Cases and authorities

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham Immigration law and Administrative law - Refugee - Refugee Review Tribunal decision refusing to grant protection visa - Application in original jurisdiction of High Court for prerogative relief - Whether Tribunal failed to take into account relevant considerations and evidence - Whether Tribunal failed to consider all available inferences from evidence - Whether s 430(1) of the Migration Act 1958 (Cth) required the Tribunal to refer to evidence contrary to its findings - Whether a breach of s 430(1) amounts to a jurisdictional error grounding prerogative relief. Constitutional law - Federal jurisdiction - Role of the High Court under the Constitution - Extent of High Court's jurisdiction to grant certiorari pursuant to s 75(v) of the Constitution. Words and phrases - "well-founded fear of persecution" - "reasons for the decision". The Constitution, s 75(v). Migration Act 1958 (Cth), ss 415(1), 420, 430(1). Convention relating to the Status of Refugees of 1951. Mc

Barwick v Law Society of New South Wales Legal practitioners - Disciplinary proceedings - Requirement for investigation of complaints - Institution of proceedings by filing of informations - Jurisdiction and powers of Legal Services Tribunal - Complaints initiated outside statutory period - Power of Legal Services Tribunal to vary informations to include conduct occurring outside statutory period. Statutes - Construction - Mandatory versus directory - Legislative purpose - Course of enactment of legislation - Successive drafts of Bill - Whether permissible to consider. Words and phrases - "complaints" - "made" - "initiated". Legal Profession Act 1987 (NSW), ss 134-138, 148-150, 152, 154-156, 167, 167A. GLEESON CJ, GAUDRON AND Mc

RPS v The Queen Criminal law - Evidence - Silence of the accused - Directions to jury - Circumstances in which jury may take account of accused's failure to give evidence. Criminal law - Judicial instructions - Instructions about reasoning towards guilt. Courts and judicial system - Apprehension of judicial bias - Tension between trial judge and counsel at trial - Use of trial judge's report by appeal court. Words and phrases - "right to silence". Criminal Appeal Act 1912 (NSW), s 11. Evidence Act 1995 (NSW), s 20.

Income tax - Assessment - Notice stating no tax payable - Subsequent assessment showing assessable income and tax payable thereon - Whether initial notice an "assessment" for the purposes of s 170(3) of the Income Tax Assessment Act 1936 (Cth) - Whether subsequent assessment therefore unauthorised - Whether any tax became "due and payable" upon issue of initial notice. Words and phrases - "assessment" - "due and payable". Income Tax Assessment Act 1936 (Cth), ss 6(1), 166, 170, 171, 204.

Administrative law - Judicial review of administrative discretion - Jurisdictional facts - Consent of statutory authority to provisional development plan - Consent prohibited if development "non-complying" - Classification a jurisdictional fact - Whether statutory authority exceeded power - Whether weight to be accorded to opinion of statutory authority upon judicial review - Whether court restricted to evidence before statutory authority. Courts and judges - Jurisdiction - Equity - Public law - Restraint of apprehended breach of law - Error with respect to jurisdictional fact. Administrative law - Remedies - Error with respect to jurisdictional fact - Availability of prerogative writs and equitable remedies. Words and phrases - "Jurisdictional fact" - "special industry" - "non-complying development". Development Act 1993 (SA), ss 32, 33, 35(3), 38, 44, 108. Development Regulations (SA), regs 16, 17, Sched 1.

Income Tax - Income - Eligible termination payment - Whether lump sum payment received by member of superannuation fund for total and permanent disability "consideration ... in respect of ... personal injury". Practice and procedure - High Court - Criteria for grant of leave to an intervener or amicus curiae. Words and phrases - "consideration" - "in respect of". Income Tax Assessment Act 1936 (Cth), ss 27A(1)(n), 27G. GAUDRON ACJ, Mc

Australian Securities and Investments Commission v DB Management Pty Ltd Southcorp Wines Pty Ltd v DB Management Pty Ltd Corporations - Takeovers - Compulsory acquisition of shares allotted pursuant to exercise of options after offer period - Power of Australian Securities and Investments Commission to modify Ch 6 of the Corporations Law. Corporations Law, ss 701, 703, 728, 730.

Cassell v The Queen Criminal law - False evidence - Independent Commission Against Corruption - Whether hearing conducted by Assistant Commissioner was a "hearing before the Commission" - Evidence of delegation by Commissioner. Independent Commission Against Corruption Act 1988 (NSW), ss 30, 87. GLEESON CJ, GAUDRON, Mc

Administrative law - Judicial review of administrative decision - Error of law - Rejection of application for protection visa - Error must affect decision to affirm the refusal of grant of a protection visa - Refugee Review Tribunal made no error of law - Absence of power in RRT to reconsider its own decision by reason of later changed circumstances - Appeal against decision to affirm RRT's decision to refuse protection visa - Power of Federal Court to review decisions limited by Migration Act 1958 (Cth), s 476 - Power of applicant to seek second application for protection visa limited by ss 48A and 48B - Whether Federal Court has power under s 481 to refer matter to RRT for further consideration to take account of changed circumstances. Words and phrases - "decision". Migration Act 1958 (Cth), ss 48A, 48B, 476, 481. Migration Regulations (Cth), Sched 2. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 10, 16. GLEESON CJ, Mc

Income tax - Remittance of tax payable by employees deducted by employer - Penalty notices sent to director - Form of notices - Whether notices invalid due to absence of due dates for remittance of deductions - Whether notices misleading. Income Tax Assessment Act 1936 (Cth), ss 222ANA, 222AOC, 222AOE, 222APE. GLEESON CJ, Mc

Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited Constitutional law - "Matter" - Validity of law conferring standing to seek injunctive and declaratory relief - Where applicant has no direct or special interest in subject matter of proceedings - Whether reciprocity of right and duty is required. Trade practices - Misleading and deceptive conduct - Application for injunction and declaration - Standing of applicant. The Constitution, Ch III, ss 71, 75-78. Trade Practices Act (Cth), ss 51A, 52, 53(aa), 53(c), 80, 163A. Words and phrases - "matter" - "a person". GLEESON CJ AND Mc

Campomar Sociedad, Limitada v Nike International Limited Trade Marks - "NIKE" - Appellants and respondents registered identical trade marks in respect of different products - Appellants' use of mark likely to deceive or cause confusion - Appellants intended to take advantage of respondents' goodwill - Application to expunge appellants' trade marks. Trade Marks - Whether s 28 of Trade Marks Act 1955 (Cth) has continuing or secondary operation - Interests to which protection under s 28 is directed - Whether s 28 prevents "dilution" of trade mark - Whether s 28 accommodates prior or honest concurrent use - Whether appellants' trade marks had a reasonable probability of causing confusion - Issue to be considered prospectively at date of application for registration - Power to expunge mark from Register - Exercise of discretion on appeal - Limitation of goods for which trade mark registered. Trade Practices - Misleading or deceptive conduct - Significance of "erroneous assumption" - Nexus between conduct and misconceptions or deceptions - Effect upon ordinary or reasonable members of the class of prospective purchasers to whom conduct directed. Words and Phrases - "likely to deceive or cause confusion" - "wrongly made in the Register" - "wrongly remaining in the Register" - "blameworthy activities" - "dilution" - "probability of confusion" - "misleading or deceptive conduct" - "erroneous assumption". Trade Marks Act 1955 (Cth), ss 22, 28, 34, 53(2), 58, 61. Trade Marks Act 1995 (Cth), ss 93, 96, 207, 233(1), 234, 250. Trade Practices Act 1974 (Cth), ss 52, 80. GLEESON CJ, GAUDRON, Mc

Bond v The Queen Criminal law - Offences against State law - Appeal against sentence by the prosecution - Power of Director of Public Prosecutions of the Commonwealth to bring appeal against sentence - Distinction between prosecution and appeal. Constitutional law - Whether State law can unilaterally vest functions in officers of the Commonwealth - Inconsistency between Commonwealth and State laws - Inapplicability of de facto officers doctrine. Appeal - Whether appellate court will entertain issue not raised below - Irrelevant where issue is as to competence of proceedings below. Words and phrases - "the prosecution". The Constitution, s 109. Director of Public Prosecutions Act 1983 (Cth), ss 9(7), 17. Corporations (Western Australia) Act 1990 (WA), s 91. Criminal Code (WA), ss 578, 581, 688(2). GLEESON CJ, GAUDRON, Mc

The Grain Pool of WA v The Commonwealth Intellectual Property - Plant Variety Rights - Whether Plant Variety Rights Act 1987 (Cth) was valid - Whether s 82 of Plant Breeder's Rights Act 1994 (Cth) is valid - Scope of s 51(xviii) of the Constitution - Patents of inventions - Nature of varieties of intellectual property - Whether s 51(xviii) requires novelty or inventiveness. Constitutional Law - Commonwealth Constitution - Legislative powers of the Parliament - Meaning of - Relevance of meaning of words in 1900. Words and Phrases - "patents of inventions", "origination", "breeding", "intellectual effort", "inventiveness", "novelty", "process", "product", "patent". Constitution, s 51(xviii). Plant Variety Rights Act 1987 (Cth). Plant Breeder's Rights Act 1994 (Cth). GLEESON CJ, GAUDRON, Mc

Gilbert v The Queen Criminal law – Murder – Appeal against conviction – Misdirection by trial judge – Failure to leave manslaughter to jury – Whether jury properly instructed would necessarily have returned verdict of guilty of murder – Whether no substantial miscarriage of justice actually occurred – Whether failure to leave manslaughter to jury constitutes substantial miscarriage of justice where jury's verdict of guilty of murder consistent only with satisfaction of elements of offence of murder. Criminal Code (Q), ss 7(1), 8, 668E(1), 668E(1A).

DJL v The Central Authority Appeal - Family Court of Australia granted certificate under s 95(b) of Family Law Act 1975 (Cth) regarding "important questions of law and public interest" - Whether Family Court has power to set aside its own perfected orders - Scope of inherent powers of common law courts - "Slip rule" - Ambit of appellate jurisdiction determined by the terms of the statute granting right of appeal - Impermissibility of applying common law analogies to statutory courts. Family Law - Family Court of Australia - Orders of Full Court - Orders perfected - Whether Full Court has inherent or implied power to set aside orders. Practice - High Court - Appeal - Certificate by Family Court of Australia - Family Law Act 1975 (Cth) - Validity of requirement of - Specification of question certified. Words and phrases - "inherent jurisdiction", "inherent power", "superior court of record", "slip rule". Constitution, ss 71, 73. Family Law Act 1975 (Cth), ss 93A, 95. GLEESON CJ, GAUDRON, Mc

Pty Ltd Negligence - Res ipsa loquitur - Circumstances in which res ipsa loquitur can be used - Effect of the application of res ipsa loquitur - Whether res ipsa loquitur affects the burden of proof - Whether res ipsa loquitur more than a permissible process of reasoning. Practice and procedure - Amendment - Reopening of issues at trial - Need for care. Words and phrases - "res ipsa loquitur". GLEESON CJ AND Mc

Chen Shi Hai v The Minister for Immigration and Multicultural Affairs Immigration law - Refugees - Appeal from decision of Refugee Review Tribunal - Application on behalf of minor by his next friend for grant of protection visa - Application refused - Appellant "black child" under the one child policy of the People's Republic of China - Unchallenged finding by Refugee Review Tribunal that appellant would suffer serious disadvantage amounting to persecution - Whether "black children" constituted a "particular social group" for the purposes of the Convention relating to the Status of Refugees - Whether appellant faced persecution "for reasons of" membership of such a group or by reason of parents' conduct in contravening the one child policy - Whether persecution can arise in the absence of "enmity" or "malignity". Word and phrases - "persecution" - "for reasons of" - "membership of a particular social group". Migration Act 1958 (Cth), ss 36(2), 65(1), 481(1)(b). Convention relating to the Status of Refugees (1951), Art 1A (2). Protocol relating to the Status of Refugees (1967).

Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Limited Mortgage - Construction of terms - Mortgage agreement provided that event of default occurred if bank formed opinion that circumstances had arisen which had material adverse effect on business, assets and financial condition of borrower and ability of borrower to perform its obligations to the bank - Formation of requisite opinion - Declaration that moneys owing were immediately due and payable - Notice demanding payment - Validity of notice. Mortgage - Debenture - Default - Power in mortgage to appoint receiver after moneys became payable - Validity of appointment - Mortgage and loan agreements each specifying circumstances in which moneys became payable - No inconsistency between mortgage and loan agreements. GLEESON CJ, Mc

The Queen v Hughes Constitutional Law (Cth) - Accused made available in Perth "prescribed interests" relating to transactions to be carried out in the United States of America - Prohibition of offering of "prescribed interests" in undertakings to be performed "whether in Australia or elsewhere" - Director of Public Prosecutions of the Commonwealth instituted prosecution on indictment for making available "prescribed interests" contrary to s 1064(1) and s 1311(1)(a) of the Corporations Law of Western Australia - Whether Director of Public Prosecutions of the Commonwealth had power to prosecute accused - Whether any offence known to the law - Whether offence against the laws of the Commonwealth or of Western Australia - Whether Director of Public Prosecutions of the Commonwealth validly authorised to receive power to prosecute State offences - Whether Director of Public Prosecutions of the Commonwealth validly subjected to a duty to exercise power to prosecute State offences. Constitutional Law (WA) - Whether Western Australian laws gave power to prosecute offences to the Director of Public Prosecutions of the Commonwealth - Whether State laws invalid as purporting to convert offences against State law into offences against federal law - Whether State laws invalid as constituting an abdication of State legislative power - Whether State laws invalid for want of sufficient specification. Companies - Corporations Law - Interrelated federal, State and Territory legislation - Offences against Corporations Law of Western Australia - Whether offence against the laws of the Commonwealth or of Western Australia - Whether Director of Public Prosecutions of the Commonwealth validly authorised to prosecute offences against State law - Constitutional validity of interrelated legislation as applicable to the offence alleged. Criminal Law and Practice - Companies - Offence against law of Western Australia - Whether Director of Public Prosecutions of the Commonwealth validly authorised to prosecute offence. Words and phrases - "Commonwealth law" - "is taken to be". Constitution, ss 51(i), 51(xx), 51(xxix), 51(xxxix). Corporations Act 1989 (Cth), ss 46, 47, 73, 82. Corporations Law, ss 1064(1), 1311(1)(a). Director of Public Prosecutions Act 1983 (Cth), ss 5(2), 6, 7, 8, 9. Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth), reg 3(1)(d). Corporations (Western Australia) Act 1990 (WA), ss 7, 26, 28, 29, 31, 32, 33. GLEESON CJ, GAUDRON, Mc

High Court - Practice and procedure - Removal of causes - Constitutional arguments raised in application untenable - Application made on instructions of a third party to the litigation - Solicitor's duties to Court. Constitutional law - Office of Governor-General - Validity of commission and appointment of. Practice and procedure - Joinder of solicitor - Costs - Award of costs against solicitor - Award of costs on indemnity basis - Discontinuance under O 27 r 1(1) of High Court Rules - Notice thereunder purportedly given by a person other than the applicant on record. Words and phrases - "indemnity costs". Constitution, ss 2, 4, 58. Corporations Law, s 471A. Judiciary Act 1903 (Cth), ss 40, 78B. High Court Rules, O 27 r 1(1).

Bull v The Queen King v The Queen Marotta v The Queen Evidence - Admissibility of evidence - Exclusion of evidence as to disposition of complainant in cases of sexual offences - Whether evidence admissible at common law - Whether evidence excluded by the Evidence Act 1906 (WA), ss 36BA, 36BC - Res gestae - Hearsay rule. Criminal law - Sexual offences - Evidence - Admissibility - Evidence as to disposition of complainant - Whether excluded by Evidence Act 1906 (WA), ss 36BA, 36BC. Words and phrases - "res gestae" - "sexual reputation of the complainant" - "disposition of the complainant in sexual matters" - "sexual experiences of the complainant" - "hearsay". Evidence Act 1906 (WA), ss 36B, 36BA, 36

Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited Equity - Distinction between trust and charge - Seller supplied goods subject to retention of title clause - Total purchase price not paid - Buyer insolvent - Goods no longer ascertainable - Whether retention of title clause trust or charge - Whether trust constituted - Intentions of the parties - Relationship between trust and debt - Significance of beneficiary's qualified ability to draw upon trust property - Significance of lack of requirement in trustee to keep trust property separate - Equitable obligations of trustee - Evidentiary requirements to prove trust - Liability to account. Corporations Law - Distinction between trust and charge - Lack of obligation in Corporations Law to register trust - Reservation of title or Romalpa clause - Effectiveness against liquidator of insolvent company. Contracts - Romalpa clause - Construction of contractual terms - Implication of terms - Significance of considerations of inutility and commercial practicality - Relationship between contractual and equitable rights. Words and phrases - "trust" - "charge" - "registrable charge". Corporations Law, ss 262, 263, 266. GAUDRON, Mc

Bankruptcy - Bankruptcy notice served on debtor after creditor obtained order for costs - Debtor claimed counter-claim, set-off or cross demand equal to or exceeding amount of order for costs being a counter-claim, set-off or cross demand that he could not have set up in the proceedings in which the order for costs was obtained - Debtor applying to the Court for order setting aside bankruptcy notice - Whether Court satisfied that debtor had such a counter-claim, set-off or cross demand before expiration of time fixed for compliance with requirements of bankruptcy notice. Bankruptcy - Sequestration order - Appeal against orders of primary judge that Court not satisfied that debtor has a relevant counter-claim, set-off or cross demand - Issues to be determined by appellate court - Utility of appeal. Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(7). GLEESON CJ, GAUDRON, Mc

Zoneff v The Queen Criminal Law - Lies - Whether going to credibility or indicating guilt - Direction to jury - Proviso - Circumstances for application in strong Crown case. Words and phrases - "consciousness of guilt".

Eastman v The Queen Constitutional Law (Cth) - Appellate jurisdiction of High Court - Appeal from a federal court - Whether High Court has power to receive new evidence in an appeal from a federal court - Whether power to receive new evidence is different in appeals from federal and state courts. Constitutional Law (Cth) - Interpretation - Relevance of historical background to Constitution. Appeals - New evidence - Whether admissible on appeal to High Court. Criminal Law and Practice - Fitness to plead - Issue not raised at trial - Whether material before appeal court suggested issue of fitness to plead at trial - Whether appeal court under a duty to investigate whether an accused was fit to plead at trial - Whether fundamental failure of trial process. Words and phrases - "appellate jurisdiction" - "appeal" - "fresh evidence" - "fitness to plead". Constitution, s 73. Mental Health (Treatment and Care) Act 1994 (ACT), s 68. Crimes Act 1900 (ACT), s 428E. Federal Court of Australia Act 1976 (Cth), s 24.

Australasian Memory Pty Limited v Brien Corporations - External administration - Administration with a view to executing a deed of company arrangement - Power of court to make such order as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company - Whether power to remedy defect caused by convening of creditors meeting prior to specified period - Whether power to alter time periods fixed by Pt 5.3A where specific provisions for extension of time - Whether power retrospectively to vary the operation of Pt 5.3A - Whether power to affect vested rights. Words and phrases - "is to operate". Corporations Law, s 447A, Pt 5.3A. GLEESON CJ, Mc

Constitutional law (Cth) - Whether authorisation of a search warrant under s 3E of the Crimes Act 1914 (Cth) is in breach of s 71 of the Constitution - Whether s 29D of the Crimes Act 1914 (Cth) is beyond the legislative power of the Commonwealth Parliament - Whether the State laws authorising the Director of Public Prosecutions of New South Wales to issue indictments under s 10 of the Criminal Procedure Act 1986 (NSW) are inconsistent with s 7(2) of the Australia Act 1986 (NSW). Practice and procedure - Jurisdiction invested in State Supreme Courts by the Judiciary Act 1903 (Cth) in matters involving interpretation of the Constitution - Relevance of considerations of fragmentation of criminal proceedings. Constitution, ss 51(ii), 51(xxxix), 109. Australia Act 1986 (Cth), ss 2, 3, 7(2). Crimes Act 1914 (Cth), ss 3E, 29D. Judiciary Act 1903 (Cth), ss 38, 39. Criminal Procedure Act 1986 (NSW), s 10. Director of Public Prosecutions Act 1986 (NSW).

Residual Assco Group Limited v Spalvins Constitutional law (Cth) - State law providing for order that a proceeding commenced in a federal court be treated as a proceeding in the Supreme Court - Whether State law invalid by reason of interference with the procedures of a federal court after order by that court that it had no jurisdiction - State law not invalid. High Court and federal judiciary - Federal Court and Family Court - Original jurisdiction conferred under cross-vesting legislation of the Commonwealth held to be invalid in a previous decision - Original jurisdiction also conferred under other laws of the Commonwealth - Jurisdiction to make an order staying for want of jurisdiction a matter commenced under invalid cross-vesting legislation - Whether exercising jurisdiction conferred under invalid cross-vesting legislation or under other laws of the Commonwealth in making the order - Whether issue arises as to whether an order made under invalid legislation is a nullity or voidable. Procedure - Courts - Supreme Courts of the States and federal courts - State law provided for Supreme Court to make an order that a proceeding commenced in a federal court in respect of which that federal court had made an order that it had no jurisdiction be treated as a proceeding in the Supreme Court - Effect of State law. Constitution, ss 71, 76(ii), 77(i), 109. Family Law Act 1975 (Cth), s 31(1)(d). Federal Court of Australia Act 1976 (Cth), s 19. Judiciary Act 1903 (Cth), s 39B(1A)(c). Federal Courts (State Jurisdiction) Act 1999 (SA), s 11. Rules of the Supreme Court of South Australia, r 123A.05. GLEESON CJ, GAUDRON, Mc

Pty Limited; Ex parte Construction, Forestry, Mining and Energy Union Construction, Forestry, Mining and Energy Union v The Commonwealth Industrial Law - Whether s 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) is invalid to the extent that it purports to give effect to item 50 and subitems 51(1), (2) and (3) in Pt 2 of Sched 5 to that Act. Constitutional Law (Cth) - Legislative power of the Commonwealth - Whether s 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), to the extent that it gives effect to item 50 and subitems 51(1), (2) and (3) in Pt 2 of Sched 5 to that Act, is a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state under s 51 (xxxv) of the Constitution. Words and phrases - "conciliation and arbitration" - "industrial dispute" - "implied incidental power" - "award" - "settlement". Constitution, s 51(xx), (xxxv), (xxxix). Workplace Relations and Other Legislation Amendment Act 1996 (Cth), s 3. Workplace Relations Act 1996 (Cth), ss 7A, 89

(Australia) Pty Ltd Taxation - Capital gains tax - Time of disposal of assets - Original agreement providing for disposal subsequently amended - Whether disposal made under original agreement or amended agreement. Words and phrases - "under a contract". Income Tax Assessment Act 1936 (Cth), s 160U GLEESON CJ, GAUDRON, Mc

John Pfeiffer Pty Limited v Rogerson Private International Law - Choice of law - Tort - Negligent act committed and damage suffered in New South Wales - Action commenced in Australian Capital Territory - Whether double actionability rule is a choice of law rule - Whether double actionability rule applies to proceedings in federal jurisdiction - Whether a single choice of law rule should be adopted consistently in both federal and non-federal jurisdiction in all courts in Australia - Whether the lex fori or lex loci delicti is applicable - The lex loci delicti governs torts committed in Australia which have an interstate element. Private International Law - Substance and procedure - Distinction - Matters of substance bear upon existence or enforceability of remedies rights and obligations - Limitations on type and quantum of damages are substantive not procedural. Limitation of Actions - Limitation provisions barring either right or remedy are substantive not procedural. Constitutional Law (Cth) - Full faith and credit - Effect of s 118 of the Constitution upon common law choice of law rules - Whether a single choice of law rule should be adopted consistently in both federal and non-federal jurisdiction in all courts in Australia - Effect of Ch III of the Constitution upon common law. Tort - Damages - Whether Pt 5 of the Workers Compensation Act 1987 (NSW) limits the amount of economic and non-economic loss recoverable. Words and phrases - "choice of law" - "lex loci delicti" - "lex fori" - "double actionability rule" - "full faith and credit" - "substance and procedure" - "federal diversity jurisdiction". Constitution, Ch III, s 118. Judiciary Act 1903 (Cth), ss 79, 80. Workers Compensation Act 1987 (NSW), Pt 5. GLEESON CJ, GAUDRON, Mc

Constitutional law (Cth) - "Matter" - Divisibility of - Appeal from Administrative Appeals Tribunal to Federal Court - Whether can be restricted to point of law - Whether Court has duty to determine entire matter. Constitutional law (Cth) - Jurisdiction of Federal Court - Jurisdiction subject to exclusion by other Acts. Income tax - Practice and procedure - Appeal to Full Court of Federal Court - Whether without jurisdiction - Alternative proceedings involving review by Administrative Appeals Tribunal and appeal to Federal Court - Applicable provisions governing Federal Court in each case. Income tax - Public Tax Ruling - Duty imposed on Commissioner to abide by Ruling - Whether bound by duty where contradictory order of Federal Court - Whether mandamus available. High Court - Constitutional writs - Applications for orders nisi for prohibition and mandamus and other relief - Test to be applied - Whether applicant has demonstrated reasonably arguable case. Administrative law - Administrative Appeals Tribunal - Whether constitutionally permissible to restrict appeal to Federal Court to point of law. Constitution, s 75(v). Administrative Appeals Tribunal Act 1976 (Cth), ss 43, 44. Federal Court of Australia Act 1976 (Cth), s 24. Income Tax Assessment Act 1936 (Cth), ss 25(1), 25A(1), 170BA. Taxation Administration Act 1953 (Cth), ss 14ZZ, 14ZZA, 14ZZL, 14ZZQ. Federal Court Rules, O 52, r 15, O 52, r 10, O 53, r 2. High Court Rules, O 55, r 2. KIRBY J. I have before me an application for an order nisi for constitutional writs (prohibition and mandamus) and for the grant of ancillary relief (certiorari and an extension of time). The application is made by Mr Michael Glennan ("the applicant"). The respondents are the Commissioner and Deputy Commissioner of Taxation for the Commonwealth (who have appeared to contest the relief sought) and the Judges of the Federal Court of Australia (who have submitted to the orders of this Court). Approach to the application The approach to the application, which rests substantially upon s 75(v) of the Constitution, is not in doubt. That provision of the Constitution enacts that, in all matters "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. It is for the applicant to make out a case for the order he seeks. The nature of the case which he must make out has been variously described. In Re Brennan; Ex parte Muldowney[1], Mason CJ stated that the applicant had "failed to make out a prima facie or arguable case". In Re Australian Nursing Federation; Ex parte State of Victoria[2], McHugh J, granting relief, stated that the applicant had to "show that he or she has an arguable case". In judging what is an "arguable case" in this context, certain considerations must be kept in mind. First, there is the importance of the constitutional provision itself[3]. It is of cardinal significance. By it, all officers of the Commonwealth (including federal judges[4]) are rendered accountable in this Court to the Constitution and the laws of the Commonwealth. Being the means by which the rule of law is upheld throughout the Commonwealth, the provision is not to be narrowly construed or the relief grudgingly provided. Secondly, where this Court's original jurisdiction is invoked, by an application made pursuant to s 75(v), it is a jurisdiction which the Court is bound to exercise according to law[5]. The rider imposes restraints, including the requirement, where challenged, for an applicant to demonstrate standing and to rebut a suggestion that the grant of an order nisi would, in the particular circumstances, be "premature"[6]. Such a case would arise where the applicant has other available remedies which, in the circumstances of the particular case, should be exhausted before the provision of constitutional relief is considered. Thirdly, a practical consideration which restrains an unduly restrictive view of the provision of an order nisi for constitutional writs is that, were it to be refused in a demonstrably arguable case, the disaffected applicant might seek leave to appeal from the order of the Justice concerned or otherwise endeavour to overcome it[7]. Were a Full Court to consider that the order nisi ought to have been granted, it could so provide. In some cases, at least, the refusing Justice might then be disqualified from participating in the matter returned before the Full Court, although that matter concerns the Constitution or an important point of federal law upon which the Justice would ordinarily be expected to provide his or her opinion[8]. These considerations explain why, instead of refusing relief altogether, an order is sometimes made[9] directing the applicant to apply by notice of motion to a Full Court. In such a case the application before the single Justice is adjourned so that notice of the application to the Full Court may be given[10]. All of the foregoing considerations must be kept in mind. However, as the contesting respondents disputed the provision of the relief sought by the applicant, and as their contentions have been fully argued over a day's hearing, it is my duty to decide whether the applicant has made out an "arguable" or "prima facie" case. In so far as there is a difference between these two standards, I will apply the test of whether the applicant has shown a reasonably arguable case[11]. I shall approach the hurdle which he must overcome bearing in mind that its fundamental purpose is not to put applicants out of court but to ensure that the Full Court, and other parties, are not troubled by futile arguments that are not reasonably open or by arguments that are premature. In the nature of applications of this kind, the Justice determining them does not ordinarily hear all of the arguments that would be advanced on the return of the order nisi before a Full Court. But that does not mean that argument, even of an extensive kind, is not appropriate to reach the conclusion that the serious step should be taken of issuing the order nisi[12]. In the present application, I have had the benefit of detailed argument. Extensive written submissions were also received following the hearing. The course of the proceedings For some years, the applicant and the Commissioner of Taxation have been engaged in a dispute concerning an assessment of the applicant's assessable income for the year ended 30 June 1988. During that year, the applicant received payment of a lump sum of $1.365 million pursuant to the terms of settlement of proceedings in the Supreme Court of New South Wales between himself and a third party. The applicant asserts that the sum is of a capital nature[13]. The Commissioner contends that this sum is assessable as income. He included it in the applicant's Notice of Assessment dated 8 May 1995. The applicant objected to this decision on 19 July 1995. His objection was disallowed by the Deputy Commissioner on 29 January 1996. The applicant, being dissatisfied with this decision, applied to the Administrative Appeals Tribunal ("the Tribunal") for review of the decision[14]. The Tribunal, on 8 November 1996, determined that review adversely to the applicant and affirmed the decision of the Commissioner[15]. The applicant then "appealed" to the Federal Court. This "appeal" was heard by Foster J, then a judge of that Court[16]. His Honour delivered two decisions. The first was pronounced on 17 October 1997 and ordered that the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal "for determination in accordance with these reasons"[17]. On 9 September 1998, Foster J acceded, in part, to an interlocutory motion which was brought on behalf of the applicant and which sought enlargement of the original orders. The motion also sought to advance a number of constitutional arguments. Although Foster J rejected the constitutional arguments, for reasons which he gave[18], his Honour was persuaded, on the merits, to vary the orders previously made. In consequence, he added to the orders which he had pronounced on 17 October 1997 a variation which provided a direction to the Tribunal to "find that the receipt in question was not taxable under ss 25(1) or 25A(1) of the Income Tax Assessment Act 1936 (Cth)". Before the Tribunal could hear the remitted proceedings in accordance with the varied orders, two appeals to the Full Court of the Federal Court were lodged from those orders. The applicant lodged an appeal against the judgment of 9 September 1998 on 29 September 1998. The Commissioner lodged an appeal against both judgments on 30 September 1998. In due course, the Full Court (Hill, Sackville and Hely JJ) heard and determined the appeals[19]. The Full Court granted an extension of time to the Commissioner to file a notice of appeal from the judgment of Foster J of 17 October 1997. It ordered that the Commissioner's appeals from both judgments be allowed and that the orders of Foster J be set aside. In lieu of the first orders, the Full Court substituted orders dismissing the appeal from the Tribunal and ordering the present applicant to pay the Commissioner's costs. It also dismissed, with costs, the applicant's appeal from the judgment of Foster J of 9 September 1998. The applicant has applied for special leave to appeal to this Court from the foregoing orders of the Full Court of the Federal Court. His application has not yet been determined. On 26 May 2000, the application came on for hearing before this Court constituted by Gaudron J and myself. The applicant notified the Court of the constitutional points which he wished to argue, the substance of most of which were included in his grounds of appeal and in the filed argument in support of the grant of special leave. The applicant expressed concern that some, at least, of the constitutional arguments raised by him might affect the jurisdiction which the Federal Court had to hear and determine the appeals purportedly brought to it. If this proved to be so, the constitutional grounds could, he feared, destroy the validity of his purported application and contemplated appeal to this Court. The applicant therefore informed the Court of this possible jurisdictional problem. Where a court is aware of a possible problem affecting its jurisdiction, it is ordinarily necessary for that court to resolve the problem in order to determine the extent of its powers and jurisdiction to make orders disposing of the proceedings[20]. Being informed of the applicant's intention to prosecute the present application to bring the issues of jurisdiction to a head, the Court, constituted to hear the special leave application, adjourned that hearing. The purpose of such adjournment was to permit the application for an order nisi for constitutional writs and ancillary relief to be heard. It is in that way that the present application has now come before me. Four issues The applicant's draft order nisi was lengthy. To it was annexed a statement of grounds which was also very detailed, the whole document running to 39 pages. However, as clarified, the applicant sought the issue of an order nisi for constitutional and ancillary relief upon four grounds. He confirmed during the hearing that there were four essential matters which he wished to bring before the Full Court of this Court pursuant to this application. The four grounds were: 1. That the Full Court of the Federal Court had acted without jurisdiction in hearing and determining the purported appeals of the Commissioner against the orders of Foster J. According to the applicant, the Full Court's judgment was void for want of jurisdiction, or at least voidable. This was because the general jurisdiction conferred by the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") was limited by a qualification in the Taxation Administration Act 1953 (Cth) ("the Taxation Administration Act"). The applicant sought an order for prohibition (to prevent their enforcement) and of certiorari (to quash them on the ground of invalidity). 2. That the Commissioner and his officers had failed to comply with their legal duty to assess the applicant's income in accordance with a Public Tax Ruling concerned with the assessment of assessable income in cases such as that of the applicant. The ruling in question was Taxation Determination TD 93/58[21]. According to the applicant, by reason of this ruling (which, he argued, was legally binding on the Commissioner and his officers[22]), no part of the sum of $1.365 million in issue was assessable income. It followed that the assessment made by the Commissioner and the ultimate judgment of the Full Court of the Federal Court in the Commissioner's favour were flawed and contrary to law for having failed to conform to the applicable Ruling. According to the applicant, the Commissioner and his officers were duty bound, notwithstanding the Full Court's judgment, to comply with the Ruling. 3. That Foster J had acted beyond his jurisdiction as a judge of the Federal Court in purporting to remit to the Tribunal, by his judgment, including as varied, the determination of the income tax payable by the applicant. The applicant contended, in this respect, that it was the constitutional and legal duty of Foster J to decide the applicant's liability to tax and not, as it was put, to "delegate" the determination of that liability to an administrative body such as the Tribunal. The purported "delegation" reflected in the orders of Foster J amounted, so it was submitted, to an unconstitutional abdication of the powers and duties of the Federal Court and an impermissible sharing of those powers and duties with a body that was not a court within Ch III of the Constitution. 4. That the provision for appeals from the Tribunal to the Federal Court was exclusively contained in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). The only way in which such an "appeal" might come to a Full Court of the Federal Court was in pursuance of s 44(3) of that Act. By that sub-section, special provision is made for the exercise of the Federal Court's original jurisdiction by a Full Court in certain limited circumstances[23]. As none of the instances stated were applicable in the present case, the applicant argued that the Full Court had no jurisdiction or power to hear and determine an appeal from the judgments of Foster J. Such purported appeal, and the disposition of it, were made without jurisdiction, were beyond power, and the resulting judgment was thus void or at least voidable, inviting the provision of constitutional and ancillary relief. It will be observed that the object of the applicant, in advancing the foregoing grounds, was to remove the unwelcome judgment of the Full Court of the Federal Court (which had been against him) and to return the matter, so far as he could, to the position in which it was left by the judgment of Foster J (which was in his favour). With the additional consideration of the Public Tax Ruling point, the matter could then be determined conclusively by a single judge of the Federal Court (not the Tribunal which had been against him) making orders binding on the parties, including the Commissioner. The general jurisdiction of the Federal Court The general provisions conferring jurisdiction on the Federal Court to hear an appeal from a judgment entered in the Court by a single judge appear in s 24 of the Federal Court Act. It will be necessary later, in considering the applicant's fourth ground, to return to the question of whether this section is applicable where the appeal has originated in the Tribunal. But it was this section upon which the Commissioner relied to found the jurisdiction of the Federal Court. Section 24 provides, relevantly: "(1) Subject to ... any other Act ... (including an Act by virtue of which any judgments referred to in this section are made final and conclusive ...), the Court has jurisdiction to hear and determine: (a) appeals from judgments of the Court constituted by a single Judge". The applicant's argument, in support of his first ground for an order nisi, was that the apparently general conferral of jurisdiction contained in the foregoing sub-section was subject, in the present case, to an applicable qualification appearing in s 14ZZQ of the Taxation Administration Act. Relevantly, that section provides: "(1) When the order of the Federal Court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision. (2) For the purposes of subsection (1): (a) if the order is made by the Federal Court constituted by a single Judge and no appeal is lodged against the order within the period for lodging an appeal - the order becomes final at the end of the period". The applicant's argument was therefore thus. The first judgment of Foster J was pronounced on 17 October 1997. The second judgment of his Honour was pronounced on 9 September 1998. Yet the purported appeal by the Commissioner against each of these judgments was not brought until 30 September 1998. The Federal Court Act does not provide, in terms, for a time limit for the bringing of appeals or applications for leave to appeal. However, s 59 of that Act does provide for the Federal Court to make Rules of Court. Rule 15 of O 52 of the Federal Court Rules provides, relevantly, in the case of appeals against orders other than interlocutory orders, as follows: "(1) The notice of appeal shall be filed and served: (a) within 21 days after: (i) the date when the judgment appealed from was pronounced; ... (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal." In the case of interlocutory judgments (such as, according to the applicant, the second judgment of Foster J on 9 September 1998) an application for leave to appeal must be brought within seven days[24]. Therefore, neither the appeal from the first judgment, nor the application for leave to appeal from the second judgment, were brought within the times from the pronouncement of the judgment in question required by the Federal Court Rules. Accordingly, so the applicant contended, upon the proper construction of s 14ZZQ(2) of the Taxation Administration Act, no appeal had been lodged against the order "within the period for lodging an appeal". Thus, the order had become "final at the end of the period". On this basis, each of the judgments of Foster J and the orders which his Honour had made were, according to the applicant, final[25]. Therefore, in terms of s 24(1) of the Federal Court Act (assuming it to apply), the Full Court had no jurisdiction to hear and determine the Commissioner's purported appeals from the judgments of Foster J[26]. The judgments of the Full Court in determining such purported appeals were accordingly made without jurisdiction. They were at least voidable. Being invalid orders made by officers of the Commonwealth, they were susceptible to the constitutional writs and also any ancillary relief required to make the issue of such writs effective. Accordingly, an order nisi for certiorari should be issued so that this Court could quash the Full Court's orders which were made without jurisdiction. At first, I was inclined to consider that the foregoing arguments presented a fairly arguable case entitling the applicant to an order nisi for prohibition and certiorari. However, the Commissioner was given leave to reopen his argument to call attention to the suggested flaw in the applicant's submissions. In order to explain this flaw, it is necessary to return to the Taxation Administration Act. By s 14ZZ, that Act provides that, if a person is dissatisfied with the Commissioner's objection decision, which is the ruling upon a taxpayer's objection to the assessment of tax payable by him or her, the person concerned is given a choice. He or she may: "(a) if the decision is both a reviewable objection decision and an appealable objection decision - either: (i) apply to the AAT for review of the decision; or (ii) appeal to the Federal Court against the decision". The scheme for alternative relief in such a case, either before an administrative tribunal or a court, has a long history in Australian taxation law and practice[27]. That history is continued into the current law by s 14ZZ and the sections which follow. Those sections appear, relevantly, in the two succeeding Divisions of Pt IVC of the Taxation Administration Act, namely Div 4 (which deals with "AAT review of objection decisions and extension of time refusal decisions") and Div 5 (which deals with "Federal Court appeals against objection decisions"). In the present case, it is common ground that the applicant exercised his privilege under s 14ZZ of the Taxation Administration Act to seek to apply to the Tribunal for review of the Commissioner's decision. He did not elect (as he might have done) to appeal directly to the Federal Court against the decision. Each of these avenues has advantages and disadvantages from the point of view of the taxpayer. For present purposes, the important point to note is that different provisions in the Taxation Administration Act govern the procedure, depending upon which avenue the taxpayer elects to pursue. Where the taxpayer elects for a review of the decision by the Tribunal, the provisions in Div 4 apply, which are, in effect, a modified version of provisions contained in the AAT Act that outline the conduct of that review and its consequences. By s 14ZZA, it is provided that the AAT Act applies in relation to "the review of reviewable objection decisions" subject only to the modifications set out in Div 4. There is no relevant modification which limits or amends the general provisions of the AAT Act 1903 for "appeals" from that Tribunal to the Federal Court. Therefore, subject to the applicant's fourth ground, s 44 of the AAT Act would apply to such an appeal. Sub-section (1) of that section provides that: "A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." It follows that this section governs appeals from the Tribunal to the Federal Court in a case in which the taxpayer has elected to apply to the Tribunal for review of the Commissioner's decision[28]. Such appeals are not governed by s 14ZZQ of the Taxation Administration Act, as contended by the applicant. That last-mentioned section appears not in Div 4 but in Div 5. It is part of the provisions controlling what happens if the taxpayer elects not to apply to the Tribunal but appeals directly to the Federal Court against the Commissioner's decision. As this is not the course which the applicant took, Div 5 has no application. Thus s 14ZZQ (and also s 14ZZP), upon which the applicant relied, have no relevant work to do in these proceedings. It is true that by s 14ZZL(2) of the Taxation Administration Act, if no appeal is lodged against the Tribunal's decision within the period for lodging an appeal, the decision becomes "final at the end of the period". However, an appeal from the Tribunal to the Federal Court having followed the stream envisaged in Div 4, no other provisions were made by the Taxation Administration Act to govern the subsequent steps in the Federal Court. Those steps could not be taken to be at large. Necessarily, they were governed by the Federal Court Act and the Federal Court Rules. Ample provision is made under the Federal Court Rules[29] for extensions of time where an appeal (or application for leave to appeal) is brought out of time. In respect of the belated appeals to it, the Full Court considered whether such extensions of time should be granted to the Commissioner. It decided that they should. There is no principled basis upon which this Court could disturb such a decision. Specifically, no basis exists in the language and scheme of the Taxation Administration Act. It necessarily follows that the suggested basis upon which the Full Court was deprived of jurisdiction to hear the Commissioner's appeals from the judgments of Foster J could not be established. Those appeals (subject to the fourth argument) fall within the jurisdiction of the Federal Court by virtue of s 24(1) of the Federal Court Act. They do so without any relevant qualifying provision in another Act to which the applicant could point. So far as he suggested that the Full Court's jurisdictional disqualification arose from s 14ZZQ of the Taxation Administration Act, I would reject that contention as unarguable. That section is inapplicable to his case. There is no precisely equivalent section in Div 4 of Pt IVC of the Taxation Administration Act. The first ground for the provision of an order nisi to the applicant is therefore unavailing. By the applicable test, that ground is not reasonably arguable. I would therefore refuse relief on that ground. The Public Tax Ruling Nor am I convinced that the applicant has made out a reasonably arguable case in relation to his claim for an order nisi for the constitutional writ of mandamus directed to the Commissioner and his officers to require them to perform their alleged duty to comply with the Public Tax Ruling upon which the applicant relies. The fundamental flaw in the applicant's argument on this ground concerns whether the Commissioner and his officers could ever be subject to a lawful duty to perform their functions, as asserted by the applicant, in a way that would contradict their undoubted duty to comply with a judgment which has been formally entered by the Full Court of the Federal Court with respect to the same subject matter. Such a judgment, being a judgment of a court designated as a superior court of record[30], is, by our law, valid between the parties until it is lawfully set aside. It binds the parties to it, as well as their relevant employees and agents. Until it is set aside (as by the process of appeal which the applicant has sought to invoke in this Court) or quashed (as in the process now under consideration), that order must be obeyed, as much by the officers of the Commonwealth (such as the Commissioner and Deputy Commissioner) as by anyone else. Accordingly, I do not consider that the second point advanced by the applicant is reasonably arguable. At the end of his oral submissions and in his later written submissions I did not take the applicant seriously to contest this conclusion. However, he did not formally abandon the submission. If, contrary to my analysis, either on the first or fourth grounds raised in these proceedings, the applicant were granted special leave and were able to persuade this Court that the Full Court of the Federal Court entered its judgments without jurisdiction or power to do so, such judgments would doubtless be set aside. It might then be open to the applicant to renew his application for relief in the nature of mandamus directed to the Commissioner and Deputy Commissioner to perform their "duty" under the Public Tax Ruling in question. But so long as the judgment of the Full Court of the Federal Court stands, the applicant's contention that he is entitled to a constitutional writ of mandamus is not made out. I would therefore refuse relief on the second ground. The suggested invalid delegation The third ground upon which the applicant argued that he was entitled to an order nisi arose from his contention that the orders which Foster J made amounted to an impermissible attempt to "delegate" the power and duty to make a decision which belongs to the Federal Court, to an administrative decision-maker (namely the Tribunal). The applicant suggested that any such purported delegation was contrary to the requirements of Ch III of the Constitution. The argument was put in a number of ways. Primarily it was contended that the orders which Foster J made, including as varied, purported to divide the constitutional "matter" and were therefore flawed. As the matter had been put before a Federal Court, that matter had to be disposed of in its entirety by that Court, and not divided and delegated in part to a body such as the Tribunal. An argument along these lines was advanced at the second hearing before Foster J. It was dealt with in his Honour's reasons for judgment of 9 September 1998[31]. The argument was not repeated before the Full Court, apparently being abandoned there by the applicant's then counsel. However, such abandonment does not foreclose the repetition of the argument if, in law, it be a good one. The source of the argument was found in several decisions of the Federal Court to which Foster J referred in his reasons[32]. Most especially, the applicant relied on what Gummow J, then a judge of that Court, said in TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation[33]: "[A]fter the exhaustion of the administrative processes before the tribunal, the parties may still be in controversy as to questions both of law and of fact. In such a case it might appear that the jurisdiction of this court was, on the face of s 44 [of the AAT Act], limited to less than the whole of the controversy and thus less than the whole of the matter arising under federal law. This would be because the effect of the law made by the Parliament would be to excise from the matter so much of the claims made therein as did not constitute questions of law. In such cases questions may arise as to the extent of the validity of s 44 of the AAT Act." Resonances of this opinion may be found in the reasons of the minority of this Court in Abebe v Commonwealth[34]. In that matter, the Court was closely divided and the legislation under consideration in Abebe was different from that here in question. Essentially, the applicant contended that the provisions of the AAT Act confining appeals from the Tribunal to the Federal Court to appeals "on a question of law"[35] amounted to an impermissible endeavour to divide a constitutional "matter". Because that division had affected the judgments which Foster J had entered, they called for correction. The entitlement to have an entire legal controversy decided by a federal court whose jurisdiction had been invoked was said to be an important right deriving from the Constitution[36]. At the least, the applicant submitted, the point was reasonably arguable and, for that reason, should be returned before a Full Court of the High Court by the issue of an order nisi. I would not dispose of the applicant's third ground on the footing that it was not reasonably arguable. In the light of the division of opinion of this Court in Abebe and the express concerns referred to by Gummow J in Skypak, I do not believe that, in the present consideration of the point, that would be a reasonable conclusion. In the manner that the proceedings were conducted before Foster J, there are certain problems in the way of the applicant's demand for judgment to be entered in his favour. In accordance with the legislation, Foster J confined his examination strictly to the points of law raised and did not enter otherwise upon the facts. However, the precise issues presented in the application on this point are already before a Full Court of this Court in the form of the applicant's application for special leave to appeal. Because I am not convinced that there is any arguable jurisdictional flaw in the judgments of the Full Court of the Federal Court which might undermine the validity of the applicant's application for special leave to appeal (and, if granted, appeal to this Court) the proper course is to permit the point to be argued in the context of the special leave application. That is the jurisdiction of the Court which the applicant has already lawfully invoked. The appellate jurisdiction of this Court has been regularly sought. There will be no delay in its determination. If the Court constituted to hear the special leave application considers that the point is reasonably arguable, it will grant special leave at least upon this ground. Because the point involves a question of constitutional interpretation, if it is reasonably arguable, it would normally attract a grant of special leave. In that event, the additional provision of constitutional and ancillary writs would be unnecessary. Entire relief can be granted in the disposal of the appeal. Ordinarily, in my view, that is the appropriate way to proceed where the officer of the Commonwealth in question is a federal judge, and where an appeal has been sought and discretionary relief pursuant to s 75(v) of the Constitution is claimed from this Court at the same time. Whilst no hard and fast rule can be laid down, in the present case, where the application for special leave raising the identical point is pending, the issue of a constitutional writ would be premature. On this basis, I would reject the applicant's third ground. In the event that the applicant is dissatisfied by the determination of the application for special leave, it would remain open to him to reapply and to submit that, on the third ground, an order nisi should nonetheless issue. The Federal Court appeal The fourth and final ground upon which the applicant sought an order nisi rested on his contention that s 44 of the AAT Act stated the entire law by which proceedings which were before the Tribunal could get before a Full Court of the Federal Court on appeal. There are a number of flaws in this argument which are apparent when the provisions of the Federal Court Act and the AAT Act are considered side by side, and the scheme of the inter-relationship of the Tribunal and the Federal Court, as provided in those Acts, is understood. Where a taxpayer has applied to the Tribunal for review of the Commissioner's objection decision[37], the AAT Act applies, subject to any modification set out in Div 4 of Pt IVC of the Taxation Administration Act which may limit its operation. There are no such relevant modifications in the Taxation Administration Act which diminish the provisions of s 44(1) of the AAT Act. Therefore, a party to proceedings before the Tribunal for review of the Commissioner's decision may, if dissatisfied, appeal to the Federal Court on a question of law from any decision of the Tribunal in that proceeding. The width of the language should be noted. The provisions of s 44, in so far as they make special reference to the constitution of the Federal Court as a Full Court, do not, in my view, arguably, or at all, cut down the application of s 24(1) of the Federal Court Act which affords jurisdiction to a Full Court of that Court to hear and determine an appeal from a judgment of the Federal Court constituted by a single judge. Once the Federal Court is engaged by that name pursuant to the provisions of s 44 of the AAT Act, necessarily the general statute governing its jurisdiction and powers is also engaged to the extent applicable. The special provisions relating to the constitution of a Full Court in respect of the exercise by the Federal Court of its original jurisdiction are obviously intended to observe considerations of hierarchy and courtesy that apply where, in the particular case, the Tribunal was constituted by a presidential member[38]. To suggest that such special provisions in relation to the exercise by the Federal Court of its original jurisdiction operate to oust the general provisions of the Federal Court Act in respect of appeals from a single judge of the Federal Court is most unconvincing. It would take very clear language in the applicable legislation to limit the general appellate powers of the Federal Court in such a way. This is so because such a construction would deprive litigants of an important right for which the Parliament has otherwise provided once a matter is in the Federal Court. I see no reasonably arguable construction of the AAT Act, or of the Federal Court Act, which would lead to such an uncongenial conclusion. In my view, the applicant's argument that s 44 of the AAT Act is an entire code for the hearing by a Full Court of the Federal Court of proceedings from a decision of the Tribunal in that Court is not reasonably open. The application for an order nisi on the fourth ground is therefore refused. Conclusion and orders The result is that I would reject the first, second and fourth grounds (above) upon which the applicant sought the issue of an order nisi. None of them is reasonably arguable. I would reject the third ground without finally determining the reasonable arguability of the point. Even if it is reasonably arguable, that ground is premature given that the same issues will arise before this Court upon the hearing of the applicant's application for special leave to appeal. This separate application at this stage was unnecessary and made for reasons which I have rejected. In the light of these conclusions, it is unnecessary to deal with the application for extension of time. No separate argument was addressed to that issue and it would have presented no obstacle to the applicant if he had otherwise presented an arguable case. The application for an order nisi, in the terms of the draft order presented to the Court, as it has been argued by the applicant, is refused. The applicant must pay the costs of the application. I certify for the appearance of counsel in chambers. [1] [1993] HCA 53; (1993) 67 ALJR 837 at 840; [1993] HCA 53; 116 ALR 619 at 624. [2] [1993] HCA 8; (1993) 67 ALJR 377 at 382; [1993] HCA 8; 112 ALR 177 at 183. [3] As to the history of s 75(v) of the Constitution, see The Tramways Case [No 1] [1914] HCA 15; (1914) 18 CLR 54 at 82; Quick and Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 778-780. [4] The Tramways Case [No 1] [1914] HCA 15; (1914) 18 CLR 54 at 62, 65-66, 82-83, 86; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 at 399. [5] Re Australian Nursing Federation; Ex parte State of Victoria [1993] HCA 8; (1993) 67 ALJR 377 at 382 per McHugh J; [1993] HCA 8; 112 ALR 177 at 183; Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe [1998] HCA 10; (1997) 72 ALJR 574 at 577; [1998] HCA 10; 151 ALR 711 at 715. [6] Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust) [1988] HCA 72; (1988) 167 CLR 37 at 41. [7] cf Ha v New South Wales [1996] HCA 17; (1996) 70 ALJR 611 at 614; [1996] HCA 17; 137 ALR 40 at 44. [8] See Judiciary Act (Cth), s 23(1). [9] Pursuant to High Court Rules, O 55, r 2. [10] This occurred in Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust) [1988] HCA 72; (1988) 167 CLR 37 at 42. [11] cf Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 142. [12] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130. [13] McLaurin v Federal Commissioner of Taxation [1961] HCA 9; (1961) 104 CLR 381; Allsop v Federal Commissioner of Taxation [1965] HCA 48; (1965) 113 CLR 341; Federal Commissioner of Taxation v Spedley Securities Ltd (1988) 88 ATC 4,126 at 4,130-4,131; 19 ATR 938 at 941-942. [14] Taxation Administration Act 1953 (Cth), s 14ZZ. [15] Re The Taxpayer v The Commissioner of Taxation unreported, Administrative Appeals Tribunal, 8 November 1996. [16] Foster J retired as a Judge of the Federal Court on 26 November 1998 after giving the second decision in this matter. [17] AB v Commissioner of Taxation unreported, Federal Court, 17 October 1997. [18] AB v Commissioner of Taxation unreported, Federal Court, 9 September 1998 at 2-5. [19] Commissioner of Taxation v Glennan [1999] FCA 297; (1999) 90 FCR 538 at 558-559. [20] Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415; Residual Assco Group Ltd v Spalvins [2000] HCA 33 at [68]. [21] Issued 1 April 1993. [22] Income Tax Assessment Act 1936 (Cth), s 170BA; Taxation Laws Amendment (Self Assessment) Act 1992 (Cth), s 12(1). [23] Such as the case where the Tribunal was constituted by a presidential member, or a Judge, and, after consulting the President of the Tribunal, the Chief Justice of the Federal Court considers it appropriate that the appeal should be heard and determined by a Court constituted as a Full Court: AAT Act, ss 44(3)(b)(i) and (ii) and 44(3)(c). [24] Federal Court Rules, O 52, r 10. [25] cf CCH Australia Limited, Australian Federal Tax Reporter, 973-330 at 872,135 and 872,141. [26] cf Patterson and James v Public Service Board of NSW [1984] 1 NSWLR 237. [27] British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4; (1925) 35 CLR 422; Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153; Watson v Federal Commissioner of Taxation [1953] HCA 98; (1953) 87 CLR 353; Rowdell Pty Ltd v Federal Commissioner of Taxation [1963] HCA 61; (1963) 111 CLR 106. [28] Taxation Administration Act, s 14ZZ. See also Federal Court Rules, O 53, r 2. [29] Order 3, r 3. [30] Federal Court Act, s 5(2). See Residual Assco Group Ltd v Spalvins [2000] HCA 33 at [71]- [78]. [31] AB v Commissioner of Taxation unreported, Federal Court, 9 September 1998 at 2-5. [32] One of these was Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 42 ALR 209; cf Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 at 185; Abebe v Commonwealth [1999] HCA 14; (1999) 73 ALJR 584 at 593-594, 638; [1999] HCA 14; 162 ALR 1 at 13, 74-75. [33] [1988] FCA 119; (1988) 82 ALR 175 at 181. [34] [1999] HCA 14; (1999) 73 ALJR 584 at 609-610, 612-613; cf at 594, 627, 638; [1999] HCA 14; 162 ALR 1 at 34-36, 38-40; cf at 14, 59-60, 74. [35] AAT Act, s 44(1). [36] cf Deputy Federal Commissioner of Taxation v Brown [1958] HCA 2; (1958) 100 CLR 32 at 41, 52. [37] Taxation Administration Act, s 14ZZ. [38] AAT Act, s 44(3).

Peter Clarence Foster v Minister for Customs and Justice Extradition - Extradition to and from Commonwealth countries - Surrender determination by Attorney-General - Limitation condition qualification or exception - Satisfaction that circumstances engaging limitation condition qualification or exception do not exist - Unjust or oppressive or too severe a punishment to surrender eligible person - Double layer of satisfaction - Whether the Minister is satisfied that he or she is not satisfied that it would be unjust or oppressive or too severe a punishment to surrender eligible person. Administrative law - Judicial review legislation - Alleged failure to take into account a particular consideration - Extent of Minister's obligation to make inquiries. Words and Phrases - "unjust or oppressive or too severe a punishment". Extradition Act 1988 (Cth), ss 22, 23. Extradition (Commonwealth Countries) Regulations (Cth), reg 7. GLEESON CJ AND Mc

Negligence - Action by employee against appliance manufacturer - Manufacturer issued third party proceedings against Commonwealth authority employer - Federal jurisdiction attracted - Application by Commonwealth authority to strike out manufacturer's third party notice against it - Whether Commonwealth authority was liable as a joint tortfeasor "in respect of the same damage" as manufacturer - Whether employee's non-compliance with the requirement of election in s 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ever subjected the Commonwealth authority to liability to the employee. Federal jurisdiction - Whether s 64 of the Judiciary Act 1903 (Cth) operated - Whether s 79 of the Judiciary Act 1903 (Cth) "picked up" ss 6 and 7 of the Law Reform Act 1995 (Q) - Whether ss 44 or 45 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) "otherwise provided" within the meaning of s 79 of the Judiciary Act 1903 (Cth). Words and phrases - "matter", "the Commonwealth", "otherwise provided". Constitution, ss 75(iii), 76(ii). Air Services Act 1995 (Cth), ss 7, 8. Civil Aviation Act 1988 (Cth). Civil Aviation Legislation Amendment Act 1995 (Cth), s 9. Judiciary Act 1903 (Cth), ss 39(2), 64, 79. Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44, 45. Law Reform Act 1995 (Q), ss 6, 7.

Family Law - Family Court of Australia - Appeals - Nature of an appeal to the Full Court of the Family Court - Discretion to set aside an order made in the absence of a party - Miscarriage of justice where a party suffers effect of an adverse order and that party's absence adequately explained. Family Law - Family Court of Australia - Appeals - Appeals by way of rehearing from discretionary judgments - Appellate court seeking to re-exercise discretion by reference to circumstances as they presently exist - Parties must be given an opportunity to adduce evidence as to circumstances as they presently exist in such cases. Practice and Procedure - Appeal - Discretion to set aside order made in absence of a party. Words and Phrases - "miscarriage of justice". Family Law Act 1975 (Cth) s 79A, s 93A(2), s 94 GAUDRON, Mc

Agar v Worsley Negligence - Duty of care - Particular relationships - Sport - Administrators and players - Whether duty of care owed by rugby union rule-making body to players. Private international law - Service out of jurisdiction - Service pursuant to Rules of Court - Discretion - Whether necessary to show a good arguable case - Setting aside service - Refusal to exercise jurisdiction. Supreme Court Rules 1970 (NSW), Pt 10 rr 1A, 2 and 6A, Pt 11 r 8.

Damages - Interest - Personal Injuries - Damages awarded for past services provided to the appellant gratuitously - Whether interest should be allowed - Rate of interest - Commercial rate or Gogic rate. Supreme Court Act 1933 (ACT), s 69. GLEESON CJ, GAUDRON, Mc

Peter Mannery Spies v The Queen Criminal law – Director charged with defrauding creditors of the company – Alternative charge of improper use of position as director – Conviction on first charge by jury – Conviction set aside by Court of Criminal Appeal – What facts the jury must have been satisfied of from their finding of guilt with respect to the first charge – Whether Court of Criminal Appeal had power to substitute conviction on the alternative charge in the circumstances. Criminal law – Construction of provision conferring power on the Court of Criminal Appeal to substitute a verdict of guilty of an offence different from the offence which the jury convicted of – Standard of proof required to apply the provision. Criminal law – Director charged with defrauding creditors of the company – Direction to the jury equated director's intention to hinder or delay the creditors with defrauding – Misdirection. Criminal law – Elements of offence of defrauding. Company law – Whether directors by reason of their position owe an independent duty to and enforceable by the creditors. Words and phrases – "jury must have been satisfied of facts which proved the appellant guilty of other offence", "to defraud", "defrauding". Companies (New South Wales) Code, s 229(4). Crimes Act 1900 (NSW), s 176A. Criminal Appeal Act 1912 (NSW), s 7(2). GAUDRON, Mc

Re Woolley; Ex parte Applicants M276/2003 by their next friend GS Immigration – Detention – Migration Act 1958 (Cth) ("Migration Act"), ss 189 and 196 – Whether detention of children authorised by Migration Act – Whether children may request release from detention under Migration Act, s 198 – Whether detention valid if children unable to request release – Relevance of international jurisprudence and parens patriae jurisdiction. Constitutional law (Cth) – Judicial power of the Commonwealth – Immigration detention – Whether Migration Act, ss 189 and 196 validly require detention of children – Whether legislation reasonably capable of being seen as necessary for the purposes of reception, investigation, admission or deportation of aliens – Characterisation of detention as punitive or non-punitive. Words and phrases – "judicial power", "alien", "decision-making capacity", "community", "membership of the Australian community". Constitution, Ch III, s 51(xix), (xxvii). Migration Act 1958 (Cth), ss 5, 189, 196, 198, 252A, 252

Kennedy Cleaning Services Pty Limited v Petkoska Workers' compensation (ACT) - Injury - Personal injury arising in the course of employment - Employee had diseased heart valve and suffered a lesion caused by a blood clot which resulted in a stroke - Whether mutually exclusive statutory regimes for "injury" and "disease". Words and phrases - "injury" - "disease" - "lesion". Workers' Compensation Act 1951 (ACT), ss 6(1), 7(1), 9, 9A, 9B. Workers Compensation Act 1987 (NSW), s 4.

R H McL v The Queen Sentencing - Power of Court of Appeal to re-sentence on remaining convictions after quashing some convictions - Counts properly joined - No appeal against sentence by either Crown or appellant - Principles of proportionality and totality - Whether Court of Appeal had power to increase the sentences of the appellant on the remaining convictions - Whether Court of Appeal gave adequate reasons for increase in sentence - Whether substituted sentence ordinarily subject to ceiling on total punishment so appellant not exposed to risk of increased punishment following a successful appeal. Words and phrases - "totality principle", "ceiling principle". Crimes Act 1958 (Vic), s 569(1). Sentencing Act 1991 (Vic), s 16(3A).

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission Administrative law - Judicial review - Prohibition - Mandamus - Whether erroneous finding of appealable error in the exercise of appellate jurisdiction amounts to jurisdictional error - Whether such an error is an error within jurisdiction - Whether misconception of appellate function amounts to jurisdictional error - Whether discretionary decision may be challenged if error in decision-making process can be demonstrated or inferred. Appeals - Industrial tribunal - Forms of appeal - Character of appellate jurisdiction - Whether misconception amounts to error within jurisdiction or error permitting judicial review. Industrial law (Cth) - Australian Industrial Relations Commission - Appeals - Nature of an appeal to the Full Bench of the Australian Industrial Relations Commission from discretionary decision of single member - Whether appeal under s 45 of the Workplace Relations Act 1996 (Cth) permits Full Bench to exercise discretionary power afresh in absence of appealable error - Whether appeal in strict sense or by way of rehearing. Words and phrases - "appeal" - "discretionary decision" - "jurisdictional error". Constitution, s 75(v). Workplace Relations Act 1996 (Cth), ss 45, 170MW(1), (3).

Negligence - Vicarious liability - Agency - Whether owner of aircraft vicariously liable for negligence of person who flew aircraft with owner's consent for a social purpose connected with owner. Negligence - Vicarious liability - Aircraft - Motor vehicles - Negligent use of chattel of conveyance - Whether the principles in Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 apply - Non-delegable duties of care - Strict liability.

Cheng v The Queen Constitutional law (Cth) - Trial by jury - Trial on indictment for offence against law of the Commonwealth - Pleas of guilty following rejection of demurrer raising constitutional objection to information - Whether any issue for trial - Whether any infringement of s 80 of Constitution. Customs - Offences - Prohibited imports - Narcotic goods - Differential punishment for trafficable and commercial quantities - Whether elements of offence - Whether in a trial on indictment must be decided by jury - Requirements of s 80 of Constitution. Words and phrases - "trial on indictment", "any offence", "Court". Constitution, s 80. Customs Act 1901 (Cth), ss 233B, 235.