Cases and authorities

Damages - Wrongful death of spouse - Basis upon which to assess damages to surviving spouse and dependants - Whether discount for prospect of remarriage should be made - Discount for general contingencies. Lord Campbell's Act - Compensation to relatives - Damages - Basis upon which to assess damages for spouse and dependants - Whether discount for prospect of remarriage should be made - Whether such consideration is already included in discount for general contingencies. Precedent - Damages - Whether discount for prospect of remarriage should be made - Whether too speculative - Whether based upon outdated norms - Whether previous expressions of the law regarding such discounts should be reconsidered and re-expressed. Fatal Accidents Act 1959 (WA). Lord Campbell's Act 9 & 10 Vict c 93.

MFA v The Queen Criminal law - Appeal - Indictment containing multiple counts of sexual offences with respect to one complainant - Verdicts of guilty on two counts and acquittals on the remaining counts - Whether verdicts unreasonable - Significance of acquittals when considering unreasonableness of guilty verdicts - Test for determination of unreasonableness of jury's verdict - Significance of disparities in evidence and failure of prosecution to call witness. Criminal law and practice - Court of Criminal Appeal - Whether error shown in Court of Criminal Appeal's reasons - Whether proceedings should be returned to that Court - Whether High Court should perform appellate reconsideration. Word and phrases - "unreasonable, or cannot be supported, having regard to the evidence". Criminal Appeal Act 1912 (NSW), s 6(1).

Negligence - Local authority - Duty of care - Harvesting of contaminated oysters - Oysters causing Hepatitis A infection - Knowledge of risk on part of officers of the authority - Failure by the authority to exercise statutory powers to control water pollution - Reasonableness - Class to whom duty owed when exercising power to control pollution - Causation - Whether minimisation of pollution and thus risk of viral contamination would have prevented infection. Negligence - Oyster grower and distributor - Breach of duty of care - Harvesting of contaminated oysters - Oysters causing Hepatitis A infection - Failure to refrain from harvesting and selling oysters during relevant period. Negligence - The State - Duty of care - Harvesting of contaminated oysters - Oysters causing Hepatitis A infection - Knowledge of risk on part of officers of the State - Failure to exercise general statutory powers - Relevance of State "control" of industry - Reasonableness - Justiciability - Failure to exercise specific statutory power of closure - Whether power enlivened - Class to whom duty owed when exercising power. Practice and procedure - Federal Court of Australia - Representative action - Declaration of legal right concerning individual entitlement to recovery - Whether the making of such a declaration inappropriate or beyond power - Whether statute and nature of representative proceeding sustain a declaratory order.

Dow Jones & Company Inc v Gutnick Torts - Defamation - Publication - Internet - Computer server - Material complained of housed on computer server in United States of America - Uploaded to World Wide Web - Viewable at subscription news site on World Wide Web - Downloaded to computer in Victoria - Whether material complained of was published in Victoria. Torts - Defamation - Publication - Single publication rule. Private international law - Choice of law - Law of the place of the tort (lex loci delicti) - Defamation - Damage to reputation - Where material complained of was published - Material complained of made comprehensible when downloaded in Victoria - Place of plaintiff's reputation - Victorian law governs substantive rights. Private international law - Service out of jurisdiction - Rules of Court - Service permitted without leave of Court - Conditions of service - Action brought in respect of tort committed in Victoria - Action brought in respect of damage suffered in Victoria - Action limited to damage to reputation in Victoria - Service validly effected - Victoria a convenient forum. Words and Phrases - "publication", "single publication rule". Supreme Court (General Civil Procedure) Rules 1996 (Vic), rr 7.01(1)(i), 7.01(1)(j) and 7.05(2)(b). GLEESON CJ, Mc

Defamation - Defences - Qualified privilege - State election - Publication of electoral material - Reciprocity of interest - Proof of malice - Improper motive - Whether intention to cause political damage constitutes an improper motive - Relevance of honest belief in truth of statement - Relevance of reckless indifference to truth or falsity of published material - Relevance of knowledge of falsity of published material - Relationship of common law qualified privilege to extended qualified privilege as identified in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. Constitutional law (Cth) - Implied limitation upon laws restricting freedom of expression concerning governmental and political matters - Whether constitutional question arises having regard to issues before the State trial and appellate courts - Whether constitutional implication may be disregarded - Whether general common law relating to the occasion of qualified privilege is compatible with the Constitution - Whether general common law relating to malice is compatible with the Constitution - Whether common law needs to be developed to ensure compatibility - Ingredients of malice in the circumstances of the case - Whether malice established in communications published in a State electoral campaign. Words and phrases - "malice".

Aboriginals - Native title to land - Determination of native title - Native title rights and interests in s 223(1) Native Title Act 1993 (Cth) - Possessed under traditional laws acknowledged and traditional customs observed in s 223(1)(a). Aboriginals - Native title to land - Determination of native title - Consequences of sovereignty - Whether traditional laws and customs observed must originate in pre-sovereignty laws and customs - Effect of development of, or changes in, traditional laws and customs since sovereignty - Whether proof of continuous acknowledgment and observance of traditional laws and customs required - Effect of interruption to continuous acknowledgment and observance of traditional laws and customs - Whether substantially uninterrupted acknowledgment and observance is sufficient - Whether traditional law and customs need only be presently acknowledged and observed - Whether continuous existence of claimant society required - Effect of cessation of claimant society on acknowledgment and observance of traditional laws and customs. Aboriginals - Native title to land - Native title rights and interests - Section 223(1)(c) Native Title Act 1993 (Cth) - Meaning of rights and interests recognised by the common law of Australia - Whether there are common law requirements of native title. Aboriginals - Native title to land - Extinguishment of native title - Whether s 223 Native Title Act 1993 (Cth) incorporates notions of extinguishment of native title - Whether concepts of "abandonment" or "expiration" of native title can be applied. Aboriginals - Native title to land - Evidence - Proof - Oral and written testimony. Words and phrases - Traditional laws and customs - Traditional - Determination of native title - Native title rights and interests - Rights and interests recognised by the common law of Australia. Native Title Act 1993 (Cth), ss 223, 225.

Aktiebolaget Hässle v Alphapharm Pty Limited Patents - Revocation - Obviousness or lack of inventive step - Patent for an oral pharmaceutical preparation - Whether invention obvious and did not involve an inventive step having regard to what was known or used in Australia on or before priority date - Combination of integers - Preparation arrived at by group of pharmaceutical chemists after period of experimental research - Whether hypothetical non-inventive worker in the field would have been led directly as a matter of course to pursue one avenue in expectation that it might well produce claimed invention - Relevance of publications discoverable by "routine literature search" but not found to have been part of the common general knowledge in Australia at the priority date - Whether invention obvious if it was apparent to a non-inventive skilled worker that it would be "worthwhile to try" each of the integers that was ultimately successfully used - Relevance of attempts to replicate the process of invention by a skilled person aware of the desired result - Whether attempts futile. Appeal - Whether decision of primary judge in respect of obviousness affected by legal error - Where conclusions of primary judge affirmed by Full Court of the Federal Court. Patents Act 1952 (Cth), s 100(1)(e).

of Australia Statutes - Construction - Privative clauses - Whether the decision by the Refugee Review Tribunal affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing the plaintiff's application for a protection visa is a "privative clause decision" within s 474 of the Migration Act 1958 (Cth) ("the Act") - Whether s 474(1) of the Act is construed as ousting judicial review by the High Court. Constitutional Law (Cth) - Whether s 474 and s 486A of the Act are invalid - Whether s 474(1)(c) of the Act is directly inconsistent with s 75 of the Constitution - Whether s 474(1)(a) and (b) of the Act are inseparable from s 474(1)(c) of the Act and are consequently invalid - Whether s 486A of the Act will apply to a "decision" when there has been jurisdictional error - Whether s 486A of the Act is a law incidental to the legislative power conferred by ss 51(xix), (xxvii), (xxix) of the Constitution - Whether s 486A of the Act is within the express incidental power conferred by s 51 (xxxix) of the Constitution - Whether s 486A of the Act is inconsistent with s 75(v) of the Constitution. Immigration - Refugee Review Tribunal - Whether decision affirming the decision of a delegate of the Minister refusing application for a protection visa is a "privative clause decision" within s 474 of the Act - Whether s 474(1) of the Act ousts judicial review by the High Court pursuant to s 75 of the Constitution - Whether s 486A of the Act is constitutionally valid. Words and Phrases: "privative clause decision". Constitution, ss 51 (xix), (xxvii), (xxix), (xxxix), 75, 76. Migration Act 1958 (Cth), ss 5(1), 36, 474, 486A. Judiciary Act 1903 (Cth), ss 39B, 44.

Austin & Anor v Commonwealth Constitutional law - Legislative power of Commonwealth - Implied limitation - Interference with governmental functions of States - Superannuation - Taxation - Statute - Validity - Whether liability of State judicial officers to pay Commonwealth superannuation contributions surcharge valid. Constitutional Law - Taxation - Commonwealth legislation imposing superannuation contributions surcharge - Whether criteria for liability so incapable of ascertainment or lacking in general application as to deny legislation quality of law with respect to taxation. Constitutional Law - Taxation - Section 55 of the Constitution - Whether legislation deals with more than one subject of taxation. Constitutional Law - Legislative power of Commonwealth - Federal law requires State Government Actuary to supply information and perform calculations for the purpose of imposition of federal tax upon State employees and officeholders - Whether obligation amounts to conscription of State officers and institutions - Whether impermissible federal intrusion upon the employment authority of the State - Whether, if impermissible, provisions severable from law imposing federal tax. Superannuation - Taxation - Superannuation contributions surcharge - Legislation - Construction - Whether State judge liable to pay - Whether State judge a member of a constitutionally protected fund - Whether State judge has a surchargeable contribution - Whether State judge a defined benefit member - Whether State judge has an accrued benefit. Court and Judges - Statutes - Interpretation - Whether Master of Victorian Supreme Court a judge of that Court. Words and phrases: "discrimination", "discriminate between", "subject of taxation", "surcharge", "surchargeable contributions", "constitutionally protected superannuation fund", "defined benefit member". Commonwealth Constitution, ss 51(ii), 55, 114 Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth) Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Assessment and Collection Act 1997 (Cth) Judges' Pensions Act 1953 (NSW) Constitution Act 1975 (Vic) s 75(2) Supreme Court Act 1986 (Vic)

Negligence - Liability of school authority - Alleged sexual assault on pupil by teacher - Whether school authority in breach of non-delegable duty of care - Concept of non-delegable duty - Whether school authority vicariously liable - Test for imposition of vicarious liability. Practice and procedure - Trial - Negligence - Trial of issues of liability and damage severed - Failure to make necessary findings of fact - Retrial. Words and phrases - "non-delegable duty", "vicarious liability". Samin v Queensland; Rich v Queensland Negligence - Liability of school authority - Sexual assault on pupil by teacher - Whether school authority in breach of non-delegable duty of care - Concept of non-delegable duty - Whether school authority vicariously liable - Test for imposition of vicarious liability. Words and phrases - "non-delegable duty", "vicarious liability".

Boral Besser Masonry Limited (now Boral Masonry Ltd) v Australian Competition and Consumer Commission Trade practices - Restrictive trade practices - Misuse of market power - Predatory pricing - Market definition - Concrete masonry products market - Close substitutability - Whether appellant had substantial degree of market power - Recoupment of losses - Analysis of market structure - Market share - Barriers to entry - Whether barriers to entry created by practices and policies of incumbent firms - Pricing behaviour - Increase in supply capacity - Whether taking advantage of a substantial degree of market power for a proscribed purpose - Legislative purpose of Trade Practices Act 1974 (Cth) - Relevance of market economic conditions - Relevance of purpose of damaging a competitor - Trade Practices Act 1974 (Cth), s 46(1), (3). Words and phrases - "market power", "predatory pricing", "barriers to entry". Trade Practices Act 1974 (Cth), s 46(1), (3).

Immigration - Review - Refugee Review Tribunal - Orders made by Federal Court on application for review - Where Tribunal erred in law in making earlier decision - Power of Court to refer matter to Tribunal constituted by member who made earlier decision - Power of Court to give direction as to constitution of Tribunal - Proper considerations in exercise of such discretion - Whether direction in the interests of justice - Whether necessary to do justice to preserve Tribunal's findings of fact on first review. Immigration - Review - Refugee Review Tribunal - Nature of proceedings before - How Tribunal in second hearing should regard findings of fact made in first hearing. Words and phrases - "necessary to do justice". Migration Act 1958 (Cth), s 481(1)(b), s 481(1)(d).

The Queen v Gee Criminal Law - Jurisdiction - Exercise of federal jurisdiction by state Supreme Courts - Offences against laws of the Commonwealth - Where s 350 of the Criminal Law Consolidation Act 1935 (SA) provides for the Full Court of the Supreme Court of South Australia to hear and determine questions of law reserved by the District Court - Whether s 68(2) of Judiciary Act 1903 (Cth) confers jurisdiction on the Full Court of the Supreme Court to hear and determine a question of law reserved by the District Court under State law during a trial of persons charged with offences against the laws of the Commonwealth. Criminal Law - Prosecution - Commonwealth Director of Public Prosecutions - Powers of - Whether questions of law reserved to the Full Court constituted an appeal for the purposes of s 9(7) of the Director of Public Prosecutions Act 1983 (Cth). Appeal - Whether case stated procedure provided for by s 350 of the Criminal Law Consolidation Act 1935 (SA) constitutes an appeal for the purposes of s 68(2) of the Judiciary Act. Words and phrases: "appeal". Crimes Act 1914 (Cth), ss 5, 29D. Criminal Law Consolidation Act 1935 (SA), s 350. Criminal Law Consolidation (Appeals) Amendment Act 1995 (SA), s 4. Director of Public Prosecutions Act 1983 (Cth), s 9(7). Judiciary Act 1903 (Cth), ss 2, 39(2), 68(2), 69(1), (2), (2A), 72, 73, 74, 75, 76, 77. Judiciary Act 1932 (Cth) Statutes Amendment (Attorney-General's Portfolio) Act 1996 (SA), s 9.

The Queen v Soma Criminal law - Evidence - Admissibility - Prior inconsistent statement of accused - Whether prosecution can adduce evidence of prior inconsistent statement in cross-examination of accused - Whether sound recording of applicant's interview wrongly admitted into evidence. Criminal law - Evidence - Complaints - Failure to object to cross-examination - Whether trial judge required to rule where failure to object. Criminal law - Procedure - Prosecution case closed - Whether tender of prior inconsistent statement of accused evidence in rebuttal - Prosecution not permitted to split its case. Evidence - Criminal trial - Prior inconsistent statement of accused - Whether sound recording wrongly admitted into evidence in rebuttal of prosecution case - Whether tender of sound recording impermissible attempt to split prosecution case - Complaints - Failure to object to cross-examination - Whether trial judge required to rule despite failure to object. Evidence Act 1977 (Q), ss 18, 101, 130.

Weininger v The Queen Criminal law - Sentencing - Absence of prior conviction - Requirement to take into account "character and antecedents" in s 16A(2)(m) Crimes Act 1914 (Cth) - Whether absence of prior conviction gave rise to inference of lack of prior criminal conduct - Neither negative nor positive inference drawn - Absence of prior conviction did not demonstrate absence of prior criminal conduct - Whether absence of prior conviction relevant to sentencing apart from significance as to past character. Criminal law - Sentencing - Relevance of uncharged criminal acts - Whether sentencing judge entitled to take such acts into account in determining sentence - Whether acts relevant to prisoner's entitlement to leniency otherwise on the ground that he was a first offender - Whether relevant to consideration of the prisoner's character - Whether in context of very heavy sentence such consideration indicated error of sentencing principle. Words and Phrases - "character and antecedents". Crimes Act 1914 (Cth), ss 16A(2), 16A(2)(m). GLEESON CJ, Mc

Trade practices - Unconscionable conduct - Trade Practices Act 1974 (Cth), s 51AA(1) - Where conduct was in a commercial context - Condition for renewal of lease - Required by lessor - Lessees to abandon legal claims against lessor - Whether conduct of lessor unconscionable. Equity - Unconscionable conduct - Where conduct was in a commercial context - Condition for renewal of lease - Required by lessor - Lessees to abandon legal claims against lessor - Whether unconscientious exploitation of special disadvantage of another - Relevance of inequality of bargaining power to finding of special disadvantage. Words and phrases - "unconscionable within the meaning of the unwritten law", "special disadvantage". Trade Practices Act 1974 (Cth), s 51AA(1).

Fittock v The Queen Constitutional law (Cth) - Indictable offence - Trial by jury - Whether law enacted by the Legislative Assembly of the Northern Territory a "law of the Commonwealth" - Whether s 80 of the Constitution applies to trials on indictment in the Supreme Court of the Northern Territory for offences against a law of the Commonwealth - Whether Territory law permitting reserve jurors, who are discharged prior to commencement of jury deliberations, is inconsistent with s 80 of the Constitution. Constitution, s 80. Criminal Code (NT), ss 162, 165, 348. Judiciary Act 1903 (Cth), s 70A. Juries Act 1962 (NT), ss 6, 37, 37A. Northern Territory (Self-Government) Act 1978 (Cth), Pt III, Div 1.

Ng v The Queen Constitutional law (Cth) - Law of the Commonwealth - Indictable offence - Trial by jury - Whether State law requiring, by ballot, a reduction in the number of jurors from 15 to 12 prior to commencement of jury deliberations contravenes s 80 of the Constitution - Whether State law exempting foreperson from removal from jury by ballot contravenes s 80 of the Constitution. Constitution, s 80. Judiciary Act 1903 (Cth), s 68. Juries Act 1967 (Vic), ss 14, 14A, 48

Extradition - Request for surrender of alleged fugitive offender from foreign state - Where extradition treaty exists with foreign state - Whether offences referred to in request were offences listed in extradition treaty - Whether request lawful. Constitutional law (Cth) - Executive power - Power to request surrender of alleged fugitive offender from foreign state - Whether power abrogated by statute - Whether limitations, conditions, exceptions or qualifications imposed upon power to request surrender - Whether power may only be exercised in relation to extraditable offences as listed in extradition treaty with foreign state - Extradition Act 1988 (Cth), ss 3, 11, 40. Statutory interpretation - Executive power - Power to request surrender of alleged fugitive offender from foreign state - Whether power abrogated by statute - Whether statute abrogates power by express words or necessary implication - Extradition Act 1988 (Cth), ss 3, 11, 40. Extradition Act 1988 (Cth), ss 3, 11, 40. Extradition (Foreign States) Act 1966 (Cth), ss 9, 21. Poland (Extradition: Commonwealth of Australia and New Zealand) Order in Council 1934 (UK). Extradition Act 1870 (UK), s 2. Extradition Acts 1870-1935 (UK). GLEESON CJ, Mc

Toll (FGCT) Pty Limited v Alphapharm Pty Limited Contract - Construction and interpretation - Terms - Officer of a corporation authorised to contract on corporation's behalf - Contractual document signed by officer contained onerous terms - Officer failed to read document - Conclusiveness of act of signature or execution - Whether notice of onerous terms or exclusions required. Principal and agent - Contract - Authority - Whether agent authorised to contract on terms that include exclusions of liability of other contracting party.

Income taxation - Assessment - Objection and appeal - Review process established by Pt IVC, Taxation Administration Act 1953 (Cth) - Whether covering cl 5 of the Constitution empowers appellant to seek collateral relief pursuant to s 75(v) of the Constitution in respect of an assessment by the Commissioner of Taxation - Whether existence of avenue of appeal to High Court is relevant to the exercise of discretion in granting relief pursuant to s 75(v) of the Constitution. Income taxation - Assessable income - Taxation Determination - Whether alleged failure by Commissioner of Taxation to bring relevant Taxation Determination to the attention of the appellant and the Administrative Appeals Tribunal ("AAT") amounts to "equitable fraud" - Whether Commissioner's conduct, in alleged contravention of s 14ZZF(1)(a)(v) of the Taxation Administration Act 1953 (Cth), gives rise to jurisdictional error by AAT. Practice and procedure - Federal jurisdiction - s 78B, Judiciary Act 1903 (Cth) - Whether compliance with s 78B(1) is a necessary condition for the further exercise of jurisdiction by the court in question. Constitution, s 75(v). Judiciary Act 1903 (Cth), s 78B. Taxation Administration Act 1953 (Cth), Pt

Practice and procedure - High Court of Australia - Decision of single Justice - Application for leave to appeal discontinued - Whether collateral relief available pursuant to s 75(v) of the Constitution. Constitution, s 75(v). Judiciary Act 1903 (Cth), s 34.

Torts - Negligence - Psychiatric injury - Employee killed in workplace accident - Whether employer owed duty of care to children of deceased employee - Whether reasonable care required to guard against the risk of psychiatric injury - Whether duty existed at common law - Whether the existence of duty was negated by s 4(1)(b) of Law Reform (Miscellaneous Provisions) Act 1944 (NSW). Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 4(1)(b). Workers Compensation Act 1987 (NSW), s 151

Wentworth Shire Council v Berryman Negligence - Contributory negligence - Passenger in defective vehicle with intoxicated and inexperienced driver - Whether reasonable person would have foreseen a risk of serious injury - Facts and circumstances relevant to contributory negligence. Negligence - Contributory negligence - Motor Accidents Act 1988 (NSW), s 74(2) - Whether passenger was "aware or ought to have been aware" that driver's ability was affected by alcohol - Objective or subjective test - Facts and circumstances to be taken into account. Negligence - Contributory negligence - Motor Accidents Act 1988 (NSW), s 74(6) - Whether passenger a "voluntary passenger". Appeal - Contributory negligence - Application of apportionment legislation - Factual considerations - Utility of earlier judicial decisions - Whether relevant to disclose common approaches at trial and on appeal - Whether relevant to disclose purpose of statutory amendments obliging finding of contributory negligence in specified circumstances. Words and phrases - "aware or ought to have been aware", "just and equitable in the circumstances of the case", "responsibility for the damage", "voluntary passenger". Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10. Motor Accidents Act 1988 (NSW), s 74. Mc

NEAT Domestic Trading Pty Limited v AWB Limited Administrative law - Judicial review - Statutory scheme regulating export of wheat - Consent of statutory authority required for export - Authority precluded from giving consent without approval of nominated company incorporated under Corporations Law - Whether company's withholding of approval was decision of an administrative character made under an enactment - Whether in withholding approval nominated company exercised discretionary power in accordance with a rule or policy without regard to merits of particular case. Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3(1), 5(2)(f), 6(2)(f). Trade Practices Act 1974 (Cth), s 51(1). Wheat Marketing Act 1989 (Cth), ss 57(1), (1A), (3A), (3B), (6), (7).

Bankruptcy - Avoidance of settlement of property - Roll-over of superannuation entitlements - Superannuation entitlements applied in payment of contributions to other superannuation schemes - Whether settlements of property - Whether trustees were purchasers - Whether trustees purchasers for valuable consideration - Bankruptcy Act 1966 (Cth), s 120(1). Words and phrases: "purchaser", "valuable consideration", "settlement of property". Bankruptcy Act 1966 (Cth), ss 120(1), (8).

Parliamentary elections (Cth) - Senate - New South Wales half Senate election - Whether date fixed for close of nominations in writ for election issued by Governor of New South Wales complied with s 156(1) of the Commonwealth Electoral Act 1918 (Cth) and s 4A(1) of the Senators' Elections Act 1903 (NSW) - Relationship between Commonwealth Electoral Act 1918 (Cth) and Senators' Elections Act 1903 (NSW) - Nature of relief by way of quo warranto - Whether proclamation by Governor-General proroguing Parliament may validly take effect prior to its publication in the Commonwealth of Australia Gazette.

Negligence - Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether damages recoverable for past and future costs of raising and maintaining child until the age of 18 years - Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child. Public policy - Family relationships - Negligent advice following sterilisation procedure - Birth of child - Damages - Whether birth of child is a legal harm for which damages may be recovered - Whether departure is required from ordinary tortious rules as to causation and economic loss. Damages - Negligence - Medical negligence - Negligent advice following sterilisation procedure - Birth of child - Whether recovery limited to damages for pain, suffering, inconvenience and costs of pregnancy and childbirth - Whether additional damages recoverable for past and future costs of raising and maintaining child until the age of 18 years - Whether absence of physical injury to father of child indicates that damage amounts to pure economic loss - Whether unplanned pregnancy constitutes injury to mother - Applicable rules governing recovery in such a case - Whether award of damages should be reduced through reference to benefits and pleasures derived, or to be derived, from child - Whether recovery limited to cases involving extra costs caused by disability of parent or child.

Insurance - Contracts - Insurance cover against liability to third parties arising from use of marine pleasure craft for commercial paraflying - Where paraflying to be conducted in estuarine waters - Whether policy a contract to which Marine Insurance Act 1909 (Cth) applied - Whether policy a contract of marine insurance. Words and phrases - "contract of marine insurance", "incident to marine adventure", "maritime perils", "sea", "ship". Insurance Contracts Act 1984 (Cth), s 9(1)(d). Marine Insurance Act 1909 (Cth), ss 7, 8, 9. Marine Insurance Act 1906 (UK). Merchant Shipping Act 1894 (Imp).

Re The Maritime Union of Australia & Ors; Ex parte CSL Pacific Shipping Inc Constitutional Law (Cth) - Powers of the Parliament - Trade and commerce with other countries and among the States - Industrial relations - Application for variation of an award - Whether s 5(3), Workplace Relations Act 1996 (Cth) ("WRA") validly extends to employers not present in Australia - Whether s 5(3), WRA validly extends to foreign non-resident seafarers engaged outside Australia. Industrial Law (Cth) - Application for variation of an award - Whether Australian Industrial Relations Commission had jurisdiction pursuant to s 5(3), WRA - Whether Pt VI, Navigation Act 1912 (Cth) impliedly repealed s 5(3), WRA - Whether s 5(3), WRA validly extends to employers not present in Australia - Whether s 5(3), WRA validly extends to foreign non-resident seafarers engaged outside Australia - Whether construction of s 5(3) to be limited through reference to rules of customary international law regarding "innocent passage" and "internal economy" of ships - Whether prosecutor validly served pursuant to Australian Industrial Relations Commission Rules 1998. Constitution (Cth), s 51(i). Acts Interpretation Act 1901 (Cth), s 21(1)(b). Navigation Act 1912 (Cth), Pt VI. Workplace Relations Act 1996 (Cth), ss 5, 111(1)(g), 113. GLEESON CJ, Mc

AMACA Pty Limited (Formerly known as James Hardie & Coy Pty Limited) v The State of New South Wales & Anor Tort - Joint tortfeasors - Contribution - Contribution claimed from third party not found or admitted to be liable to injured plaintiff - Whether claim could be dismissed without first deciding whether third party would if sued have been liable to plaintiff. Tort - Joint tortfeasors - Contribution - Exemption from liability to contribution - Circumstances in which exemption may be granted. Appeal and New Trial - Appeal to Court of Appeal of New South Wales - Appeal if error in point of law - Court of Appeal to consider whether appeal to that Court should be dismissed on ground that third party owed injured plaintiff no duty of care. Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1), (2). Dust Diseases Tribunal Act 1989 (NSW), s 32. Mc

News Limited v South Sydney District Rugby League Football Club Limited Trade practices - Exclusionary provisions - Merger of competing sporting competitions - Provision that no more than a certain number of teams participate in new competition - Whether provision included for purpose of preventing, restricting or limiting supply of goods or services to, or acquisition of goods or services from, particular persons or classes of persons - Test for determining purpose - Trade Practices Act 1974 (Cth), ss 4D, 45(2)(a)(i), 45(2)(b)(i). Practice and procedure - Interveners - Whether intervener may advance on appeal argument not adopted by parties to appeal. Words and phrases - "purpose", "particular persons or classes of persons", "preventing, restricting or limiting". Trade Practices Act 1974 (Cth), ss 4D, 4F, 45(2)(a)(i), 45(2)(b)(i).

Practice and procedure - High Court - Expedition of hearing of application for special leave - Bail - Applications by prisoner in custody - Relevance of applications, if successful, to custodial punishment - Preservation of utility of appellate jurisdiction - Whether applicant has exhausted application for bail in State court - Whether bail available in State court when exercising federal jurisdiction - Need for special circumstances - Relevance of fact that special leave not yet secured - Consolidation of applications - Addition of ground of application for special leave. High Court - Practice - Special leave application - Expedition of hearing - Bail - Consolidation of applications - Addition of ground of application. Words and phrases - "supply". Constitution, s 73.

Defamation - Appeal - Where jury found that matter did not convey any of the imputations pleaded - Whether jury's findings on particular imputations were ones which no reasonable jury properly instructed could reach - Scope of new trial where some only of the jury's findings were unreasonable. Practice and procedure - Order of addresses - Where plaintiff addressed jury first and defendant followed - Where trial judge refused plaintiff leave to address in reply - Whether trial judge erred in exercise of discretion - Whether order of addresses governed by rules of court or inherent jurisdiction of court. Appeal - Defamation - Whether jury's findings on alleged imputations were ones which no reasonable jury properly instructed could reach - Relevance of brevity of jury's retirement and universally unfavourable answers to alleged imputations. Defamation Act 1974 (NSW), s 7A. Supreme Court Act 1970 (NSW), s 102.

Dovuro Pty Limited v Wilkins Negligence - Breach of duty - Canola seeds imported from New Zealand - Imported seed also contained weed seeds - Whether reasonably foreseeable that weeds would be declared prohibited plants by Western Australian Government with consequent financial loss to purchasers. Practice and procedure - Federal Court - Proceedings under Federal Court of Australia Act 1976 (Cth), Pt IVA - Powers of Court to make "declarations of liability" - Interlocutory declaration of liability - Whether available and should have been made. Evidence - Admissions - Civil proceedings for damages for negligence - Distinction between admission and apology - Availability of admission by party of mixed law and fact. Appeal - Concession made at trial - Whether issue can be argued for first time on appeal. Words and phrases - "declarations of liability". Customs Act 1901 (Cth). Quarantine Act 1908 (Cth). Federal Court of Australia Act 1976 (Cth), Pt IVA. Agriculture and Related Resources Protection Act 1976 (WA). Quarantine (Plants) Regulations 1935 (Cth). Customs (Prohibited Imports) Regulations 1956 (Cth).

Rogers v Nationwide News Pty Limited Defamation - Defences - Fair protected report of court proceedings - Later publication of protected report or fair extract - Whether court officer making available reasons for judgment publishes a protected report of court's proceedings - Whether court or court officer a "person" - Whether newspaper article was a later publication of a fair extract, fair abstract or fair summary of a protected report - Whether publisher had knowledge which should make him or her aware that publication not fair - Corporate knowledge of publisher - Defamation Act 1974 (NSW), ss 24(3), 24(4). Defamation - Defences - Qualified privilege - Reasonableness of conduct of publisher - Defamation Act 1974 (NSW), s 22. Defamation - Damages - Comparison with other awards of damages for defamation - Comparison with awards of damages for personal injuries - Defamation Act 1974 (NSW), s 46A(2). Words and phrases - "protected report", "fair extract or fair abstract from, or fair summary", "manifestly excessive". Defamation Act 1974 (NSW), ss 22, 24(3), 24(4), 46A(2).

(Q) Hanson v Director of Public Prosecutions (Q) Criminal Law - application for bail pending the hearing of an application for special leave to appeal against a refusal of bail by an intermediate appellate court and before even the substantive appeal against conviction has been heard by the intermediate court of appeal - whether exceptional or special circumstances shown.

Gillard v The Queen Criminal law - Murder - Joint criminal enterprise - 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 failure to leave manslaughter to jury occasioned substantial miscarriage of justice. Criminal Law Consolidation Act 1935 (SA), s 353(1).

Paliflex Pty Limited v Chief Commissioner of State Revenue Constitutional law (Cth) - Exclusive powers of Commonwealth Parliament - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW). Taxation - Land tax - Place acquired by Commonwealth for public purposes - Subsequent State laws - Whether State laws applied to place on enactment - Whether State laws valid on enactment - Subsequent disposition of place by Commonwealth - Whether State laws applied to place after disposition - Whether State laws valid in application to place after disposition - Whether imposition of land tax under State laws in respect of place enforceable - Constitution, s 52(i) - Land Tax Act 1956 (NSW) - Land Tax Management Act 1956 (NSW). Constitution, s 52(i). Commonwealth Places (Administration of Laws) Act 1970 (NSW). Commonwealth Places (Mirror Taxes) Act 1998 (Cth). Commonwealth Places (Mirror Taxes Administration) Act 1998 (NSW). Land Tax Act 1956 (NSW). Land Tax Management Act 1956 (NSW). State Revenue Legislation Amendment Act 1997 (NSW). GLEESON CJ, Mc

South Sydney City Council v Paliflex Pty Limited Constitutional law (Cth) - Exclusive powers of Commonwealth Parliament - Place acquired by Commonwealth for public purposes - Subsequent State law - Whether State law applied to place on enactment - Whether State law valid on enactment - Subsequent disposition of place by Commonwealth - Whether State law applied to place after disposition - Whether State law valid in application to place after disposition - Whether imposition of local government rates and charges under State law in respect of place enforceable - Constitution, s 52(i) - Local Government Act 1993 (NSW). Local government - Council - Rates and charges - Place acquired by Commonwealth for public purposes - Subsequent State law - Whether State law applied to place on enactment - Whether State law valid on enactment - Subsequent disposition of place by Commonwealth - Whether State law applied to place after disposition - Whether State law valid in application to place after disposition - Whether imposition of rates and charges under State laws in respect of place enforceable - Constitution, s 52(i) - Local Government Act 1993 (NSW). Constitution, s 52(i). Local Government Act 1993 (NSW). GLEESON CJ, Mc

Constitutional law (WA) - State Parliament - Powers - Manner and form provisions - Electoral Distribution Act 1947 (WA), s 13. Parliament - Parliament of a State - Constitutional law (State) - Justiciability - Whether questions arising out of parliamentary consideration of Bills in the Chambers of a State Parliament appropriate for review by courts and judicial determination. Statutes - Construction - Electoral Distribution Act 1947 (WA), s 13 - Any Bill to "amend" that Act to be passed by a special majority - Whether s 13 applied to either the Electoral Distribution Repeal Bill 2001 (WA) or the Electoral Amendment Bill 2001 (WA) or both - Whether either of those Bills was a Bill to "amend" the Electoral Distribution Act 1947 - Meaning of "amend" - Significance of distinction between "amend" and "repeal". Statutes - Construction - Whether terms of statute ambiguous - Where different interpretations in contention - Applicable interpretative principles to resolve ambiguity - Whether construction favouring the grant of legislative power and protection of civil and human rights available and applicable. Statutes - Manner and form provisions - Power of a State parliament to bind its successors - Whether s 6 of the Australia Act 1986 (Cth) applied so as to require compliance with s 13 of the Electoral Distribution Act 1947 - Whether the two Bills affected "the constitution, powers or procedure" of the Western Australian Parliament. Constitution (Cth) - Provisions concerning Constitution of a State and Parliament of a State - Manner and form provisions - Whether provisions of State law "entrenched" - Effect of Colonial Laws Validity Act 1865 (UK), s 5 - Effect of Australia Acts (Cth and UK), s 6 - Effect of Constitution, ss 51(xxxviii), 106 and 107. Statutes - Construction - Implied repeal - Whether the Acts Amendment (Constitution) Act 1978 (WA) impliedly repealed s 13 of the Electoral Distribution Act 1947 . Parliament - Practice and procedure - Prorogation - Effect of prorogation on Bills passed by both Houses of Parliament but yet to receive Royal Assent. Practice and procedure - Costs - Amicus curiae - Whether order for costs in favour of amici curiae as necessary contradictor in proceedings should be made. Words and phrases - "amend", "repeal", "constitution, powers or procedure of the Parliament". The Constitution, ss 51(xxxviii), 106, 107 and 128. Australia Act 1986 (Cth), s 6. Australia (Request and Consent) Act 1985 (Cth). Australia Acts (Request) Act 1985 (WA). Constitution Act 1889 (WA). Constitution Acts Amendment Act 1899 (WA). Electoral Distribution Act 1947 (WA), s 13. Acts Amendment (Constitution) Act 1978 (WA), s 4. Colonial Laws Validity Act 1865 (UK), s 5. Australia Act 1986 (UK), s 6.

A Solicitor v The Council of the Law Society of New South Wales Legal practitioners - Solicitors - Jurisdiction of the Supreme Court with respect to the discipline of legal practitioners - Declaration of professional misconduct in circumstances where person convicted of sexual offences - Declaration of professional misconduct in circumstances where person failed to disclose fact of conviction of offence but where conviction ultimately set aside on appeal - Duty of candour to professional association - Distinction between professional misconduct and purely personal misconduct - Removal from Roll of Practitioners on basis that person not a fit and proper person to be a legal practitioner - Relevance of rehabilitation and character - Relevance of findings of professional misconduct to question of whether fit and proper person. Words and phrases - "inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners", "professional misconduct", "fit and proper person to be a legal practitioner". Legal Profession Act 1987 (NSW), ss 127, 171M. GLEESON CJ, Mc

Re Minister for Immigration and Multicultural Affairs & Anor; Ex Parte SE Immigration - Refugee - Protection visa - Refugee Review Tribunal affirmed decision to deny protection visa - Whether decision of Refugee Review Tribunal unreasonable - Whether failure to take relevant considerations into account - Whether Refugee Review Tribunal followed statutory procedure - Whether proposed removal unlawful. Administrative Law - Application for prerogative relief - Application for interlocutory injunction restraining removal. Migration Act 1958 (Cth) - ss 48B, 198(6), 417, 420(2)(b).

& Anor Parliament (NSW) - Legislative Council - Powers - Non-compliance by member of Legislative Council with order for production - Suspension of member for remainder of sitting day - Whether such suspension within power. Parliament (NSW) - Legislative Council - Functions - Superintendence of executive government. Parliament (NSW) - Responsible government - Source - Nature. Justiciability - Powers of Legislative Council - Existence - Occasion for exercise - Manner of exercise. Relief - Declaration - No other remedy sought - Availability - Discretionary considerations. Constitution Act 1902 (NSW), s 5. Standing Rules and Orders of the Legislative Council (NSW), Standing Orders 18, 29.

Donald Gray v Motor Accident Commission (formerly State Government Insurance Commission) Damages - Personal injuries - Exemplary damages - Whether trial judge precluded from awarding exemplary damages where tortfeasor already punished in criminal proceedings. Damages - Personal injuries - Exemplary damages - Where tortfeasor insured under a scheme of compulsory insurance. Damages - Personal injuries - Economic loss. Words and Phrases - "substantial punishment". GLEESON CJ, Mc

Michael Marks & Ors v GIO Australia Holdings Limited & Ors Trade Practices - Misleading or deceptive conduct - Damages - Measure of damages - Whether analogous with damages in tort or contract - Distinction between "expectation" and "reliance" loss - Whether loss or damage suffered or likely to be suffered - Whether damage caused "by conduct of" defendant. Words and Phrases - "loss or damage", "injury", "likely to suffer". Trade Practices Act 1974 (Cth) - ss 4K, 52, 82, 87.

Mark Fleming v The Queen Criminal law - Appeal - Trial by judge sitting alone - Failure by judge to include in reasons for judgment a warning required to be given to jury - Whether failure demonstrates a breach of Criminal Procedure Act 1986 (NSW), s 33(3) - Whether failure amounted to a wrong decision on a question of law - Whether, despite failure, no substantial miscarriage of justice occurred. Criminal law - Appeal under Criminal Appeal Act 1912 (NSW), s 6 - Nature of appeal - Relevance of phrase "unsafe and unsatisfactory". Criminal Appeal Act 1912 (NSW), ss 5, 6. Criminal Procedure Act 1986 (NSW), Pt 9 (ss 30-33). GLEESON CJ, Mc

Desley Fay Bridgewater & Ors v Kevin Leahy & Ors Equity - Unconscionable conduct - Inter vivos dispositions of land - Deed of forgiveness of debt - Overall improvident transaction - Existence of special disadvantage - Emotional dependence - Unconscionable retention of benefit. Equity - Unconscionable conduct - Comparison with undue influence - Relevance of independent advice. Equity - Undue influence - Comparison with undue influence in probate jurisdiction - Relevance of capacity. Equity - Relief - Practical justice - Principle that those who seek equity must do equity - Setting aside of deed of forgiveness of debt - Allowance as condition of setting aside deed - Vendor's lien.

Great China Metal Industries Co Limited v Malaysian International Shipping Corporation Berhad Shipping - Sea carriage of goods - Bill of lading - Hague Rules - Damage to cargo - Cargo properly stowed - Vessel seaworthy and fit in all respects for voyage - Bad weather conditions foreseeable - Perils of the sea - MV Bunga Seroja. Words and phrases - "perils of the sea". Sea-Carriage of Goods Act 1924 (Cth), Sch, Art III rr 1 and 2, Art IV rr 1 and 2(a), (c).

Tort - Inducement of breach of contract - Whether appellant intended to procure breach or caused breach of contract - Uncommunicated subjective desire that contract would be breached not sufficient to establish tort. Tort - Interference with economic interests by unlawful means - Not necessary to decide whether this tort recognised in Australia - Failure to accord procedural fairness does not constitute "unlawful means". Tort - Misfeasance in public office - Appellant directed statutory body to terminate respondent's employment contract - Whether appellant was required to accord procedural fairness to respondent before issuing direction - Whether appellant knew or was reckless to the possibility that direction was beyond power.