts to a rejection of other possible connecting factors such as domicile or nationality. In particular, it may be accepted that "habitual residence" has been used in the Abduction Convention (as it has been used in other instruments) "[t]o avoid the distasteful problems of the English concept [of domicile] and the uncertainties of meaning and proof of subjective intent"[31]. It was said[32] in the nineteenth century that the notion that lies at the root of the English concept of domicile is that of permanent home[33]. But it was soon recognised[34] that domicile, in English law, is "an idea of law". Thus, in considering acquisition of a domicile of choice, questions of intention loomed large, and the relevant intention had to have a particular temporal quality (an intention to reside permanently or at least indefinitely). Use of "habitual residence" in the Abduction Convention rather than domicile as the relevant connecting factor entails discarding notions like the revival of domicile of origin and the dependent domicile of a married woman which marked the English law of domicile[35]. More importantly for present purposes, use of "habitual residence" in preference to domicile entails discarding the approach of the English law of domicile which gave questions of intention a decisive importance in determining whether a new domicile of choice had been acquired. It may well be said of the term "habitual residence", as it was of the expression "domicile"[36], that "if you do not understand your permanent home ... no illustration drawn from foreign writers or foreign languages will very much help you to it". Yet it may be accepted that "[h]abitual residence, consistent with the purpose of its use, identifies the center of a person's personal and family life as disclosed by the facts of the individual's activities"[37]. Accordingly, it is unlikely, although it is not necessary to exclude the possibility, that a person will be found to be habitually resident in more than one place at the one time. But even if place of habitual residence is necessarily singular, that does not entail that a person must always be so connected with one place that it is to be identified as that person's place of habitual residence. So, for example, a person may abandon a place as the place of that person's habitual residence without at once becoming habitually resident in some other place; a person may lead such a nomadic life as not to have a place of habitual residence. In deciding where a child was habitually resident at an identified time it is, no doubt, important to consider the context in which the inquiry is required. Here, the chief contextual consideration is that, in accordance with the Abduction Convention, the purpose of the Regulations[38] is to facilitate resolution of disputes between parents relating to a child's care, welfare and development in one forum – the child's country of habitual residence – rather than any other forum. While that may tend in favour of finding that a child does have a place of habitual residence, neither the Regulations nor the Abduction Convention provides for a particular vindication or enforcement of rights in relation to the child. Vindication and enforcement of rights is to be a matter for the forum to which the Regulations and the Abduction Convention point: that of the child's habitual residence. When speaking of the habitual residence of a child it will usually be very important to examine where the person or persons who are caring for the child live – where those persons have their habitual residence. The younger the child, the less sensible it is to speak of the place of habitual residence of the child as distinct from the place of habitual residence of the person or persons upon whom the child is immediately dependent for care and housing. But if, as the writings about the Abduction Convention and like instruments repeatedly urge, the question of habitual residence of a child is one of fact, it is important not to elevate the observation that a child looks to others for care and housing to some principle of law like the (former) law of dependent domicile of a married woman. Purpose and intention Although intention is a necessary element in deciding domicile of choice, and "habitual residence" is chosen as a connecting factor in preference to domicile, examination of a person's intentions will usually be relevant to a consideration of where that person habitually resides. Sometimes, intention will be very important in answering that question. The example of a person who leaves a jurisdiction intending not to return is one such case. But unlike domicile, considerations relevant to deciding where a person is habitually resident are not necessarily confined to physical presence and intention, and intention is not to be given controlling weight. First, individuals do not always act with a clearly formed and singular view of what it is intended (or hoped) that the future will hold. Their intentions may be ambiguous. The facts of this case provide one example of such circumstances. The mother left Israel on the understanding that if the marriage was reconciled she would return, but if it was not, she would not return. In those circumstances, it is not possible to say that the mother then had a settled intention which was sufficiently described either as being an intention to reside permanently in Israel or an intention to reside permanently in Australia. Neither description would acknowledge the significance attached to the possibility of reconciliation. Both before and after she left Israel she set about establishing important connections with Australia consistent with her and her children establishing the centre of their lives here rather than in Israel. In particular, before she left Israel, she registered the children as Australian citizens and procured enrolment of the two older children at an Australian private school. In Australia she soon sought and obtained Centrelink benefits, the two older children started school and the next oldest was enrolled at preschool, the older children joined a soccer club and took music lessons. Later, with the assistance of her parents and the local Jewish community, she rented and furnished a home for her to live with the children. All of these steps (except the last) were taken before the father asked, in July 2006, for the children to be returned to Israel. All of the steps identified are consistent with, indeed support, the view that by registering the children as Australian citizens and enrolling the older ones in school before she left Israel, the mother was then set upon a course from which she did not thereafter deviate: to move to Australia unless the father decided (contrary to the then state of affairs between them) to live with her and the children. Because the possibility of reconciliation and return was not excluded when the mother left Israel, it may be said that her intentions, when she left, were to that extent ambiguous. Even accepting that to be so, because the notion of habitual residence does not require that it be possible to say of a person at any and every time that he or she has a place of habitual residence, it is important to recognise that a person may cease to reside habitually in one place without acquiring a new place of habitual residence. Secondly, because a person's intentions may be ambiguous, in asking whether a person has abandoned residence in a place it is necessary to recognise the possibility that the person may not have formed a singular and irrevocable intention not to return, yet properly be described as no longer habitually resident in that place. Absence of a final decision positively rejecting the possibility of returning to Israel in the foreseeable future is not necessarily inconsistent with ceasing to reside there habitually. Thirdly, when considering where a child is habitually resident, attention cannot be confined to the intentions of the parent who in fact has the day-to-day care of the child. It will usually be necessary to consider what each parent intends for the child. When parents are living together, young children will have the same habitual residence as their parents. No less importantly, it may be accepted that the general rule is that neither parent can unilaterally change that place of habitual residence. The assent of the other parent (or a court order) would be necessary. But again, if it becomes necessary to examine the intentions of the parents, the possibility of ambiguity or uncertainty on the part of one or both of them must be acknowledged. It follows from each of the three considerations just mentioned that to seek to identify a set list of criteria that bear upon where a child is habitually resident, or to attempt to organise the list of possible matters that might bear upon the question according to some predetermined hierarchy of importance, would deny the simple observation that the question of habitual residence will fall for decision in a very wide range of circumstances. And examination of decided cases in the area does not require the identification of a closed set of criteria, or the attribution of predetermined weighting between them. A division of authority? International treaties should be interpreted uniformly by contracting states[39]. Although the questions in this matter turn immediately upon the proper construction and application of the Regulations, the Regulations provide[40] that, unless the contrary intention appears, an expression used in the Regulations and in the Abduction Convention has the same meaning in the Regulations as in the Abduction Convention. It follows that, unless it is shown that the term is used in the statute law of other contracting states in a sense different from the way in which it is used in the Abduction Convention, care is to be exercised to avoid giving the term a meaning in Australia that differs from the way it is construed in the courts of other contracting states. But it is no less important to recognise that, because the term is not defined in the Abduction Convention, and the absence of definition reflects the stated intention that it should be treated "as a question of pure fact", conclusions reached in the courts of other jurisdictions are not lightly to be treated as establishing principles of law which govern the term's meaning and application. Rather, they are to be read and understood as resolving the particular controversy tendered for decision. The Full Court concluded[41] in the present matter that its own previous decisions, and decisions in the United Kingdom, had held that "a settled purpose is a necessary and integral part of a finding of habitual residence". What is meant by "settled purpose"? Use of the expression "settled purpose" in this context is often traced to the statement in the reasons of Lord Scarman in R v Barnet London Borough Council; Ex parte Shah[42]: "I agree with Lord Denning MR that in their natural and ordinary meaning the words ['ordinarily resident'] mean 'that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration'. The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case[[43]], namely residence adopted voluntarily and for settled purposes." Two points may be made at once. First, both Shah's Case and the case to which Lord Scarman referred (Lysaght's Case) were decided in contexts very different from the present. Shah's Case concerned the making of educational grants to students "ordinarily resident" in the United Kingdom. Lysaght's Case was a decision about the liability to pay income tax by a person "ordinarily resident" in the United Kingdom. Secondly, the reference to "settled purposes" in neither case was amplified. But in Shah's Case, in the course of considering other cases in which the expression ordinary residence had been examined, Lord Scarman pointed out[44] that it would be erroneous to hold that demonstration of an intention to live in a place permanently or indefinitely was necessary to show ordinary residence. Such a conclusion would be erroneous, Lord Scarman held[45], because it would import into the law, from the old law of domicile, those questions of subjective intention which the use of the concept of ordinary residence was intended to exorcise. It will be observed that reference was made in Shah's Case to residence "adopted voluntarily and for settled purposes" (emphasis added). Subsequent decisions, both in Australia and in the United Kingdom, have often referred to "settled purpose" or "settled intention". So, in In re J (A Minor) (Abduction)[46], Lord Brandon of Oakbrook, having first noted[47] that the term "habitually resident" is nowhere defined, is not to be treated as a term of art, and presents "a question of fact to be decided by reference to all the circumstances of any particular case" (emphasis added), expressed the opinion[48] "that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B". Leaving a country with a "settled intention not to return to it but to take up long-term residence" elsewhere was identified as sufficient to terminate habitual residence in the first country, whereas "[a]n appreciable period of time and a settled intention will be necessary to enable" a person to become habitually resident in the second country[49]. But for the reasons given by Lord Scarman in Shah's Case, it would be wrong to treat the references to settled purposes (or settled purpose or intention) as importing the old law of domicile by directing an inquiry in cases arising in connection with the Abduction Convention into whether the person whose place of residence is in issue is shown to intend to live there permanently or at least indefinitely. Rather, as Waite J rightly said in Re B (Minors) (Abduction) (No 2)[50], the effect of decisions in the United Kingdom about the Abduction Convention, particularly the decision of the House of Lords in re J, is that: "Habitual residence is a term referring, when it is applied in the context of married parents living together, to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or of long duration. All that the law requires for a 'settled purpose' is that the parents' shared intentions in living where they do should have a sufficient degree of continuity about them to be properly described as settled." (emphasis added) As was pointed out by the majority of the Full Court of the Family Court in DW v Director-General, Department of Child Safety[51], the conclusions expressed by Waite J may be seen as at odds with the view of Rattee J, sitting at first instance in the Family Division of the High Court of Justice in A v A (Child Abduction)[52]. In A v A, Rattee J said[53] that the reference in Lord Brandon's speech in re J to settled intention should be understood as "a settled intention to take up long-term residence in the country concerned". It is to be noted, however, that the conclusions expressed by Waite J about the state of the law in the United Kingdom were later adopted by the Full Court of the Family Court in Cooper v Casey[54] and Panayotides v Panayotides[55]. To the extent to which the Full Court in the present matter is to be understood as preferring the view of Rattee J to that of Waite J, it would constitute the adoption of a view that does not appear to command general acceptance in either the English courts or the earlier decisions of the Full Court of the Family Court mentioned above[56]. And, as earlier explained in these reasons, if references to settled intention were to be understood as requiring inquiries about intention like those that are necessary to the application of the law of domicile, such an understanding would be sharply at odds with the use of the expression "habitually resident" in the Regulations and the Abduction Convention in preference to domicile. In its reasons in the present matter, the Full Court examined whether its earlier decisions required it to apply principles different from those adopted in New Zealand. Particular reference was made[57] to SK v KP[58] and the reasons of McGrath J and Glazebrook J. It is, however, not necessary to examine the decision in SK in detail. Rather, it is sufficient to observe that in Punter v Secretary for Justice[59], the effect of the decision in SK was described[60] in the plurality reasons of the Court of Appeal of New Zealand (Anderson P, Glazebrook, William Young and O'Regan JJ) as holding that the inquiry into habitual residence is "a broad factual inquiry". The plurality went on[61] to say in Punter: "Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called, at para [22], the underlying reality of the connection between the child and the particular state". As the plurality rightly said, the search is for the connection between the child and the particular state. That being the nature of the search the plurality's references to settled purpose are to be read as directing attention to the intentions of the parents. But as explained earlier in these reasons, the relevant criterion is a shared intention that the children live in a particular place with a sufficient degree of continuity to be properly described as settled. So understood, there is no disconformity between the approach of the New Zealand courts and the need, identified[62] by Lord Brandon in re J, to decide the question of habitual residence "by reference to all the circumstances of any particular case" (emphasis added). Moreover, the approach described in Punter accords with the general tenor of decisions in the United States of America[63]. It may be observed of those decisions that there is seen to have been a division between the Circuit Courts of Appeals about the relevance of the parents' subjective intentions for the child or children concerned[64]. When it is also observed, however, that the resolution[65] of the competing approaches has been to invite attention to whether presence at a place has a "degree of settled purpose from the child's perspective"[66] (emphasis added), the difference in expression of the relevant considerations may not be great. At all events, a thread common to the leading decisions in the United States remains the need to look at all of the circumstances of the case. And it is that approach, as described in Punter, which should be followed. How, then, should the present case have been decided? The present case When the mother left Israel with the children she was not shown to have the concluded intention that, come what may, she and the children would settle in Australia. The father did not agree to the children leaving Israel on any basis other than that expressed by the mother: that if the marriage was reconciled she would return, if it was not she would not. It follows that, when the children left Israel, the intentions of their parents could not be completely and accurately stated as being that the children would thereafter live in Australia. In that limited sense, it could not be said that the parents intended to "abandon" Israel as the place where their children habitually resided. But that statement could not be made because the parents' intentions were more complicated than the bald proposition of abandonment acknowledges. The more accurate statement of the parents' intentions, when the mother and children left Israel, was that mother and children were going to make their home in Australia unless the father chose to alter his then stated determination to live separately from the mother. The absence of an agreed and singular purpose or intention at the time of departure from Israel (which could be completely described by reference only to residence in Australia or in Israel) was not to be treated as deciding the question of habitual residence. First, the question in this case was not to be asked in relation to the time of the children's departure from Israel; it was to be asked in relation to the time of their allegedly wrongful retention. And as earlier indicated, that time may be assumed to be when the father first asked in July 2006 for their return to Israel. But secondly, and more importantly, the intentions of the parents are not the only factors which bear upon whether in July 2006 the children were habitually resident in Israel. Where, as here, the parents' intentions at the time of departure from Israel were expressed conditionally (to live in Australia unless ...) and the mother took the steps she did, both before and after arrival in Australia, to establish a new and permanent home for the children in Australia, it should have been found that the children were not habitually resident in Israel in July 2006. The possibility that they might again take up habitual residence in Israel (if their parents were reconciled) does not deny that they had ceased to be habitually resident there. Whether they were habitually resident in Australia when the father asked for their return need not be decided. What is decisive is that the children left Israel with both parents agreed that unless there were a reconciliation they would stay in Australia, and their mother, both before and after departure, set about effecting that shared intention. Conclusion and orders Having regard to the decision reached about whether the children were habitually resident in Israel it is not necessary to consider the further issues agitated in the courts below and in this Court about whether, if they were, the case was one in which an order for return should have been refused on the basis that the father had consented to or subsequently acquiesced in the children's retention in Australia[67]. Nor is it necessary, if there was consent or subsequent acquiescence, to examine whether or how the delay that occurred between the hearing of the appeal to the Full Court of the Family Court on 5 December 2007 and delivery of judgment on 24 June 2008 bore upon the exercise of the discretion given by reg 16(3)(a)(ii) to refuse to make an order for return. It is enough to say that prolonged consideration by the Full Court of its decision in the matter was undesirable, especially when the primary judge had already pointed out[68], correctly, that the proceedings at first instance had not been dealt with sufficiently promptly. Further, it is not necessary to examine whether the Full Court erred in refusing to admit the additional affidavit evidence relied on in that Court by the mother and by the Director-General. None of that additional evidence contradicted or detracted from the description of circumstances touching the question of habitual residence provided by the facts as found by the primary judge. No order for costs was made at first instance or on appeal to the Full Court of the Family Court. That is, the power given by reg 30 of the Regulations to order the person who in those courts was found to have retained the children to pay the costs of the application for an order for return was not exercised either at first instance or on appeal to the Full Court. As was pointed out in MW[69], the matter of costs in this Court is controlled by the general provision of s 26 of the Judiciary Act 1903 (Cth). In the circumstances of this case there should be no order for the costs of the proceedings at first instance or in the Full Court of the Family Court. The appellant should have her costs of the appeal to this Court. The appeal to this Court should be allowed with costs. The orders of the Full Court of the Family Court made on 24 June 2008 and 4 July 2008 should be set aside. In their place there should be orders that the appeal to the Full Court is allowed, the orders of Kay J made on 29 August 2007 are set aside and in their place there be an order that the application of the Director-General, Department of Community Services made on 15 March 2007 is dismissed. [1] Australian Citizenship Act 1948 (Cth), s 10B. [2] Kilah v Director-General, Department of Community Services [2008] FamCAFC 81; (2008) 39 Fam LR 431. [3] Director-General, Department of Community Services v Kilah (No 3) [2007] FamCA 1099. [4] As inserted by the Family Law Amendment Act 1983 (Cth) and amended by the Family Law Amendment Act 2000 (Cth). [5] Reference is made in these reasons to the Regulations as they stood at the date of the initiating application in the Family Court. [6] Defined by reg 2(1) as a court having jurisdiction under ss 39(5)(d), 39(5A)(a) or 39(6)(d) of the Act. [7] reg 14(1)(a). [8] (2001) 206 CLR 401 at 412 [27]; [2001] HCA 39. [9] [2007] FamCA 1099 at [38]. [10] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 439 [25], 452 [64], 459 [100]. [11] [2007] FamCA 1099 at [25]. [12] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 452 [65]. [13] [2008] HCA 12; (2008) 82 ALJR 629 at 639-640 [45]- [50]; [2008] HCA 12; 244 ALR 205 at 216-218; [2008] HCA 12. [14] reg 15. [15] [2008] HCA 12; (2008) 82 ALJR 629 at 639 [49]; [2008] HCA 12; 244 ALR 205 at 217. [16] [2007] FamCA 1099 at [23]. [17] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 450 [57]. [18] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 454 [73]. [19] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 452 [64]. [20] State Central Authority v McCall [1994] FamCA 156; [1995] FLC 92-552; Cooper v Casey [1995] FamCA 2; [1995] FLC 92-575; Department of Health and Community Services v Casse [1995] FamCA 71; [1995] FLC 92-629; Panayotides v Panayotides [1997] FLC 92-733; DW v Director-General, Department of Child Safety [2006] FamCA 93; [2006] FLC 93-255; HBH v Director-General, Department of Child Safety (Q) [2006] FamCA 1053; (2006) 36 Fam LR 333. [21] Dickson v Dickson [1990] SCLR 692; In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562; Re B (Minors) (Abduction) (No 2) [1993] 1 FLR 993; Cameron v Cameron [1995] ScotCS CSIH_3; [1996] SC 17; M v M (Abduction: England and Scotland) [1997] 2 FLR 263. [22] SK v KP [2005] 3 NZLR 590; Punter v Secretary for Justice [2007] 1 NZLR 40. [23] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 454 [73]. [24] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 454 [74]. [25] The history of the Hague Conference is traced in North, "Hague Conventions and the Reform of English Conflict of Laws", (1981) 6 Dalhousie Law Journal 417 at 419-421. [26] See art 15 of the Convention relative to Civil Procedure (1896), 88 British and Foreign State Papers 555 at 558. (This Convention was done in French and used the expression "résidence habituelle".) [27] See, for example, Convention Relating to the Settlement of the Conflicts Between the Law of Nationality and the Law of Domicile (1955) (a Convention done in the French language using the expression "réside habituellement"); Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions (1961); Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions (1965); Convention on the Recognition of Divorces and Legal Separations (1970); Convention Concerning the International Administration of the Estates of Deceased Persons (1973); Convention on the Law Applicable to Maintenance Obligations (1973); Convention on the Law Applicable to Matrimonial Property Regimes (1978); Convention on the Law Applicable to Agency (1978); Convention on International Access to Justice (1980); and Convention on the Law Applicable to Succession to the Estates of Deceased Persons (1989). See also Cavers, "'Habitual Residence': A Useful Concept?", (1972) 21 American University Law Review 475 at 477-479 ("Cavers"). [28] McClean, Recognition of Family Judgments in the Commonwealth, (1983) at 28 [1.38]. [29] Pérez-Vera, "Explanatory Report", in Permanent Bureau of the Hague Conference on Private International Law (ed), Actes et documents de la Quatorzième session 6 au 25 octobre 1980, (1982), vol 3, 426 at 445 [66]. [30] Cavers at 487-491. [31] Scoles, Hay, Borchers and Symeonides, Conflict of Laws, 4th ed (2004) at 247 § 4.14 ("Scoles, Hay, Borchers and Symeonides"). [32] Dicey, Morris and Collins, The Conflict of Laws, 14th ed (2006), vol 1 at 123 [6-004] ("Dicey, Morris and Collins"). [33] Whicker v Hume [1858] EngR 991; (1858) 7 HLC 124 at 160 [11 ER 50 at 64]. See also In re Craignish [1892] 3 Ch 180 at 192; Winans v Attorney-General [1904] AC 287 at 288. [34] Bell v Kennedy (1868) LR 1 Sc & Div 307 at 320. [35] Dicey, Morris and Collins at 122-164. See now the Domicile Acts of the Commonwealth and of each State, each of which came into force on 1 July 1982. Those Acts made a number of alterations to the law of domicile. They abolished the rule of dependent domicile of a married woman and the rule of revival of domicile of origin. They also provided (see, for example, Domicile Act 1982 (Cth), s 9(1)) that where, at any time, a child has his or her principal home with one of his or her parents and the parents are living separately or the child does not have another living parent, the domicile of the child is the domicile of the parent with whom the child has his or her principal home. [36] Whicker v Hume [1858] EngR 991; (1858) 7 HLC 124 at 160 [11 ER 50 at 64]. [37] Scoles, Hay, Borchers and Symeonides at 247 § 4.14. [38] reg 1A(2)(b). [39] Povey v Qantas Airways Ltd [2005] HCA 33; (2005) 223 CLR 189 at 202 [25]; [2005] HCA 33. [40] reg 2(1B). [41] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 454 [73]. [42] [1983] 2 AC 309 at 342. [43] Inland Revenue Commissioners v Lysaght [1928] AC 234 at 243. [44] [1983] 2 AC 309 at 343. [45] [1983] 2 AC 309 at 343. [46] [1990] 2 AC 562. [47] [1990] 2 AC 562 at 578. [48] [1990] 2 AC 562 at 578. [49] [1990] 2 AC 562 at 578-579. [50] [1993] 1 FLR 993 at 995. [51] [2006] FamCA 93; [2006] FLC 93-255 at 80,329-80,331 [32]- [37]. [52] [1993] 2 FLR 225. [53] [1993] 2 FLR 225 at 235. [54] [1995] FamCA 2; [1995] FLC 92-575 at 81,695. [55] [1997] FLC 92-733 at 83,897. [56] See also DW [2006] FamCA 93; [2006] FLC 93-255 at 80,331 [37], 80,334 [51]. [57] [2008] FamCAFC 81; (2008) 39 Fam LR 431 at 444-445 [38]- [39], 452-453 [66]-[67], 454-455 [74]-[77]. [58] [2005] 3 NZLR 590. [59] [2007] 1 NZLR 40. [60] [2007] 1 NZLR 40 at 61 [88]. [61] [2007] 1 NZLR 40 at 61-62 [88]. [62] [1990] 2 AC 562 at 578. [63] See, for example, Feder v Evans-Feder [1995] USCA3 892; 63 F 3d 217 at 224 (3rd Cir 1995); Mozes v Mozes [2001] USCA9 16; 239 F 3d 1067 at 1081 (9th Cir 2001); Karkkainen v Kovalchuk [2006] USCA3 81; 445 F 3d 280 at 295 (3rd Cir 2006); cf Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007). [64] See Robert v Tesson 507 F 3d 981 at 989-990 (6th Cir 2007). [65] Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007). [66] Feder [1995] USCA3 892; 63 F 3d 217 at 224 (3rd Cir 1995); Karkkainen [2006] USCA3 81; 445 F 3d 280 at 292 (3rd Cir 2006); Robert v Tesson 507 F 3d 981 at 992-993 (6th Cir 2007). [67] reg 16(3)(a)(ii). [68] [2007] FamCA 1099 at [60]- [63]. [69] [2008] HCA 12; (2008) 82 ALJR 629 at 650 [120]- [121]; [2008] HCA 12; 244 ALR 205 at 231.

Administrative law – Procedural fairness – Migration Review Tribunal ("Tribunal") – Application for spousal visas – Migration Act 1958 (Cth) ss 5, 357A, 359A – Definition of "non-disclosable information" – "Non-disclosable information" whose disclosure would found an action for breach of confidence – Relevance of "iniquity defence" – Whether Tribunal obliged to disclose to applicant information given to Tribunal in confidence by informant – Whether obligation to disclose extends to identity of informant. Equity – Breach of confidence – Interaction of public and private law. Words and phrases – "Non-disclosable information". Migration Act 1958 (Cth), ss 5, 357A, 359

Workers' compensation – Contributory negligence – Worker recovers workers' compensation as a result of injury – Worker brings damages claim against third party tortfeasor – Damages claim settled – Employer seeks recovery of workers' compensation pursuant to Workers Compensation Act 1987 (NSW), s 151Z(1)(b) – Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates to reduce amount of repayment on account of worker's contributory negligence where damages claim settled. Statutes – Interpretation – Whether Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(2) operates on damages recovered by way of settlement – Whether reduction of repayment proportionate or by specific amount. Words and phrases – "damages recoverable", "to the same extent". Law Reform (Miscellaneous Provisions) Act 1965 (NSW), ss 9, 10. Workers Compensation Act 1987 (NSW), s 151Z(1), (5).

Criminal law – Sentencing – Prosecution appeal against sentence – Where sentence said to be "manifestly inadequate" – Where no specific error of principle or law alleged and case said to fall within last category of error identified in House v The King [1936] HCA 40; (1936) 55 CLR 499, namely sentence "unreasonable and plainly unjust" – Whether Court of Criminal Appeal erred in concluding sentence manifestly inadequate – Distinction between fresh consideration of how appellant's conduct to be characterised, and evaluation of adequacy of sentence by reference to matters of fact different from those found by primary judge. Words and phrases – "manifestly inadequate". Criminal Appeal Act 1912 (NSW), s 5D(1).

Intellectual property – Copyright – Literary work – Compilation – Infringement – Production by employees of Nine Network Australia Pty Limited ("Nine") of weekly schedules of television programmes to be broadcast on television stations within Nine Network ("Weekly Schedules") – Information from Weekly Schedules used by third parties, with licence from Nine, to produce "Aggregated Guides" containing programme schedules for various television stations – Production by employees of IceTV Pty Limited of electronic programme guide for television using information from Aggregated Guides – Subsistence of copyright in each Weekly Schedule admitted – Alleged infringement of copyright by reproduction of substantial part of Weekly Schedules – Whether reproduction of "substantial part" – Quality of part reproduced – Originality – Information/expression dichotomy – Appropriation of "skill and labour" – Relevance of skill and labour devoted to programming decisions – Relevance of competing interests and policy considerations – Animus furandi. Intellectual property – Copyright – Literary work – Compilation – Subsistence – Need to identify author, and time of making or first publication, of work – Originality – Kind of skill and labour required – "Sweat of the brow" and "industrious collection" compared with "creativity". Intellectual property – Copyright – Literary work – Compilation – Subsistence – Weekly Schedules produced using computer database – Whether database also work in suit – Whether Weekly Schedules same work. Words and phrases – "animus furandi", "author", "compilation", "information/expression dichotomy", "originality", "skill and labour", "substantial part". Copyright Act 1968 (Cth), ss 9(3), 10(1), 14(1), 21, 22, 29, 31, 32, 33, 34, 35, 36, Pt III Div 9, Pt III. Copyright Act 1911 (Imp), ss 1(1), 35(1). Copyright, Designs and Patents Act 1988 (UK), s 9(3). Copyright Act 1976, 17 USC §§101, 102. Copyright Act RSC 1985, ch C-42, s 2.

Torts – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who "appears to be mentally ill" if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons. Torts – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power. Torts – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty. Statutes – Interpretation – Whether person who has attempted suicide to be equated with person "mentally ill" – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness. Words and phrases – "mentally ill". Crimes Act 1958 (Vic), ss 457, 463B. Mental Health Act 1986 (Vic), ss 3, 8, 10. Wrongs Act 1958 (Vic), Pt

Defamation – Statements amounting to defamation – Test to be applied in determining what is defamatory – Whether general test has application to imputations concerning business or professional reputation – Whether general test limited to imputations concerning character or conduct – Distinction between defamation and injurious falsehood – Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 considered. Defamation – Statements amounting to defamation – Standards by which allegedly defamatory imputations to be judged – Distinction between general test for defamation and standards to be applied – Standards imported by describing hypothetical referees of whether person defamed as "right-thinking" – Relevance and applicability of general community standards. Defamation – Statements amounting to defamation – Standards by which allegedly defamatory imputations to be judged – Whether in cases concerning business or professional reputation hypothetical referees assumed to have special knowledge of business or profession – When plea of true innuendo appropriate. Defamation – Statements amounting to defamation – Test to be applied in determining what is defamatory – Whether jury misdirected – Whether substantial wrong or miscarriage occurred. Words and phrases – "business defamation", "general community standards", "hypothetical referee", "ordinary decent person", "ordinary reasonable person", "reputation", "right-thinking", "true innuendo". Defamation Act 1974 (NSW), s 4(2). Defamation Act 2005 (NSW), s 6(2). Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1).

Criminal law – Evidence – Joint murder trial – Admissibility of evidence adduced by accused of bad character or propensity of co-accused – Whether appellant prevented by trial judge from fully adducing relevant admissible evidence – Whether jury misdirected as to use of evidence of appellant's bad character. Criminal law – Appeals – Application of proviso. Words and phrases – "substantial miscarriage of justice". Criminal Code (Q), s 668E(1A).

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited Trade Practices – Consumer protection – Misleading or deceptive conduct – Where Trade Practices Act 1974 (Cth), s 65A provides exemption from liability in respect of prescribed publication of matter by prescribed information provider – Exception to exemption in respect of publication in connection with supply, possible supply or promotion of supply or use of goods or services – Application of exception where publication made pursuant to contract, arrangement or understanding with person who supplies goods or services "of that kind" – Meaning of phrase "of that kind" in context of provision – Whether exception applies only where contract, arrangement or understanding relates to specific representations made in publication of matter. Statutory Interpretation – Use of demonstrative adjective "that" – Determining referent of phrase "of that kind" – Relevance of textual proximity or sequential order – Whether alternative paragraphs in sub-section to be read distributively or as single sentence – Relevance of statutory intention – Extent of assistance from extrinsic materials. Words and phrases – "advertisement", "contract, arrangement or understanding", "goods or services of that kind". Trade Practices Act 1974 (Cth), ss 52, 65A. FRENCH CJ AND KIEFEL J Introduction Section 52(1) of the Trade Practices Act 1974 (Cth) ("the TPA") provides: "A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." Actions brought under the section alleging misleading or deceptive news media stories in the late 1970s and early 1980s[1] led to the creation, in 1984, of a statutory exemption for "prescribed information providers". The exemption was created by the enactment of s 65A. An identical provision limiting the scope of the prohibition on misleading or deceptive conduct in relation to financial services is to be found in the Australian Securities and Investments Commission Act 2001 (Cth)[2]. Similar provisions appear in the Fair Trading Acts of the various States and Territories[3]. The present appeal concerns an exception to the exemption. The exception relates to the publication of matter pursuant to a contract, arrangement or understanding between the party publishing the matter and a supplier of goods or services. The proceedings which have led to this appeal arise out of two episodes of the Today Tonight program broadcast by the respondents in October 2003 and January 2004. Each respondent is a licensed broadcaster, a member of the Channel Seven network, and a subsidiary of Seven Network Ltd. The broadcasts were about a business offering training for women in the arts of property investment. It was promoted and conducted by Dymphna Boholt and Sandra Forster under the title "Wildly Wealthy Women Millionaire Mentoring Program". According to the broadcasts, Ms Boholt and Ms Forster were offering, for a fee of almost $3,000 per person for a nine month program, to teach women how to become wealthy through investments in real estate. On 26 September 2005, the appellant, the Australian Competition and Consumer Commission, commenced proceedings against the four respondents, their holding company Seven Network Ltd, the two women and a company called Universal Prosperity Pty Ltd ("Universal") controlled by Ms Forster. The appellant alleged contraventions of s 52 of the TPA by all of them except Seven Network Ltd[4]. It claimed, inter alia, that, by their broadcasts about the Wildly Wealthy Women mentoring program on Today Tonight, the respondents had made representations about the benefits of the services offered by Ms Boholt and Ms Forster and that those representations were misleading or deceptive. Declaratory and injunctive relief and non-punitive orders under s 86C(1) of the TPA were sought. The application came on for trial before Bennett J in the Federal Court. On 5 October 2007, her Honour gave judgment in favour of the appellant[5]. There had been no allegation and no evidence presented that the holding company, Seven Network Ltd, had published any matter or engaged in misleading or deceptive conduct. Her Honour granted injunctive and declaratory relief against the respondent broadcasters and ordered that they pay three quarters of the appellant's costs of the proceedings. Ms Boholt, Ms Forster and Universal had previously agreed with the appellant on forms of order to dispose of the proceedings as against them. Ms Boholt and Ms Forster provided affidavit evidence for use by the appellant in its case against the respondents. Bennett J held that s 65A of the TPA did not provide a defence. The respondents' conduct fell within an exception to the exemption from liability provided by the section. This was on the basis that the broadcasts had been made pursuant to an arrangement between the respondents and the two women and related to services provided by the women. The respondents appealed to the Full Court of the Federal Court. On 23 June 2008, the Full Court (Sundberg, Jacobson and Lander JJ) allowed the appeal and set aside the declaratory and injunctive relief awarded by Bennett J[6] on the basis that the exception to the exemption provided by s 65A did not apply to the conduct of the respondents. The respondents' conduct therefore fell within the exemption and their defence was made out. On 14 November 2008, the appellant was granted special leave to appeal to this Court from that part of the judgment of the Full Court which held that the exemption from liability for contravention of s 52 of the TPA, contained in s 65A(1) of that Act, applied to the conduct of the respondents. For the reasons that follow, the appeal should be allowed. The exemption conferred by s 65A does not apply to situations in which a media outlet, pursuant to an arrangement with a supplier of goods or services, publishes and, by adoption or otherwise, makes representations of a misleading or deceptive character in relation to goods or services of that kind. That is the present case. Statutory framework Section 52 of the TPA is followed by a number of other provisions of Pt V of that Act relating to false or misleading representations and conduct. The exemption provided by s 65A applies to s 52 and those associated provisions. Section 65A is in the following terms: "(1) Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a prescribed publication of matter by a prescribed information provider, other than: (a) a publication of matter in connection with: (i) the supply or possible supply of goods or services; (ii) the sale or grant, or possible sale or grant, of interests in land; (iii) the promotion by any means of the supply or use of goods or services; or (iv) the promotion by any means of the sale or grant of interests in land; where: (v) the goods or services were relevant goods or services, or the interests in land were relevant interests in land, as the case may be, in relation to the prescribed information provider; or (vi) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with: (A) a person who supplies goods or services of that kind, or who sells or grants interests in land, being interests of that kind; or (B) a body corporate that is related to a body corporate that supplies goods or services of that kind, or that sells or grants interests in land, being interests of that kind; or (b) a publication of an advertisement. (2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if: (a) in any case – the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or (b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition) – the publication was by way of a radio or television broadcast by the prescribed information provider. (3) In this section: prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes: (a) the holder of a licence granted under the Broadcasting Services Act 1992; and (aa) a person who is the provider of a broadcasting service under a class licence under that Act; and (ab) the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and (b) the Australian Broadcasting Corporation; and (c) the Special Broadcasting Service Corporation. relevant goods or services, in relation to a prescribed information provider, means goods or services of a kind supplied by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider. relevant interests in land, in relation to a prescribed information provider, means interests in land, being interests of a kind sold or granted by the prescribed information provider or, where the prescribed information provider is a body corporate, by a body corporate that is related to the prescribed information provider." The exception to the exemption with which this appeal is concerned is that defined by s 65A(1)(a)(i) and (iii) read with s 65A(1)(a)(vi)(A). Factual background Between September 2003 and March 2004, Rachael Bermingham carried on business offering marketing services to other businesses, advising them on how they could identify prospective clients and get their products to those clients. In October 2003, Ms Boholt and Ms Forster had set up a business which they were operating or proposed to operate under the name "Wildly Wealthy Women". Ms Forster was, at the time, the sole director and shareholder of Universal. Universal had a registered website associated with the domain name www.wildlywealthywomen.com. Ms Bermingham was approached by Ms Forster in October 2003 asking her to arrange for media exposure for the Wildly Wealthy Women mentoring program. Ms Bermingham would receive a commission for every woman that signed up to the program. Ms Forster told her that her main aim was to get a program like A Current Affair, Today Tonight or Sunrise to cover the story and ideally to run a series of stories following the women they mentored and their journey over a nine month period. Ms Bermingham agreed to represent the business on that basis. Shortly after 9 October 2003, Ms Bermingham contacted Mr Howard Gipps who was then the producer of Today Tonight. At that time and at all material times, each of the television companies broadcast a television program entitled "Today Tonight" on each week night. They had a number of telephone conversations between 9 October and 20 October 2003. During the conversations Ms Bermingham set out a proposal for stories about the Wildly Wealthy Women mentoring program to be broadcast on Today Tonight. The substance of her proposal was contained in an email she sent to Mr Gipps on 20 October 2003. In that email she said: "Based on our few talks, here is an outline of what we would like to be included in the agreement; . October – Initial story on the founders Sandy & Dypmhna [sic] regarding their own stories ... . November – A story on some women who have signed up for the program ... . February/March 2004 – A story on the women at their first Wildly Wealthy Women Wicked Weekend ... . April/May 2004 – Another story of the women buying property, at auctions, renovating, walking the pavements searching for property etc ... . August 2004 – Who's leading the way – how many properties have been acquired ... . November 2004 – Graduation – who is our star Millionaire – how their life has changed etc etc. We love your suggestions Howard & would be happy if you were to confirm this proposal. We will be finalising our agreements with the TV Media tomorrow to enable us to move onto our other press engagements ..." Mr Gipps replied to the email on the same day saying, inter alia: "all of that is fine and agreed ... looks like a total of 6 stories". Ms Bermingham prepared a draft letter for Mr Gipps to sign as confirmation that they would be doing six stories on Wildly Wealthy Women along the lines set out in the email. The letter concluded: "Today Tonight confirm these stories will be done at the suggested periods you have advised as above. The story content may change to evolve with the success & stories of the women participating." A signed version of the letter was returned to Ms Bermingham, who sent a copy of it to Ms Forster. Ms Bermingham then called Mr Gipps and thanked him for sending through the confirmation. She said they had been in talks with A Current Affair but as he had confirmed that Today Tonight would run a series of stories, the women wanted to go with him. Mr Gipps said that Today Tonight would require exclusive rights to the story if that were the case. Ms Bermingham replied: "Yes, Today Tonight can have the exclusive to the story based on your proposal until November 2004." After receiving the signed copy Ms Bermingham did not offer rights to the story to any other Australian television outlet. There was no discussion between the parties about any payment either from or to the Seven Network for the publicity given to the Wildly Wealthy Women program. The misleading or deceptive representations The transcripts of the two segments of the Today Tonight program broadcast in October 2003 and January 2004 were set out in the judgment of the primary judge. It is not necessary to refer to them in detail here. The nature and content of the broadcasts and the statements made by the compere and reporter in each of them were sufficient, as the Full Court held, to support her Honour's finding that a number of representations, which were misleading or deceptive, were made by the respondents. Three such representations, each based on a statement made by the reporter, were found to have arisen out of the first broadcast[7]. They were[8]: (i) Ms Boholt owned in excess of 60 properties. (ii) Ms Forster had purchased over $1 million worth of property using none of her own money. (iii) Ms Forster was a millionaire. A fourth representation, arriving out of a statement made by the program's compere, was found to have been made by the respondents in the second broadcast[9]. It was[10]: "the women had made millions of dollars through investing in property". The respondents argued that, in the first broadcast, the compere had made a disclaimer about the truth of the claims made by the two women by saying[11]: "we'll see if the two ladies behind the program can live up to their promises over the next 12 months". And[12]: "Too good to be true? Well we'll be following the scheme's progress to let you know." The trial judge said[13]: "Viewing the first episode as a whole, the Seven licensees embraced and advanced the proposition that Ms Boholt and Ms Forster were millionaires and had achieved that status through investing in property. Those propositions were adopted and stated as fact by the reporter. In context, what was 'put up for examination' by the compere was whether others could achieve millionaire status by participation in the mentoring program. There was no suggestion by the compere, express or implicit, that the women's status as millionaires or as owners of property was questioned or would be examined or investigated in subsequent programs. There was no suggestion that the truth of those matters, as asserted by the reporter, would be the subject of further inquiry or should be the subject of such inquiry. As a matter of overall impression, the scepticism injected by the compere does not overcome the strength of the representations made by the reporter. The disclaimer did not detract from the Wildly Wealthy Women representations. When the first episode is viewed as a whole, the ordinary and reasonable viewer would consider those representations to have been made by the Seven licensees." Her Honour also rejected an argument by the respondents that the compere had effectively entered a disclaimer in the second episode[14]. Ms Forster swore an affidavit in the proceedings setting out her assets. Her evidence was not challenged. As at 31 October 2003 her assets did not exceed $65,000 before taking into account liabilities of at least $8,000. As at 30 January 2004, they did not exceed $115,000 before taking into account liabilities of at least $8,000. Ms Boholt swore an affidavit, also unchallenged, in which she said, inter alia, that as at 31 October 2003 she "did not own over 60 properties". The primary judge found that each of the four representations made by the respondents was misleading and deceptive[15]. The Full Court, in findings not under challenge in this appeal, said[16]: "We are not persuaded that there was not sufficient evidence for her Honour to make the findings which she did in relation to the Wildly Wealthy Women representations. In our opinion, having regard to the words used by the reporter in the first program and the words used by the compere in the second program, her Honour was entitled to find, notwithstanding the words which were said to amount to disclaimer in both programs, that the representations were made by the appellants. Having found that the representations were made, it is clear beyond doubt that her Honour was entitled to find that the representations were false and that, subject to one other matter which we will now address, the conduct in making those representations was misleading or deceptive pursuant to s 52 of the Act." That "other matter" was the s 65A defence. The primary judge found that it did not apply because the respondents' conduct fell within the exception defined by sub-pars (i), (iii) and (vi) of s 65A(1)(a). The Full Court found that the exception to the exemption did not apply. It did so on the basis that the only goods or services covered by the exception were "relevant goods or services", ie goods or services of a kind supplied by the prescribed information provider itself. Grounds of appeal The grounds of appeal against the decision of the Full Court are: "2. The Full Court erred in holding that, by reason of the operation of section 65A(1) of the Trade Practices Act 1974, section 52 of that Act did not apply to the conduct of the Respondents. The Full Court erred in holding that the reference to 'goods or services of that kind' in section 65A(1)(a)(vi)(A) was a reference to goods or services of a kind supplied by the prescribed information provider as used in the expression 'relevant goods or services' in section 65A(1)(a)(v) which, in turn, is defined in section 65A(3). The Full Court erred in failing to hold that, on the proper construction of section 65A(1)(a)(vi)(A) of the Trade Practices Act 1974, the reference to 'goods or services of that kind' was a reference to the goods or services referred to in section 65A(1)(a)(i), being the goods or services the subject matter of the publication referred to in s 65A(1)(a)." Notice of Contention The respondents filed a notice of contention seeking to uphold the judgment of the Full Court on the following ground: "For the exception to the exemption contained in s 65A(1)(vi) of the Trade Practices Act (1974) (Cth) to apply, the 'contract, arrangement or understanding' 'pursuant to' which the subject publication was made must be a 'contract, arrangement or understanding' to publish the misleading or deceptive matter that resulted in the contravention of s 52; and, as the Appellant concedes, there was no such 'contract, arrangement or understanding'." The questions for decision on the s 65A defence It was not in dispute before the primary judge nor in this Court that: . Each of the respondents was a "prescribed information provider" as defined in s 65A(3). . The broadcasts were "prescribed publications" of matter as defined in s 65A(2). . The publications were of matter in connection with the supply or possible supply of goods or services or promotion of that supply within s 65A(1)(a)(i) and (iii). . The goods or services the subject of the publication were not "relevant goods or services". On that basis the exception defined by sub-pars (i) and (iii), read with sub-par (v) of s 65A(1)(a), had no application. . The condition in s 65A(1)(a)(vi)(B) had no application. . It was not argued that the broadcasts constituted an advertisement. There was therefore no contention that the exception defined by s 65A(1)(b) applied. The following questions arise for decision in determining whether the contested exception to the s 65A exemption applied to the broadcasts in issue: (i) Did the conduct of the respondents, found to be misleading or deceptive, constitute a publication of matter in connection with the supply or possible supply of goods or services or the promotion by any means of the supply or use of goods or services[17]? – The answer to that question is in the affirmative and was not in dispute. (ii) Was the publication made pursuant to a contract, arrangement or understanding within the meaning of sub-par (vi)[18]? – This question is raised by the respondents' notice of contention. (iii) If "yes", was the contract, arrangement or understanding made with a person who supplies goods or services[19]? – The answer to this question was in the affirmative and was not in dispute. Ms Boholt and Ms Forster were supplying training services. The next two questions are the primary constructional questions upon which this appeal turns: (iv) Do the goods or services referred to in s 65A(1)(a)(vi) as "goods or services of that kind" mean goods or services of the kind the subject of the publication referred to in s 65A(1)(a)(i) and (iii)? or (v) Do they mean only goods or services of the same kind as the "relevant goods or services" mentioned in s 65A(1)(a)(v)? The first construction, proposed in question (iv), yields a wider exception to the exemption than the second, proposed in question (v). The first was that adopted by the primary judge[20]. The second was that adopted by the Full Court[21]. If the first construction be correct, then a prescribed information provider is not protected by s 65A when publishing matter in connection with the supply of goods or services of any kind where the publication is made on behalf of, or pursuant to a contract, arrangement or understanding with, a person who supplies goods or services of that kind. If the second construction be correct, the prescribed information provider will be protected in such a case unless the goods or services are "relevant goods or services", that is to say goods or services of a kind supplied by that prescribed information provider or a related body corporate[22]. The construction of s 65A It is not necessary to set out in detail the background to the enactment of s 65A[23]. In order to understand the purpose of the provision it is useful to refer to a passage from the Second Reading Speech for the Bill which became the Statute Law (Miscellaneous Provisions) Act (No 2) 1984 (Cth) by which s 65A was introduced into the TPA. In the Second Reading Speech it was said, inter alia[24]: "The Government recognises the need to maintain a vigorous free press, as well as an effective and enforceable Trade Practices Act. In doing so, the Government recognises that, whilst the problem may have been highlighted by a defamation action, similar considerations apply in respect of action for negligent mis-statement and actions for injurious falsehood. The Government also recognises that the difficulties in this area are experienced not only by the main newspaper, magazine and television publishers, but also by a wide range of other people who provide information. New section 65A will operate to exempt the media (and other persons who engage in businesses of providing information) from the operation of those provisions of Division 1 of Part V of the Trade Practices Act which could inhibit activities relating to the provision of news and other information." The exemption was limited and the relevant limit was[25]: "The exemption is not available, however, in respect of a publication of information relating to goods, services or land of a kind supplied by the information provider, or relating to goods, services or land where the publication is made pursuant to a contract, arrangement or understanding with a body corporate related to a body corporate that supplies such goods, services or land. These provisions ensure that information providers are not exempt from the consumer protection provisions of the Trade Practices Act in respect of the provision of information where they have what might be regarded as a commercial interest in the content of the information. In such cases, information providers must take the same responsibility for the accuracy of information as any other person who publishes information in trade or commerce. This can occur, for example, where a newspaper has agreed to publish a 'news' item about a product in exchange for the product supplier taking out paid advertising in that publication." The Explanatory Memorandum in relation to s 65A(1)(a) stated: "Proposed paragraph 65A(1)(a) provides that the exemption does not operate in relation to publication in connection with the supply or promotion of relevant interests in land, relevant goods or services or where publication is pursuant to a contract, arrangement or understanding with the supplier, or a related body corporate, of lands, goods or services." The extract from the Second Reading Speech defines the purpose of the exemption and of the relevant exception to it. It is based in part upon a misreading of s 65A which would have the exception apply only in respect of goods or services supplied by a body corporate or related body corporate. The Minister used the term "such goods or services" in a way that might be taken to have referred to goods or services of a kind supplied by the information provider or to goods or services the subject of publication pursuant to a contract, arrangement or understanding. The extract from the Explanatory Memorandum moves without explanation between a general reference to "relevant goods or services" and "goods or services" generally. These features of the Second Reading Speech and the Explanatory Memorandum mean that they are of little assistance in the construction of s 65A save to the extent that they identify its purpose. The respondents supported the Full Court's construction of s 65A by reference to textual and contextual considerations and the purpose of the section. In substance the respondents' propositions were: (i) The only goods or services referred to as a class in s 65A are the "relevant goods or services" in relation to a particular information provider. The "goods or services of that kind" referred to in s 65A(1)(a)(vi) can therefore only refer to relevant goods or services in relation to a prescribed information provider. (ii) The proximity of the term "goods or services of that kind" in s 65A(1)(a)(vi) to the term "relevant goods or services" in the immediately preceding sub-paragraph suggests that the term in sub-par (vi) refers to the "relevant goods or services" in sub-par (v). (iii) Sub-paragraphs (v) and (vi) are alternatives which should be read in their context as referring to the same kind of goods or services. (iv) If the expression "goods or services of that kind" in sub-par (vi) refers to any third person's goods or services the subject of the publication, the reference in s 65A(1)(b) to an "advertisement" would be otiose. Any advertisement would meet the description in sub-par (vi) because it would entail the publication of matter in connection with any goods or services pursuant to a contract, arrangement or understanding with a person who supplies those goods or services. (v) The Minister's Second Reading Speech referred to publication being made "pursuant to a contract, arrangement or understanding". The Minister made it plain through his use of the words "such goods, services or land" that the type of goods covered by the sub-section were goods of the kind supplied by the prescribed information provider. (vi) The Second Reading Speech indicates that the exemption was intended to have a broad operation in relation to the media and other information providers. There is no basis for suggesting that the policy of promoting a "vigorous free press" was to be subordinated to consumer protection concerns. (vii) The construction adopted by the primary judge would inhibit activities relating to the provision of news and other information by the media and other information providers. It could inhibit media from entering into arrangements or understandings including non-commercial arrangements or understandings for the purpose of publishing information about the supply of goods or services. Notwithstanding the above arguments the construction adopted by the primary judge and propounded by the appellant is to be preferred to that adopted by the Full Court and propounded by the respondents. The first constructional argument, that the reference to "goods or services of that kind" in sub-par (vi) can only refer back to "relevant goods or services" in sub-par (v), depends upon "relevant goods or services" being the only goods or services capable of designation as a class and therefore as goods of a particular kind. That premise is wrong. The designation "goods or services of that kind" used in sub-par (vi) can logically be applied to the goods or services the subject of the published matter referred to in sub-pars (i) and (iii). Those sub-paragraphs define a class of goods or services by reference to the fact that they were the subject of the published matter. The second and third construction arguments rely upon the proximity of sub-pars (v) and (vi) and the fact that they are disjunctive. These considerations do not support the respondents' construction. At best they are neutral. Sub-paragraphs (i) to (iv) define classes of publication not covered by the exemption if the conditions either of sub-pars (v) or (vi) are met. These are two different kinds of condition, the first being that the publication concerns relevant goods or services, the second depending upon the existence of a relationship between the information provider and a supplier of the goods or services the subject of the publications and action pursuant to that relationship. The fourth argument was that the appellant's construction rendered the exception in respect of advertisements in s 65A(1)(b) otiose. The argument is answered by considering the way in which the exceptions are arranged in the section. The exceptions to the s 65A exemption cover a hierarchy of related and overlapping categories of publication which are entirely consistent with the purpose of the provision. Those categories were described, in broad terms, in the submissions for the appellant as: . Self promotion – s 65A(1)(a)(v). . Third party promotion – s 65A(1)(a)(vi). . Advertisement – s 65A(1)(b). There are some categories of promotion of third party goods or services by a broadcaster which would fall squarely within the concept of an advertisement within the meaning of par (b). But it is not to be supposed that that exception, which was not relied upon at any stage in these proceedings, would cover the field of the promotion of third party goods and services. Nor is it to be supposed that the class of publication defined by the word "advertisement" and the kind of third party promotion covered by sub-par (vi) are mutually exclusive. The ordinary English meaning of "advertisement" according to the Australian Oxford Dictionary is[26]: "A public notice or announcement, especially one advertising goods or services in newspapers, on posters, or in broadcasts." The Macquarie Dictionary includes, in its similar definition, "a commercial film on television"[27]. The word "advertorial" which appears to have entered ordinary usage is defined in the Australian Oxford Dictionary as "an advertisement in the style of editorial comment"[28] and in the Macquarie Dictionary as[29]: "a media piece that looks like a news or feature article but which is written and paid for by an advertiser". The interpretation of "advertisement" may conceivably cover some kinds of broadcast which also fall within the description of advertorial. Its relevant ordinary meaning is nevertheless relatively narrow. It does not extend to every publication of matter, pursuant to some contract, arrangement or understanding, in connection with the supply of goods or services. The fifth argument relies upon the Minister's Second Reading Speech and his use of the term "such goods [or] services" in it. Given the infelicities referred to earlier, neither the Second Reading Speech nor the Explanatory Memorandum are of particular assistance in choosing between competing constructions on textual grounds. The assistance they do accord is largely related to an understanding of the purpose of s 65A and its exceptions. The purpose of the exemption in s 65A, which was the subject of the sixth and seventh arguments made by the respondents, was to maintain a vigorous free press as well as to maintain an effective and enforceable TPA. That purpose is served by releasing newspapers and electronic media proprietors, inter alia, from undesirable inhibitions on the provision, by them, of news, information, opinion and comment. Consistently with that purpose information providers are free as part of the function of an independent free press to praise or criticise the providers of goods or services and the quality of what they provide. Where, however, the information provider publishes matter in connection with goods or services which it itself provides, or publishes an advertisement for its own or someone else's goods or services, the rationale of maintaining a free and vigorous press does not require its exemption from the prohibition of misleading or deceptive conduct. The same is true where the information provider promotes the goods or services of a third party pursuant to a contract, arrangement or understanding with that party. It would be true also of publications critical of goods or services provided by competitors of the information provider or of a third party with whom the information provider has a contract, arrangement or understanding. The rationale for limits upon the exemption should be understood in the light of conditions that must be satisfied before an information provider is liable in respect of misleading or deceptive representations made by a third party and published by the information provider. The publication, by an information provider, of third party statements about goods or services, does not, without more, amount to the adoption or making of those statements by the information provider[30]. Consistently with the legislative purpose enunciated in the Second Reading Speech, there is a clear rationale, derived from the purpose of the TPA itself, for not confining the exceptions to the exemption under s 65A to advertisements and to publications about goods or services of a kind provided by the information provider. There will no doubt be factual circumstances in which the application of s 65A will not be without difficulty. Nevertheless, text, context and purpose favour the construction adopted by the primary judge, rather than that adopted by the Full Court. This leaves for consideration the point raised by the notice of contention. It was not argued by the respondents that there was not a contract, arrangement or understanding between them and the two women operating the Wildly Wealthy Women Millionaire Mentoring Program. The point in contention is whether the contract, arrangement or understanding must relate to the specific representations made in the publication or whether it suffices that the publication is made pursuant to the terms of the contract, arrangement or understanding. The primary judge found that it was sufficient that the arrangement extend only to the content of the publication in a general sense[31]. The respondents contended that this formulation was too nebulous. It would drive a "coach and horse" through the exemption. They argued that the contract, arrangement or understanding must relate to the actual content of the relevant publication or broadcast. The exception to the exemption would apply where the contract, arrangement or understanding covered the script or text of the publication or broadcast and the script or text was found to have been misleading or deceptive. The primary judge found against the construction advanced by the respondents and made the following points: . Section 65A(1)(a) is directed to the "publication of matter" and not the publication of particular statements or representations. . The publication may be made "pursuant to" a contract, arrangement or understanding. This does not require that the contract, arrangement or understanding descend to the detail of the content of the publication. . The coverage by sub-par (vi) of publications made "on behalf of" third party suppliers of goods or services also contra-indicates a limitation on the nature of the relevant contract, arrangement or understanding to the particular content of the publication. . While s 65A(1)(a) is concerned with the "matter" the subject of the publication, sub-par (vi) concerns its source and not its subject. An arrangement or understanding ordinarily involves an element of reciprocal commitment even though it may not be legally enforceable. It involves more than a mere hope or expectation that each party will act in accordance with its terms[32]. It is not necessary to consider the limits of the term here because there is no dispute that the respondents did have an arrangement or understanding with the two women. The question is whether it was the kind of arrangement or understanding with which sub-par (vi) is concerned. The collocation "on behalf of, or pursuant to a contract, arrangement or understanding with ..." is directed to the relationship between the publisher of matter and the supplier of goods or services to which the published matter relates. The respondents' construction places a gloss and a limitation upon the language of sub-par (vi) which Parliament did not see fit to place upon it. The content of the so-called "arrangement or understanding" is not defined save that it must necessarily relate to the publication of matter in connection with goods or services. The relevant publication must be made "pursuant to" it. This does not convey any requirement that the particular text published must be specified in the contract, arrangement or understanding. The respondents contended that the exception to the exemption as construed by the primary judge would destroy the exemption. This was on the basis that anybody who was interviewed by television, radio or other media does so because they agree to do so. So all voluntary interviewees are party to a contract, arrangement or understanding. This was something of a "straw man" argument. Sub-paragraph (vi) is concerned with contracts, arrangements or understandings between information providers and the suppliers of goods or services. The information provider that publishes matter in connection with the supply of goods or services, and engages in misleading or deceptive conduct in so doing by the adoption or making of misrepresentations, is the party affected by this exception. This case was well within the purposes of the exception. Other cases may require consideration of the range of arrangements or understandings that fall within it. The primary judge was correct in her construction. Conclusion For the preceding reasons the appeal should be allowed, the orders made by the Full Court of the Federal Court set aside and the orders made by the primary judge restored. The respondents in this appeal should pay the appellant's costs of the appeal in the Full Court and in this Court.

Criminal law – Practice and procedure – Permanent stay of proceedings on indictment – Threshold for grant of permanent stay – Respondents charged with reckless operation of aircraft – Electronic records of event giving rise to charge overwritten – Delay in prosecuting offences – Whether combination of delay and lost evidence justified grant of permanent stay.

Equity – Doctrine of contribution – "Co-ordinate liability" – Appellant and respondent company directors – Respondent personally borrowed money which was on-lent to the company – Company ceased trading – Respondent sought funds from appellant to repay personal loan – Whether fiduciary relationship existed between the two – Whether co-ordinate liability existed so as to require equitable contribution from appellant. Words and phrases – "common design", "community of interest", "co-ordinate liability", "equitable contribution".

Spriggs v Commissioner of Taxation Riddell v Commissioner of Taxation Taxes and duties – Income tax – Deductions – Appellant taxpayers professional Australian Rules football player and professional rugby league player – Each paid fee to manager for negotiating contract to play with new club – Whether management fee deductible under Income Tax Assessment Act 1997 (Cth), s 8-1(1) as outgoing "incurred in gaining or producing" or "necessarily incurred in carrying on a business for the purpose of gaining or producing" assessable income – Whether each appellant carrying on business exploiting sporting prowess and associated celebrity – Relevance of exclusion from definition of "business" in s 995-1 of "occupation as an employee" – Relevance of Federal Commissioner of Taxation v Maddalena (1971) 45 ALJR 426; 2 ATR 541. Taxes and duties – Income tax – Deductions – Whether management fee not deductible pursuant to s 8-1(2)(a) as an "outgoing of capital, or of a capital nature". Words and phrases – "business", "incurred in gaining or producing", "necessarily incurred in carrying on a business", "occupation as an employee", "ordinary income", "outgoing of capital". Income Tax Assessment Act 1997 (Cth), ss 6-5(1), 8-1, 995-1.

Constitutional law – Standing – Section 7 of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) ("the Act") provides that the Commissioner of Taxation must pay a tax bonus to entitled persons – Persons entitled under s 5 of Act if, inter alia, an individual, Australian resident with an adjusted tax liability greater than nil and not exceeding $100,000 for 2007-08 income tax year – Whether person entitled under s 5 of Act has standing to bring action for declarations and injunction. Constitutional law – Appropriations of moneys from the Consolidated Revenue Fund – Whether payment of tax bonus supported by valid appropriation under ss 81 and 83 of Constitution – Whether appropriation "for the purposes of the Commonwealth" under s 81 – Whether phrase "for the purposes of the Commonwealth" limits legislative power – Whether source of legislative "power to spend" is ss 81 and 51(xxxix). Constitutional law – Powers of the Commonwealth Parliament – Whether Act law with respect to trade and commerce under s 51(i) – Whether Act law with respect to taxation under s 51(ii) – Whether Act law with respect to external affairs under s 51(xxix) – Whether Act supported by implied nationhood power – Whether Act supported by power conferred by ss 81 and 51(xxxix) – Whether Act supported by power conferred by ss 61 and 51(xxxix) – If Act beyond power, whether Act can be read down so as to be within power. Constitutional law – Executive power of the Commonwealth – Global financial and economic crisis – Whether Act supported by ss 61 and 51(xxxix). Constitutional law – Taxation power – Persons entitled under s 5 of Act included persons entitled to tax bonus greater than their adjusted tax liability for the 2007-08 financial year – Whether Act law with respect to taxation. Words and phrases – "appropriation", "for the purposes of the Commonwealth", "made by law" and "maintenance of this Constitution". Constitution, ss 51(i), (ii), (xxix), (xxxix), 61, 81 and 83. Acts Interpretation Act 1901 (Cth), s 15A. Tax Bonus for Working Australians Act (No 2) 2009 (Cth). Taxation Administration Act 1953 (Cth), ss 2 and 16.

Criminal law – Punishment – Appellant sentenced in 1989 to mandatory life imprisonment for murder – Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), s 18(a) deemed sentence to include 20 year non-parole period – Section 19 provided Supreme Court of the Northern Territory may or, in certain circumstances, must revoke deemed non-parole period and fix longer period or no period on application of Director of Public Prosecutions – Appellant transferred to South Australia before Director made application for longer non-parole period – Upon transfer, Northern Territory sentence ceased to have effect but same sentence deemed to have been imposed by South Australian court – Whether Supreme Court of Northern Territory may determine application – Whether appellant "prisoner" within meaning of Act. Criminal law – Transfer of prisoners – Interaction of Prisoners (Interstate Transfer) Act 1982 (SA) and Prisoners (Interstate Transfer) Act (NT) – Whether application to Supreme Court of the Northern Territory was for "review" of sentence or minimum term. Words and phrases – "prisoner", "review". Prisoners (Interstate Transfer) Act 1982 (SA), ss 5, 25, 27, 28. Prisoners (Interstate Transfer) Act (NT), ss 3, 23, 26. Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT), Pt 5, Div 1. Sentencing (Crime of Murder) and Parole Reform Amendment Act 2008 (NT). Interpretation Act (NT), s 38(1)(b).

Trade Practices – Misleading or deceptive conduct – Where vendor of share in company provided documents prior to making of share sale agreement that did not accurately state company's past financial performance, failed to correct some estimates of company's expected performance when vendor knew or ought reasonably to have known, prior to making of agreement, that estimated performance not achieved, and incorporated some statements of financial performance in share sale agreement with various warranties as to their accuracy – Whether conduct misleading or deceptive – Whether representations pleaded actually made – Relevance of whole course of conduct between parties – Relevance of character of some statements as estimates. Trade Practices – Misleading or deceptive conduct – Whether purchaser suffered loss or damage "by conduct of" vendor – Causation and reliance – General principles – Relevance of contractual warranty by purchaser that purchaser had not relied on warranties other than those given in agreement. Corporations – Oppression – Where Corporations Act 2001 (Cth), s 233(1) empowered court, if one or more grounds set out in s 232 satisfied, to make any order it considered appropriate in relation to company, including order for purchase of any shares by any member – Where grounds in s 232 included circumstance that conduct of company's affairs "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity of in any other capacity" – Whether vendor's conduct "oppressive to, unfairly prejudicial to, or unfairly discriminatory against", purchaser – Relevance of circumstance that conduct not continuing at time order made – Whether order for repurchase of share in company could or should be made in circumstances where, at time of making order, provisional liquidator had sold business and assets of company, proceeds had been disbursed and shares in company were worthless. Contracts – Breach of warranties – Whether vendor breached warranties in share sale agreement. Contracts – Implied terms – Implied duty to co-operate – Scope of duty contended for. Words and phrases – "by conduct of another person", "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member". Fair Trading Act 1987 (NSW), ss 42, 68. Corporations Act 2001 (Cth), Pt 2F.1.

Bankruptcy – Notice – Official Receiver issued notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) ("the Act") asserting certain property transactions void under s 120 of the Act – Notice asserted market value of properties at time of transfer – Failure to comply with notice may result in criminal sanctions under s 139ZT of the Act – Whether notice should be set aside under s 30 or s 139ZS if value stated incorrect. Bankruptcy – Notice – Whether value in s 139ZQ of the Act value at time of transfer or when notice given. Practice and procedure – Pleadings – Whether correctness of value traversed in defence or cross-claim – Effect of failure to make specific denial or specific non-admission in pleadings where trial conducted on basis that correctness of value was in issue. Words and phrases – "valuation", "value ". Bankruptcy Act 1966 (Cth), ss 5, 30, 40(1)(g), 115, 120, 127, 139K, 139ZQ, 139ZR, 139ZS, 139ZT. Federal Court Rules (Cth), O 11, r 13(2). Federal Magistrates Court Rules 2001 (Cth), rr 1.03, 1.05. Federal Magistrates Court Act 1999 (Cth), s 76.

Practice and procedure – Pleadings – Amendment – Where application for leave to amend statement of claim made on third day of four week trial – Whether application should have been granted. Practice and procedure – Pleadings – Amendment – Where Court Procedures Rules 2006 (ACT) ("Rules"), r 502 provided that court may give leave to amend pleadings "in the way it considers appropriate" – Where r 21 provided objectives of Rules to facilitate just resolution of real issues in proceedings and timely disposal of proceedings at affordable cost – Relevance of case management principles to application to amend – Capacity of costs to overcome prejudice to opposing party – Whether party should be permitted to amend to raise arguable issue subject to payment of costs – Whether Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 should be overruled – Relevance of stage of proceedings at which amendment sought – Relevance of explanation for delay in seeking amendment – Relevance of extent of proposed amendment. Practice and procedure – Pleadings – Amendment – Where r 501(a) of Rules provided that all necessary amendments must be made for purpose of deciding "real issues in the proceeding" – Whether court retains discretion to grant amendment in these circumstances – Whether amendment necessary to raise arguable issues. Practice and procedure – Pleadings – Amendment – Where r 501(c) of Rules provided that all necessary amendments must be made for purpose of "avoiding multiple proceedings" – Whether amendment necessary where potential further proceedings – Relevance of possibility that further proceedings would be barred on abuse of process or estoppel grounds. Evidence – Legal professional privilege – Whether inference may be drawn from absence of explanation for delay where explanation rested on legal advice. Words and phrases – "all necessary amendments", "avoiding multiple proceedings", "just resolution", "real issues in the proceeding". Court Procedures Rules 2006 (ACT), rr 21, 501, 502.

ACQ Pty Limited v Cook Aircair Moree Pty Limited v Cook Aviation – Liability for damage caused by aircraft – Crop dusting aircraft collided with conductor in cotton field – Electrical linesman dispatched to repair conductor tripped or fell near it – Injury occurring after electric arc – Whether injury "caused by ... something that is a result of an impact" with an aircraft in flight – Damage by Aircraft Act 1999 (Cth), s 10(1). Words and phrases – "something", "caused by". Damage by Aircraft Act 1999 (Cth), ss 10(1), 11.

Constitutional law (Cth) – Judicial power of the Commonwealth – Military courts – Member of Australian Defence Force charged under Defence Force Discipline Act 1982 (Cth) ("Act") – Where hearing before Australian Military Court ("AMC"), established by s 114 of Act – Where AMC a court of record and decision subject to appeal to tribunal – Relevance of fact that AMC has criminal jurisdiction – Whether AMC exercising judicial power of the Commonwealth – Whether AMC created in accordance with Ch III of Constitution. Constitutional law (Cth) – Defence power – Military courts – AMC independent from command structure – Whether creation of AMC beyond the scope of s 51(vi) of Constitution – Whether creation of AMC inconsistent with power vested in Governor-General by s 68 of Constitution. Words and phrases – "command structure", "court", "court of record", "courts-martial", "judicial power", "judicial power of the Commonwealth", "service tribunal". Constitution, Ch III, ss 51(vi), 68, 71, 72, 73(ii), 75(v), 77, 122. Defence Act 1903 (Cth). Defence Force Discipline Act 1982 (Cth), ss 3(1), 53, 61, 63, 114-121, 140, 188AP, 188AZ, 191. Defence Force Discipline Appeals Act 1955 (Cth), s 20.

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") – Person telephoned, for purpose of obtaining information from that person, without procedures set out in ss 424(3) and 424B of Migration Act 1958 (Cth) ("Act") being followed – Whether RRT breached ss 424(3) and 424B of Act. Immigration – Refugees – After hearing, RRT obtained further information – Whether information raised new and additional issues – Whether RRT was obliged by s 425(1) of Act to invite first respondent to further hearing. Words and phrases – "get any information", "invite", "issues arising in relation to the decision under review". Migration Act 1958 (Cth), Pt 7 Div 4, ss 424, 424B, 425(1).

Taxation – Recovery of tax debts – Company deposited moneys with third party – Passage of creditors' resolution for winding up of company – Commissioner of Taxation ("Commissioner") issued notice under s 260-5 in Sched 1 to the Taxation Administration Act 1953 (Cth) ("Administration Act") requiring moneys held by third party be paid to Commissioner – Whether s 260-5 notice may be issued after commencement of winding up – Whether steps taken by Commissioner void and unenforceable as an "attachment" within meaning of s 500(1) of Corporations Act 2001 (Cth) – Relationship between s 260-5 and s 500(1). Companies – Winding up – Creditors' voluntary winding up – Whether s 260-5 in Sched 1 to Administration Act applicable – Relationship between s 260-5 and s 260-45. Words and phrases – "attachment", "property". Bankruptcy Act 1966 (Cth), s 118. Corporations Act 2001 (Cth), ss 5A(2), 9, 468(4), 500(1), 500(2), 501, 555, 569. Legal Profession Act 2004 (NSW), s 255. Taxation Administration Act 1953 (Cth), Sched 1, ss 260-5, 260-15, 260-20, 260-45, 260-50.

Constitutional law (Cth) – Powers of Commonwealth Parliament – Taxation – Superannuation contributions surcharge – State parliamentary pensions – Implied limitation on Commonwealth legislative power – Melbourne Corporation doctrine – Where appellant former member of South Australian Parliament – Where appellant eligible for parliamentary pension – Whether Acts assessing and imposing superannuation contributions surcharge invalid in application to appellant – Relevance of fact that State Acts passed in response to surcharge. Words and phrases – "curtailment of capacity of the States to function as governments", "discrimination", "special burden". Constitution, ss 7, 9, 10, 15, 25, 29, 30, 31, 41, 51(ii), 95, 107, 108, 111, 123, 124. Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth), ss 5, 8, 9, 11, 15(6), 15(7), 38. Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth), s 4. Superannuation Guarantee (Administration) Act 1992 (Cth). Parliamentary Superannuation Act 1974 (SA). Southern State Superannuation Act 1994 (SA). Statutes Amendment (Commutation for Superannuation Surcharge) Act 1999 (SA), s 4. Statutes Amendment (Miscellaneous Superannuation Measures) Act 2004 (SA), s 14. Superannuation (Benefit Scheme) Act 1992 (SA).

Timothy Visscher v The Honourable President Justice Giudice Industrial law – Contract of employment – Where employee promoted to Chief Officer but promotion later sought to be rescinded by employer – Where employee continued to perform duties and receive salary equivalent to that of Chief Officer – Whether rescission of promotion effective to terminate contract of employment. Contract – Contract of employment – Repudiation – Where employer repudiated contract of employment – Whether acceptance of repudiation by employee necessary to terminate contract of employment – Relevance of distinction between contract of employment and employment relationship – Whether employee estopped from denying that repudiation effective to terminate contract of employment. Industrial law – Certified Agreement – Where annexure to Certified Agreement listed gradings of employees – Whether grading listed in Certified Agreement conclusive as to employee's position. Words and phrases – "at the initiative of the employer", "contract of employment", "employment relationship", "repudiation", "termination". Workplace Relations Act 1996 (Cth), ss 170CD(1B), 170CE(1)(a), 170CH(3).

Leighton Contractors Pty Ltd v Fox Calliden Insurance Limited v Fox Torts – Negligence – Duty of care – Independent subcontractor suffered injury resulting from negligent conduct of co-subcontractor – Whether induction training in industry approved code of practice would have avoided cause of injury – Whether principal contractor for construction work owes duty to provide, or be satisfied of the prior provision of, training in safe work methods to independent contractors working on construction site – Whether contractor retained to carry out concreting owes duty to provide training in safe work methods to independent subcontractor engaged by it to carry out concrete pumping – Whether obligations imposed on principal contractor and contractor under the Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (NSW) give rise to a common law duty requiring for its discharge the provision of occupational health and safety induction training in respect of safe work methods of carrying out specialised tasks. Occupational Health and Safety Act 2000 (NSW). Occupational Health and Safety Regulation 2001 (NSW), Pt 8.2. Code of Practice: Pumping Code (NSW). Code of Practice: Occupational Health and Safety Induction Training for Construction Work (NSW).

Immigration – Refugees – Review of visa application before Refugee Review Tribunal ("RRT") – First respondent appointed third respondent as his "authorised recipient" to receive documents in connection with his review – Section 441G(1) of Migration Act 1958 (Cth) ("Act") required RRT to give review documents to authorised recipient instead of first respondent – RRT gave a notice inviting the respondents to attend a hearing to first respondent but not to authorised recipient – All respondents attended the hearing and no unfairness or prejudice arose from non-compliance with s 441G(1) of Act – Whether non-compliance with procedural steps in s 441G of Act compels conclusion that decision is invalid – Whether circumstances amount to denial of natural justice. Words and phrases – "authorised recipient", "natural justice". Migration Act 1958 (Cth), ss 422B, 425A, 441A, 441G. FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND BELL JJ. A decision made by the appellant, the Minister for Immigration and Citizenship ("the Minister"), or his delegate, refusing to grant a protection visa to an applicant who is physically present in the migration zone is reviewable by the Refugee Review Tribunal ("the Tribunal")[1]. The conduct of the review is governed by the provisions of Div 4 of Pt 7 of the Migration Act 1958 (Cth) ("the Act"). Section 422B(1) provides that the provisions of Div 4 are taken to be an exhaustive statement of the requirements of the natural justice hearing rule ("the hearing rule") in relation to the matters that they deal with. The manner of giving and receiving documents in connection with the review is governed by the provisions of Div 7A of Pt 7 of the Act. Section 422B(2) provides that the provisions of Div 7A, in so far as they relate to the conduct of reviews under Div 4, are to be taken to be an exhaustive statement of the hearing rule in relation to the matters that they deal with. An applicant for review may appoint a person, an "authorised recipient", to receive documents in connection with the review on his or her behalf. In the event that an applicant nominates an authorised recipient, the Tribunal is required to give review documents to that person instead of giving the documents to the applicant[2]. In this case, the Tribunal failed to give a notice inviting the applicants for review to attend a hearing to the authorised recipient in the manner that is prescribed by Div 7A. As will appear, this did not occasion any adverse consequence to any of the applicants for review, who are the first to sixth respondents to the appeal ("the respondents"). An effective response was made to the notice and all the respondents, including the authorised recipient, attended the hearing, which was not otherwise the subject of any procedural flaw. The Full Court of the Federal Court of Australia (Moore, Marshall and Lander JJ) held that the Tribunal's failure to comply with the obligations imposed on it under Div 7A was a jurisdictional error. The Court considered that in the absence of exceptional circumstances it should not withhold relief in a case in which the Tribunal had failed to comply with imperative statutory obligations owed to an applicant for review[3]. Since there were no such exceptional circumstances in this case the Court made orders quashing the Tribunal's decision and remitting the respondents' application for review to the Tribunal to be determined according to law. The Minister appeals by special leave to this Court from the decision of the Full Court. For the reasons that follow the appeal should be allowed and the orders made in the Full Court should be set aside. The facts The respondents are a family, who come from Lebanon. The first respondent is the husband, the second respondent is his wife and the third to sixth respondents are their children. The family arrived in Australia on 21 March 2001. On 14 November 2005 they applied for protection visas. The first respondent made substantive claims to being a person to whom Australia owes protection obligations under the Refugees Convention[4] as amended by the Refugees Protocol[5] (together "the Convention")[6]. The remaining respondents applied for protection visas as the first respondent's spouse and dependants respectively[7]. On 13 January 2006 a delegate of the Minister refused the respondents' applications on the ground that none satisfied the criterion for the issue of a protection visa. The respondents filed an application for review of the delegate's decision. Their application was submitted on a pro forma issued by the Tribunal. Multiple applicants for review are permitted to submit applications on the same form. The form which the respondents signed contained the following printed advice: "Each person is an applicant in his or her own right. Unless an included applicant advises the Tribunal otherwise, the Tribunal will communicate with Applicant 1 or his or her authorised recipient. Applicant 1 must inform each applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them." The first respondent was named as Applicant 1 in the application. He nominated his eldest daughter, the third respondent, SZIZQ, as his authorised recipient. SZIZQ's address was given as the address of the premises at which all of the respondents were residing ("the family residence"). Telephone numbers for a landline and a mobile service were supplied as a means of contacting SZIZQ. The first respondent signed a declaration undertaking to inform each of the respondents of the contents of any communication from the Tribunal and to reply to the Tribunal on their behalf. The remaining five respondents, including SZIZQ, signed the application acknowledging that each had read and understood the information supplied in it and authorising the Tribunal to communicate with the first respondent or his authorised recipient about the application. The application was dated 6 February 2006. It was received by the Tribunal on 9 February 2006. The Tribunal sent a notice by prepaid post addressed to the first respondent inviting him and the other respondents to attend a hearing, to be held on 23 March 2006 ("the notice of hearing"). The first respondent was instructed to inform each of the other respondents of its contents, including that any response would be regarded by the Tribunal as a joint response, unless the Tribunal was advised otherwise. A brochure explaining what would happen on the day of the hearing, and a "response to hearing invitation" ("the response form"), were enclosed with the notice. Neither the first respondent nor the second respondent speak or are literate in English. SZIZQ speaks and is literate in the Arabic, French and English languages. The response form was completed in English. It was signed by the first respondent and dated 6 March 2006. It was expressed to be "[s]igned on behalf of, and with the consent of, all family members included in the application." The section of the response form containing a space for the provision of the name and contact details of the authorised recipient was left blank. The address of the family residence was given as the first respondent's home and mailing address. The same landline and mobile telephone numbers as had earlier been given as contact telephone numbers for SZIZQ were given as contact numbers for the first respondent. The response form recorded that the first respondent needed the services of an interpreter in the Arabic language at the hearing. Two persons were nominated as witnesses whose evidence the respondents wished to place before the Tribunal. Each of the respondents attended the hearing on 23 March 2006. The two witnesses who had been nominated in the response form attended the hearing and gave evidence. A third witness also gave evidence in support of the respondents' application. The first and second respondents gave evidence at the hearing with the assistance of the interpreter. SZIZQ gave evidence without the assistance of an interpreter. In the course of the hearing the first respondent was shown his visa application and he said that his daughter had completed the form on his behalf on his instructions. At the conclusion of the hearing the Tribunal member informed the respondents: "[I]f everybody is happy with this unless there is something else you want to put to me ... is we will adjourn now close the hearing ... ten days if you want to put anything else in that you think it's relevant to your case". The Tribunal wrote to the first respondent by letter dated 27 March 2006 confirming the advice given at the hearing that the Tribunal had allowed 10 days in which to make further written submissions in relation to the review. The first respondent was asked to inform the other respondents of the contents of the letter. Written submissions signed by the first, second and third respondents were submitted to the Tribunal along with supporting documents. They were received by the Tribunal on 7 April 2006. On 6 June 2006 the Tribunal handed down its decision, affirming the decision under review. The respondents sought judicial review of the Tribunal's determination before the Federal Magistrates Court. The application was dismissed on 5 September 2007[8]. The respondents appealed from that decision. The appeal came before a single judge exercising the appellate jurisdiction of the Federal Court[9]. Counsel appearing for the Minister drew to the Court's attention that the notice of hearing had been given to the first respondent and not to his authorised recipient. This issue had not been raised before the Federal Magistrates Court. The appeal was referred to the Full Court[10]. The respondents were referred by the Registrar of the Federal Court to a legal practitioner on the Pro Bono Panel for legal assistance in relation to their appeal. An amended notice of appeal was filed, which abandoned the grounds originally relied upon and substituted a single ground contending that the decision of the Tribunal had been attended by jurisdictional error. The statutory scheme If a valid application is made to review a decision to refuse to grant a protection visa the Tribunal must review the decision[11]. The Tribunal may, for the purposes of the review, exercise all the powers and discretions that are conferred by the Act on the person who made the decision[12]. Its powers include that it may set aside the decision and substitute a new decision, which is taken to be that of the Minister[13]. In carrying out its functions under the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick[14]. It is not bound by technicalities, legal forms or rules of evidence and is required to act according to substantial justice and the merits of the case[15]. Because the Tribunal was not minded to decide the review in the respondents' favour on the basis of the material before it, it was required to invite the respondents to appear at a hearing to give evidence and present any arguments relating to the issues arising in relation to the decision under review[16]. The obligation to give notice of the hearing was imposed by s 425A, which relevantly provides: "(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. (2) The notice must be given to the applicant: (a) ... by one of the methods specified in section 441A; ... (3) The period of notice given must be at least the prescribed period ... (4) The notice must contain a statement of the effect of section 426A." The prescribed period of notice in the case of an applicant who is not a detainee is 14 days after the day on which the notice is received[17]. Section 441C sets out when a person is taken to have received a document that is given by one of the methods in s 441A. Section 426A permits the Tribunal, in a case in which an applicant for review has failed to appear at a scheduled hearing, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The first respondent gave the Tribunal written notice of SZIZQ's name and address as his authorised recipient. This engaged the provisions of s 441G, which, relevantly, provides: "(1) If: (a) A person (the applicant) applies for review of an RRT-reviewable decision; and (b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review; the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method. (2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document. ... (4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication. ..." The provisions of s 425A(2)(a) applied to the review of the respondents' application and the Tribunal was required to give the notice of hearing by one of the methods prescribed in s 441A. One such method is by a member, the Registrar or an officer of the Tribunal dating the notice and dispatching it by prepaid post to the last address for service, or the last residential or business address, provided to the Tribunal by the recipient in connection with the review[18]. The provision does not, in terms, state that the recipient's name is to be included on the envelope. However, the Minister did not contend that the notice, which was sent by prepaid post to the family residence, at which SZIZQ, the authorised recipient, was residing, had been given to her within the meaning of s 441G. The Full Court's reasons The Full Court considered that s 422B, which is contained in Div 4, indicated the Parliament's intention that there be "strict adherence to each of the procedural steps leading up to the hearing"[19]. Section 422B provides: "422B Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with." The Full Court pointed out that there are good reasons why the Tribunal is required to give notice to the authorised recipient instead of (or in addition to) the applicant; in many cases applicants for protection visas will not speak English or be literate in English and few may be expected to understand Australia's obligations under the Convention[20]. It considered that usually when an applicant nominates an authorised recipient it will be for the purpose of having that person assist the applicant to present his or her case at the hearing[21]. It concluded that "any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error"[22]. The issue It is well established that the denial of natural justice to an applicant for a visa may result in a decision that exceeds jurisdiction for which prohibition will go[23]. This is not such a case. The Full Court found that no unfairness or prejudice was visited upon any of the respondents by reason of the Tribunal's failure to comply with its statutory obligation[24]. It approached the matter on the footing that each procedural step in Divs 4 and 7A imposed an imperative duty on the Tribunal forming part of the statutory statement of the hearing rule[25]. The Act does not provide for the consequences of non-compliance with any of the provisions of Div 4 or Div 7A. Written notice of the invitation to appear before the Tribunal to give evidence and to present arguments[26] came to the attention of the applicants for review (the respondents in this Court) and their authorised recipient[27] within the prescribed period[28]. The notice contained the matters prescribed by the Act[29]. The notice was given to one of the applicants for review (the first respondent) in one of the ways provided by s 441A. There was no dispute, however, that the Tribunal did not give the notice of hearing to the authorised recipient. When s 441G(1) provides that, if an applicant for review has nominated an authorised recipient, "the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant", what consequence follows if an invitation to attend a hearing was not given to the authorised recipient, but was given to one of the applicants for review, and came to the attention of other applicants for review and the authorised recipient in due time? Was it a purpose of the legislation[30] that, despite holding a hearing at which all of the applicants for review, including their authorised recipient, appeared before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review[31], the Tribunal could not validly decide the review? The submissions The respondents submit that the Full Court was right to conclude that compliance with each of the steps in Divs 4 and 7A conditions the Tribunal's jurisdiction to determine a review. In their submission the purpose of the statutory regime is to ensure that certainty attends Tribunal decisions; a decision made in conformity with each identified step is within jurisdiction and a decision not so made is not. They contend that the Parliament's intention was to remove debate in the courts about whether an applicant for review has been denied natural justice. In this respect they draw attention to the Minister's speech on the second reading of the Bill for the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which introduced s 422B into the Act[32]: "In 1998, the codes of procedure for the Migration Review Tribunal and the Refugee Review Tribunal were enhanced. The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly. It was also intended that they would replace the uncertain common law requirements of the natural justice 'hearing rule', in particular, which had previously applied to decision makers. However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements. This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule. A further consequence of the High Court's decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision." The Minister submits that compliance with each of the identified steps in Divs 4 and 7A will always discharge the Tribunal's obligations under the hearing rule but that it does not follow that departure from any of the steps, including those dealing with the giving and receiving of review documents, is intended to exclude consideration by the court of whether the requirements of natural justice have been satisfied. SAAP v Minister for Immigration and Multicultural and Indigenous Affairs Before turning to the characterisation of the obligations imposed on the Tribunal under ss 441G and 441A, reference should be made to the decision of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[33]. In that case the Tribunal failed to provide to the applicant for review written particulars of information that it considered would be the reason, or part of the reason, for affirming the decision under review. This was a breach of the requirements of s 424A, which is in Div 4. Justice McHugh, who was one of the Justices who formed the majority, concluded as follows[34]: "However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information ... If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no 'partial compliance' with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act." Justice Hayne (with whose reasons on this aspect Kirby J agreed) observed that the evident purpose of Pt 7, and Div 4 in particular, is to afford procedural fairness to applicants[35]. His Honour identified the focus of the inquiry as to jurisdictional error as being the validity of the act done in purported performance of the Tribunal's obligation to review and decide the matter[36]. He concluded that[37]: "Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid." It is to be observed that the obligation imposed by s 424A, that the Tribunal give an applicant written particulars of any adverse information including of the relevance of that information to the review, is of a different character to the obligation imposed on the Tribunal to give notice of a hearing in the manner that is prescribed by s 441A. Consideration SAAP was concerned with the Act as it stood before the introduction of s 422B. The validity of s 422B was assumed by the parties and this appeal does not raise consideration of the scope of its operation. In SZBYR v Minister for Immigration and Citizenship[38] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed that in light of the introduction of s 422B it would be surprising if s 424A were interpreted as having an operation going well beyond the requirements of the hearing rule at common law. That observation is pertinent to the consideration of whether there is to be discerned from the legislative scheme an intention to invalidate in consequence of non-compliance with any of the obligations dealing with the manner of giving and receiving review documents. The obligations imposed by s 425A with respect to giving notice of the hearing are directed to ensuring that an applicant has adequate time in which to prepare his or her case. (The requirement for service by a method prescribed by s 441A may be thought to serve a different purpose, which is to lay the foundation for the Tribunal to determine a review without further notice where an applicant has failed to appear at a scheduled hearing.) As the Full Court found, s 441G contains a statutory recognition that some applicants are unlikely to understand the purport of the notice or to be able to properly prepare their case without assistance. In this respect s 441G may be seen as being concerned with the provision of effective notice of the hearing. In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information[39] and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review[40]. While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being "rather absurd"[41]. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing[42]. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case. For these reasons the appeal should be allowed. Orders As a condition of the grant of special leave the Minister undertook not to seek to disturb any orders as to costs which had been made in the courts below. The Full Court of the Federal Court allowed the respondents' appeal (order 1) and set aside the order made in the Federal Magistrates Court on 5 September 2007 (order 2) and ordered the Minister to pay the respondents' costs of the appeal (order 3). Accordingly, the orders that we propose are as follows: Appeal allowed. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court of Australia on 3 July 2008, and in lieu thereof order that: (a) order 2 of the orders made by the Federal Magistrates Court of Australia on 5 September 2007 be set aside; and (b) the appeal be otherwise dismissed. Appellant to pay the first to sixth respondents' costs of the appeal to this Court. [1] Sections 411, 412 and 414 of the Migration Act 1958 (Cth). The relevant text of the Act is reprint 9. [2] Section 441G. [3] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 168-169 [97] per Lander J (Moore and Marshall JJ concurring). [4] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951. [5] The Protocol relating to the Status of Refugees done at New York on 31 January 1967. [6] Section 36(2)(a). [7] The second to sixth respondents' application was made pursuant to s 36(2)(b) of the Act. [8] SZIZO v Minister for Immigration [2007] FMCA 1339. [9] Section 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). [10] Section 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth). [11] Section 414(1). [12] Section 415(1). [13] Section 415(2)(d) and (3)(b). [14] Section 420(1). [15] Section 420(2). [16] Section 425. [17] Regulation 4.35D(b) of the Migration Regulations 1994 (Cth). [18] Section 441A(4). [19] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [87]. [20] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [88]- [89]. [21] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [90]. [22] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [90]. [23] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89 [5] per Gleeson CJ, 91 [17] per Gaudron and Gummow JJ; [2000] HCA 57; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 67 [26] per Gleeson CJ and Hayne J; [2001] HCA 22; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77. [24] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [91]. [25] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 166-167 [87]. [26] Section 425(1). [27] Section 441G. [28] Section 425A(3). [29] Sections 425A(1) and 426(1). [30] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 388-389 [91]; [1998] HCA 28. [31] Section 425(1). [32] Australia, House of Representatives, Parliamentary Debates (Hansard), 13 March 2002 at 1106. [33] (2005) 228 CLR 294; [2005] HCA 24. [34] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 321 [77]. [35] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 350 [192]. [36] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 353-354 [205]. [37] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355 [208] (emphasis in original). [38] [2007] HCA 26; (2007) 81 ALJR 1190 at 1195 [14]; [2007] HCA 26; 235 ALR 609 at 614; [2007] HCA 26. [39] Section 424A(1). [40] Section 425. [41] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [91]. [42] SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122; (2008) 172 FCR 152 at 167 [87].

Workers' compensation – Injury resulting in permanent impairment – Under s 24 of Safety, Rehabilitation and Compensation Act 1988 (Cth), where "an injury to an employee results in a permanent impairment", respondent liable to pay compensation "in respect of the injury" – Amount of compensation fixed by degree of permanent impairment resulting from injury as assessed under Guide to the Assessment of the Degree of Permanent Impairment ("Guide") – Guide provides that "[w]here two or more injuries give rise to the same impairment a single rating only should be given" – Appellant previously compensated for injury to left knee resulting in permanent impairment – Whether appellant entitled to compensation for separate injury to right knee resulting in permanent impairment to same degree – Whether "degree of permanent impairment" refers to impairment of whole person or impairment to particular part of person's body. Words and phrases – "degree of permanent impairment", "impairment", "injury", "permanent impairment", "resulting from". Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 24, 28, 142, 147. Guide to the Assessment of the Degree of Permanent Impairment, 1st ed (1989).

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") – Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 – Whether failure to inquire constituted jurisdictional error. Immigration – Refugees – Review by RRT – Where RRT received allegation that documents provided by visa applicant were "fake & forged", invited applicant to comment in writing, but failed to invite him to further hearing – Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 – Whether allegation of forgery raised new "issue" within meaning of Migration Act 1958, s 425. Words and phrases – "failure to inquire", "inquisitorial", "issues", "procedural fairness", "review". Migration Act 1958 (Cth), ss 414, 424, 424A, 425.

Minister for Immigration and Citizenship v SZJGV Minister for Immigration and Citizenship v SZJXO Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") – Where RRT not satisfied that visa applicants engaged in Falun Gong-related activities in Australia otherwise than for the purpose of strengthening claims to be refugees – Where RRT drew adverse inferences about visa applicants' credibility from visa applicants' participation in Falun Gong-related activities in Australia – Whether Migration Act 1958 (Cth), s 91R(3) permitted RRT to use evidence of conduct in Australia to make findings adverse to visa applicants' claims to be refugees. Words and phrases – "any conduct", "disregard", "in determining whether", "purpose", "strengthening". Migration Act 1958 (Cth), s 91R(3).

Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited (subject to a deed of company arrangement) Practice and procedure – Costs – Order against non-party – Where non-party, for a contingency fee, funded impecunious corporate plaintiff without providing plaintiff with indemnity against adverse costs orders – Whether power of Supreme Court of New South Wales to order costs against non-party enlivened – Whether non-party had committed abuse of process of the court within the meaning of Uniform Civil Procedure Rules 2005 (NSW), r 42.3(2)(c). Words and phrases – "abuse of process of the court", "occasioned by". Uniform Civil Procedure Rules 2005 (NSW), r 42.3. Civil Procedure Act 2005 (NSW), s 98(1).

Guarantee and indemnity – Surety – Right to subrogation to securities – Three separate loans made to company, each secured by mortgage over company's property – Appellants guarantors of each loan – Appellants sold personal properties and used proceeds to reduce first loan – First mortgagee exercised power of sale over company's property to satisfy outstanding amounts owing under first loan and transferred surplus to second mortgagee – Whether appellants have right to subrogation to securities in priority to puisne mortgagees – Whether appellants' right to subrogation excluded by terms of guarantees to puisne mortgagees – Whether rule in Otter v Lord Vaux [1856] EngR 1012; (1856) 2 K & J 650 [69 ER 943] applied to prevent appellants from exercising right to subrogation or should be extended to so apply – Whether transfer of surplus required to be unconscionable for doctrine of subrogation to apply. Equity – Remedies – Constructive trust – Nature of constructive trust – Surplus transferred by first mortgagee to second mortgagee – Whether first mortgagee constructive trustee of surplus – Whether obligation to account. Words and phrases – "subrogation", "unconscientious", "unconscionable", "unjust enrichment". Statute of Frauds 1677, s 4. Conveyancing Act 1919 (NSW), s 10. Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 3. Real Property Act 1900 (NSW), ss 57(1), 58. Uniform Civil Procedure Rules 2005 (NSW), r 28.2.

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Occupational Health and Safety Act 1991 (Cth) ("OHS Act") – Occupational Health and Safety Act 2004 (Vic) ("State Act") – Provisions of State Act empowered inspectors to bring proceedings for an offence against State Act – Plaintiff charged with offences under State Act – OHS Act relevantly applies to employers that are "non-Commonwealth licensees" – Plaintiff became non-Commonwealth licensee after alleged offences committed but prior to charges being laid – Whether while plaintiff remains a non-Commonwealth licensee for purposes of OHS Act it is liable for conviction under State Act for offences allegedly committed before plaintiff became a non-Commonwealth licensee – Whether provisions of State Act authorising prosecution of such offences inconsistent with OHS Act and thereby invalid by operation of s 109 of the Constitution. Words and phrases – "employer", "law", "non-Commonwealth licensee". Constitution, s 109. Occupational Health and Safety Act 1991 (Cth), ss 3, 4, 5(1). Occupational Health and Safety Act 2004 (Vic), ss 7(1)(c), 21, 23, 130. Safety, Rehabilitation and Compensation Act 1998 (Cth), Pt

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Occupational Health and Safety Act 1991 (Cth) ("OHS Act") – Occupational Health and Safety Act 2000 (NSW) ("State Act") – Provisions of State Act empowered inspectors to bring proceedings for an offence against State Act – Applicant charged with offences under State Act – OHS Act relevantly applies to employers that are "non-Commonwealth licensees" – Applicant became non-Commonwealth licensee after alleged offences committed but prior to charges being laid – Whether while applicant remains a non-Commonwealth licensee for purposes of OHS Act it is liable for conviction under State Act for offences allegedly committed before applicant became a non-Commonwealth licensee – Whether provisions of State Act authorising prosecution of such offences inconsistent with OHS Act and thereby invalid by operation of s 109 of the Constitution. Constitution, s 109. Occupational Health and Safety Act 1991 (Cth), ss 3, 4, 5(1). Occupational Health and Safety Act 2000 (NSW), ss 8, 107.

Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Criminal Assets Recovery Act 1990 (NSW) ("Act") – Section 10(2) of Act allows New South Wales Crime Commission ("Commission") to apply to Supreme Court of New South Wales ("Supreme Court") ex parte for restraining order in respect of interests in property – Section 10(3) of Act requires Supreme Court to make restraining order in respect of interest of person suspected of engaging in serious crime related activity and in respect of interests in property suspected of being derived from serious crime related activity where affidavit of authorised officer contains reasonable grounds for suspicion – Restraining order prevents persons disposing of or dealing with the interest, or attempting to do so – Section 25 of Act allows for application to exclude interest in property from restraining order – Where restraining orders granted, upon ex parte application by Commission, in respect of various bank accounts, suspected of being derived from serious crime related activity – Whether basis for granting restraining order only positively displaced by exclusion application under s 25 of Act, where applicant bears burden of proving, on balance of probabilities, that interest in property not fraudulently or illegally acquired – Whether s 10 engages Supreme Court in activity repugnant in a fundamental degree to judicial process. Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Section 22(2)(b) of Act requires Supreme Court, upon application by Commission, to make assets forfeiture order in respect of interests in property if more probable than not that the person whose suspected serious crime related activity formed the basis of restraining order has engaged in the last six years in serious crime related activity involving an offence punishable by imprisonment for five years or more – Whether s 22(2)(b) bill of pains and penalties – Whether s 22(2)(b) engages Supreme Court in activity repugnant in a fundamental degree to judicial process. Statutes – Interpretation – Whether plain intendment of Act the establishment of regime distinct from usual incidents of Supreme Court. Words and phrases – "ancillary orders", "confiscation", "ex parte", "fraudulently acquired property", "illegally acquired property", "reasonably plain intendment", "serious crime related activity". Criminal Assets Recovery Act 1990 (NSW), ss 10, 12(1), 22, 25.