Cases and authorities

Insurance contracts – Validity of "other insurance" provision – Whether rendered void by s 45 of Insurance Contracts Act 1984 (Cth) – Where s 45 rendered void provisions in contracts of general insurance that had effect of limiting or excluding liability of insurer under the contract by reason that the insured had entered into some other contract of insurance – Whether s 45 applied to provision purporting to limit or exclude liability by reason that the insured was named as non-party beneficiary under another contract of insurance – Whether insured had "entered into" that contract within meaning of s 45. Statutes – Interpretation – Meaning of "provision" in s 45 of Insurance Contracts Act 1984 (Cth) – Where "other insurance" clause applied in two different circumstances, only one of which attracted application of s 45 – Whether clause void only to the extent that it had the impugned effect – Whether clause void as a whole – Whether s 45 rendered void words or operation of clause. Words and phrases – "double insurance", "entered into", "excess insurance", "other insurance", "provision". Insurance Contracts Act 1984 (Cth), ss 45(1), 48.

Tort – Negligence – Damages – Motor vehicle accident – Personal injury – Assessment – Economic loss – Regular payments made by church to applicant following motor vehicle accident – Whether benevolent payments should be taken into account when calculating damages – Whether intention of giver of benevolent payments determinative – Where collateral benefit exists for giving benevolent payments – Relevance of public policy in disregarding benevolent payments in assessment of damages. Appeal – Issue not raised at trial – Motor vehicle accident – Personal injury –Economic loss – Issue at trial whether plaintiff an employee – Issue on appeal concerned real intent behind benevolent payments – Where applicant would have objected to admissibility of evidence or called further witnesses if issue raised at trial – Whether party bound by presentation of case at trial – Prejudice. Words and phrases – "assessment of damages", "benevolent payment", "gift", "intention", "public policy", "volunteer work".

Criminal law – Defences – Compulsion – Applicant convicted of possession of and trafficking in a dangerous drug – Whether Court of Appeal erred in holding that evidence did not disclose a case fit for consideration by jury that there were reasonable grounds for applicant's belief that he was otherwise unable to escape the carrying out of the threat within the meaning of s 31(1)(d) of the Criminal Code (Q). Words and phrases – "reasonable belief". Criminal Code (Q), s 31(1)(d).

Constitutional law (Cth) – Powers of Commonwealth Parliament – Limitation on legislative power – Right of State or residents therein to reasonable use of waters of rivers for conservation or irrigation – Appellants held bore licences under Water Act 1912 (NSW) – Appellants' bore licences replaced, pursuant to funding agreement between Commonwealth and State of New South Wales, with aquifer access licences under Water Management Act 2000 (NSW) ("2000 Act") – Replacement of bore licences effectuated by making of Water Sharing Plan for the Lower Murray Groundwater Source by Minister Administering the 2000 Act ("Minister") pursuant to s 50 of 2000 Act – Whether Commonwealth legislation under which funding agreement allegedly made, or funding agreement, contravened s 100 of the Constitution – Whether appellants' bore licences entitled them to use "the waters of rivers". Administrative law – Relevant and irrelevant considerations – Whether Minister took irrelevant considerations into account in making plan under s 50 of 2000 Act. Constitutional law (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether replacement of bore licences acquisition of property. Words and phrases – "the waters of rivers". Constitution, ss 51(xxxi), 98, 100. National Water Commission Act 2004 (Cth). Water Act 1912 (NSW). Water Management Act 2000 (NSW), s 50.

Family law – Children – Parenting orders – Section 60CA of the Family Law Act 1975 (Cth) makes "best interests of the child" paramount consideration when making parenting order – Section 61DA(1) provides presumption that equal shared parental responsibility in best interests of child – Section 65DAA requires court to consider whether child spending equal, or "substantial and significant", time with each parent is "reasonably practicable" – Where order required that child spend equal time with each parent – Where order made on basis that parents would live in Mt Isa – Where living in Mt Isa contrary to wishes of mother – Whether spending equal time with each parent reasonably practicable – Significance of circumstances of mother – Relationship between best interests of the child and reasonably practicable – Whether order valid. Words and phrases – "equal time parenting", "reasonably practicable". Family Law Act 1975 (Cth), Pt VII, ss 61DA, 65D, 65

Amaca Pty Ltd v Ellis The State of South Australia v Ellis Millennium Inorganic Chemicals Ltd v Ellis Negligence – Causation – Balance of probabilities – Deceased was a smoker – Deceased exposed to respirable asbestos fibres in course of employment – Deceased died of lung cancer – No scientific or medical examination can say whether deceased's lung cancer caused by inhalation of tobacco smoke, respirable asbestos fibres, both, or neither – Use of epidemiological evidence – Whether epidemiological evidence founded inference of causation – "Synergistic" effect of smoking and exposure to asbestos fibres – Whether proved that exposure to asbestos more probably than not caused or contributed to deceased developing lung cancer – Relevance of material contribution. Words and phrases – "epidemiology", "material contribution", "more probable than not", "relative risk", "synergistic effect".

Immigration – Visa – General Skilled Migration visa – Skilled (Residence) (Class VB) Visa, Subclass 885 (Skilled – Independent) – Where application for visa refused for failure to meet English language requirements – Where "vocational English" a primary criterion for the grant of the visa appearing in subdiv 885.21 of Sched 2 to the Migration Regulations 1994 (Cth) ("the Regulations"), headed "Criteria to be satisfied at time of application" – Whether visa applicant could lodge English language test report after submission of application but before Minister's decision. Delegated legislation – Interpretation – Meaning of "not more than 2 years before the day on which the application was lodged" in reg 1.15B of the Regulations – Purpose of the Regulations. Delegated legislation – Interpretation – Application of s 13(1)(a) of the Legislative Instruments Act 2003 (Cth) – Application of s 13 of the Acts Interpretation Act 1901 (Cth) – Where headings in Sched 2 to the Regulations not defined – Relevance of headings of Parts, Divisions and Subdivisions of Sched 2 to the Regulations being "part of" the Regulations. Words and phrases – "criteria to be satisfied at time of application", "legislative instrument", "not more than 2 years before the day on which the application was lodged". Acts Interpretation Act 1901 (Cth), s 13. Legislative Instruments Act 2003 (Cth), s 13(1)(a). Migration Act 1958 (Cth), ss 54, 55, 65. Migration Amendment Regulations 2007 (No 7) (Cth). Migration Regulations 1994 (Cth), reg 1.15B, Pt 885 of Sched 2.

Criminal law – Statutes – Extension of offence provision – Fisheries Management Act 1991 (Cth) ("Act"), s 101, created offence of, in certain circumstances, being in possession of foreign boat within Australian Fishing Zone ("AFZ") equipped with nets, traps or other equipment for fishing – Section 12(2) of Act stated that provisions in Act or regulations made in relation to fishing in AFZ extend, to extent capable of doing so, to fishing for sedentary organisms in or on any part of Australian continental shelf not within AFZ as if they were in AFZ – Section 4 of Act defined "fishing" as one or more forms of identified activity – Where appellant indicted for being in possession of, at a place in the waters above Australian continental shelf not within AFZ, foreign boat equipped with nets, traps or other equipment for fishing for sedentary organisms – Whether indictment disclosed offence – Whether s 12(2) extended operation of s 101 to waters above Australian continental shelf not within AFZ – Whether s 101 a provision made "in relation to fishing". Words and phrases – "Australian Fishing Zone", "fishing", "in relation to". Fisheries Management Act 1991 (Cth), ss 4, 12(2), 101.

Wallaby Grip Limited v QBE Insurance (Australia) Limited Stewart v QBE Insurance (Australia) Limited Insurance – Workers' compensation – Workers' Compensation Act 1926 (NSW) ("Act") s 18(1) required employers to obtain insurance or indemnity policy from insurer in respect of liability for injury to any worker – Act stipulated minimum level of cover in respect of employer's liability independently of Act – General terms and conditions of policy referred to in Act and in Appendix to Workers' Compensation Regulations 1926 (NSW) ("Regulations") – Where insurance policy lost – Where no evidence as to level of indemnity in policy – Whether any limitation upon indemnity imposed by Act or policy – Whether insurer or insured carries burden of proving limitation upon indemnity. Statutory construction – Interaction between Act and Regulations – Whether Regulations can be used to construe Act. Workers' Compensation Act 1926 (NSW), ss 18(1), 18(3)(a), 18(5). Workers' Compensation Regulations 1926 (NSW), Div I, reg 1.

Commissioner of Taxation v Bamford Bamford v Commissioner of Taxation Income tax – Income of trust estate – Assessable income of beneficiary – Income Tax Assessment Act 1936 (Cth) ("the Act"), s 97(1) provided that where beneficiary presently entitled to "a share of the income of the trust estate", assessable income of beneficiary included "that share of the net income of the trust estate" – Beneficiaries entitled to specific amounts of distributable income – One beneficiary also entitled to residue of distributable income – Disparity between net income and distributable income – Meaning of "that share of the net income" in s 97(1)(a)(i) of the Act – Whether beneficiaries to be assessed by reference to their proportion of distributable income or specific amounts. Income tax – Income of trust estate – Trustee determined, pursuant to deed of settlement, net capital gain to be treated as distributable income – Whether net capital gain was "income of the trust estate" under s 97(1) of the Act – Relevance of trustee's determination – Whether "income of the trust estate" income according to trust law or "ordinary concepts" but excluding "statutory income". Words and phrases – "income of the trust estate", "presently entitled", "that share of the net income of the trust estate", "trust estate", "trustee". Income Tax Assessment Act 1936 (Cth), ss 6(1), 95-99

Lehman Brothers Holdings Inc v City of Swan Lehman Brothers Asia Holdings Limited (in liquidation) v City of Swan Corporations – Statutes – Deed of company arrangement ("DOCA") – Corporations Act 2001 (Cth), s 444D(1), provided that a "deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed" – Where provisions of DOCA purported to provide for moratorium on and release of claims that might be made by company's creditors against persons other than the company – Whether such provisions of DOCA binding on company's creditors – Whether DOCA void. Words and phrases – "so far as concerns claims", "deed of company arrangement". Corporations Act 2001 (Cth), Pts 5.1, 5.3A, s 600

The Queen v LK The Queen v RK Criminal law – Conspiracy – Fault element – Where respondents charged with having conspired to commit offence against s 400.3(2) of Criminal Code (Cth) ("Code") – Whether s 11.5(2)(b) of Code required prosecution to prove intention in relation to each physical element of substantive offence particularised as subject of conspiracy, even if fault element prescribed for substantive offence was lesser fault element, such as recklessness – Whether elements of conspiracy wholly contained within s 11.5(1) of Code – Relevance of common law offence of conspiracy to interpretation of Code. Constitutional law (Cth) – Federal judicature – Trial by jury – Appeal against directed verdict of acquittal – Application of State law – Section 107 of Crimes (Appeal and Review) Act 2001 (NSW) ("State Act") provided right of appeal by Crown against directed verdict of acquittal – Whether, as matter of construction, s 68(2) of Judiciary Act 1903 (Cth) ("Judiciary Act") picked up and conferred, in relation to Commonwealth offences, federal jurisdiction in terms created by s 107 of State Act – Whether guarantee of trial by jury in s 80 of Constitution infringed by appeal pursuant to s 107 of State Act as picked up by s 68(2) of Judiciary Act against directed verdict of acquittal of indictable offence against Commonwealth law where appeal turned solely on question of law. Words and phrases – "conspiracy", "conspires", "intended that an offence would be committed", "recklessness", "trial by jury". Constitution, s 80. Criminal Code (Cth), ss 5.4, 11.5, 400.3(2). Judiciary Act 1903 (Cth), s 68(2). Crimes (Appeal and Review) Act 2001 (NSW), s 107.

Ansari v The Queen Ansari v The Queen Criminal law – Conspiracy – Fault element – Recklessness – Where appellants charged with conspiracy to deal with money where risk existed money would be used as instrument of crime – Whether charges bad in law because of inherent inconsistency in proving conspiracy where fault element of offence the object of conspiracy is recklessness – R v LK [2010] HCA 17. Words and phrases – "conspiracy to commit an offence", "instrument of crime". Criminal Code (Cth), ss 5.4, 11.5, 400.3(2).

John Alexander's Clubs Pty Limited v White City Tennis Club Limited Walker Corporation Pty Limited v White City Tennis Club Limited Equity – Fiduciary obligations – Where commercial parties entered into series of agreements – Relevance of contractual terms to existence of fiduciary relationship – Where memorandum of understanding required grantee of option to purchase land to exercise option in favour of another – Where later agreement superseded memorandum of understanding and contained no such requirement – Whether fiduciary obligations arose between parties. Trusts – Constructive trust – Whether equitable fraud, unconscionable conduct or breach of fiduciary duty by grantee of option – Whether order to convey option land appropriate – Relevance of third party interests. Procedure – Joinder of parties – Where constructive trust declared over land encumbered by equitable mortgage – Where party seeking constructive trust had notice of mortgage – Where mortgagee not a party – Whether mortgagee necessary party to action – Whether mortgagee entitled to be joined – Whether mortgagee entitled to have orders set aside – Whether mortgagee estopped. Words and phrases – "fiduciary", "injurious to third parties", "necessary party". Uniform Civil Procedure Rules 2005 (NSW), r 36.16.

Criminal law – Permanent stay of proceedings – Accused presented on charge of murder – Extensive pre-trial publicity about charge and accused's two previous convictions for murder – Whether irremediable prejudice to a fair trial justifying permanent stay of proceedings – Whether apprehended unfair consequences of pre-trial publicity were capable of being relieved against by trial judge, during trial, by thorough and appropriate directions to jury – Public interest consideration that an accused be brought to trial. Words and phrases – "fair trial", "permanent stay of proceedings".

Administrative law – Freedom of information – Exempt documents – Petition for mercy denied by Governor acting on advice of Attorney-General – Attorney-General had received legal advice from various sources – Attorney-General issued press release mentioning advice from one source that petition should be denied but did not mention advice from other sources – Freedom of information request by petitioner for all advices granted upon review by Victorian Civil and Administrative Tribunal ("VCAT") – VCAT of opinion that public interest required access to all advices to be granted – Whether open to VCAT to form opinion that public interest required access to be granted – Relevance of differences between advices. Administrative law – Judicial review – Where Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("Act") provided for appeal to Court of Appeal on a question of law and empowered Court of Appeal to make orders on appeal including orders VCAT "could have made" – VCAT of opinion that public interest required disclosure of all advices – Court of Appeal examined advices and formed own view, without considering the correctness of VCAT's analysis, that public interest did not require access to be granted – Nature of "appeal" under Act – Whether VCAT decision attended by error of law. Words and phrases – "appeal", "exempt documents", "public interest". Freedom of Information Act 1982 (Vic), ss 32, 50(4). Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 148(1), 148(7).

Trade Practices - Remedies - Misleading conduct - Lease for unit in retirement village - Lessee liable to pay proportionate part of all expenditure incurred in operating village - Estimate of likely expenditure given to prospective lessees - Estimate misleading - Estimate did not include all expenditure being incurred in operation of the village - Accepted that respondent engaged in conduct in contravention of Pt V of the Trade Practices Act 1974 (Cth) - Relief available under Pt VI of the Trade Practices Act - Whether appellants suffered "loss or damage" within meaning of ss 82 and 87 of the Trade Practices Act - Whether "loss or damage" confined to economic loss - Whether incurring unexpected expenditure can be loss or damage - Whether "loss or damage" is necessarily singular - Whether loss or damage constituted only by any diminution in value of the lease - Whether increased future contributions could be awarded as damages. Words and phrases - "loss or damage". Trade Practices Act 1974 (Cth), ss 4K, 82, 87. GLEESON CJ, Mc

Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) Real property - Permissive occupancy - Commonwealth was granted permissive occupancy over a parcel of New South Wales Crown land - Condition of permissive occupancy that it not be transferred or sold without the prior consent of the respondent - Commonwealth law declaring that the permissive occupancy would vest in the appellant as its successor - Respondent's prior consent not obtained - Whether permissive occupancy an asset capable of being vested in another by statute - Whether permissive occupancy revoked by reason of the Commonwealth declaration. Constitution, s 109. National Transmission Network Sale Act 1998 (Cth), ss 3, 9, 12. Crown Lands Consolidation Act 1913 (NSW), ss 6, 136K. Crown Lands (Continued Tenures) Act 1989 (NSW), ss 5, 11, Sched 2 Pt 6, Sched 5 cl 11. Mc

Testator's family maintenance - Adequate provision for proper maintenance - Application by son of deceased - From 1973 to 1993 appellant made substantial contribution to deceased's family farming business - Deceased promised appellant that he would inherit family farm in return for his work in building up family assets - In 1993 relationship between appellant and deceased broke down - As a consequence parties entered Deed of Settlement to rearrange family affairs including ownership of family farm, which was purchased by the appellant and his wife - Deceased's will made no provision for the appellant - Jurisdictional question - Whether appellant left without adequate provision for his maintenance, education or advancement in life - Effect of Deed of Settlement on totality of relationship - Relevance of moral duty criterion. Words and phrases - "adequate provision from his estate for the proper maintenance, support, education or advancement in life" - "moral duty". Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6.

Re East & Ors; Ex parte Nguyen Constitutional law - Original jurisdiction of the High Court - Matters arising under any treaty - Treaty implemented by statute - Whether statute implementing treaty provides exclusive regime for remedying contravention - Whether application raises a "matter" - Constitution, s 75(i). Criminal law - Procedure - Fair trial - Interpretation of evidence from English language - Entitlement of accused to understand evidence - Duty of judge - Whether any risk of miscarriage of justice where no request made. Words and Phrases - "matter", "Arising under any treaty", "requires". Constitution, s 75(i) Racial Discrimination Act 1975 (Cth), ss 9, 10, Pt III. GLEESON CJ, GAUDRON, Mc

Siganto v The Queen Criminal law - Sentencing - Factors to be taken into account - Whether distress occasioned by victim giving evidence an aggravating factor. Criminal law - Sentencing - Whether sentence manifestly excessive - Parity principle. Words and Phrases - "relevant circumstance". Sentencing Act 1989 (NT), ss 5(1)(a), 5(2)(b), 5(2)(s), 54, 55(1), 58. Criminal Code (NT), ss 192(3), 411(4). Prisons (Correctional Services) Act (NT), s 92 (repealed).

Family law - Appeals - Appellate jurisdiction of Full Court of the Family Court of Australia - Parenting orders made pursuant to Family Law Act 1975 (Cth), s 64B - Principles to be considered in appeals concerning parenting orders - Whether different to principles requiring consideration at first instance. Family law - Appeals - "paramountcy principle" in Family Law Act 1975 (Cth), s 65E - Best interests of a child - Relevance to decision whether or not to admit further evidence or set aside orders of primary judge in appeals concerning parenting orders. Family law - Appeals - Discretion of the Full Court of the Family Court of Australia to receive further evidence on appeal - Statutory origins of the discretion - Relevance of common law principles governing admission of fresh or further evidence. Family law - Appeals - Discretion of Full Court of the Family Court of Australia to receive further evidence on appeal - Extent to which limitations imposed by terms of conferring statute - Principles governing exercise of discretion - Whether discretion improperly exercised. Evidence - Taking opposing party by "surprise" at trial - Whether late-filed affidavit material gave rise to "surprise" meriting an order for retrial. Family Law Act 1975 (Cth), ss 64B, 65E, 93A. Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435, considered.

Osland v The Queen Criminal law - Murder - Acting in concert - Joint trial of two accused - Jury convicted one accused but unable to reach a verdict in respect of the other - Whether verdicts inconsistent such that conviction unsafe and unsatisfactory - Principles governing identification of inconsistency. Criminal law - Complicity - Doctrine of concert - Understanding or arrangement between accused - Liability of one accused for acts performed by another - Whether dependent upon a common mental element - Whether affected by availability of a defence to, or other exculpatory feature in respect of, person performing the acts - Adequacy of trial judge's directions to jury. Criminal law - Causation - Murder - Multiple acts contributing to death - Whether contribution of one accused sufficiently significant in own right to sustain causal link - Effect of Crimes Act 1958 (Vic), s 323 - Relevance of conduct of case. Criminal law - Defences - "battered woman syndrome" - Whether a proper subject for expert evidence - Whether a sub-category of provocation or self-defence, or a separate defence - Appropriateness of directions given to jury. Criminal law - Evidence - Lies told by accused - Use to which evidence of lies may be put - Appropriate direction to be given to jury - Whether failure to direct resulted in a miscarriage of justice. Criminal law - Evidence - Intercepted telephone conversations - Whether sufficiently probative to be admitted into evidence - Whether probative value outweighed by prejudicial effect. R v Demirian [1989] VicRp 10; [1989] VR 97 at 123-124, disapproved. Crimes Act 1958 (Vic), s 323.

Joosse & Anor v Australian Securities and Investment Commission Burke v The Queen Bowers v Askin & Anor Young v Deputy Commissioner of Taxation David Keys Australia Pty Ltd & Anor v Textile Clothing and Footwear Union of Australia High Court - Practice and procedure - Removal of causes - Points raised in application not arguable. Constitutional Law - Sovereignty - Whether certain legislation invalid due to a "break in sovereignty". Constitutional Law - Whether certain legislation invalid because royal assent not validly given. International Law - Sovereignty - Whether certain legislation made pursuant to treaties invalid because treaties not registered as international arrangements. Words and phrases - "sovereignty". Constitution, covering cl 5, s 58. Judiciary Act 1903 (Cth), s 40. Royal Style and Titles Act 1973 (Cth). Statute of Westminster Adoption Act 1942 (Cth).

James Hardie & Coy Pty Limited v Seltsam Pty Limited Tort - Contribution - Parties entitled to claim contribution - Parties against whom contribution can be claimed - Relevance of final judgment obtained by consent in favour of party against whom contribution claimed. Tort - Contribution - Assessment - Relevance of liability of claimant tortfeasor to tort victim when determining liability between claimant tortfeasor and other tortfeasors. Statutes - Construction - Purposive construction - History of legislation - Previous decisions on the statutory provision. Words and phrases - "tort-feasor liable in respect of that damage" - "who is, or would if sued have been, liable in respect of the same damage". Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5.

Roumald Charles Parsons v The Queen Criminal law - Dishonestly obtaining property belonging to another by deception - Whether cheque is property belonging to another - Whether bank cheque is property belonging to another. Criminal law - Dishonestly obtaining property belonging to another by deception with intention of permanent deprivation of property - Whether person capable of intending to permanently deprive another of cheque. Cheques - Nature of cheque - Mandate - Contract. Crimes Act 1958 (Vic), ss 71, 81. Cheques and Payment Orders Act 1986 (Cth) (now Cheques Act 1986 (Cth)), ss 25, 71. GLEESON CJ, GAUDRON, Mc

HG v The Queen Criminal law - Evidence - Sexual assault - Expert evidence excluded under s 409B of Crimes Act 1900 (NSW) - Whether evidence of prior sexual assault is evidence of prior sexual activity or experience - Whether s 409B applies only to evidence of consensual prior sexual activity or experience. Evidence - Admissibility of expert opinion under Evidence Act 1995 (NSW) - Expert opinion must be within field of specialised knowledge - Whether expert opinion must be based on facts themselves admissible - Whether parts of opinion severable. Criminal law - Practice and procedure - Refusal to grant adjournment for purposes of calling expert evidence - Whether refusal constituted miscarriage of justice. Crimes Act 1900 (NSW), s 409B. Evidence Act 1995 (NSW), ss 76, 79, 102.

State Rail Authority of New South Wales v Earthline Constructions Pty Limited (In Liquidation) & Ors Appeals - Circumstances in which appellate court will set aside credibility findings. Appeals - Nature. Words and phrases - "palpably misused his or her advantage".

The Commonwealth of Australia v The State of Western Australia & Ors Statutes - Construction - Whether Mining Act 1978 (WA) applies to land owned or leased by the Commonwealth. Real property - Grants - Freehold grant - Crown lease - Reservations for mining and minerals - Construction of reservations. Constitutional law - Effect of s 64 of the Judiciary Act 1903 (Cth) - Application of Mining Act 1978 (WA) to land owned or leased by the Commonwealth. Constitutional law - Inconsistency of laws - Whether Lands Acquisition Act 1989 (Cth) inconsistent with Mining Act 1978 (WA). Constitutional law - Inconsistency of laws - Whether Defence Force Regulations (Cth) inconsistent with Mining Act 1978 (WA). Constitutional law - Acquisition of property - Whether Defence Force Regulations (Cth) effect an "acquisition of property" under s 51 (xxxi) of the Constitution. Words and phrases - "Crown land" - "operational inconsistency" - "private land". The Constitution, ss 51(xxxi), 109. Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1). Judiciary Act 1903 (Cth), s 64. Lands Acquisition Act 1955 (Cth), ss 8, 51 & 53(2). Lands Acquisition Act 1989 (Cth), Pt X. Defence Force Regulations (Cth), Pt XI. Mining Act 1978 (WA).

Astley & Ors v Austrust Limited Negligence - Contributory negligence - Concurrent liability in contract and tort - Whether award of damages for breach of contract may be reduced under apportionment legislation - Wrongs Act 1936 (SA), s 27A. Negligence - Contributory negligence - When available - Whether solicitor's client guilty of contributory negligence - Failure to take proper care of own interests - Defendant's duty to take reasonable care in contract and tort - Plaintiff's loss the very kind protected by defendant's duty. Contracts - Solicitor and client - Whether duty to exercise reasonable care and skill should be implied as a term. Contracts - Defences - Contributory negligence not available. Words and phrases - "Fault". Wrongs Act 1936 (SA), s 27A. GLEESON CJ, Mc

Taxation and revenue - Income tax - Interest paid on loan for purpose of purchasing land intended for commercial development - Deductions - Interest on borrowed moneys - Losses or outgoings of a capital nature or incurred in gaining assessable income - Temporal relationship between incurred outgoing and receipt of income - Income Tax Assessment Act 1936 (Cth) s 51 (1). Words and phrases - "The assessable income" - "Outgoings of a capital nature".

Northern Territory of Australia v GPAO & Ors Constitutional law - Federal jurisdiction - Law defining jurisdiction of federal court - Whether laws made under territories power are "laws made by the Parliament" for the purposes of s 76(ii) of the Constitution. Constitutional law - Federal jurisdiction - Whether Family Court exercising federal jurisdiction - Judiciary Act 1903 (Cth), s 79. Constitutional law - Inconsistency between Commonwealth and Territory laws - Whether laws incapable of concurrent operation - "Paramountcy principle". Practice and procedure - Whether Family Court bound by Territory law - Whether Commonwealth law "otherwise provides" - Whether immunity provided for by Territory law provides a "reasonable excuse" for failure to comply with Commonwealth law - Whether obligation to produce documents excludes "public interest" privileges. Practice and procedure - Evidence - Subpoena - Whether Evidence Act 1995 (Cth) applies to production of documents in response to a subpoena. Words and phrases - "paramountcy principle", "federal jurisdiction", "otherwise provides", "reasonable excuse", "existing law of the Territory". The Constitution, ss 75, 76, 77, 109, 122. Judiciary Act 1903 (Cth), ss 79, 80. Northern Territory (Self-Government) Act 1978 (Cth). Family Law Act 1975 (Cth), Pts VII (ss 65D, 65E, 69H, 69ZG), XIIIA. Family Law Rules (Cth), O 28, r 1. Evidence Act 1995 (Cth). Community Welfare Act 1975 (NT), s 97(3).

Bass & Anor v Permanent Trustee Co Ltd & Ors Conca & Anor v Permanent Trustee Co Ltd & Ors Woodlands & Anor v Permanent Trustee Co Ltd & Ors Statutes - Construction - Whether ss 51AB, 52 and 74 of the Trade Practices Act 1974 (Cth) apply to the State of New South Wales - Whether State of New South Wales a "person" within the meaning of ss 6(3) and 75B(1) of the Trade Practices Act 1974 (Cth) - Rule of construction embodied in maxim expressio unius est exclusio alterius - Whether s 64 of Judiciary Act 1903 (Cth) operates to apply ss 6(3) and 75B(1) of the Trade Practices Act 1974 (Cth) to the State of New South Wales - Whether s 5(2) of the Crown Proceedings Act 1988 (NSW) operates to apply ss 6(3) and 75B(1) of the Trade Practices Act 1974 (Cth) to the State of New South Wales. Practice and procedure - Preliminary questions of mixed fact and law - Judicial power - Purpose of judicial determinations - Refusal of courts to give advisory opinions or answer hypothetical questions - Distinction between declaratory judgments and advisory opinions - Distinction between demurrers and advisory opinions - Need to identify all essential facts. Practice and procedure - Costs - Whether applicants in Federal Court proceedings entitled to rely on protection against liability for costs contained in s 47 of Legal Aid Commission Act 1979 (NSW). Words and phrases - "corporation" - "person". Acts Interpretation Act 1901 (Cth), s 22(1). Judiciary Act 1903 (Cth), ss 64, 79. Trade Practices Act 1974 (Cth), ss 2A, 2B, 2C, 6(3), 51AB, 52, 74, 75B(1). Legal Aid Commission Act 1979 (NSW), s 47. Fair Trading Act 1987 (NSW). Crown Proceedings Act 1988 (NSW), s 5(2). GLEESON CJ, GAUDRON, Mc

Immigration - Refugees - Non-citizen - Illiterate and unaccompanied minor in immigration detention - Application for review by the Federal Court of decision of Refugee Review Tribunal - Whether under s 478(1)(b) of the Migration Act 1958 (Cth) the application for review was lodged within 28 days of the applicant being notified of the decision - Whether applicant "notified of the decision" under s 478(1)(b) by being told of outcome of decision - Whether giving to the applicant the written statement under s 430 is required for notification under s 478(1)(b). Statutes - Construction - Whether under s 478(1)(b) of the Migration Act 1958 (Cth) the application for review was lodged within 28 days of the applicant being notified of the decision - Whether the Minister's obligations as statutory guardian under s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) are relevant to the construction of s 478(1)(b). Words and phrases - "Notified of the decision", "decision", "give". Migration Act 1958 (Cth), ss 430, 430A, 430B, 430C, 430D, 478. Immigration (Guardianship of Children) Act 1946 (Cth), ss 5, 6, 6A. GLEESON CJ, Mc

Iran Amanat v KMP Coastal Oil Pte Limited Admiralty - Jurisdiction - Action in rem - General maritime claim - Whether ship owner a "relevant person" - Arrest of surrogate or sister ship. Words and phrases - "relevant person". Admiralty Act 1988 (Cth), ss 3(1), 4(3)(m), 9, 10, 17, 19. GLEESON CJ, Mc

Telstra Corporation Limited v Worthing & Anor Constitutional law - Inconsistency - Whether Safety, Rehabilitation and Compensation Act 1988 (Cth) is inconsistent with Workers Compensation Act 1987 (NSW). Statutes - Construction - Whether Workers' Compensation Act 1926 (NSW) and Workers Compensation Act 1987 (NSW) apply to Australian Telecommunications Commission. Courts and tribunals - Compensation Court of New South Wales - Whether matter arises under or involves the interpretation of the Constitution and is an exercise of federal jurisdiction. Words and phrases - "employer". The Constitution, s 109. Safety, Rehabilitation and Compensation Act 1988 (Cth). Judiciary Act 1903 (Cth), s 39. Workers' Compensation Act 1926 (NSW). Workers Compensation Act 1987 (NSW). GLEESON CJ, GAUDRON, Mc

Green v The Queen Criminal law - Conspiracy to murder - Alleged lies told by accused - Lies as corroboration - Direction to jury - Failure to direct that lies could not be used as corroboration of witness where evidence of same witness is used to establish the lie - Other evidence upon which jury could conclude accused was telling lies - No substantial miscarriage of justice - Application of proviso. Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.

Abebe v The Commonwealth of Australia Re The Minister for Immigration & Multicultural Affairs & Anor; Ex parte Abebe Constitutional law - Federal jurisdiction - Conferral of jurisdiction upon federal court to review decision of the Refugee Review Tribunal on limited grounds - Whether jurisdiction conferred is in respect of a matter - Meaning of "matter" in Ch III of the Constitution. Constitutional law - Judicial power - Whether s 481(1)(a) of the Migration Act 1958 (Cth) requires a federal court to affirm the legality of a decision which may have been unlawfully made. Immigration law - Refugee - Refugee Review Tribunal decision refusing to grant protection visa - Application in original jurisdiction of High Court for prerogative relief - Meaning of "well-founded fear of being persecuted". Words and phrases - "affirm" - "matter" - "refugee" - "well-founded fear of being persecuted". The Constitution, ss 75, 76, 77(i), Ch III. Migration Act 1958 (Cth), ss 36, 47, 476, 481(1)(a), 485, 486. Convention relating to the Status of Refugees of 1951. GLEESON CJ AND McHUGH J. ABEBE v THE COMMONWEALTH OF AUSTRALIA The principal issue in this important case is whether the Parliament of the Commonwealth, having conferred jurisdiction on a federal court to review or hear an appeal from a decision, can constitutionally limit the grounds upon which that court can examine the correctness or, at all events, the lawfulness of the decision. The plaintiff, in proceedings by way of case stated in this Court, contends that the Parliament cannot do so. For that reason, she contends that certain provisions of the Migration Act 1958 (Cth) ("the Act") are invalid because they purport to limit the grounds upon which the Federal Court of Australia can examine the validity of decisions of the Refugee Review Tribunal. In our opinion, the plaintiff's contention should be rejected. Also involved in the case is whether s 481(1)(a) of the Act is invalid because it is inconsistent with the doctrine of the separation of powers. That section gives the Federal Court a discretionary power to make "an order affirming, quashing or setting aside the decision, or a part of the decision" of the Tribunal. However, it gives the Court no power to dismiss an application for judicial review of a decision of the Tribunal. Members of this Court queried whether s 481(1)(a) or part of it is invalid because the lack of a power to dismiss an application combined with the limited grounds of review may require the Federal Court to affirm the legality of a decision in circumstances where the decision was in fact made unlawfully. However, the plaintiff did not wish to rely on the point. In our opinion, s 481(1)(a) is valid. The issues arise under the question reserved in an amended case stated by Gummow J in proceedings commenced in the original jurisdiction of this Court. The question reserved is: "In their application to the review by the Federal Court of Australia of decisions of the Refugee Review Tribunal, when that Tribunal is reviewing decisions of the nature referred to in section 411(1)(c) of the Migration Act 1958 (Cth), are the provisions of Part 8 of that Act (or any of them) outside the legislative powers of the Commonwealth?" Part 8 - which contains ss 474-486 of the Act - gives the Federal Court jurisdiction to review certain decisions made under that Act. Central to the principal issue in the case stated is whether ss 476(2) and (3) and s 485 of the Act are consistent with Ch III of the Constitution in so far as they prevent the Federal Court from reviewing a decision of the Refugee Review Tribunal on the grounds specified in ss 476(2) and (3) of the Act. The facts stated The plaintiff is an Ethiopian national who arrived in Australia on 6 March 1997. On that day an officer of the Department of Immigration and Multicultural Affairs refused her immigration clearance. She was placed into immigration detention and continues to be held in detention. On 18 March 1997, the plaintiff applied to the Department of Immigration and Multicultural Affairs for the grant of a protection visa under s 36 of the Act which provides: "(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Section 65 of the Act provides that, if the Minister is satisfied that the prescribed criteria have been satisfied, the visa is to be granted; if not, the visa is to be refused. On 21 June 1997, a delegate of the Minister, acting pursuant to s 47 of the Act, refused the plaintiff's application for the grant of a protection visa. She then applied to the Refugee Review Tribunal for a review of that decision. On 3 September 1997 the Tribunal determined that the plaintiff was not a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. The Tribunal also determined that the plaintiff did not satisfy the criterion set out in s 36(2) of the Act. It affirmed the decision of 21 June 1997 to refuse to grant the plaintiff a protection visa. On 30 September 1997, the plaintiff commenced proceedings in the Federal Court of Australia against the Minister under s 476 of the Act. Subsequently, she filed an amended application. The plaintiff's amended application sought relief against the Tribunal on the grounds that she had been denied natural justice and that the decision of the Tribunal failed to satisfy the "reasonableness" test expressed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1]. Her application was heard by Davies J who declined to consider these amended grounds because of s 485 of the Act which made the provisions of s 476(2) of the Act non-reviewable grounds of judicial review in the Federal Court. Subsequently, his Honour dismissed the plaintiff's application. No appeal to the Full Court of the Federal Court against his Honour's decision was lodged. Instead, on 22 December 1997, the plaintiff commenced proceedings for prerogative relief in this Court against the relevant member of the Refugee Review Tribunal and the Minister pursuant to s 75(v) of the Constitution. On 28 January 1998, Gummow J ordered that that application be made by notice of motion to a Full Court. Those proceedings are dealt with in our judgment in matter No S139 of 1997. On 29 April 1998, the plaintiff commenced the present action (S53 of 1998) seeking a declaration against the Commonwealth that ss 476(2) and (3) and s 485 of the Act are invalid. On 24 August 1998, acting pursuant to s 18 of the Judiciary Act 1903 (Cth), Gummow J stated the following question of law reserved for the consideration of the Full Court in matter S53 of 1998: "(1) Are sections 476(2), (3) and section 485 of the Migration Act 1958 beyond the legislative competence of the Commonwealth Parliament?" During the course of the present hearing, questions were raised as to whether the case stated needed to be amended to raise questions concerning the validity of other provisions of Pt 8, particularly ss 475(1)(b), 481 and 486. Subsequently, the case stated was amended to raise the general question set out at the commencement of this judgment. The Refugee Review Tribunal Section 457 of the Act establishes the Refugee Review Tribunal. Section 411 gives the Tribunal power to review certain decisions ("RRT-reviewable decisions"). One of them is "a decision to refuse to grant a protection visa"[2]. Section 412 provides for applications to review RRT-reviewable decisions. Section 414(1) provides that, subject to a presently irrelevant exception, "if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision." Section 415 enacts: "(1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or ... (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister." Section 420 provides: "(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." The Federal Court The Federal Court is a court created by the Parliament pursuant to s 71 of the Constitution. It is a statutory court. Its jurisdiction is the product of laws made pursuant to s 77(i) of the Constitution which provides: "With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court". Among the matters referred to in the "last two sections" of the Constitution are: "75 In all matters: ... (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction. 76 The Parliament may make laws conferring original jurisdiction on the High Court in any matter: ... (ii) arising under any laws made by the Parliament; ..." Section 19 of the Federal Court of Australia Act 1976 (Cth) provides that the Court shall have such jurisdiction as is vested in it by laws made by the Parliament. The Act provides such jurisdiction by declaring: "486 The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under s 75 of the Constitution." Section 475(1) of the Act 1977 provides that, subject to a presently immaterial exception, decisions of the Refugee Review Tribunal "are judicially-reviewable decisions"[3]. Section 476(1) enacts: "Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision." Sections 476(3)(a)-(c) of the Act, however, declare that the reference in s 476(1)(d) to an improper exercise of power is a reference to an exercise of a power for a purpose other than that for which it is conferred or an exercise of a personal discretionary power at the direction or behest of another person or an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. Furthermore, s 476(3) declares that the reference in s 476(1)(d) to an improper exercise of power is not to be taken as including a reference to: (1) taking an irrelevant consideration into account in the exercise of a power; (2) failing to take a relevant consideration into account in the exercise of a power; (3) an exercise of a discretionary power in bad faith; or (4) any other exercise of a power in such a way that it represents an abuse of the power unless the abuse falls within ss 476(3)(a)-(c). Section 476(2) also limits the grounds upon which the Federal Court can review a judicially-reviewable decision of the Refugee Review Tribunal. It declares that an application for the review of a decision of the Tribunal is not examinable upon two specified grounds. The first is that there has been a breach of the rules of natural justice in connection with the making of the decision; the second is that the decision involved an exercise of power that was so unreasonable that no reasonable person could have so exercised the power. Finally, s 485(1) of the Act provides that the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions under the Act other than the jurisdiction provided by Pt 8 of the Act or by s 44 of the Judiciary Act. Thus, the important jurisdiction conferred on the Federal Court by ss 39B(1) and 39B(1A) of the Judiciary Act is withdrawn in respect of decisions made under the Act. The combined effect of ss 476 and 485 of the Act, therefore, is that the jurisdiction of the Federal Court to review decisions under the Act is narrower in some respects than the jurisdiction conferred on this Court by s 75(v) of the Constitution, is narrower in some respects than the scope for review of administrative decisions at common law and is narrower than the scope for review of administrative decisions under the Administrative Decisions (Judicial Review) Act (Cth) or the Judiciary Act 1974 . In other respects, however, the jurisdiction is arguably wider than the jurisdiction of this Court under s 75(v) and the jurisdiction at common law[4]. Nevertheless, it is clear that in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated. "Matters" The plaintiff claims that, when Parliament invests the Federal Court with jurisdiction to determine a "matter" that could be determined by this Court under s 75(v) of the Constitution, the Parliament cannot limit the grounds on which the Federal Court can deal with the "matter". She contends that, if the Parliament invests the Federal Court with jurisdiction in respect of a matter mentioned in s 75 or s 76 of the Constitution, it cannot "exclude a substantial part of what is in truth a single justiciable controversy and thereby ... preclude the exercise of judicial power to determine the whole of that controversy". Indeed her submissions go further. She contends that, once the Parliament confers jurisdiction on a federal court to hear and determine any part of a legal controversy between subjects or between a subject and the Crown, the Parliament cannot constitutionally prevent the Federal Court from dealing with the whole controversy between the parties. Accordingly, she contends that the Parliament, having given the Federal Court of Australia jurisdiction to review a judicially-reviewable decision of the Refugee Review Tribunal[5], cannot constitutionally limit the grounds which the Federal Court may examine to determine whether the decision of the Tribunal was lawfully made. According to the plaintiff's argument, a grant of jurisdiction with respect to a justiciable controversy arising under a law of the Parliament necessarily involves conferring power to quell the entire controversy. She points out that in the present case there is a justiciable controversy capable of being fully litigated in the High Court under s 75(v) of the Constitution, as to whether the Tribunal's decision was made according to law. If the Parliament wished, it could have decided not to confer jurisdiction on the Federal Court with respect to that controversy. Alternatively, it could have enacted legislation conferring on the Federal Court complete jurisdiction to resolve all aspects of the controversy. What the Parliament could not do, according to the plaintiff's argument, was to confer upon the Federal Court limited jurisdiction to resolve some aspects of the controversy, but not others. Her argument appears to equate the power to define jurisdiction with respect to a matter under s 77(i) of the Constitution with a requirement to confer jurisdiction over the whole matter. When s 77(i) of the Constitution empowers the Parliament to make laws "defining the jurisdiction of any federal court other than the High Court" with respect to any of the "matters" mentioned in ss 75 and 76 of the Constitution, it means that the Parliament may make laws giving federal courts authority to decide subject matters that answer any of the descriptions in pars (i)-(v) of s 75 or pars (i)-(iv) of s 76 of the Constitution. Jurisdiction is the authority to decide[6]. The jurisprudence of this Court makes it clear that federal jurisdiction is limited to deciding "matters"[7]. Central to the notion of a "matter" is the determination of rights, duties, liabilities and obligations in a legal proceeding. In In re Judiciary and Navigation Acts[8], a majority of this Court pointed out that the term "matter" in s 76 did not mean "a legal proceeding, but rather the subject matter for determination in a legal proceeding." In Stack v Coast Securities (No 9) Pty Ltd[9], Mason, Brennan and Deane JJ, after referring to this passage, said "that a court does not begin to exercise federal jurisdiction until a 'matter' within ss 75 or 76 is raised in the proceedings and that the federal jurisdiction then exercised by the court is co-extensive with the content of that 'matter'." Similarly, in South Australia v Victoria[10], Griffith CJ said that "[t]he word 'matters' was in 1900 in common use as the widest term to denote controversies which might come before a Court of Justice." The Chief Justice went on to say[11] that the matter "must be such that it can be determined upon principles of law." A "matter" is therefore ordinarily concerned with "some immediate right, duty or liability to be established by the determination of the Court."[12] This accords with the statement of Mason, Wilson, Brennan, Deane and Dawson JJ in Attorney-General (NSW) v Commonwealth Savings Bank[13] "that 'matter' is wide enough to include any subject-matter for determination in legal proceedings, whether the proceedings be proceedings at first instance or proceedings by way of an appeal." Since O'Toole v Charles David Pty Ltd[14], it is clear that proceedings may involve a "matter" even when they are not determinative of the rights of the parties, provided the proceedings concern the determination of what their rights were if the law had been properly applied. Nevertheless, the determination of rights, duties and liabilities by reference to legal rules, principles or standards in curial proceedings is at the heart of the notion of a "matter" for constitutional purposes. It follows that the Parliament is acting within the power conferred by s 77 of the Constitution whenever it authorises a federal or State court to determine, by reference to a legal rule, principle or standard, the rights, duties or liabilities of litigants which arise out of controversies that fall within any of the descriptions in pars (i)-(v) of s 75 or pars (i)-(iv) of s 76 of the Constitution. The identification of the "matter" will in part depend upon the nature of the rights, duties and liabilities that arise under a law or state of affairs described in s 75 or s 76[15], but only to the extent that those rights, duties and liabilities are enforceable in the federal or State court which has jurisdiction to hear the "matter". Nothing in the terms of s 77 or Ch III of the Constitution requires the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy between subjects or between a subject and the Crown merely because it has jurisdiction over some aspect of the controversy. Nor does anything in s 77 or Ch III of the Constitution require a federal court dealing with a legal controversy to have authority to deal with every legal ground that a party wishes to put forward. It is true that a "matter" is concerned with the rights, duties and liabilities of particular parties in concrete situations and that, when a "matter" exists, it cannot be identified without reference to some law[16] or state of affairs described in s 75 or s 76, and which exists independently of the jurisdiction of a court or its procedures. But that does not mean that, if the Parliament wishes to confer jurisdiction on a federal court in respect of "matters" arising under a particular law or state of affairs, it can only define the jurisdiction of that court by reference to the totality of the rights, privileges, powers and duties that arise under that law or state of affairs. The power of the Parliament to make laws defining the jurisdiction of a federal court "[w]ith respect to any of the matters" mentioned in ss 75 and 76 is a power to make laws with respect to a class of things which answer a certain description. A law concerning that description brings within its scope each concrete factual situation which constitutes a "matter". But s 77(i) is not concerned with any particular case. It is concerned with the general, not the particular. It is necessarily pitched at a level of generality that covers an infinite variety of factual situations, each of which itself is a "matter" which answers the relevant constitutional description. However, the outcome of a specific controversy is not the concern of s 77 which treats "matters" as a legal abstraction descriptive of such rights, duties and liabilities as will be enforceable in the federal or State court upon which is conferred or in which is invested authority to adjudicate. As long as the law defining or investing jurisdiction is one "with respect to" any of the "matters", as so understood, it will be a law authorised by s 77. The conferring of a power to make laws "with respect to" a subject "is as wide a legislative power as can be created", as Latham CJ pointed out in Bank of NSW v The Commonwealth[17]. A law which changes, regulates or abolishes rights, duties, powers and privileges relating to a subject is made "with respect to" that subject. That being so, a law defines the jurisdiction of a federal court with respect to any of the "matters" mentioned in ss 75 and 76 when it defines the authority of that court to decide what are the rights of parties in a proceeding that may be brought in that court with respect to any of those "matters". Thus, a law authorised by s 77 may confer or invest jurisdiction in a federal or State court over the whole range of rights, powers, privileges and liabilities arising from the operation of a law or the existence of a state of affairs answering any of the descriptions in ss 75 and 76 of the Constitution. On the other hand, a s 77 law may validly confer or invest jurisdiction in respect of some only of those rights, powers, privileges and liabilities and may even limit the remedies which are available to a person affected by a breach of those rights. Given the ordinary and natural meaning of s 77(iii), it seems impossible, for example, to deny Parliament the power to enact a law which invests State courts with jurisdiction to hear only applications for urgent injunctions to restrain breaches of (say) s 52 of the Trade Practices Act (Cth). Once that is accepted, it is impossible to find any satisfactory ground for thinking that s 77(i) requires the Parliament to define the jurisdiction of federal courts by reference to the totality of rights, powers, privileges and duties which arise under the law or state of affairs which comes within s 75 or s 76 and which is to be the basis of the federal court's jurisdiction. The plaintiff contends that the words "with respect to" in s 77(i) merely identify what are the "matters" that can be the subject of a law defining jurisdiction. On this argument, the words "with respect to" do not enhance the legislative power of the Parliament. It is true that in s 77(i) those words do have an identifying function and that they operate in a context different from that in which the same words appear in ss 51 and 52 of the Constitution. But there is no substantial difference between the operation of the words in ss 51 and 52 and in s 77. In each of those sections, they identify the subject matter of the law and the nature of the connection between the law and the subject matter. In ss 51 and 52, the connection is direct and immediate - "laws ... with respect to [a subject]". In s 77(i), the connection is less immediate - "laws ... [d]efining the jurisdiction" "[w]ith respect to any of the matters mentioned". But that difference does not give the words "with respect to" any different operation in s 77 from that which they have in ss 51 and 52. As long as the law defines the jurisdiction of a federal court, its connection with any of the class of "matters" mentioned in ss 75 and 76 can be direct or indirect, close or distant, provided the law can fairly be described as one "with respect to" the relevant class of "matters". As we have pointed out, the plaintiff also contends that, when Parliament gives a federal court jurisdiction under s 77, it must give it authority to quell the whole controversy between the parties. That contention was based on the claim that a "matter" "exists dehors the procedure or the particular court". That being so, the plaintiff contends that Parliament can legislate with respect only to that "matter". Even if the plaintiff is correct in contending that a "matter" exists independently of any court or its procedures, it does not lead to the conclusion that any part of Pt 8 of the Act is invalid. First, the power conferred by s 77 is a power to make laws "with respect to" "matters". Those words are wide enough to authorise the Parliament to give a federal court jurisdiction with respect to part of a controversy even if a "matter" exists independently of the courts and their procedures. Second, as we have pointed out, the term "matters" in s 77 of the Constitution is not dealing with individual cases as such but with a class of things. The power is one to make laws "with respect to" a class, not an individual case. But in any event the claim that a "matter" exists independently of any court or its procedure is incorrect. The term "matter" has meaning only in the context of a legal proceeding, as the passages from South Australia v Victoria[18], In re Judiciary and Navigation Acts[19], Stack v Coast Securities (No 9) Pty Ltd[20] and Attorney-General (NSW) v Commonwealth Savings Bank[21] demonstrate. A "matter" cannot exist in the abstract. If there is no legal remedy for a "wrong", there can be no "matter". A legally enforceable remedy is as essential to the existence of a "matter" as the right, duty or liability which gives rise to the remedy. Without the right to bring a curial proceeding, there can be no "matter". If a person breaches a legal duty which is unenforceable in a court of justice, there can be no "matter". Such duties are not unknown to the law. For example, in Australian Broadcasting Corporation v Redmore Pty Ltd[22], this Court had to consider the effect on a contract of a statutory provision which prohibited the making of the contract without the approval of a Minister. The prohibition arose in a context where s 8(1) of the relevant Act imposed a duty on the Board of the appellant to ensure that it did not contravene any provision of the Act but s 8(3) provided that "[n]othing in this section shall be taken to impose on the Board a duty that is enforceable by proceedings in a court." Although the point did not arise for decision, it is plain that breach of the prohibition was incapable of giving rise to a "matter". The existence of a "matter", therefore, cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability. That does not mean that there can be no "matter" unless the existence of a right, duty or liability is established. It is sufficient that the moving party claims that he or she has a legal remedy in the court where the proceedings have been commenced to enforce the right, duty or liability in question. It does mean, however, that there must be a remedy enforceable in a court of justice, that it must be enforceable in the court in which the proceedings are commenced and that the person claiming the remedy must have sufficient interest in enforcing the right, duty or liability to make the controversy justiciable[23]. Questions of standing cannot be divorced from the notion of a "matter". It is true that in South Australia v Victoria[24], Isaacs J said that the term "matters" in s 75 of the Constitution "includes and is confined to claims resting upon an alleged violation of some positive law to which the parties are alike subject, and which therefore governs their relations, and constitutes the measure of their respective rights and duties." But his Honour's statement should not be taken as indicating that a law, made pursuant to s 77(i), which gives a federal court jurisdiction to decide only part of a particular controversy or which limits the grounds for determining the controversy is not a law defining the jurisdiction of the court with respect to one of the matters mentioned in s 75 or s 76. The issue in South Australia v Victoria was whether a particular suit constituted a "matter" over which this Court had jurisdiction. Nor does the statement of Isaacs J give any support to the plaintiff's contention that, for the purposes of Ch III of the Constitution, "matters" exist independently of curial proceedings. His Honour's remarks were made in a context[25] where he said "that expression" was "used with reference to the judicature". Plainly, his Honour saw the existence of a "matter" as dependent upon the invoking of curial procedures. More helpful to the plaintiff is a passage in the judgment of Isaacs J in Pirrie v McFarlane[26] where this Court had to examine the constitutional validity of ss 38A-41 of the Judiciary Act. Those sections prohibited courts other than this Court from dealing with causes involving questions as to the limits inter se of the powers of the Commonwealth and the States and authorised the removal of causes or parts of them containing such questions into this Court. Isaacs J said: "The word 'matter' in sec. 76 does not, of course, mean simply the particular constitutional question or other legal question which identifies the litigation with the section. In this it differs essentially from the word 'question' in sec. 74. 'Matter' means the whole controversy - the matter litigated (see South Australia v Victoria[27]). For instance, looking at sec. 75, the 'matter' would not necessarily be simply that part of the controversy depending on the construction or effect of a treaty, or that part of the controversy relating to a consul or the Commonwealth. There might be other necessary parties and other essential questions, all of which would be factors constituting the 'matter'. The controversy is not intended to be decided piecemeal by different tribunals, State and Federal. If, then, the 'matter' is once identified as falling under one or other of the specified heads, it is part of the judicial power of the Commonwealth, and may be dealt with as the Commonwealth Parliament has dealt with such matters in the sections under review." Some parts of this passage appear to support the notion that a controversy is one and indivisible and has to be decided in either a State or a federal court, but not both. However, we do not think that his Honour was intending to make such an assertion. He was dealing with the constitutional issue whether legislation, which, inter alia, authorised the whole of a "matter" in a State court to be removed into this Court, was valid. We think that his Honour was intending to say no more than that the legislative power under s 77(ii) extended to removing into this Court the whole of a "matter", containing an inter se question, even though part of it was not concerned with the constitutional issue or, for that matter, with federal law. In that respect, his judgment anticipated the decisions of this Court in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd[28], Fencott v Muller[29] and Stack v Coast Securities (No 9) Pty Ltd[30], decisions which hold that a "matter" may include non-federal claims which are inseparable from federal claims arising out of a common substratum of fact. Once it is accepted that a "matter" cannot be identified without regard to the remedies available in the court where it is litigated, it necessarily follows that the same legal controversy can give rise to separate matters because different courts may provide different remedies. Until the "fusion" of law and equity, for example, a person might obtain an injunction to restrain a continuing breach of contract in the Court of Chancery and damages for the breach in action at law. That position continued in New South Wales until the "fusion" of law and equity occurred in 1970. Similarly, an employee may be able to obtain an order from an industrial court that a term of the employment contract is void because it is harsh or unconscionable and at the same time have a right to obtain an order from a court of general jurisdiction that the term is unjust or unfair under legislation such as the Trade Practices Act 1980 or the Contracts Review Act (NSW). In both cases, the "matter" determined in one court is separate and independent from the "matter" determined in the other court even though each "matter" arises out of the same factual substratum. It also follows from these premises that, when Parliament enacts a law under s 77 and gives a court authority to grant some legal remedy in aid of a right or the enforcement of a duty or liability falling within any of the classes in the numbered paragraphs in ss 75 and 76, it defines the jurisdiction of that court with respect to a "matter". The fact that Parliament has elected not to give the court all the remedies that might be available to resolve the controversy or has conferred jurisdiction to deal with only part of the subject matter of the controversy cannot alter the fact that Parliament has defined the jurisdiction of the court with respect to a "matter". It can fairly be said that the Constitution expressly recognises this fact because s 77(ii) provides: "With respect to any of the matters mentioned in the last two sections the Parliament may make laws: ... (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is vested in the courts of the States". (emphasis added) In its ordinary and literal meaning, this paragraph empowers the Parliament to invest State courts with federal jurisdiction to resolve only part of the actual controversy between the parties. In Ex parte Walsh and Johnson; In re Yates[31], Higgins J said that "the Parliament has power under sec. 77(III), in investing any Court of a State with Federal jurisdiction, to define the limits or conditions of the investiture." Thus, under s 77(iii) the Parliament may invest State courts with jurisdiction to decide "matters" under a law of the Parliament and then under s 77(ii) confine the jurisdiction of the State courts to such issues as are not the exclusive province of the federal courts. Section 77(iii) is the authority[32] for provisions such as s 40(1) of the Judiciary Act 1958 which provides for the removal into this Court of "[a]ny cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court ... or in a court of a State or Territory ... at any stage of the proceedings before final judgment". Whatever may be the situation with federal courts, it is beyond argument that the Constitution authorises the Parliament to invest State courts with jurisdiction to determine only part of an actual controversy between parties. It is hard to imagine any rational reason why the Constitution would permit the Parliament to authorise State courts to deal with some only of the issues in a controversy and at the same time deny that permission to the Parliament in respect of federal courts. Sections 77(ii) and (iii) of the Constitution seem a complete answer to the major premise of the plaintiff's case, that is to say, the premise that a "matter" exists independently of any particular court and its procedures and that the Parliament cannot legislate under s 77(i) in a way that would prevent a court exercising federal jurisdiction from dealing with the whole controversy between the parties. Nor, contrary to the plaintiff's submissions, does a law made under s 77(i) fail to define the jurisdiction of the court with respect to "matters" because the law limits the grounds upon which the remedy may be given in a particular class of case. A grant of criminal appellate jurisdiction to a federal court in respect of federal offences defines the jurisdiction of that court with respect to one of the classes of "matters" in s 76 even though the right of appeal is limited to errors of law or excludes as a ground of appeal that the verdict of the jury was unsafe or unsatisfactory. In construing provisions such as s 77(i), it is necessary to keep in mind that the Constitution is an instrument of government, not easily or readily amended, and intended to endure indefinitely. To hold that the Parliament cannot confer federal jurisdiction in respect of the matters mentioned in ss 75 and 76 unless the Parliament gives the relevant court jurisdiction to dispose of the whole controversy between the parties would create immense practical problems for the administration of federal law which the makers of the Constitution can hardly have intended. Such a holding would seem to deny the Parliament the right to have specialist federal courts[33] or courts whose jurisdiction was limited by reference to remedies, geographical areas or monetary limits. It would also seem to deny the Parliament the power to prevent federal courts from dealing with certain subject matters such as title to land or actions in contract or from granting certain remedies such as injunctions or prerogative relief. Historically, governments have found it useful to create courts of limited jurisdiction, and it was, and is, usual for the jurisdiction of magistrates' courts to be limited in such a fashion. If the contention of the plaintiff is right, the Parliament breaches the terms of s 77 of the Constitution unless its law grants to federal courts, and perhaps even State courts exercising federal jurisdiction, the authority to quell the whole controversy between the parties and also arms that court with every remedy necessary to achieve that end. Acceptance of that contention would also throw in doubt the validity of s 40 of the Judiciary Act which provides for the removal into this Court of parts of causes pending in State and federal courts and the validity of s 44 of that Act which provides for this Court to remit parts of matters pending in this Court to State and federal courts. While consequences cannot alter the meaning of the Constitution, they may throw light on its meaning[34]. It is hardly to be supposed that the framers of the Constitution intended Ch III to operate so that the only choice available to the Parliament was to give a court no jurisdiction in respect of a "matter" or, irrespective of the court's status or geographical area, to give it jurisdiction to dispose of the whole controversy between the parties by every available legal remedy. The plaintiff contends that, if the Parliament wishes to avoid this dilemma, it can refrain from creating the relevant right or duty that it does not want the courts to enforce. The plaintiff contends that, once Parliament has laid down a regime of legal rights or duties and conferred jurisdiction on a court to deal with a controversy as to whether one of those rights or duties has been breached, it can not prevent that court from dealing with the whole controversy. On these hypotheses, the Parliament has only three options. They are (i) not creating the right or duty at all; (ii) creating the right or duty and preventing all courts (other than this Court) or some courts (such as courts of inferior jurisdiction) from dealing with any part of the controversy and (iii) creating the right or duty and investing every court, irrespective of its status, with every remedy needed to settle the whole controversy. These options are so rigid and impractical that only the clearest constitutional language could compel them. In so far as the exercise of appellate jurisdiction or administrative review, in particular, is concerned, the interpretation of s 77(i) for which the plaintiff contends would seem to deny the Parliament any choice as to the form that the appeal or review would take. Nothing in the language of Ch III forces such limited and rigid choices on the Parliament. Nor, in determining the validity of a conferral or investiture of jurisdiction, should any distinction be drawn between the jurisdiction of federal or State courts to deal with "matters" where this Court has a constitutionally entrenched jurisdiction under s 75(v) of the Constitution and the jurisdiction of those courts in cases where this Court has no constitutionally entrenched jurisdiction. An example of the latter is the jurisdiction that can be conferred on this Court under s 76(ii)[35] of the Constitution. In a case where s 75(v) gives this Court jurisdiction to enforce a right, duty or liability arising out of a particular controversy, there is a "matter" for the purpose of Ch III. But it is a "matter" in this Court only because it is to this Court which the Constitution has given the s 75(v) remedies. Plainly, without legislation enacted under s 77, the existence of this Court's jurisdiction under s 75(v) cannot give rise to a "matter" in another court. Nor do we see how a court, which is given federal jurisdiction in respect of some aspect of a controversy which would attract a remedy under s 75(v) of the Constitution, in some way becomes seized of the same "matter" that would exist if proceedings were commenced in this Court. Still less are we able to see how the potential exercise of s 75(v) jurisdiction by this Court invalidates the conferral of jurisdiction on another court to give a remedy to deal with part of the controversy. In support of her contention that ss 476(2) and (3) and ss 485 and 486 were invalid, the plaintiff relied strongly on the decisions of this Court and various statements in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd[36], Fencott v Muller[37] and Stack v Coast Securities (No 9) Pty Ltd[38]. Thus, in Stack[39], Mason, Brennan and Deane JJ said that the decisions of this Court "establish that the content of a 'matter' in s 76 and ... the scope of federal jurisdiction in a proceeding are not restricted to the determination of the federal claim or cause of action in the proceeding, but extend beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part." In the same case, Gibbs CJ said[40] that Fencott and Philip Morris had decided that: "when jurisdiction is conferred on the Federal Court with respect to a matter, that Court has jurisdiction to determine all the questions which form part of that matter, including questions which in themselves would not be federal in nature, and which accordingly the Federal Court would not have had jurisdiction to determine if they had arisen in separate proceedings." However, these statements do not mean, nor in our opinion were they intended to mean, that once the Parliament enacts a law giving a federal court jurisdiction to determine a federal claim, the law will be invalid if it purports to prevent the federal court from determining every issue, federal and non-federal, which "rest[s] upon a common substratum of facts."[41] Those cases establish and those statements support the proposition that, where a federal court has jurisdiction to decide a federal claim, its jurisdiction extends to deciding non-federal claims that cannot be severed from the federal claim, at all events when both sets of claims arise from a common substratum of facts. They are based on the principle that the grant of jurisdiction to deal with the federal claim carries with it all the authority necessary to enable the federal jurisdiction to be exercised effectively and practically[42]. However, those cases have nothing authoritative - or indeed anything - to say concerning the power of the Parliament to restrict the authority of a federal court to deal with claims arising out of the creation of rights, duties and liabilities by the Parliament or to deal with non-federal claims arising from a common substratum of facts. It does not follow from the fact that a "matter" in a federal court may include associated non-federal matters that the Parliament cannot prohibit a federal court from entertaining non-federal claims. Nor does it follow that the Parliament cannot prevent a federal court from determining every legal issue or question that arises from or that is associated with the creation of a federal right, duty or liability. In our opinion, Gibbs CJ accurately stated the law concerning the defining of jurisdiction under s 77 in Stack v Coast Securities (No 9) Pty Ltd[43] when he said: "Under the Constitution, the jurisdiction of a federal court can be defined only by an Act of the Parliament, and the jurisdiction so defined can be as wide as, or narrower than, (but not of course wider than) the matters mentioned in ss 75 and 76." Thus, the subject matter for decision by a federal court may embrace the whole controversy between the parties or part of it. The law defining the jurisdiction of the court may provide limited remedies for the successful party or every remedy that is necessary to do justice between the parties and which is appropriate to the exercise of judicial power by a federal court. The choice is one for the Parliament. In the present case, the Parliament has chosen to restrict severely the jurisdiction of the Federal Court to review the legality of decisions of the Refugee Review Tribunal. That restriction may have significant consequences for this Court because it must inevitably force or at all events invite applicants for refugee status to invoke the constitutionally entrenched s 75(v) jurisdiction of this Court. The effect on the business of this Court is certain to be serious. Nevertheless, we can see nothing in ss 75, 76 and 77 of the Constitution which prevents the Parliament from enacting ss 476, 485 and 486 of the Act. In so far as the plaintiff's claim in this Court depends on s 77(i) of the Constitution, it must fail. Separation of powers In the course of argument in this Court, the question arose as to whether s 481(1)(a) of the Act is invalid. Section 481(1) provides: "On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders: (a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties." Members of the Court raised with counsel for the plaintiff the question whether the effect of s 481(1)(a) was that the Federal Court could be required to affirm the legality of a decision which had been unlawfully made and, if so, whether such a direction was consistent with Ch III of the Constitution. Understandably, counsel showed no enthusiasm whatever for the question whether, independently of the validity of ss 476(2) and (3), s 481 was validly enacted. He said, "There is nothing much in it for us, your Honour, in having it invalid, I suspect." That suspicion was certainly well founded. On one view, the invalidity of s 481(1)(a) could mean that the whole apparatus of judicial review provided for in Pt 8 was invalid. Such a holding would be of no use to the plaintiff. She would be left with an unreviewable decision of the Tribunal. On another view, the use of the term "affirming" is invalid but the term is severable from the rest of Pt 8. Again that holding would be of no use to the plaintiff. At best, it would mean only that the Federal Court had no power to affirm the decision by a judicial order. But the decision of the Tribunal would stand. In a context for limited review of decisions of the Tribunal, the use of the term "affirming" is certainly not the most appropriate term to use for disposing of an application which has failed. An order of the Federal Court affirming the decision is open to the construction that that court is affirming that the decision was correctly and lawfully made. However, the term "affirm" is sometimes used in the context of appellate jurisdiction to indicate that the appeal has failed and that the decision below stands. Thus, s 28(1) of the Federal Court of Australia Act provides that "the Court may, in the exercise of its appellate jurisdiction: (a) affirm, reverse or vary the judgment appealed from"[44]. The Court is given no express power to dismiss an appeal, although s 28(1)(b) grants it power to "give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order". We can see no reason why, when an appeal fails, the Federal Court cannot use the power conferred by s 28(1)(a) and affirm the decision appealed from even if the statute conferring appellate jurisdiction limits the grounds of appeal. The powers conferred upon the Federal Court by s 481 are to be understood and exercised in the light of the context in which they appear. In a given case, such as the present, the Federal Court may know that there are outstanding aspects of a challenge to a decision which have not been argued because they are outside the court's jurisdiction. That may be why, in the present case, Davies J did not make an order affirming the decision of the Tribunal. In such a case a discretionary power to make an order "affirming, quashing or setting aside" the decision does not require the Federal Court to make an unqualified order which may create a misleading appearance. In our opinion, s 481 is valid. Order The question reserved should be answered, No. RE THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR; EX PARTE ABEBE This application, made in the original jurisdiction of this Court[45], for the issue of writs of certiorari and mandamus was heard together with the prosecutor's claim in S53 of 1998 that certain sections of the Migration Act (Cth) ("the Act") were invalid. In our judgment upon the case stated in that action we hold that the relevant sections are valid and that only limited grounds for reviewing decisions of the Refugee Review Tribunal are available in the Federal Court of Australia. However, the jurisdiction which s 75(v) of the Constitution confers on this Court to make orders concerning the decisions of Commonwealth officers - and members of the Tribunal are such officers - cannot be limited by any law of the Parliament. Laws of the Parliament, made under an appropriate head of constitutional power, may take the conduct of Commonwealth officers outside the scope of the jurisdiction of this Court under s 75(v). Such laws may do so, for example, by making lawful conduct which would otherwise be unlawful at common law or under State legislation or even under other federal legislation. But once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred upon him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue[46], a jurisdiction which the Constitution has conferred on this Court to protect the people of the Commonwealth and the individual States from excesses of Commonwealth power. In this application, the prosecutor contends that the second respondent, who constituted the Tribunal for relevant purposes, constructively refused to exercise his jurisdiction or, alternatively, exceeded his jurisdiction in rejecting the prosecutor's application to the Tribunal to review the decision of the Minister's delegate rejecting her claim for refugee status. The prosecutor's claim is put in various ways - failure to take a relevant matter into account, failure to properly investigate her claim and Wednesbury[47] unreasonableness. At the heart of her claim for prerogative relief, however, is the contention that the Tribunal failed to examine whether she was a refugee by reason of her having a well-founded fear of persecution, if returned to her native country, because she had been raped by government officials while held in custody in that country for reasons of political affiliation and racial background. If the Tribunal should have examined, but did not examine, that issue, it is not open to argument that the Tribunal fell into jurisdictional error, error which would attract this Court's jurisdiction under s 75(v). At all events, the Minister for Immigration and Multicultural Affairs, the first respondent to the application in this Court, did not argue the contrary proposition. Instead, he contended that the Tribunal did not need to make any specific finding concerning the issue of rape because, acting within its jurisdiction, the Tribunal was not prepared to find that the prosecutor had ever been detained for political or racial purposes. In our opinion, it was open to the Tribunal to reject, or at all events to refuse to act upon, the prosecutor's claims that she had been raped while in custody for political or racial reasons. Her accounts of what had happened to her in her native country were so inconsistent that no jurisdictional or other legal error occurred by reason of the Tribunal refusing to act on her claims. The factual background The prosecutor is an Ethiopian national who arrived in Australia on 6 March 1997. On that day an officer of the Department of Immigration and Multicultural Affairs refused her immigration clearance. She was placed into immigration detention and continues to be held in detention. On 18 March 1997, she applied to the Department of Immigration and Multicultural Affairs for the grant of a protection visa under s 36 of the Act which provides: "(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Section 65 of the Act provides that, if the Minister is satisfied that the prescribed criteria have been satisfied, the visa is to be granted; if not, the visa is to be refused. On 21 June 1997, a delegate of the Minister, acting pursuant to s 46 of the Act, refused the prosecutor's application for the grant of a protection visa. She then applied to the Refugee Review Tribunal for a review of that decision. On 3 September 1997, the Tribunal determined that the prosecutor was not a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. The Tribunal also determined that the prosecutor did not satisfy the criterion set out in s 36(2) of the Act. It affirmed the decision of 21 June 1997 to refuse to grant the prosecutor a protection visa. On 30 September 1997, the prosecutor commenced proceedings in the Federal Court of Australia against the Minister under s 476 of the Act. Subsequently, she filed an amended application. The prosecutor's amended application sought relief against the Tribunal on the grounds that she had been denied natural justice and that the decision of the Tribunal failed to satisfy the "reasonableness" test expressed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[48]. Her application was heard by Davies J who declined to consider these amended grounds because of s 485 of the Act which made the provisions of s 476(2) of the Act non-reviewable grounds of judicial review in the Federal Court. Subsequently, his Honour dismissed the prosecutor's application. No appeal to the Full Court of the Federal Court against his Honour's decision was lodged. Instead, on 22 December 1997, the prosecutor commenced proceedings for prerogative relief in this Court against the relevant member of the Refugee Review Tribunal and the Minister pursuant to s 75(v) of the Constitution. On 28 January 1998, Gummow J ordered that that application be made by notice of motion to a Full Court. On 29 April 1998, the prosecutor commenced an action (S53 of 1998) seeking a declaration against the Commonwealth that ss 476(2) and (3) and s 485 of the Act are invalid. In our judgment in that matter, we hold that those sections are valid. The Refugee Review Tribunal Section 457 of the Act establishes the Refugee Review Tribunal. Section 411 gives the Tribunal power to review certain decisions ("RRT-reviewable decisions"). One of them is "a decision to refuse to grant a protection visa"[49]. Section 412 provides for applications to review RRT-reviewable decisions. Section 414(1) provides that, subject to a presently irrelevant exception, "if a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision." Section 415 enacts: "(1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or ... (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister." Section 420 provides: "(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." The decisions of the delegate and the Tribunal In considering the prosecutor's application for a protection visa, the Minister's delegate examined the question whether the prosecutor was a non-citizen to whom Australia has protection obligations under the Convention relating to the Status of Refugees of 1951 as amended by the Protocol relating to the Status of Refugees of 1967. The Convention and Protocol define "refugee" as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [her] nationality and is unable or, owing to such fear, is unwilling to avail [herself] of the protection of that country". It is common ground that, after leaving Ethiopia, and before arriving in Australia, the prosecutor spent some time in Kenya and South Africa. While she was in South Africa, she made an application to the government of that country to be accorded refugee status. In support of the application, she gave the South African authorities information which was untrue. She claimed that she and her husband had been members of a political group known as the All Amhara People's Organisation ("AAPO"), that her husband had mobilised people in the southern region of Ethiopia against the government in 1993, that her husband had been killed in 1994, and that she had been sought by the authorities. She said that she had never been arrested or detained. It is not disputed that she was a member of the Amhara ethnic group. But much of the substance of the account which she gave to the South African authorities was inconsistent with other accounts of what happened to her and her husband in Ethiopia. When the prosecutor arrived at Sydney airport she told the Australian authorities that she was an Ethiopian housewife, that her husband, who was living at home with his family, had been a soldier under the previous Ethiopian regime, that he had fought against the current regime, that he had lost his leg in the fighting, that she had fled from Ethiopia without telling anyone she was going, and that she could not return for fear of persecution. In her protection visa application in this country, and in two subsequent interviews, the prosecutor gave a third account of her history. She said that she and her husband had been minor members of AAPO in a branch of about 200 members. She said that in April 1994 her husband disappeared and that about five days later she herself was arrested. She was held in jail for two months, raped and abused, but eventually escaped disguised as a nurse. She left Ethiopia in July 1994. She said that no one but her husband and herself had been arrested at that time and that her husband had not been released. The Minister's delegate examined the prosecutor about substantial inconsistencies in the information she had given at different times. The delegate made plain to the prosecutor that her credibility was a matter of serious concern to the delegate and that her credibility was adversely affected by the various inconsistencies in her accounts. The prosecutor conceded to the delegate that she had told some lies. The delegate found that "(the prosecutor) is not a credible witness and I am unable to accept her claims as being credible. Therefore I do not accept her fear of harm or mistreatment on return to Ethiopia is well founded." When the matter came before the Tribunal for review of the delegate's decision, there were two hearings. At the second hearing the prosecutor was legally represented. She relied upon a statutory declaration, evidently prepared with legal assistance, which attempted to address the issues of credibility raised by the delegate. She said that she had told lies because she was distressed and fearful of being deported. She insisted, however, that she feared that, if she went back to Ethiopia, she would be imprisoned. The prosecutor was questioned by the Tribunal about a number of discrepancies in the chronology she had given and about her contention that she had belonged to a political organisation opposed to the current regime. She was asked to give details about the organisation and her association with it. She was questioned closely about the organisation and about her claims that the ethnic group to which she belonged was being persecuted. The Tribunal informed the prosecutor of information which had been obtained from various sources. They included the United States State Department and the Australian Department of Foreign Affairs and Trade. The Tribunal put the information to her and suggested that it was, in significant respects, inconsistent with her evidence. She was invited to comment. The Tribunal also questioned her closely about her husband, her political activities, and her knowledge of his current situation. The Tribunal made it clear that it was sceptical of her claim that being a member of the political organisation to which she said she belonged carried with it a risk of imprisonment. The member who constituted the Tribunal told her, giving reasons, that he found her account of her knowledge, or lack of knowledge, of what had happened to her husband "hard to believe". She was given an opportunity to comment upon the problems raised by the Tribunal. Her solicitor was given time to make written submissions to the Tribunal. The solicitor made submissions which were accompanied by a report of a clinical psychologist who had made an assessment of the prosecutor. These submissions took the question of the prosecutor's credibility as the central issue, advanced arguments as to why the fact that she had made some false statements should not be treated as destructive of her central claims, and referred to the significance of the psychological assessment. The Tribunal's reasons for decision reiterated at considerable length the information that had been obtained from a number of sources as to the position of the Amhara and the AAPO in Ethiopia. Reference was made to an Amnesty International report about the arrest and detention of an AAPO leader in 1994, to a publication of the US Department of State in 1996 and to information provided by the Department of Foreign Affairs and Trade. The allegations made by the prosecutor about the activities of the prosecutor and her husband were tested by reference to that information, and the inconsistencies in her story were examined. The findings of the Tribunal were expressed as follows: "Whilst the Applicant's file shows the number of claims made by her that she subsequently changed, the Tribunal has not reiterated all of them here. The primary decision-maker found against the Applicant on the question of credibility and the Tribunal tried to look at the whole matter afresh. In particular, in the second RRT hearing, it attempted to examine the Applicant's evidence without pressing her too often to remember dates, which she claims is her weak point under the claimed stress of interrogation. The Tribunal focussed mainly on claimed causes and effects, and on claimed action and reaction. It found her evidence still to be seriously inconsistent and unreliable. The Tribunal has considered the claims made by the Applicant at the second hearing and does not, in the context of the number of distorted claims made by the Applicant, accept her account of her husband's arrest. It follows that the Tribunal is not, in the circumstances, prepared to rely on the evidence before it as to her own. The Tribunal considers it possible that the Applicant might have suffered some form of abuse in the past: her difficulty with the truth might be argued to be consistent with a disturbed past; however, it is not able to accept on [sic] the Applicant's evidence to the effect that she and her husband were the sole victims of a 1994 police swoop on their small suburban branch of the AAPO in isolation of anyone else in the branch, such as its leader and office holders, and in isolation of the kind of events that attracted such action during that year. The Tribunal concludes that the Applicant's claims about her husband still being detained are no more than a poorly-argued ambit. She did not convince the Tribunal that, for the reasons she gave, she had tried unsuccessfully to find out about him. The Applicant now has a long history, much of it admitted by her, of having told untruths. Her claims as to fear and confusion wear thin after six or seven occasions of 'clearing the slate' as it were. It appears to the Tribunal that the Applicant's corrections of her evidence can virtually all be attributed to adjustment subsequent to discovery. This does not help her case. At no point did she draw attention to corrections of untruths ahead of their possible discovery. This is evidence of something other than good faith on her part. The Tribunal finds the Applicant an unreliable witness in this matter. Her claims in relation to 'political opinion' are unsuccessful. However, the Tribunal is prepared to accept that the Applicant is an Amhara and notes her claims to the effect that the Amhara are disliked by the current government and suffer discrimination. Nevertheless, the Tribunal considers the above-cited (DFAT and other) information as to the circumstances of the Amhara in Ethiopia to negate her claims as to the existence of a real chance of persecution for reasons of her membership of this particular social ethnic group. On the evidence, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Ethiopia. The Applicant is therefore not a refugee." The judgment of Davies J Davies J concluded that none of the grounds set out in ss 476(1)(a), (d) or (e) of the Act had been made out. In an earlier case, Eshetu v Minister for Immigration and Multicultural Affairs[50], to which his Honour referred and which he distinguished, Davies J had taken an expansive view of the jurisdiction conferred by s 476(1). Nevertheless, he held that the Tribunal had acted fairly, had observed the necessary procedural requirements and had addressed the correct issue. In relation to the prosecutor's principal submission in this Court, Davies J said: "The substance of the case as put by the counsel for the [prosecutor] was based upon the allegation that the [prosecutor] had been detained and held in prison for two months by soldiers and had been repeatedly raped and abused during that period. Counsel submitted that the Tribunal erred by reaching a conclusion adverse to the [prosecutor] as there was no finding that that did not occur. It seems to me, however, that the Tribunal did not accept that evidence and that the Tribunal made that clear. The Tribunal certainly considered it possible that the [prosecutor] might have suffered some form of abuse in the past and that her difficulty with the truth may be consistent with a disturbed past. However, the Tribunal did not accept that such abuse had occurred as a result of her arrest by government soldiers, that she had been arrested because she had been a member of AAPO or that the mistreatment of which she complained was attributable either to her membership of AAPO or to her ethnicity." Davies J concluded that he was not satisfied that there was any error in the Tribunal's decision and, in particular, he was not satisfied that there was an error which the Federal Court would have jurisdiction to correct. As we have pointed out, this Court's jurisdiction to examine the decision of the Tribunal is not subject to the limitations which now apply to the Federal Court. However, essentially for the reasons given by Davies J, we are of the opinion that the Tribunal made no error which is capable of attracting the jurisdiction of this Court under s 75(v) of the Constitution. In determining whether the prosecutor had a well-founded fear of persecution, the Tribunal had to form an opinion as to what was likely to occur if the prosecutor was returned to Ethiopia[51]. In Minister for Immigration and Ethnic Affairs v Guo[52], Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said: "Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future." Given the nature of the prosecutor's claim for refugee status, the logical starting point for the Tribunal to determine whether the prosecutor had a well-founded fear of persecution because of her husband's or her political opinions was whether the prosecutor or her husband had been detained as she claimed. This was the approach adopted by the Tribunal. If satisfied that the prosecutor had been detained as she claimed, the next question for the Tribunal would have been whether she had been detained by reason of the political opinions she or her husband held or were suspected of holding. If satisfied that she had been detained for holding or being suspected of holding such opinions, the Tribunal would then have been obliged to determine whether the fact or cause of her detention constituted persecution for reasons of political opinion. Evidence that the prosecutor had been persecuted in the past would have given powerful support to the conclusion that the fear that she claimed that she held was well founded. The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As Guo[53] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution."[54] However, given the nature of the prosecutor's claim, the Tribunal was entitled - indeed bound - to start its inquiry by considering her claim that she had been arrested by government officials for political reasons. The Tribunal was unable to accept the prosecutor's account of her or her husband's arrest. Her answers to questions in relation to the husband and his present whereabouts were such that the Tribunal could not accept her account of his arrest. Given the inconsistencies and admitted lies in her various accounts, it is hardly surprising that the Tribunal was also unable to act on her evidence concerning her arrest. What was particularly telling against her was the statement to the South African authorities when she was applying for refugee status that she had never been arrested or detained. The Tribunal was not bound to accept the prosecutor's account of the alleged incidents. It was open to the Tribunal to find, as it did, that it could not rely on her evidence about her arrest and detention. Once the Tribunal was unable to find that she had been arrested as claimed, her further claims of detention and rape became logically irrelevant. The Tribunal, having found that it could not rely on her evidence of arrest, was not then required to act on her allegations of detention and rape, allegations which were dependent on her claim of being arrested and taken into custody for reasons of political opinion. The Tribunal was not bound therefore to make any express finding as to whether she had been raped. Nor given the nature of her claim and the Tribunal's finding that she was not a credible witness was it required, as it might have been in other circumstances, to determine whether there was a real chance that she had been arrested as she claimed. Once the Tribunal made the findings which it did in relation to the prosecutor's claim of being arrested for her or her husband's political opinions, her claim of having a well-founded fear of persecution for reasons of political opinions inevitably failed. The only other aspect of the prosecutor's claim that required investigation by the Tribunal was whether she might be persecuted by reason of her being an Amhara. The Tribunal, having considered the evidence, concluded that there was no "real chance of persecution for reasons of her membership of this particular social ethnic group." That was a conclusion open to the Tribunal. No error attracting the jurisdiction of this Court under s 75(v) appears in the Tribunal's reasons. The application must be refused.

Effem Foods Pty Limited v Lake Cumbeline Pty Limited & Ors Trade practices - Misleading or deceptive conduct - Alleged representation concerning contract for supply of fish - Falsity of representation not established - Reliance not established. Appeal - Facts - Findings of fact by Trial Judge - Power of Appellate Court to set aside findings. Trade Practices Act 1974 (Cth), s 52.

Thompson v His Honour Judge Byrne & Ors Criminal law - Motor traffic offence - Prescribed concentration of alcohol - Breath samples furnished within 3 hours after driving exceeded prescribed limit - Later blood sample showing concentration of alcohol within prescribed limit - Whether offence committed - Proper interpretation of s 49(1)(f) of the Road Safety Act 1986 (Vic). Precedent - Stare decisis - High Court - Whether Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 should be reconsidered. Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214. Road Safety Act 1986 (Vic), s 49(1)(f).

Cardile & Ors v LED Builders Pty Limited Federal court - Interlocutory relief - Asset preservation order - Juridical foundation - Whether capable of arising against property of a non-party - Whether order preventing disposal of assets by non-party necessary to protect the administration of justice - Undertakings as to damages - Discretionary considerations in granting relief. Companies - Interlocutory relief - Asset preservation order - Whether relief available against recipients of dividend payments - Whether relief available to protect goodwill. Words and phrases - "Mareva injunction" - "asset preservation order" - "injunction" - "intermingling" - "alienation". Conveyancing Act 1919 (NSW), s 37A. Federal Court of Australia Act 1976 (Cth), s 23. GAUDRON, Mc

Pelechowski v The Registrar, Court of Appeal Courts and tribunals - District Court of New South Wales - Powers - Asset preservation order made after judgment - Whether order beyond power. Courts and tribunals - Powers - Implied power - Asset preservation order made after judgment - Whether power necessary for the effective exercise of jurisdiction - Relevance of express powers. Contempt - District Court of New South Wales - Breach of order - Order beyond power - Whether contempt committed - Whether order a nullity or effective until set aside. Costs - Availability - Proceedings criminal in nature but not a criminal prosecution. Words and phrases - "necessary". District Court Act 1973 (NSW), ss 46, 203. Interpretation Act 1987 (NSW), ss 34, 35.

Real property - Torrens system - Unregistered lease - Variation of lease to reduce rent - Landlord in default under mortgage - Whether payment of reduced rent discharges lessee's rental obligations so as to bind purchaser following exercise of mortgagee's power of sale. Mortgage - Torrens system - Statutory power of sale - Exercise - Nature of reversionary interest obtained by purchaser upon registration - Whether privity of title or interest exists between registered proprietor and former mortgagor or mortgagee. Mortgage - Torrens system - Juridical nature of security interest - Comparison with old system mortgage - Rights and remedies of mortgagee under Transfer of Land Act 1958 (Vic), s 81. Property Law Act 1958 (Vic), ss 135, 138, 141, 151. Retail Tenancies Act 1986 (Vic), ss 21, 38. Transfer of Land Act 1958 (Vic), ss 42(2)(e), 74, 77, 78, 81.

Minister for Immigration and Multicultural Affairs v Eshetu Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Eshetu Administrative law - High Court - Constitution, s 75(v) - Prohibition and mandamus - Refugee Review Tribunal - "Wednesbury" unreasonableness - Whether Tribunal acting within jurisdiction. Immigration law - Refugees - Refugee Review Tribunal decision refusing to grant protection visa - Whether review available if Tribunal acts inconsistently with s 420 of the Migration Act 1958 (Cth) - Whether ground of review precluded by s 476(2)(b) of the Act - Whether failure of Tribunal to make certain findings of fact an error of law - "well-founded fear of being persecuted". Words and phrases - "well-founded fear of persecution" - "jurisdictional fact". Constitution, s 75(v). Migration Act 1958 (Cth), ss 36, 65, 420, 430, 475, 476. GLEESON CJ AND Mc

& Anor Practice and Procedure - Civil trial by jury - Direction by trial judge to return verdict in favour of defendant - Circumstances in which trial judge may withdraw case from jury - Legal test to be applied in assessing sufficiency of evidence - Role of jury. Negligence - Medical negligence - Physical injury - Breach of duty - Legal test for determining whether defendant had complied with the relevant standard of care - Rule in Rogers v Whitaker - Causation - Balance of probabilities - Loss of chance analysis in cases of physical injury.

Charlie v The Queen Criminal law - Murder - Relationship between general Code provision establishing excuse from criminal responsibility and specific provision creating offence of murder - Whether accused must foresee death as a possible consequence of conduct - Principles of statutory construction - Relevance of common law in construction of Code. Criminal Code (NT), ss 31, 162(1)(a). Breedon v The Queen [1993] NTSC 114; (1993) 3 NTLR 119. Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56.