Cases and authorities

Minister for Immigration and Multicultural Affairs v Haji Ibrahim Immigration - Refugees - Protection visa - Clan-based conflict in Somalia - Whether persecution on Convention grounds - Use of terms "civil war", "civil conflict" and "systematic persecution" - Whether Convention definition permits or requires examination of the "motivation" for or "objects of" a "civil war" or "civil conflict" or demonstration of a "differential operation" upon an applicant's social group. Words and phrases - "persecution" - "for reasons of race, religion, nationality, membership of a particular social group or political opinion". Migration Act 1958 (Cth), ss 36(2), 476(i)(e). Migration Regulations 1994 (Cth), Sched 2, Subclass 866. Convention relating to the Status of Refugees (1951), Art 1A(2). GLEESON CJ. I have had the benefit of reading in draft form the reasons for judgment of Gummow J. I agree with the orders proposed by his Honour, and with his reasons for those orders. The decision of the Full Court of the Federal Court in this case reflected the earlier decision of the Full Court, constituted by the same members, in Minister for Immigration and Multicultural Affairs v Abdi[1]. In the present case the Full Court said[2]: "As Abdi indicates, it is necessary to consider the motivation of the civil war giving rise to the 'ordinary risks of clan warfare'. It may well be that the motivation of particular clan warfare is to persecute members of a clan by reason of that membership, as distinct for example from establishing control over land or resources." In Abdi[3], the Full Court had considered the possibility that one of the objectives of clan warfare may be "wiping out an opposing clan." The Refugee Review Tribunal was criticised for failing to pursue this line of investigation in the present case. As Gummow J has observed, the expression "civil war" may be a misleading description of the situation in Somalia as described in the evidence. A better description may be anarchy. Depending upon the factual issues raised for examination, it may be helpful to consider whether conduct of a certain kind is "systematic", or whether treatment of a certain kind is discriminatory, or "differential". In the end, however, it is the language of the Convention which has to be applied. Katz J held that there was nothing in the reasoning of the Tribunal which revealed any error of principle in the approach taken to the facts of the present case. Much of the reasoning is explained by the way the respondent's case was argued, and by the nature of the evidence before the Tribunal. The Tribunal considered and rejected the respondent's claim that the maltreatment he and members of his family suffered was the consequence of a genocidal policy directed towards his clan. It was concluded, in relation to one instance, for example, that the perpetrators "came to steal livestock, and tied up and killed those who were taking care of the livestock". This involves an invasion of human rights, but, without more, it does not amount to persecution for a relevant reason. Persecution and disorder are not mutually exclusive. The existence of disorder may provide the occasion of, and perhaps the opportunity for, persecution of an individual or a group. In such a case, the ground of the persecution may or may not be a Convention ground. Nothing in the reasoning of the Tribunal was inconsistent with that. As the clans and subclans in Somalia struggle for power and resources, it is inevitable that from time to time, and from place to place, some will be in the ascendancy and others will be vulnerable. In such a situation, an inquiry as to whether the motivation of those temporarily in the ascendancy is to harm their enemies rather than to secure the benefits of domination is unlikely to be fruitful. The distinction, in a context of the kind revealed by the evidence in the present case, lacks practical content. Katz J was right to conclude that there was no error in the approach taken by the Tribunal.

& Anor Negligence - Duty of care - Person lawfully on premises injured by glass door - Scope of landlord's duty of care to a person who resides on premises - Scope of landlord's duty of care in respect of state of premises - Whether duty to have premises inspected by expert. Contracts - Tenancy agreement - Whether s 11 of the Property Law Act 1969 (WA) allows a third party to sue for breach of tenancy agreement. Statutory liability - Occupiers' liability - Whether landlord was an "occupier of premises" under s 5(1) of the Occupiers' Liability Act 1985 (WA) - Duty of landlord under s 9(1) of the Occupiers' Liability Act 1985 (WA). Residential Tenancies Act 1987 (WA), s 42. Property Law Act 1969 (WA), s 11. Occupiers' Liability Act 1985 (WA), ss 5(1), 9(1). Words and phrases - "occupier of premises".

& Anor Contract - Employee under oral contract of employment executed written contract with employer - Employee guilty of serious misconduct before date of written contract justifying summary dismissal under oral contract - Employer summarily dismissed employee not knowing of misconduct - Whether written contract a new and discrete contract that entirely replaced oral contract or whether oral contract varied - Whether written contract removed employer's right under oral contract to dismiss employee summarily - Whether terms in written contract relating to dismissal had prospective operation only - Terms implied by law into contract of employment.

Australia Limited Insurance - Professional indemnity insurance - Exclusion for liability brought about by dishonest or fraudulent act or omission of the assured - Loss to client of the appellant - Claim against professional indemnity policy - Whether respondents entitled to rely on the exclusion. Words and phrases - "brought about by", "dishonest or fraudulent act or omission".

Re Commonwealth of Australia & Anor; Ex parte Marks Practice and procedure - Extension of time - Factors to be considered. Constitutional law - Constitutional relief - Jurisdictional error - Whether Full Bench of Australian Industrial Relations Commission made a jurisdictional error - Role of Full Bench on appeal. Practice and procedure - Costs - Whether s 347 of the Workplace Relations Act 1996 (Cth) applied - Whether proceedings commenced "vexatiously or without reasonable cause". Constitution, s 75(v). Workplace Relations Act 1996 (Cth), ss 45, 347. High Court Rules, O 55, r 17; O 55, r 30; O 60, r 6 Mc

Courts and judges - Federal courts - Jurisdiction - Whether Federal Court exercising federal or State jurisdiction - Whether Federal Court had power to make orders pursuant to the Corporations Law of a State - Whether Australian Securities and Investments Commission "the Commonwealth" - Whether remedies sought were "an injunction or declaration". Constitutional law (Cth) - Courts - Jurisdiction - Whether Federal Court exercising federal or State jurisdiction - Whether Australian Securities and Investments Commission "the Commonwealth". Words and phrases - "jurisdiction" - "power" - "State jurisdiction" - "federal jurisdiction" - "accrued jurisdiction" - "the Commonwealth" - "an injunction or declaration". Constitution, s 75(iii). Australian Securities and Investments Commission Act 1989 (Cth). Corporations Act 1989 (Cth), ss 49(1)(d), 56(2), 58AA. Judiciary Act 1903 (Cth), ss 39B(1A)(a), 79, 80. Corporations Law, ss 737, 739. Corporations (Victoria) Act 1990 (Vic).

Tepko Pty Limited v Water Board Negligence - Negligent misstatement - Economic loss - Statutory authority - No statutory obligation to answer queries - Estimate sought and "upper limit" figure provided - Whether duty of care owed - Knowledge of serious purpose - Known reliance - Assumption of responsibility - Whether appreciation of consequences of error - Whether reasonable to rely on "ball-park" figure. Practice and procedure - Separate trial of issues - Need for clear justification - Difficulties of separate trial of issues - Use of books of documents where status and relevance in the trial are uncertain - Identification of documents in evidence. Metropolitan Water, Sewerage, and Drainage Act 1924 (NSW), ss 6A, 7, 34A. Water Board Act 1987 (NSW), s 5. Water Board (Corporatisation) Act 1994 (NSW), s 107.

Ryan v The Queen Criminal law - Sentencing - Sexual offences against children - Where appellant disclosed a large number of offences to police - Whether disclosure entitled appellant to a significantly discounted sentence - Whether the likelihood of disclosed offences being otherwise discovered should have been assessed. Criminal law - Sentencing - Use of character in the sentencing process - Whether the appellant's otherwise good character entitled him to some leniency. Mc

Immigration - Refugees - Application for protection visa - Decision rejecting application for protection visa - Failure of decision-maker to give applicant opportunity to comment on change of circumstances - Whether denial of procedural fairness - Whether Pt 2 Div 3 Subdiv AB of Migration Act 1958 (Cth) constitutes a code excluding requirements of procedural fairness. Immigration - Refugees - Application for protection visa - Decision rejecting application for protection visa - Whether decision-maker failed to apply correct test - Whether constructive failure to exercise jurisdiction. Administrative law - Constitutional writs and orders - Constructive failure to exercise jurisdiction - Procedural fairness - Constitution, s 75(v). Constitutional law - Writs under Constitution, s 75(v) - Constructive failure to exercise jurisdiction - Jurisdictional error for denial of procedural fairness and natural justice - Availability of constitutional writs under Constitution, s 75(v). Constitution, s 75(v). Migration Act 1958 (Cth), Pt 2 Div 3 Subdiv AB, s 69.

Immigration - Refugees - Protection visa - Affirmation by Refugee Review Tribunal of decision to refuse application for protection visa - Public statements made by Tribunal member on personal Internet home page about truthfulness of applicants for refugee status - Whether Pt 7 of Migration Act 1958 (Cth) constitutes a code excluding the common law rules of natural justice and in particular the ostensible bias rule. Administrative law - Natural justice - Bias - Reasonable apprehension of bias - Whether a reasonable party or member of the public might apprehend that decision of Tribunal member was affected by a prejudiced mind - Whether ostensible bias may be inferred from statements made after a decision. Constitution, s 75(v). Migration Act 1958 (Cth), Pts 7 and 8. GLEESON CJ, Mc

High Court Practice - Leave to issue summons - Earlier direction by a Justice that Registrar refuse to issue summons without leave - Purposes of provisions in O 58 r 4(3) High Court Rules - Whether proposed summons clearly meritless or futile - Relevance of history of previous litigation and terms of relief sought - Applicable principles for grant of leave. Practice and procedure - Frivolous and vexatious proceedings - High Court Practice - Direction of a Justice that Registrar should refuse to issue summons without leave of a Justice first had and obtained - Principles governing provision of such leave - Whether, if issued, relief claimed in summons meritless or futile High Court Rules, O 58 r 4(3).

Cabal v United Mexican States [No 2] Constitutional law - High Court and federal judiciary - Implied or inherent powers - Distinction between implied and inherent powers - Whether implied or inherent jurisdiction and power to grant bail pending hearing - Whether bail only available to prevent futility of proceedings - Purpose of constitutional jurisdiction and power. Practice and procedure - Application for special leave to appeal referred for hearing before Full Court of the High Court - Proposed appeal concerns constitutional challenges to validity of Extradition Act 1988 (Cth) - Applicant subject to extradition determination applies for bail pending hearing of application before Full Court - Applicant in custody for more than 30 months - Severe conditions of custody. Extradition - Bail - High Court - Implied or inherent power to grant bail - Purpose of implied constitutional jurisdiction and power to grant bail to applicant for special leave to appeal referred to Full High Court - Need for exceptional circumstances - Proof of prolonged detention in severe custodial conditions during pendency of proceedings - Discretionary considerations for the grant of bail - Terms and conditions appropriate to bail - Whether sureties and delivery of certificate of title, mortgage and transfer of mortgage over substantial property sufficient security for compliance with bail conditions. Criminal law and procedure - Bail - Extradition Act 1988 (Cth) proceedings - Constitutional challenge to Act referred to Full High Court for argument as on appeal - Whether High Court has jurisdiction and power to grant bail in the absence of a grant of special leave to appeal - Whether bail may be granted under Act before grant of special leave - Whether bail may be granted pursuant to the Constitution - Whether exceptional circumstances established - Relevance of extended detention of applicant in severe custodial conditions unsegregated from convicted prisoners - Whether discretion to grant bail should be exercised - Terms and conditions relevant to the grant of bail - Function of sureties and financial security appropriate to the favourable exercise of the bail discretion - Expedition of the hearing of proceedings before Full Court - Relevance of discovery of false identity documents after arrest - Relevance of presumption favourable to personal liberty in the context of the Act - Sufficiency of sureties and security to ensure compliance with bail conditions. Words and phrases - "appeal" - "exceptional circumstances". Extradition Act 1988 (Cth), ss 21, 53.

t/as Crisis Couriers Negligence - Vicarious liability - Employee or independent contractor - Control - Bicycle courier negligently injured plaintiff - Bicycle courier wearing defendant's uniform but otherwise unidentified - Whether defendant vicariously liable for courier's negligence - Whether relationship between bicycle courier and defendant one of employment or independent contract - Whether bicycle courier is agent carrying out activity as principal's authorised representative dealing with third party. Employer and employee - Independent contractor - Bicycle courier and courier company - Whether bicycle courier's relationship is that of employment or independent contract. Words and phrases - "agent", "employee", "independent contractor", "vicarious liability".

Trade practices - Restraint of trade - Sale of business - Appellant manufactured and sold ice cream products in Western Australia under the "Peters" marks - Respondents manufactured and sold ice cream products under the "Pauls" marks nationally and under the "Peters" marks in every State except Western Australia - Sale of respondents' Western Australian ice cream business to appellant - Sale agreement provided that the appellant be granted the exclusive right and licence to use the "Pauls" marks in Western Australia in return for percentage royalty - Sale agreement contained covenant restraining respondents from selling ice cream products in Western Australia - Restraint coextensive with duration of licensing arrangements but extended to ice cream products to which licensing arrangements not applicable - Whether restraint is one to which the common law restraint of trade doctrine applies. Trade practices - Restraint of trade - Circumstances in which the restraint of trade doctrine does not apply - Whether "sterilisation of capacity test" should be adopted in Australia. Trade practices - Restraint of trade - Development of common law respecting restraint of trade - Considerations of public interest - Relationship between doctrine of "restraint of trade" and Trade Practices Act 1974 (Cth). Words and phrases - "restraint of trade" - "sterilisation of capacity" - "fettering of existing freedom" - "public interest". Trade Practices Act 1974 (Cth), ss 4M, 45-51

Doggett v The Queen Criminal law - Direction to jury - Events allegedly occurred between 1979 and 1986 - Complaints made to police in 1998 - Taped telephone conversation allegedly corroborating complaints - Whether Longman warning required - Whether case suitable for application of proviso. Criminal Code (Q), s 668E(1A).

Re Owen; Ex parte Sumampow Sumampow v Mercator Property Consultants Pty Ltd Constitutional Law (Cth) -- Inconsistency -- Whether State law inconsistent with Ch III of the Constitution and Federal Court of Australia Act 1976 (Cth) providing for an appeal from a judgment of a single judge of the Federal Court to a Full Court of that Court -- Whether provisions of Federal Courts (State Jurisdiction) Act 1999 (WA) ss 7(2) and 10 arguably invalid -- Whether issue of invalidity determined by decisions of the High Court in Re Macks; Ex parte Saint [2000] HCA 62; (2000) 75 ALJR 203; 176 ALR 545 and Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 74 ALJR 1013; 172 ALR 366 -- Whether matter of validity of appeal provisions should be removed from Supreme Court of Western Australia to High Court pursuant to the Judiciary Act 1903 (Cth) s 40. Constitutional Law (Cth) -- Inconsistency -- Whether State law inconsistent with Ch III of the Constitution -- Validity of Federal Courts (State Jurisdiction) Act 1999 (WA) ss 6, 7, 8 and 10 -- Whether question should be removed to High Court pursuant to Judiciary Act 1903 (Cth) s 40 -- Whether order nisi for certiorari should be granted to quash order made in State Supreme Court -- Whether validity of State law in respect of appeals already decided by Full Court of High Court -- Whether certiorari reasonably arguable. Constitutional Law (Cth) -- High Court original jurisdiction -- Constitutional, prerogative or other relief -- Writ of certiorari sought without other relief -- Whether available in High Court to judge of Supreme Court of a State -- Whether available against other persons who are not the Commonwealth or officers of the Commonwealth. High Court -- Original jurisdiction -- Writ of certiorari -- Whether available to Judge of Supreme Court of a State. Constitution, ss 72, 76(i). Federal Court of Australia Act 1976 (Cth), 24(1), 25(1). Judiciary Act 1903 (Cth), ss 30, 31, 33, 40. Federal Courts (State Jurisdiction) Act 1999 (WA), ss 6, 7, 8, 10.

The Commonwealth v Yarmirr Yarmirr v Northern Territory Aboriginals - Native title in relation to waters - Application for determination of native title to seas, sea-bed and sub-soil - Territorial application of Native Title Act 1993 (Cth) - Whether common law applies to territorial sea beyond low-water mark - Whether common law recognises native title in territorial sea beyond low-water mark - Whether recognition by common law influenced by legislative purpose of Native Title Act 1993 (Cth) - Relevance of concept of radical title - Effect of successive acquisitions of sovereignty over the territorial sea and sea-bed by the Crown in right of the United Kingdom in 1824 and the Crown in right of the Commonwealth by the Seas and Submerged Lands Act 1973 (Cth) - Nature and effect of right and title to the territorial sea and sea-bed vested in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980 (Cth). Aboriginals - Native title in relation to waters - Whether evidence demonstrated rights under traditional law and custom to possession, occupation, use and enjoyment of the territorial sea and sea-bed within the claimed area to the exclusion of all others - Whether evidence demonstrated right under traditional law and custom to exclusive fishery - Whether right of exclusive possession asserted effectively - Whether public rights to fish and to navigate and international right of innocent passage in territorial sea inconsistent with exclusive native title rights. Acts Interpretation Act 1901 (Cth), s 15B. Coastal Waters (Northern Territory Powers) Act 1980 (Cth), s 5. Coastal Waters (Northern Territory Title) Act 1980 (Cth), s 4. Native Title Act 1993 (Cth), ss 6, 11, 223, 225 and 253. Off-shore Waters (Application of Territory Laws) Act 1985 (NT), ss 2 and 3. Seas and Submerged Lands Act 1973 (Cth), ss 6, 7 and 11.

Adam v The Queen Criminal law - Evidence - Whether trial judge erred in admitting prior inconsistent statements of prosecution witness - Relevance of prior inconsistent statements - Application of credibility rule - Exceptions to hearsay rule - Prior inconsistent statements as evidence of the truth of the representations. Criminal law - Evidence - Unfavourable witnesses - Whether trial judge erred in granting prosecution leave to cross-examine its own witness - Unreliable evidence. Evidence - Prior inconsistent statements - Relevance of such statements - Whether evidence of the truth of representations - Whether judge erred in granting leave to prosecutor to cross-examine its own witness. Evidence Act 1995 (NSW), ss 38(1), 38(3), 38(6), 55(1), 59(1), 60, 102, 103, 192(2). GLEESON CJ, Mc

Allan v Transurban City Link Limited Administrative law - Judicial review - Standing - Legislation providing review process - Under legislation application for review may be made by a "person who is affected by a reviewable decision" - Whether applicant is such a person is to be determined by construction of the legislation not by general considerations respecting "standing". Administrative law - Judicial review - Reviewable decision - Legislation establishing tax incentive scheme by issue of tax certificates in respect of "infrastructure borrowings" - Issue of tax certificate - Whether application for review may be brought in respect of a decision to issue a tax certificate. Words and phrases - "reviewable decision", "person who is affected by a reviewable decision". Development Allowance Authority Act 1992 (Cth), ss 93A-93ZG, 93AA, 119, 120. Administrative Appeals Tribunal Act 1975 (Cth), ss 25, 27. Income Tax Assessment Act 1936 (Cth), ss 159GZZZZD-159GZZZZH. Melbourne City Link Act 1995 (Vic).

Roxborough v Rothmans of Pall Mall Australia Limited HIGH COURT OF AUSTRALIA GLEESON CJ, GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ ALEXANDER GARNET ROXBOROUGH & ORS APPELLANTS AND ROTHMANS OF PALL MALL AUSTRALIA LIMITED RESPONDENT Roxborough v Rothmans of Pall Mall Australia Limited [2001] HCA 68 6 December 2001 S199/2000 ORDER 1. Appeal allowed with costs. 2. Set aside orders of the Full Court of the Federal Court made on 11 November 1999. 3. In place thereof, order that: (a) the appeal to that Court be allowed with costs; (b) the orders of Emmett J made on 18 February 1999 be set aside; and (c) in place of the orders of Emmett J, there be: (i) judgment entered for the first appellant in the sum of $14,377.33; for the second appellant for $11,017.12; for the third appellant for $18,521.99; for the fourth appellant for $31,716.32; for the fifth appellant for $15,622.98; for the sixth appellant for $35,877.19; and for the seventh appellant for $26,456.55; (ii) an order that the respondent pay the appellants' costs of the action; and (iii) liberty to apply to a Judge of the Federal Court for an order for interest under s 51A of the Federal Court of Australia Act 1976 (Cth). On appeal from the Federal Court of Australia Representation: S J Gageler SC with R A Dick for the appellants (instructed by Glasheen & Quilty) B W Walker SC with I M Jackman for the respondent (instructed by Clayton Utz) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Roxborough v Rothmans of Pall Mall Australia Limited Contract - Money had and received - Total failure of consideration - Contract between wholesaler and retailers - Wholesale cost included cost of goods plus tax identified as tobacco licence fee - Tax a distinct part of consideration paid by retailers - Tax held invalid so wholesaler not liable to pay tax collected from retailers - Retailers sought repayment of money for tax as a result of failure of consideration - Whether wholesaler had title to retain the money - Whether failure of the tax involved a failure of a distinct and severable part of the consideration. Restitution - Recovery - Unjust enrichment - Contract between wholesaler and retailers - Wholesale cost included indirect tax held to be invalid - Whether wholesaler had a duty to make restitution to the retailers - Whether enrichment was at the expense of the retailers who had passed the tax on to consumers and the consumers were unlikely to claim the tax back - Whether unjust enrichment must be at the expense of the party seeking to recover - Whether passing on is a defence to a claim for recovery. Contract - Implied terms - Test for implying a term - Contract between wholesaler and retailers - Wholesale cost included cost of goods plus tax - Tax held invalid - No express agreement about what would happen if the tax was held to be invalid - Whether such an agreement could be implied from the terms of the contract. Constitutional law (Cth) - Duty of excise - Invalidity of state law - Consequences of invalidity for contracts agreed to on the basis of the validity of such law - Proceedings by retailers for recovery of invalid tax from wholesaler - Retailers unwilling to refund any amount received to consumers to whom tax passed on - Whether retailers have suffered any loss which they can recover from wholesaler - Whether any such recovery would constitute unjust enrichment of retailers - Whether different principles govern recovery from a state party which has recouped invalid tax and from a private corporation which holds such tax at time invalidity is pronounced. Words and phrases - "total failure of consideration" - "at the expense of" - "passing on". Business Franchise Licences (Tobacco) Act 1987 (NSW), ss 41, 45.

Palmer Bruyn & Parker Pty Ltd v Parsons Injurious falsehood - Elements of the tort - Forged letter containing false statements - Initial publication to defined group intended to ridicule subject of letter - Report in newspaper of "bogus letter" - Contract terminated as a result of newspaper report - Whether loss suffered caused by initial publication - Whether loss suffered was a natural and probable consequence of initial publication - Identification of relevant falsehood - Relevance of reasonable foreseeability as criterion for limiting liability - Causation of plaintiff's damage - Whether actual damage to plaintiff proved or assumed by expert report. Words and phrases - "Natural and probable consequence", "grapevine effect".

Maggbury Pty Ltd v Hafele Australia Pty Ltd Contract - Confidential information - Contractual restraint upon use of "Information" - Restraint expressed to be perpetual - Information disclosed in patent application - Proper construction of contract - Whether restraint to apply once information disclosed to public - Whether contract in restraint of trade. Restraint of trade - Contractual restraint upon use of information concerning invention - Whether confidentiality agreement constitutes an unenforceable contractual restriction on trade - Whether the restraint imposed is more than that required to protect the interests of the parties. Injunction - Confidentiality agreement between inventor and potential marketer - Substantial copying of invention found contrary to agreement - Whether injunction granted unacceptably wide - Whether injunction would involve excessive supervision by court - Permissible scope and duration of injunctive relief. Words and phrases - "quality of confidence".

Statutes - Construction - By-laws and Regulations - Validity - Procedure for making interim local laws - Whether Minister's power to extend interim local law limited so as to preclude multiple extensions - Whether power to extend interim local law contrary to requirements of sunset provision - Where statute conferred power on Minister to extend interim local law for "longer period" - Whether interim local law had ceased to have effect at relevant time. Local Government - By-laws and Regulations - Validity - Power of extension of interim local law. Constitutional law (Cth) - "law of a State" - Constitutional presumptions and penal laws - Contextual implications of limited delegation - Whether multiple extensions of an interim local law that imposes penal sanctions results in uncertain validity. Words and phrases - "sunset provision", "a longer period", "interim local law". Acts Interpretation Act 1954 (Q), s 23(1). Local Government Act 1993 (Q), ss 850, 851, 859, 860, 861, 862, 863.

Festa v The Queen HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, KIRBY, HAYNE AND CALLINAN JJ BRUNETTA FESTA APPELLANT AND THE QUEEN RESPONDENT Festa v The Queen [2001] HCA 72 13 December 2001 B39/2001 ORDER Appeal dismissed. On appeal from the Supreme Court of Queensland Representation: A J Kimmins for the appellant (instructed by Ryan & Bosscher, Lawyers) M J Byrne QC with C W Heaton for the respondent (instructed by the Office of the Director of Public Prosecutions (Queensland)) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Festa v The Queen Criminal law - Evidence - Admissibility - Exclusion of evidence - Identification evidence - Usual precautions for identifying suspects not followed - Whether probative value of identification evidence outweighed danger of unfair prejudice to the accused - Whether admission of identification evidence resulted in a miscarriage of justice. Criminal law - Evidence - Identification evidence - Whether trial judge adequately directed the jury about the deficiencies of identification evidence. Criminal law - Evidence - Weapons and ammunitions found at the unit of co-accused were of the same character as those used in the robberies but were not purchased until after the robberies - Whether evidence of weapons was admissible as "propensity" evidence - Whether the trial judge adequately directed the jury in relation to the discovery of weapons and ammunitions. Criminal law - Evidence - Admissibility - Whether evidence of an association between the accused and co-accused was admissible - Whether direction by the trial judge about the association was a material misdirection. Criminal law and practice - Appeal against conviction - Application of "proviso" - Whether errors by trial judge constituted a substantial miscarriage of justice - Whether evidence was so strong that no reasonable jury could fail to convict the accused. Words and phrases - "circumstantial identification evidence" - "positive-identification evidence" - "unfair prejudice". Criminal Code (Q), ss 408, 668

Negligence - Duty of care - Vicarious and direct liability - Motor vessel accident caused by vessel being grossly overloaded - Whether respondent's status as holder of certificate of registration for vessel under Water Traffic Regulations (NSW) conferred requisite degree of control to found direct or vicarious liability - Whether holder of certificate of registration responsible for negligence of person in charge of vessel - Whether status as holder of certificate of registration gave rise to duty of care to prevent vessel sailing while grossly overloaded. Maritime Services Act 1935 (NSW). Water Traffic Regulations (NSW), reg 11.

Conway v The Queen Criminal law - Evidence - Evidence Act 1995 (Cth) - Unreliable evidence - Co-offenders - Corroboration - Directions to jury regarding corroboration of evidence given by co-offenders. Evidence - Corroboration - Warning about acting on unreliable evidence - Directions to jury - Requirements of Evidence Act 1995 (Cth) - Misdirection to jury - Whether misdirection requires that appeal be allowed and new trial ordered in the absence of substantial miscarriage of justice. Appeals - Federal Court of Australia - New trial - Misdirection -Grounds on which new trial may be ordered. Words and phrases - "evidence" - "on any ground upon which it is appropriate to grant a new trial" - "substantial miscarriage of justice". Evidence Act 1995 (Cth), ss 164, 165. Federal Court of Australia Act 1976 (Cth), s 28(1)(f). GAUDRON ACJ, Mc

Constitutional law (Cth) - Judicial power - Extradition - Jurisdiction of Federal Court to review order by magistrate that applicant, being eligible for surrender to extradition country, be committed to prison - Provision requiring Federal Court to have regard only to the material before the magistrate - Whether provision denies to the Federal Court power to receive evidence led to show that proceeding before it was an abuse of its process - Whether consistent with the exercise of the judicial power of the Commonwealth - Whether provision enabling curial review of administrative function amounts to purported conferral of non-judicial power. Extradition - Judicial review by Federal Court of magistrate's order - Provision requiring Federal Court to have regard only to material before the magistrate - Whether provision invalid under the Constitution as inconsistent with the exercise of federal power - Whether provision invalid as conferral of non-judicial power to participate in administrative function. Constitution, s 71. Extradition Act 1988 (Cth), ss 19, 21. GLEESON CJ, GAUDRON, Mc

Velevski v The Queen Criminal law - Evidence - Expert evidence - Whether certain wounds to deceased were self-inflicted - Whether capable of being the subject of expert opinion - Evidence given by experts on matters of common knowledge of human behaviour - No objection by accused - Whether admissible - Whether conflicting opinion of experts incapable of resolution beyond reasonable doubt by jury because of difficulty and sophistication of purely scientific or medical evidence. Criminal law - Practice and procedure - Duties of prosecution - Whether prosecution obliged to call other expert witnesses whose evidence might have been favourable to the accused. Criminal law - Evidence - Confessions and admissions - Lie as evidence of consciousness of guilt - Whether jury could rely upon alleged lie only if satisfied of it beyond reasonable doubt. Evidence Act 1995 (NSW), ss 79, 80.

The Queen v Chai Criminal law - Manslaughter - Unlawful and dangerous act - Accessorial liability - Requisite mental element - Procurement of assault - Adequacy of directions on nature of assault procured - Directions framed according to issues at trial. Appeal - Criminal appeal - Criminal law - Grounds of appeal - Duty of court of criminal appeal to determine all matters raised by grounds of appeal. Crimes Act 1900 (NSW), s 18(1).

Constitutional law (Cth) - Taxation - Law imposing taxation - Statutory power to register a parent's or step-parent's child maintenance liability - Validity - Whether amounting to law imposing taxation - Whether law deals only with the imposition of taxation. Constitutional law (Cth) - Judicial power of Commonwealth - Child Support Registrar may assess child support payable by parent or step-parent under statute - Validity - Whether impermissible conferral of the judicial power of the Commonwealth upon Registrar. Words and phrases - "laws imposing taxation". Constitution, ss 53, 55, 71. Child Support (Assessment) Act 1989 (Cth), Pts 5, 6A. Child Support (Registration and Collection) Act 1988 (Cth), Pt

Minister for Immigration and Multicultural Affairs v Khawar Immigration - Refugees - Application for protection visa - Well-founded fear of persecution - Applicant, a citizen of Pakistan, allegedly victim of domestic violence at the hands of her husband and his family - Whether failure by State to provide effective police protection against domestic violence capable of constituting persecution for a Convention reason where the feared violence is perpetrated by non-State agents for non-Convention reasons - Whether Convention requirement that putative refugee be "unwilling to avail himself of the protection" of the country of nationality refers to protection by the State within the country of origin or to diplomatic or consular protection available to citizens who are outside the country of origin - Whether selective or discriminatory failure by State to enforce the criminal law against non-State actors who assault members of a particular social group capable of constituting persecution under the Convention. Immigration - Refugees - Application for protection visa - Membership of a particular social group - Applicant, a citizen of Pakistan, allegedly victim of domestic violence at the hands of her husband and his family - Whether "women in Pakistan" a particular social group - Whether applicant may fall within a more narrowly defined social group. Words and phrases - "persecution", "particular social group". Migration Act 1958 (Cth), s 36(2). Convention relating to the Status of Refugees, art 1A(2).

; Ex parte Australian Catholic Bishops Conference Re McBain; Ex parte Attorney-General (Cth) ex rel Australian Episcopal Conference of the Roman Catholic Church Constitutional Law (Cth) - Judicial power of the Commonwealth - Matter - Claims in Court's original jurisdiction to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation - Claimants not parties to prior litigation - No parties to prior litigation instituted appeal or sought constitutional relief in respect of the judgment in that litigation - Claimants include Commonwealth Attorney-General seeking to affirm the operation of a State law as not inconsistent with federal law within the meaning of s 109 of the Constitution - Whether claims give rise to a "matter" under Ch III of the Constitution - Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal - Whether, if so, relief should be granted in the exercise of the Court's discretion. High Court - Jurisdiction - Whether Court's original jurisdiction extends to claims to certiorari for non-jurisdictional error of law on the face of the record in respect of concluded Federal Court litigation - Claimants not parties to prior litigation - Whether claims give rise to a "matter" under Ch III of the Constitution - Whether a matter arises under s 75(v) or s 76(i) of the Constitution independently of the right of appeal - Exercise of discretion to provide such relief. Certiorari - Whether available against a judge of a federal superior court in respect of non-jurisdictional error of law on the face of the record - Discretion to grant - Whether Attorney-General entitled to certiorari as of right - Factors favouring discretionary refusal to grant certiorari in respect of non-jurisdictional error of law on the face of the record in litigation to which claimants were not parties. Practice and procedure - Application to extend time - Application by Commonwealth Attorney-General on the relation of another for writ of certiorari instituted out of time - Factors favouring non-extension of time. Practice and procedure - Parties - Intervention - Application by Commonwealth Attorney-General - Intervention by Attorney-General to put submissions partly at odds with submissions put by relator in name of Attorney-General. Words and phrases - "matter". Commonwealth Constitution, ss 75(v), 76(i). Judiciary Act 1903 (Cth), ss 30(a), 32, 33, 78A. High Court Rules, O 55 r 17, O 64 r 2.

Harwood v The Queen Criminal Law - Homicide - Unlawful killing - Appellant and co-accused engaged in armed robbery - Co-accused shot and killed victim - Appellant and co-accused tried jointly - Whether common intention to prosecute an unlawful purpose - Whether, if co-accused convicted of murder, appellant could be convicted of manslaughter. Criminal Law - Directions to the jury - Failure to direct the jury to possibility, if co-accused convicted of murder, of finding appellant guilty of manslaughter - Whether absence of direction gave rise to a miscarriage of justice. Criminal Code (Q), ss 8, 289, 291, 293, 300, 302, 303. GLEESON CJ, GAUDRON, Mc

Patents - Petty Patent - Revocation - Inventive step or obviousness - Combination patents - Proper construction of ss 7(2) and 7(3) of the Patents Act 1990 (Cth) - Whether evidence supported conclusion that it had been shown to be obvious to place known integers in the interactive combination claimed in the Petty Patent - Whether trial judge and Full Court, in focusing upon the incorporation of particular integers, gave inadequate weight to whether the selection in combination of the integers was obvious at the priority date - Relevance of commercial success of Petty Patent to question of obviousness. Patents Act 1990 (Cth), ss 7(2), 7(3). GLEESON CJ, Mc

Appeals - Interlocutory orders - Interlocutory order dispensing with a jury in the trial of a civil matter - Leave to appeal against interlocutory order not sought - Action tried by judge alone - Later appeal against both final judgment and order to dispense with a jury - Whether order to dispense with a jury gave rise to a substantial wrong or miscarriage warranting an order for a new trial. Practice and procedure - Interlocutory order - Entitlement of disaffected party to save up challenge as ground of appeal against final judgment. Courts - Statutory conferral of discretionary powers - Need to exercise powers in accordance with the statutory grant - Need to afford liberal construction to powers conferred on courts. Words and phrases - "substantial wrong or miscarriage". District Court Act 1973 (NSW), s 79A. Supreme Court Rules 1970 (NSW), Pt 51AA r 16. GAUDRON, Mc

of Australia Aboriginals - Land rights - Claim under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) to areas of the seabed of bays and gulfs within the limits of the Northern Territory - Whether the seabed of bays and gulfs amenable to claim - Whether "land in the Northern Territory" includes the seabed of bays or gulfs. Words and phrases - "land" - "land in the Northern Territory". Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3(1), definition of "Crown Land".

Subramaniam v The Queen Criminal law - Unfitness to be tried - Attorney-General directed that a "special hearing" under the Mental Health (Criminal Procedure) Act 1990 (NSW) ("the Act") be conducted in respect of charges against the appellant - Whether and in what circumstances a "special hearing" should be stayed - Whether "special hearing" conducted in compliance with conditions and procedures required by the Act - Adequacy of trial judge's directions to the jury. Practice and procedure - Trials conducted as "special hearings" under the Act - Jury directions. Words and phrases - "unfit to be tried", "special hearing", "substantial miscarriage of justice". Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21(4). GLEESON CJ, Mc

Statutes - Construction - Power to suspend or cancel a licence to supply a drug of addiction - Whether cl 149 of the Poisons and Therapeutic Goods Regulation 1994 (NSW) confers on the Director-General of the Department of Health a power of suspension or cancellation which must be exercised if one or more of the specified grounds for suspension or cancellation are established - Whether provision that Director-General "may suspend or cancel" licence on specified grounds conferred a power to be exercised not a discretion to be weighed - Whether circumstances obliged Director-General to exercise discretion in favour of cancellation. Courts and tribunals - Error of law - Whether decision based upon that error. Words and phrases - "may" - "based upon". Poisons and Therapeutic Goods Act 1966 (NSW). Poisons and Therapeutic Goods Regulation 1994 (NSW), cl 149. GLEESON CJ AND Mc

Ugle v The Queen Criminal law - Homicide - Unlawful killing - Murder - Deceased died from knife wound to chest - Whether stabbing was an unwilled act - Whether trial judge erred in failing to direct jury about unwilled acts - Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered - Whether "event" arguably occurred "by accident". Words and phrases - "accident" - "act" - "event" - "unwilled act". The Criminal Code (WA), s 23.

Murray v The Queen Criminal law - Homicide - Unlawful killing - Murder - Deceased died from gun shot wounds to chest - Whether shooting was an unwilled act or an event occurring by accident - What is "the act causing death" - Whether trial judge erred in failing to direct jury about unwilled acts - Whether it is for the jury to decide what is "the act causing death" - Whether trial judge's failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered. Onus of proof - Whether the trial judge erred in directions to jury about onus of proof - Whether trial judge's direction to jury was apt to mislead the jury about the decision which was to be made. Words and phrases - "act" - "event" - "accident". The Criminal Code (Q), s 23.

Practice and procedure - Group proceedings - Defendant to group proceeding manufactured defective aviation fuel - Group proceeding commenced against manufacturer alleging breach of contract and negligence - Proceeding arose out of the same or similar circumstances and gave rise to a substantial common question of law or fact - Originating process served on manufacturer within the jurisdiction. Constitutional law - State - Legislative powers of State parliament - Whether statute providing for group proceedings to bind unaware claimants in other States beyond the legislative power of a State parliament - Whether statute offends the territorial limitations of a State parliament. Constitutional law - Federal - Whether State group proceedings involve the impermissible exercise of the judicial power of the Commonwealth - Whether judgment given in a group proceeding gives rise to a "judgment, decree, order or sentence" within the meaning of s 73 of the Constitution - Whether group proceedings otherwise incompatible with Ch III of the Constitution. Constitution, s 73. Constitution Act 1975 (Vic), ss 16, 75. Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000 (Vic), s 13. Supreme Court Act 1986 (Vic), Pt 4

Aboriginals - Native title to land - Extinguishment - Extinguishment by grant of interest in land - Inconsistency between native title rights and interests and rights and interests under allegedly extinguishing grants - Adverse dominion test rejected. Aboriginals - Native title to land - Native Title Act 1993 (Cth) - Previous exclusive possession acts - Previous non-exclusive possession acts - Past acts - Intermediate past acts - Public works. Appeal - Federal Court of Australia - Nature of appeal - Rehearing - Principles applicable. Aboriginals - Native title to land - Extinguishment - Partial extinguishment - Suspension of native title rights and interests - Partial extinguishment and suspension under the Native Title Act 1993 (Cth). Aboriginals - Native title to land - Extinguishment - Crown lands - Particular kinds of transactions respecting Crown lands - Pastoral lease under Land Acts of Western Australia - Mining lease under Mining Acts of Western Australia - Reserves - Special purposes lease - Special lease - Resumption of land under the Land Act 1933 (WA) and Public Works Act 1902 (WA) - Grant to occupy land - Grant of leased reserve - Vacant Crown land. Aboriginals - Native title to land - Validity of past acts - Racial Discrimination Act 1975 (Cth) - Inconsistency of State law authorising grant of interest in land. Aboriginals - Native title to land - Rights in relation to land or waters - Cultural knowledge. Constitutional law (Cth) - Territories - Relationship between Commonwealth and Territory laws. Words and phrases -"past acts", "intermediate period acts", "exclusive possession", "previous exclusive possession acts", "previous non-exclusive possession acts", "non-exclusive pastoral leases", "public works", "works", "category A past act", "category B past act", "category C past act". Australian Waste Lands Act 1855 (Imp), s 7. Western Australia Constitution Act 1890 (Imp), s 3. Federal Court of Australia Act 1976 (Cth), ss 24, 27. Native Title Act 1993 (Cth), Pt 1, Pt 2 Div 1 (ss 11, 14, 15, 16, 19), Pt 2 Div 2 (ss 17, 20), Pt 2 Div 2A, Pt 2 Div 2B (ss 23B, 23C, 23E, 23F, 23G, 23J), Pt 2 Div 4 (s 45), Pt 2 Div 5, ss 223, 225, 226, 228, 231, 238, 242, 245, 248A, 248B. Native Title Amendment Act 1998 (Cth). Racial Discrimination Act 1975 (Cth), ss 9, 10. Aboriginal Heritage Act 1972 (WA). Land Act 1898 (WA), Pt I (ss 3, 4, 15, 16, 32, 33), Pt III, Pt V (s 62), Pt VI, Pt VII, Pt VIII, Pt IX, Pt X (ss 92, 93, 94, 95, 96, 97, 98, 99, 102, 104, 106, 107), Pt XI, Pt XII (ss 135, 138, 142, 143, 144, 150, 151, 154). Land Act Amendment Act 1905 (WA), s 10. Land Act 1933 (WA), Pt I (ss 3, 7, 11, 13), Pt III (ss 29, 30, 31, 32, 33, 34), Pt V Div 1, Pt V Div 2, Pt V Div 3, Pt V Div 4, Pt VI (ss 106, 109), Pt VII, Pt IX (ss 162, 163, 164). Mining Act 1904 (WA), ss 117, 122, 123. Mining Act 1978 (WA), s 8, Pt III Div 3 (ss 29, 35), Pt IV Div 3 (ss 71, 73, 78, 82, 85), Pt IV Div 4, ss 113, 123. Public Works Act 1902 (WA), ss 18, 34. Rights in Water and Irrigation Act 1914 (WA), ss 2, 3, 4. Titles Validation Act 1995 (WA). Titles Validation Amendment Act 1999 (WA). Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), Pt 2 (ss 5, 6, 7, 8, 9, 10, 11), Pt 2A (s 12A), Pt 2B (ss 12I, 12J, 12K, 12L, 12M, 12N, 12O, 12P). Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999 (WA). Wildlife Conservation Act 1950 (WA), ss 6, 23. Validation (Native Title) Act 1994 (NT), Pt 1 (ss 3, 3A, 3B), Pt 2 (ss 4, 4A, 4C), Pt 3 (ss 5, 6, 7, 8, 9), Pt 3C (ss 9L, 9M), Pt 4 (s 10), Pt 5 (s 11).

Roads and Traffic Authority v Cremona High Court - Practice - Special leave to appeal - Evidence of suggested importance of the issue raised by the application for special leave - Requirement that evidence be in affidavit form - Limited use of evidence - Unavailability of new evidence in the appellate jurisdiction of the High Court. Practice and procedure - High Court - Application for special leave to appeal - Evidence of suggested significance of decision the subject of the application - Admissibility of evidence - Requirement that evidence be in affidavit form.

; Ex parte Applicant S190 of 2002 Immigration - Refugees and protection visas - Constitutional writs of prohibition and mandamus sought against officers of the Commonwealth - Decision of officer of a federal department not to refer to the Minister a request to make a further application in Australia for a protection visa after an earlier such application has failed - Whether such non-reference was arguably manifestly unreasonable - Ministerial guidelines - Minister has no duty under Act to consider whether to exercise the power - Inferences available from the evidence - Appearance of applicant's name on electronic report of Federal Court decision - Subsequent enactment of legislative prohibition on identification of applicants for refugee status. Practice - High Court - Application for orders nisi for constitutional writs - Application to add further party - Sufficiency of evidence to establish reasonably arguable case for relief - Evidence of departmental form - Absence of reasons - No duty to state reasons - Distinction between hearing on merits and constitutional review - Limits of constitutional relief. Constitution, s 75(v). Migration Act 1958 (Cth), ss 48A, 48B, 91X, 417. KIRBY J. I have before me a claim for an order nisi for constitutional writs. The applicant's claim for a protection visa The applicant is a national of Mongolia of the minority Chinese ethnicity. He was born in that country in 1959. He arrived in Australia in October 1996 as a dependant of his then wife, who had a student visa. In October 1997 the applicant and his wife were divorced. In due course she returned to Mongolia with their two sons. The applicant stayed on. In March 2001, in Australia, the applicant applied for the first time for a protection visa under the Migration Act 1958 (Cth) ("the Act"). He claimed to have a well-founded fear of returning to Mongolia on the basis, in short, of his minority ethnicity and because of his knowledge of secrets and of corruption derived during his connection with the army and officials in Mongolia, for the most part during Soviet times. On 11 May 2001 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), the first respondent, refused to grant the applicant a protection visa. This decision was reviewed by the Refugee Review Tribunal ("the Tribunal"). On 12 July 2001, the Tribunal affirmed the delegate's decision. I have read the Tribunal's decision which was placed before me without objection. It concludes that the applicant was lacking credibility, his evidence was said to be "weak", "suspicious" in material respects, "vague" in others and generally unconvincing. As well, the Tribunal accepted certain country evidence about Mongolia. This described the discrimination that the minority ethnic Chinese suffer in that country. However, as described, this occurs on a personal and social basis, not on a public or formal basis. The government of Mongolia was reported by the Tribunal, and accepted, as respecting the constitutional rights of its nationals to return without restriction. As such reports go, Mongolia does not emerge from the Tribunal's reasons as a seriously oppressive country. The decisions of the Federal Court The applicant then applied to the Federal Court of Australia for judicial review. In September 2001 a single judge of that Court dismissed his application. The applicant then appealed to the Full Court of the Federal Court of Australia. His only ground before that Court was that the single judge had "made the wrong decision". On 18 February 2002, the Full Court (Spender, Gyles and Conti JJ) dismissed this appeal. A matter raised in the Full Court was that the applicant was concerned that his name had been published on the Internet in the electronic report of the decision of the single judge. On this point, Spender J, speaking for the Full Court, said[1]: "The second matter which the appellant raised before this court concerns the continued publication of his name on the internet in the judicial decisions recorded on the SCALEplus database. Section 91X of the Migration Act 1958 (Cth) did not come into effect until after the judgment of [the single judge] given [in] September 2001 and the prohibition contained in s 91X(2) is a prohibition binding on the Court. The section does not, after the commencement of s 91X, prohibit the publication by another party of judgments delivered before the coming into operation of that section. It is understandably a matter of continuing concern to the present appellant that the matters referred to in that judgment can still be sheeted home to the appellant by virtue of the continued publication of his name in the report available on the internet." Notwithstanding these remarks, the Full Court dismissed the applicant's application. I was informed today that the report of the single judge's decision, reproducing the name of the applicant, still appears on the Internet. So far as I am aware, no application has been made to the Federal Court to delete the references to the applicant's name in the record of his Honour's decision. At least I was not told of any application to that effect. The applicant's request for reconsideration On 1 March 2002, following the judgment of the Full Court of the Federal Court, the applicant wrote to the Minister asking him to exercise his discretion to grant him a visa under s 417 of the Act, to allow him to remain in Australia on humanitarian grounds. The applicant also asked for consideration of his refugee status. This letter was construed, in the latter respect, to be an application by the applicant to lodge a second protection visa application within Australia pursuant to s 48B of the Act. In the letter to the Minister the applicant expressed specific concern about the publication of his name on the Internet. He said: "[A]fter the rejection of my case in the Federal Court of Australia, All [sic] the details of my case, together with my real name have been published on the Internet. This has placed me in significant danger, of imprisonment and possible persecution and also almost certain execution, by the authorities, should I return to Mongolia." Normally, such a second application for a protection visa is forbidden to a non-citizen whilst still in Australia[2]. The applicant has remained in Australia at all material times. Before me he tendered an affidavit in which he stated: "After some days, but before my Full Federal Court hearing, I received a call from overseas informing me that my given name and family name and case details had appeared on the Internet. At the hearing before the Full Bench of the Federal Court I told the Judge about the publication of my name and case details on the Internet. He asked the Minister's barrister about this but she said she had no idea. After this the Judge said: 'This is a different case'. I applied to the Minister under 48b [sic] and 417 but he refused me on 17 May 2002. I wish to challenge the Minister's decisions not to grant me a fresh application on the grounds that events have occurred in Australia (publication of my case details on the Internet) which jeopardise my safety should I be forced to return to Mongolia." Refusal to forward the request to the Minister By a letter of 14 May 2002 the Minister notified the applicant that he had decided not to consider exercising his power to grant a visa to the applicant on humanitarian grounds under s 417 of the Act. By a letter of 15 May 2002 an officer of the Minister's department notified the applicant that his request under s 48B of the Act would not be forwarded to the Minister. The applicant's requests were therefore rejected. It is in these circumstances that I now have before me the applicant's application that I issue an order nisi for constitutional relief. Originally this application was directed to the Minister alone. It sought prohibition to forbid the Minister from acting on the earlier decision. It is not necessary for me to decide what would have been the case if the Minister had not personally considered the applicant's application under s 417 of the Act. The Minister's letter, which is before me, is signed by the Minister personally. This sufficiently shows that the Minister did so. Instead, as it was developed, the applicant sought to add to the process a second respondent, Mr Henry Lemaniak. He is an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"). For the purposes of s 75(v) of the Constitution it is not contested that Mr Lemaniak is an "officer of the Commonwealth". Counsel for the Minister announced his appearance for Mr Lemaniak. He did so in order to resist the applicant's application to add Mr Lemaniak as a respondent. I postponed a final decision on that application pending clarification of the issues propounded by the applicant and, specifically, elucidation of whether the applicant could demonstrate a reasonably arguable case for relief against Mr Lemaniak in his capacity as an officer of the Commonwealth. The basis for the application in the amended order nisi was, in effect, that the process of consideration of the applicant's application within the Department, and thus by the Minister, had miscarried. The applicant asserted that Mr Lemaniak, by failing lawfully to exercise his powers under the Act, had, in effect, mis-streamed his application. Instead of referring it to the Minister for the personal exercise of the Minister's discretion to permit a second application for a protection visa to be made onshore (as s 48B of the Act permits), Mr Lemaniak had, in effect, deprived the Minister, and thereby the applicant, of that facility. Accordingly, the applicant sought an order nisi for the constitutional writ of mandamus, addressed to Mr Lemaniak, commanding him to consider the applicant's application in accordance with law. He also sought an order nisi for a writ of prohibition, or possibly an injunction, addressed to the Minister, in effect, to prevent the carrying into force of the consequences of the earlier refusal to permit the applicant to reapply to the Minister. The relevant provisions of the Act It is now necessary to set out certain provisions of the Act. Relevantly, s 48A provides: "(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone. ... (2) In this section: application for a protection visa includes: (aa) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and ... (b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol ..." And s 48B provides: (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. ... (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances." The "migration zone" referred to in s 48A(1) includes the Australian mainland where the applicant has been at all material times. The Ministerial guidelines The Minister has issued guidelines to assist in the implementation of these provisions and presumably to ensure that they are applied consistently within the Department. No contest was raised as to the power of the Minister to issue such guidelines. Nor was it suggested that the guidelines, as issued, were contrary to the provisions of the Act. I shall assume that such concessions were properly made[3]. The guidelines were tendered before me. They permit certain applications to be placed before the Minister personally. Others they permit, in effect, to be diverted by an officer of the Department, thereby sparing the Minister of any need personally to consider such applications. In such a field of administrative decision making, with a large number of applications, the course that has been adopted is perhaps understandable and arguably contemplated by s 48B(6) of the Act. In any case, it is provided for in the guidelines. Relevantly, the guidelines state (with emphasis added): "The purpose of these Guidelines is to provide directions for case managers when considering whether to forward to the Minister cases where he/she may wish to consider using the non-compellable and non-delegable power to allow a further application for a protection visa to be made. ... 10. The Guidelines identify two categories of what constitutes additional information: . claims of Refugee Sur Place; or . other new claims provided by the applicant (which may or may not have been known to the applicant during consideration of the previous protection visa application) CLAIMS OF REFUGEE SUR PLACE (i) Changed Conditions in the Country of Origin 11. Clients may claim that changes in the country of origin have occurred since consideration of the previous application which enhance the applicant's chances of making a successful claim under the Refugees Convention ... (ii) Circumstances arising in Australia 13. Where the applicant provides evidence that they have: . expressed views; . been involved in activities; and/or . been the subject of publicity; which may jeopardise their safety in the country of origin for a Convention reason, since 'final determination' of the previous application for a protection visa, this needs to be considered in light of: . whether such activities are likely to have come to the attention of the authorities in the claimant's country of origin; and . how they are likely to be viewed by those authorities. ... 20. CASE MANAGERS SHOULD NOT ENGAGE IN A COMPLETE ASSESSMENT AND DECISION AT THIS STAGE, AS AN APPLICATION HAS NOT BEEN VALIDLY MADE. However, they should ensure that their consideration is consistent with Australia's international obligations to prevent refoulement." The Departmental consideration of the request The only evidence the applicant proffered to indicate how the relevant officer had made the decision affecting him was a printed file note dealing with his case. By this, it appears the applicant's application to the Minister was considered by an officer in the Ministerial Interventions Unit of the Department. Relevantly, this document, which was admitted as exhibit A1, reads: "The Manager Ministerial Interventions Unit I have found that: q The purported further application/request is considered to meet the guidelines and a submission to the Minister will be prepared as soon as possible. OR þ The purported further application/request is considered NOT to meet the guidelines. OR q The purported further application/request is not subject to the s 48A bar as the previous Protection Visa application was not a valid application in the context of the judgment in MIMA vs Applicant A. Henry Lemaniak 22.3.02 (Case Manager) (Signature) (Date)" From this exhibit I am prepared to infer that Mr Lemaniak is the officer who considered the applicant's application and made the decision there recorded. The applicant submitted that this provided a sufficient evidentiary foundation for the grant of an order nisi. He argued that it should issue in order to permit a Full Court of this Court to consider his application. Reference was made in the papers to the applicant's fear if he were returned to Mongolia and his contention that, through the Internet, he was now known there to be a person who had claimed refugee status in Australia by reliance on grounds referring to secrecy, national security, high level corruption and the like. Analysis of the sufficiency of evidence In repeated decisions of this Court it has been made clear that the constitutional writs, and associated relief, are not available to allow a merits review of ministerial or administrative decisions or decisions of federal courts[4]. Relevantly to this case, this includes the decisions of the delegate of the Minister, of the Tribunal, of the primary judge in the Federal Court and of the Full Court of that Court. Nor are such writs available to allow a merits review of a decision of an officer of the Ministerial Interventions Unit of the Department, such as Mr Lemaniak. A constitutional writ under s 75(v) of the Constitution is only available for what are described as jurisdictional errors - errors going to the authority and power of the decisionmaker to do what was done[5]. Although I have myself favoured a broader view, I am obliged at the level of this application to conform to the approach of the Full Court before whom any order nisi granted by me would be returned. The applicant did not claim any breach of the rules of natural justice (a fertile source of jurisdictional error). He confined his application essentially to the ground that there was no sufficient evidence that Mr Lemaniak had properly addressed his attention to the matter to be decided by him. Alternatively, he contended that Mr Lemaniak's decision, in the circumstances, was manifestly unreasonable in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation[6] and the cases in this Court that have applied that principle. I will assume that the Wednesbury principle applies to the availability of the constitutional writs, although it was developed by the common law long after the Constitution was adopted[7]. Under current doctrine it is not incumbent on an Australian official at common law, deciding even a matter so serious as a decision affecting an application for refugee status, to provide the reasons for that decision[8]. The decision in Public Service Board of New South Wales v Osmond[9] reversed a contrary conclusion in which I had participated in the New South Wales Court of Appeal[10]. Again, at this level of decision making, I am obliged to conform to the approach of the Full Court of this Court until it is changed. No submission was made to me that the decision of this Court in Osmond was wrong[11]. No statutory obligation was suggested that imposed a duty on Mr Lemaniak to provide reasons for his decision in more detail than appear in the document that he ticked and signed. Upon this footing I find it impossible to say that, on its face, the document (exhibit A1) sufficiently establishes such an unreasonable decision by Mr Lemaniak that it can be said that no reasonable decisionmaker in his position could have made such a decision. The document indicates that the decisionmaker had the Minister's guidelines in mind. Indeed, I would infer that he had the guidelines before him. These refer expressly to claims by refugee applicants sur place. They also refer to risks that may have arisen since an earlier decision that applicants within Australia have been the subject of publicity that might have come to the attention of authorities in their country of origin so as to jeopardise their safety if they were returned there. There is therefore nothing on the face of the documents to lift this case into the class of Wednesbury or "manifest" unreasonableness. Nor can it be said that the documents disclose a reasonably arguable case of a failure on the part of the official to consider relevant matters in reaching the decision or of taking into consideration irrelevant matters going to jurisdiction or power. I would infer that Mr Lemaniak had before him the applicant's letter to the Minister making his assertions and his request that initiated the involvement of the Ministerial Interventions Unit. This squarely referred to the concern about publicity through the Internet. It is for the applicant to provide an evidentiary foundation for the relief he seeks. In another case, with different facts, the inferences about manifest administrative unreasonableness might be different. But on the basis of the evidence and materials propounded in this matter, I am not convinced that the applicant has established a reasonably arguable case. The applicant submitted that the insertion in the Act, since his hearings in the Federal Court, of s 91X forbidding courts, including this Court, from naming applicants for refugee status, indicated a high legislative purpose of the Australian Parliament of safeguarding the identities of refugee applicants in Australia whose names would otherwise be published on the Internet to the world at large in the course of publishing Australian court decisions. However, as the Full Court of the Federal Court pointed out, the section was prospective in its operation. It was always possible for a court to use expedients to disguise the names of applicants. I have done so myself before s 91X came into force[12]. The Full Court in the present case did so by naming the applicant by identifiers and not by name. The naming of, and references to, the applicant before the single judge were limited. No application was made before his Honour to disguise the applicant's identity. The findings made by his Honour are not critical of Mongolia. There was no breach of Australian law in what occurred. Conclusion and refusal of adjournment In the foregoing circumstances the application to join Mr Lemaniak as a second respondent must be refused. In my view, it would be futile to join him. I would not grant any relief against him. I therefore dismiss that application. When the applicant saw the way the wind was blowing in this respect, an application was made, virtually at the close of addresses, for an adjournment of the hearing of this application to permit further efforts to be made to enlarge the evidence that might be available to the applicant to found relief. Such a late application does not succeed. This case was argued in full. It should be decided by the Court on the basis of the evidence adduced on the return of the application. Necessarily this decision does not restrict any further application that the applicant may make to the Minister, nor any further consideration of the matter by the Department or the Minister personally if that course is decided. Even now, such a fresh application is available to the applicant, as counsel for the Minister properly acknowledged, although the Minister has no duty to consider whether to exercise his powers. In saying this, I do not, of course, reflect on any decision that might, or should, be made in the circumstances. Orders In the light of my conclusions, it is unnecessary for me to consider the effect, if any, of the privative provisions introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and cognate legislation, enacted since the case was decided by the Federal Court. I express appreciation for the assistance that I received from both counsel in the determination of the application. The application for an order nisi is refused with costs. I certify for the attendance of counsel. [1] NAAF v Minister for Immigration and Multicultural Affairs unreported, Federal Court of Australia, 18 February 2002 at [10] per Spender, Gyles and Conti JJ. [2] See the Act, s 48A(1). [3] cf Bedlington v Chong (1998) 87 FCR 75 at 80-81. [4] eg Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, 291. [5] cf Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 208-209 [31], 226-230 [78]-[89]; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 131 [132], 133-135 [137]-[141]. [6] [1948] 1 KB 223. [7] cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40-41; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650. [8] Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667. [9] (1986) 159 CLR 656. [10] Osmond v Public Service Board of New South Wales [1984] 3 NSWLR 447. [11] cf Mukherjee v Union of India [1990] Supp 1 SCR 44; Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817; Stefan v General Medical Council [1999] 1 WLR 1293. [12] eg Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20; (2001) 75 ALJR 808 at 809 [2]; [2001] HCA 20; 178 ALR 497 at 498.

Administrative law - Jurisdictional error - Natural justice - Privative clause - Failure to inform applicant that refusal of parent visa would result in automatic cancellation of bridging visa and detention of applicant - Alleged failure to afford applicant opportunity to put before Minister material concerning financial and emotional impact detention would have on him and his family and its impact on the preparation by applicant of pending special leave application - Alleged failure by Minister to take into account these matters - Whether Minister's decision protected by s 474 of the Migration Act 1958 (Cth) ("the Act"). Immigration - Refusal by Minister of application for parent visa on "character grounds" under s 501 of the Act - Minister "taken to have decided to cancel" bridging visa held by applicant by force of s 501F(3) of the Act - Applicant thereby became an "unlawful non-citizen" subject to immigration detention - Application under s 75(v) of the Constitution - Whether operation of s 474 of the Act attracted - No attack on validity of s 474 - Application of reasoning in R v Hickman; Ex parte Fox and Clinton (1945) [1945] HCA 53; 70 CLR 598 and R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 to construction of s 474 - Whether distinct procedural fairness requirement attached to cancellation of bridging visa under s 501F(3) of the Act. Constitution, s 75(v). Migration Act 1958 (Cth), ss 189, 196, 474, 501, 501F(3).

Negligence - Duty of care - Psychiatric injury - Motor accident - Clerical error by police constable in recording driver's blood alcohol content - Psychotic depressive illness caused by driver learning of mistake - Whether duty of care owed by police constable to driver - Whether psychiatric injury reasonably foreseeable - Whether sole determinant of duty - Other control mechanisms for imposition of duty - Normal fortitude - Sudden shock - Direct perception - Immediate aftermath. Annetts v Australian Stations Pty Limited Negligence - Duty of care - Psychiatric injury - Death of child - Assurances of constant supervision of child made by employer to parents - Whether duty of care owed by employer of child to parents - Whether psychiatric injury reasonably foreseeable - Whether sole determinant of duty - Other control mechanisms for imposition of duty - Normal fortitude - Sudden shock - Direct perception - Immediate aftermath.

Family law - Children - Parenting orders - Residence orders - Contact orders - Place of residence of child when one parent wishes to relocate to another country - Proposals of parents about residence of child of marriage and contact with child - Wife's wish to return to country of origin - Wife applies for permission to leave Australia with child - Whether wife should be permitted to remove child from Australia - Wife acknowledged that she would remain in Australia if her return to her place of origin would result in order for child to reside with father - Best interests of child paramount consideration. Family Court - Practice and Procedure - Children - Parenting orders - Residence orders - Contact orders - Proposals of parents - Whether powers or discretion of Court confined by proposals of parents. Family Law Act 1975 (Cth), s 65E. GLEESON CJ. I agree that the appeal should be dismissed for the reasons given by Gummow and Callinan JJ. I also agree with the observations of Hayne

Administrative law - Procedural fairness - Minister of Crown - Apprehension of bias - Ministerial decision pursuant to Statute - Content of duty of procedural fairness in administrative decision-making - Pecuniary interest of an officer in Minister's Department - Whether apprehension of bias on account of pecuniary interest - Whether fact that final decision made by Minister personally cures appearance of bias in officials - Relevance of Codes of official conduct - Whether certiorari should lie to quash Minister's decision. Mining Act 1978 (WA), s 57.