Cases and authorities

Environmental law - Marine pollution - Discharge of oil from ship - Exception where discharge in consequence of damage other than intentional damage. Statutes - Construction - Damage - Damage to the ship or its equipment - Wear and tear. Words and phrases - "damage". Marine Pollution Act 1987 (NSW), ss 7, 8, 8(2)(b). International Convention for the Prevention of Pollution from Ships 1973, Annex 1, reg 11. GLEESON CJ, Mc

Dyers v The Queen Criminal law and procedure - Appeal against conviction - Indecent assault of minor - Whether trial judge erred in directions to jury - Failure of defendant to call witnesses - Delay in making complaint - Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 considered - Unreasonable verdict - Unsworn statement by defendant - Order for new trial. Evidence - Inferences - Criminal trial - Whether inferences open from failure to call witnesses - Application of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 to criminal trials.

TKWJ v The Queen Criminal law - Conviction - Aggravated indecent assault - Aggravated indecency - Matters connected with conduct of defence - Failure of defence counsel to call character evidence - No application for voir dire - Whether tactical decision of defence counsel not to call character evidence constituted a miscarriage of justice where that evidence may have been excluded - Chance of acquittal "fairly open" not lost. Criminal law - Appeal - Practice and procedure - "On any other ground whatsoever" - Allegation defendant not competently or adequately represented - Tactical decision at trial - Whether forensic advantage - Informed and deliberate decision - No miscarriage of justice. Criminal law - Appeal - Circumstances in which conduct of legal practitioners can provide grounds for appeal - Relevant principles. Criminal law - Jurisdiction - Trial judge - "Advance ruling" - Whether required by Evidence Act 1995 (NSW) - Whether within implied powers of District Court - Power to conduct voir dire to make "advance ruling". Words and Phrases - "fairly open", "on any other ground whatsoever", "advance ruling". Criminal Appeal Act 1912 (NSW), s 6(1). Evidence Act 1995 (NSW), ss 55, 110, 135, 136, 137, 189, 192. Crimes Act 1900 (NSW), ss 61M(1), 61O(1). District Court Rules 1973 (NSW), Pt 53 rr 10, 11(1).

Solomons v District Court of New South Wales Criminal law and practice - Costs - Trial and acquittal in State court on indictment charging offences under a law of the Commonwealth - Power of State court to grant certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act") entitling defendant to apply to Under Secretary of Attorney-General's Department for payment of costs from State Consolidated Revenue Fund - Whether s 68 or s 79 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") rendered provisions of the Costs Act applicable so as to authorise grant of certificate in federal jurisdiction. Constitutional law (Cth) - Jurisdiction and powers of State court exercising federal jurisdiction in the trial of a federal offender - Application of the Costs Act - Whether the Costs Act picked up and applied to federal jurisdiction by force of the Judiciary Act - Whether any such operation would be contrary to the provisions and requirements of the Constitution - Whether any such application would be inconsistent with the disposal of the constitutional matter within federal jurisdiction - Whether it would involve the purported exercise by a court of non-judicial functions incompatible with Ch III of the Constitution - Whether it would be incompatible with the Constitution to impose burdens on State Ministers and officers and on the Consolidated Revenue Fund of a State. Constitution, Ch III. Judiciary Act 1903 (Cth), ss 68, 79. Costs in Criminal Cases Act 1967 (NSW), s 2.

; Ex parte Te Re Minister for Immigration and Multicultural Affairs; Ex parte Dang Constitutional Law - Naturalisation and aliens - Immigration - Whether ss 200 and 501(2) of the Migration Act 1958 (Cth) are supported by s 51 (xix) or (xxvii) of the Constitution - Meaning of "alien" - Australian Citizenship Amendment Act 1984 (Cth) - Relevance to status of alienage of absorption into the community. Immigration - Alien - Status and meaning of - Relevance to status of alienage of absorption into the community and allegiance to the Queen of Australia. Words and phrases: "alien". Constitution, s 51 (xix), (xxvii). Australian Citizenship Act 1948 (Cth), s 5. Australian Citizenship Amendment Act 1984 (Cth). Migration Act 1958 (Cth), ss 196(1), 200, 201, 501.

CRIMINAL LAW - application under s 5F - trial proceeding - refusal to grant application for a separate trial - refusal to grant a stay pending appeal on separate trial - whether separate trial necessary on some counts - sexual assault - firing a firearm - assault - series of charges in relation to one person - whether injustice to defendant in not separating trial - admissibility as evidence of relationship - trial judge's direction to admit evidence - whether adequate directions to jury can be given

Constitutional law (Cth) - Power with respect to service and execution throughout the Commonwealth of civil and criminal process - Summons served under State law upon person in another State to attend State commission of inquiry with investigative functions - Summons a "subpoena" for the purpose of the Service and Execution of Process Act 1992 (Cth) - "Civil and criminal process" - Whether "civil and criminal process" includes process relating to purely investigative functions of tribunals which are not in aid of an adjudicative function - Whether s 76 of the Service and Execution of Process Act 1992 (Cth) a valid exercise of Commonwealth legislative power. Constitutional law (Cth) - Power with respect to service and execution throughout the Commonwealth of civil and criminal process - Parties did not contend that such power is confined to process of the courts of the States - Whether the High Court can nevertheless consider whether such power is so confined - Paramountcy of the Constitution. Constitutional law (Cth) - Power with respect to service and execution throughout the Commonwealth of civil and criminal process - Whether such power is confined to process of the courts of the States - Whether increased potential for infringement of liberty associated with extending such power to process of State non-court bodies is a consideration supportive of narrower construction of such power - Proliferation of State non-court bodies that issue process - Relevance to constitutional meaning of changing features of modern government. Words and phrases - "civil and criminal process". Constitution, s 51(xxiv). Service and Execution of Process Act 1992 (Cth), Pt 4, ss 47-80. New South Wales Crime Commission Act 1985 (NSW), ss 18, 18AA, 35.

Batistatos v Newcastle City Council Abuse of Process - Delay - Proceedings commenced in 1994 in respect of causes of action which accrued in 1965 - Appellant suffered quadriplegia and other injuries in motor accident allegedly caused by the negligence of, and nuisance created by, the respondents - Appellant born mentally retarded and later orphaned - Applications brought by respondents for summary dismissal or permanent stay for abuse of process - Whether, due to the effluxion of time since the causes of action accrued, a fair trial was not possible for the respondents. Abuse of Process - Delay - Factors to be considered in determining whether delay precludes the conduct of a fair trial - Whether actions commenced by appellant untenable or futile - Whether actions commenced by appellant present real question to be determined - Sufficiency of evidence - Relevance of fundamental right to bring legal proceedings - Relevance of summarily denying right to a trial - Relevance of appellant's severely disabled condition - Relevance of the extent of the investigations made by the parties - Relevance of the disparity in the economic resources of the parties - Relevance of fact that the 30 year ultimate limitation bar had not yet descended. Limitation of Actions - Appellant born mentally disabled and suffered quadriplegia in the accident out of which these proceedings arose - Appellant's causes of action not subject to 6 year limitation period which would otherwise have been imposed by the Limitation Act 1969 (NSW) by reason of the appellant's disabilities - Actions commenced within 30 year ultimate limitation period - Whether Limitation Act 1969 (NSW) precludes court from summarily dismissing or permanently staying proceedings for abuse of process when actions commenced before expiry of limitation period - Whether exercise of power to dismiss or stay in such circumstances is exceptional and requires proof of oppressive or contumelious conduct on the part of the plaintiff. Courts - Powers of courts - Whether supplementary power of Supreme Court of New South Wales properly described as inherent or implied - Distinction between inherent powers and implied powers - Basis from which the State Supreme Court derives its jurisdiction to summarily dismiss or permanently stay proceedings. Courts - Powers of courts - Jurisdiction - Rules of Court - Whether Rules of Court are exhaustive of the circumstances in which the Supreme Court can dismiss or stay proceedings for abuse of process - Weight to be given to the relevant legislative context in exercising discretion to dismiss or stay proceedings - Where both Rules of Court and supplementary jurisdiction empower Supreme Court to stay or dismiss proceedings for abuse of process - Relationship between supplementary jurisdiction and Rules of Court. Words and phrases - "abuse of process", "delay", "inherent jurisdiction", "implied jurisdiction". Limitation Act 1623 (Imp) (21 Jac I c 16), ss 3, 7. Limitation Act 1969 (NSW), ss 5, 11(3), 51(1), 52. Supreme Court Act 1970 (NSW). Supreme Court Rules (NSW), Pt 13 r 5.

SUCCESSION - Family Provision - Private International Law – testator dies domiciled in Malta leaving estate in both NSW and Malta - Whether Court has jurisdiction to deal with assets of the estate - Held: Court only has jurisdiction to deal with immovable property of the deceased in NSW - Court may take into consideration assets held in Malta when making determination and Maltese law in relation to distribution of estate assets – FAMILY PROVISION - adult children – whether adequate provision made for proper maintenance, education and advancement in life - discretionary considerations - whether provision ought to be made out of estate for the applicants - whether testatrix failed in her duty to those that have a claim on her – Extension of time to make application - where some plaintiffs did not bring application within time - where plaintiffs awaiting information as to entitlements under will which defendant fails to provide – whether prejudice suffered by defendant in extending time - discretionary considerations - Held: absence of adequate information about entitlements under will is sufficient cause – no prejudice suffered by defendant in extending limitation period - discretionary considerations favour extension

Equity – Doctrine of part performance – Where respondent sole registered proprietor of property purchased by respondent and her husband – Where respondent and her husband made improvements to property – Where appellant claimed agreement between appellant and respondent entitled appellant to half-interest in unimproved land – Where alleged agreement did not meet formality requirements of s 26(1) of Law of Property Act 1936 (SA) – Where s 26(2) of Law of Property Act provides that s 26 does not affect law relating to part performance – Whether acts of part performance entitled appellant to specific performance of alleged agreement – Whether acts of part performance must be unequivocally, and in their own nature, referable to agreement of kind alleged – Whether sufficient for purposes of doctrine of part performance to establish that contracting party has knowingly been induced or allowed by counterparty to alter his or her position on faith of contract. Words and phrases – "enforcement of equities", "equitable estoppel", "equitable fraud", "equity of the statute", "fraud", "parol contract", "part performance", "specific performance", "Statute of Frauds", "unequivocally referable". Law of Property Act 1936 (SA), s 26.

The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission Evidence - Legal professional privilege - Statutory notice to produce documents - Whether statute abrogated legal professional privilege. Trade practices - Notice to produce documents to Australian Competition and Consumer Commission - Commission investigating whether Trade Practices Act 1974 (Cth) contravened - Whether documents to be produced included those for which legal professional privilege claimed. Trade Practices Act 1974 (Cth), s 155.

Coles Myer Limited v Fels Evidence - Legal professional privilege - Statutory notice to produce documents - Whether statute abrogated legal professional privilege. Trade practices - Notice to produce documents to Australian Competition and Consumer Commission - Commission investigating whether Trade Practices Act 1974 (Cth) contravened - Whether documents to be produced included those for which legal professional privilege claimed. Trade Practices Act 1974 (Cth), s 155.

Statutes – Interpretation – Plaintiff charged with three indictable Commonwealth offences – Plaintiff served with summons to attend examination by examiner appointed under Australian Crime Commission Act 2002 (Cth) ("Act") – Examiner asked plaintiff questions about subject matter of charged offences – Whether Act empowered examiner to conduct examination of person charged with indictable Commonwealth offence where examination concerned offence charged. Words and phrases – "accusatorial process of criminal justice", "examination", "prejudice the fair trial of a person who has been, or may be, charged with an offence", "principle of legality", "privilege against self-incrimination", "right to silence", "trial according to law". Australian Crime Commission Act 2002 (Cth), ss 7A, 7C, Pt II Div 2.

Criminal law – Market manipulation – Corporations Act 2001 (Cth), s 1041A – Transactions alleged to have effect or likely effect of creating "artificial price" for shares on Australian Securities Exchange – Meaning of "artificial price" in s 1041A of the Corporations Act – Whether meaning of "artificial price" informed by United States of America conceptions of "cornering" and "squeezing". Criminal procedure – Question of law arising before trial – Question of law referred to Court of Appeal – Case stated – Case stated set out facts which prosecution sought to prove at trial – Facts set out in case stated neither admitted nor proved – Whether question of law referred hypothetical. Words and phrases – "artificial price", "case stated", "cornering", "genuine supply and demand", "market manipulation", "sole or dominant purpose", "squeezing". Corporations Act 2001 (Cth), ss 1041A, 1338B, 1338C. Criminal Procedure Act 2009 (Vic), ss 302, 305, 306.

Insurance - Appellant agreed to provide insurance to the respondent in respect of claims for civil liability - Respondent notified the appellant of potential liability to investors arising out of misconduct of financial advisers who were representatives of the respondent for the purposes of the Corporations Law - Appellant represented to the respondent that it would not rely on clause prohibiting the respondent from admitting liability or settling claims or clause requiring formal claims against the respondent - Appellant told the respondent to act as a prudent uninsured - Respondent, for sound commercial reasons including preservation of its relations with the Australian Securities and Investments Commission, proposed a protocol for responding to the investors' claims designed to recompense investors without the need for legal proceedings - Appellant agreed in principle to the protocol - No legal proceedings were commenced - Respondent sought confirmation that the appellant would indemnify it for settlement amounts - Respondent paid settlement amounts to the investors at a time when the appellant had not accepted liability - Whether the appellant's liability to indemnify the respondent extended to payment of reasonable settlement amounts - Whether the settlement amounts were reasonable - Relevance of the requirement to act with utmost good faith in s 13 of the Insurance Contracts Act 1984 (Cth). Insurance - Requirement to act with utmost good faith in s 13 of the Insurance Contracts Act 1984 (Cth) - Meaning of utmost good faith - Whether lack of utmost good faith means only dishonesty - Whether utmost good faith may require an insurer to act with due regard to the legitimate interests of the insured as well as to its own interests - Whether the appellant's delay in accepting or rejecting liability amounted to a lack of utmost good faith - Relevance of reciprocity - Whether the respondent could invoke the appellant's lack of utmost good faith if the respondent had failed to act with utmost good faith - Whether the respondent's lack of diligence and acting for its own interests amounted to a lack of utmost good faith. Estoppel - Estoppel by convention - Appellant represented to the respondent that it would not rely on clause prohibiting the respondent from admitting liability or settling claims or clause requiring formal claims against the respondent - Appellant told the respondent to act as a prudent uninsured - Respondent, for sound commercial reasons including preservation of its relations with the Australian Securities and Investments Commission, proposed a protocol for responding to the investors' claims designed to recompense investors without the need for legal proceedings - Appellant agreed in principle to the protocol - No legal proceedings were commenced - Respondent sought confirmation that the appellant would indemnify it for settlement amounts - Respondent paid settlement amounts to the investors at a time when the appellant had not accepted liability - Whether the appellant represented that the respondent would not subsequently be required to prove its liability to the investors - Whether the respondent relied on the representation - Whether detriment established. Words and phrases - "prudent uninsured", "utmost good faith". Insurance Contracts Act 1984 (Cth), ss 13, 14. Corporations Law, s 819.

Shu-Ling Chang v Laidley Shire Council Local government - Subdivision of land - Section 5.4.2 of the Integrated Planning Act 1977 (Q) ("the Act") afforded a statutory entitlement to compensation to those affected by a change in planning scheme - Appellants applied to respondent Council for approval for reconfiguration of land - Planning provisions did not permit proposed reconfiguration - Earlier provisions would have permitted reconfiguration - Whether appellants entitled to compensation on account of diminution in value of land brought about by inability to reconfigure - Whether appellants had "accrued right" or "accrued entitlement" to compensation. Statutes - Interpretation - Meaning and effect of s 3.2.1 of the Act - Section 3.2.1 prescribed the method for applying for development approval - Proposed development was refused on the basis that it was contrary to the draft regulatory provisions - Whether development application that was contrary to the draft regulatory provisions was a "properly made application" - Whether s 3.2.1 should be read down in conformity with the rule that statutes are not to be construed as interfering with vested interests unless that purpose is manifest - Whether a clear indication of the legislative purpose to abolish the right to compensation was required and was manifest. Words and phrases - "accrued interest", "accrued right", "acquired right", "development application (superseded planning scheme)", "injurious affection", "properly made application", "retrospectivity". Acts Interpretation Act 1954 (Q), s 20. Integrated Planning Act 1997 (Q), Pts 2, 5A, ss 3.2.1, 5.4.2. Local Government Act 1936 (Q), ss 33(10). Integrated Planning and Other Legislation Amendment Act 2004 (Q).

Baker v The Queen Constitutional law (Cth) - Judicial power of Commonwealth - Vesting of federal jurisdiction in State courts - Act empowering State court to determine a minimum term and an additional term for persons serving an existing sentence of life imprisonment - Act prohibiting such determination in respect of prisoners the subject of a non-release recommendation by the original sentencing judge unless "special reasons" justified making the determination - Whether incompatible with State court being a suitable repository of judicial power of the Commonwealth. Constitutional law (NSW) - Separation of powers - Power of State Parliament to confer function incompatible with exercise by State court of judicial power of the Commonwealth - Where class of affected persons closed and known - Whether judicial discretion preserved - Whether judicial function prescribed by Act compatible with State court being a suitable repository of judicial power of the Commonwealth. Words and phrases - "special reasons". Constitution, Ch III. Sentencing Act 1989 (NSW), s 13A. Sentencing Legislation Further Amendment Act 1997 (NSW).

Fardon v Attorney-General for the State of Queensland Constitutional law (Cth) – Judicial power of Commonwealth – Vesting of federal jurisdiction in State courts – Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future – Whether criterion for order of continuing detention devoid of content – Whether order for continuing detention to protect the community an exercise of judicial power – Whether powers conferred by Act on State court incompatible with State court being a suitable repository of judicial power of the Commonwealth – Whether powers conferred by Act on State court compromise the institutional integrity of State court. Constitutional law (Q) – Powers of State Parliament – Separation of powers – Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future – Whether a law – Whether incompatible with State court being suitable repository of federal judicial power – Whether public confidence in integrity or impartiality of judiciary compromised. Words and phrases – "unacceptable risk". Constitution, Ch III. Dangerous Prisoners (Sexual Offenders) Act 2003 (Q), s 8, Pt 2, Div 3.

Criminal law - Criminal Code (NT), ss 192(3) and 31 - Sexual intercourse without consent - Mental element required - Whether relevant "act" is sexual intercourse or sexual intercourse without consent - Whether prosecution must prove beyond reasonable doubt that accused intended to have sexual intercourse with the complainant without consent - Application of Criminal Code (NT), s 32. Statutes - Interpretation - Criminal Codes - Criminal Code (NT). Practice and procedure - Trials - Jury directions. Words and phrases - "act", "event", "act, omission or event", "sexual intercourse with another person without the consent of the other person". Criminal Code (NT), ss 1, 31, 32, 192(3).

Trade practices - Market definition - Substantial degree of market power - Where statutory authority had a monopoly in the markets for electricity transmission and distribution services and for electricity supply - Where authority owned the transmission and distribution infrastructure - Where no transactions occurred in the transmission and distribution services market - Whether authority's control of the infrastructure gave it market power in both markets - Trade Practices Act 1974 (Cth), ss 46(1), 46(4)(c). Trade practices - Misuse of market power - Taking advantage of market power - Proscribed purpose - Whether statutory authority's refusal of access to its infrastructure involved taking advantage of its market power or only of its proprietary rights - Whether refusal was due to a "direction" from the Minister - whether Minister's purpose in giving direction meant authority's refusal was not for a proscribed purpose - Whether authority's regulatory role meant refusal was not for a proscribed purpose - Trade Practices Act 1974 (Cth), s 46(1) - Power and Water Authority Act (NT), s 16. Crown - Immunity - Crown in right of the Northern Territory - Carrying on a business under the Trade Practices Act 1974 (Cth) - Exceptions - Where statutory authority had a monopoly in the markets for electricity transmission and distribution services and for electricity supply - Where authority owned the transmission and distribution infrastructure - Whether authority's exclusive use of the infrastructure was part of carrying on a business - Whether refusal of access to infrastructure was merely refusal of a "licence" and thus not part of carrying on a business - Trade Practices Act 1974 (Cth), ss 2B, 2C(1)(b). Crown - Immunity - Crown in right of the Northern Territory - "Emanation of the Crown" - Where statutory authority established by the Territory Government was the sole beneficial owner of a trading corporation - Where corporation incorporated under general enactment for the incorporation of companies rather than specific statute - Where corporation acquired for specific Government purpose - Whether corporation was an "emanation of the Crown". Crown - Immunity - Crown in right of the Northern Territory - "Derivative Crown immunity" - Where statutory authority established by the Territory Government was the sole beneficial owner of a trading corporation - Where corporation entered into contracts with third parties - Where financial interests of the Government potentially prejudiced by preventing enforcement of those contracts under the Trade Practices Act 1974 (Cth) - Where no legal or proprietary interests of the Government affected - Whether corporation could claim "derivative Crown immunity". Practice and procedure - Pleadings - Where points made in original pleadings but not relied on and no evidence called at trial - Whether points can be taken on appeal. Words and phrases - "carries on a business", "market power", "take advantage of", "derivative Crown immunity", "emanation of the Crown", "direction", "licence". Competition Policy Reform Act 1995 (Cth), s 89. Competition Policy Reform (Northern Territory) Act (NT), ss 14, 15. Power and Water Authority Act (NT), s 16. Trade Practices Act 1974 (Cth), ss 2B(1), 2C(1)(b), 4, 46(1), 46(4)(c), Schedule, Pt 1, cl 46. Mc

The Queen v Carroll Criminal law - Perjury - Accused at murder trial denies in evidence that he killed the deceased - Accused acquitted of murder and subsequently indicted for perjury in relation to sworn statement - Whether perjury charge undermined accused's acquittal of earlier charge of murder - Whether perjury charge infringed common law rule against "double jeopardy". Criminal law - Double jeopardy - Res judicata - Issue estoppel - Autrefois acquit - Preclusion. Practice and procedure - Power of court to stay indictments for abuse of process - Whether perjury indictment should have been stayed as an abuse of process. Criminal Code (Q), ss 17, 123, 584, 592A, 598, 602, 631. Evidence Act 1977 (Q), s 8. Words and phrases - "Double jeopardy".

Administrative Law - Application for certiorari and prohibition - Procedural fairness - Cancellation of applicant's visa for failure to pass character test under s 501(6) of Migration Act 1958 (Cth) - Decision maker informed applicant that it would seek information from third party but then did not do so - Whether applicant denied procedural fairness - Legitimate expectation. Words and phrases - "legitimate expectation". Constitution, s 75(v). Judiciary Act 1903 (Cth), s 32. Migration Act 1958 (Cth), ss 499, 501(2), (5), (6), (7).

Practice and procedure - High Court - Removal of proceedings - Proceedings for adult child maintenance in Family Court - Whether a cause pending in a federal court - Whether matter arises under the Constitution or involves its interpretation. Practice and procedure - High Court - Appeal from decision of a single Justice - Whether leave to appeal is required - Whether order to refuse removal of proceedings is final or interlocutory. Courts and judges - Bias - Application for disqualification of a Justice - Whether reasonable apprehension of bias - Justice had practised professionally in city where proceedings originated - No imputed bias. Judiciary Act 1903 (Cth), ss 34, 40. Family Law Act 1975 (Cth), s 118. Mc

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

Statutes - Interpretation - Trade Practices Act 1974 (Cth) ("the Act") - First respondent negotiated with and formed contracts with State and Territory governments for the supply of medical products in circumstances where State and Territory governments were not carrying on a business - Trial judge found that, but for the application of derivative Crown immunity, the first respondent had contravened ss 46 and 47 of the Act in relation to pre-contractual conduct - Whether the provisions of ss 46 and 47 applied to the conduct of the first respondent - Nature and extent of available relief. Statutes - Operation and effect of statutes - Crown immunity - Derivative immunity - Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd [1979] HCA 15; (1979) 145 CLR 107 - Whether the presumption of Crown immunity creates a presumption against legislation having an incidence in legal effect upon the Crown - Whether the presumption of Crown immunity creates a presumption against legislation affecting Crown "freedoms" or governmental, commercial or political "interests" - Whether the Commonwealth, States and Territories are manifestations of the Crown - Whether Crown immunities apply as such to the Commonwealth, States and Territories - Whether different notions of governmental immunity are suggested or required by the Australian Constitution. Constitutional law (Cth) - Crown immunity - Whether Crown immunity is applicable without modification to the Commonwealth, States and Territories provided for in the Constitution. Words and phrases - "bind", "derivative Crown immunity", "incidence in legal effect". Constitution, ss 1, 61, 71, 73, 74, 75, 78, 79, 114. Trade Practices Act 1974 (Cth), ss 2, 2A, 2B, 4L, 6, 46, 47, 51, 87, 87

EVIDENCE [23] – Admissibility and relevancy – in general – other cases – Judicial discretion to exclude – Evidence Act 1995, s 135

Evidence – Criminal trial – Sexual offences with child under 16 years – Tendency evidence – Admissibility – Severance – Where evidence of complainant as to 17 sexual acts and several uncharged sexual acts admitted as tendency evidence – Where evidence of third party as to Charge 2 admitted as tendency evidence – Whether evidence of complainant and third party admissible as tendency evidence – Whether evidence of each charged act and uncharged act cross-admissible as tendency evidence in proof of each charge – Whether tendency evidence had significant probative value – Whether possibility of risk of contamination, concoction or collusion relevant to determination of probative value – Whether probative value substantially outweighed any prejudicial effect – Whether tendency notice defective – Whether Charge 2 should have been severed from indictment. Evidence – Criminal trial – Recording of evidence – Admissibility – Where evidence of complainant recorded at previous trial admitted – Where prosecutor told court that complainant had strong preference not to give evidence at trial based on advice from counsellors – Where defence counsel did not challenge complainant's preference not to give evidence – Whether in interests of justice to admit recording. Evidence – Criminal trial – Hearsay – Admissibility – Where complainant made representations to third party that she was sexually assaulted by respondent – Where representations made in response to leading questions from third party – Where inconsistencies between complainant's representations and other evidence given by complainant – Whether occurrence of asserted facts fresh in complainant's memory at time of representations – Whether probative value of evidence outweighed by danger of unfair prejudice. Words and phrases – "charged act", "collusion", "complaint", "concoction", "contamination", "credibility", "cross-admissible", "discreditable acts", "fresh in the memory", "improper prejudice", "jury directions", "previously recorded evidence", "propensity", "recording", "reliability", "severance", "sexual attraction", "sexual interest", "sexual offence", "significant probative value", "single complainant", "special feature", "tendency", "uncharged act", "unfair prejudice", "willingness". Criminal Procedure Act 2009 (Vic), ss 194, 379, 380, 381, 385. Evidence Act 2008 (Vic), ss 66, 97, 99, 101, 135, 137. Jury Directions Act 2015 (Vic), ss 61, 62. Evidence Regulations 2009 (Vic), reg 7.

Stamp duties – Land-holding corporations – Acquisition of controlling interest – Whether corporation a "listed land-holder corporation" within meaning of Pt IIIBA of Stamp Act 1921 (WA) – Whether value of land to which corporation entitled 60 per cent or more of value of property to which it was entitled – Valuation methodologies – Whether corporation had legal goodwill – Meaning of legal goodwill – "Added value" approach to goodwill considered – Going concern value and goodwill distinguished. Words and phrases – "acquisition", "assessment", "controlling interest", "custom", "discounted cash flow methodology", "going concern value", "goodwill", "listed land-holder corporation", "net asset value multiple", "property", "sources of goodwill", "stamp duty", "synergies", "top down". Stamp Act 1921 (WA), Pt IIIBA. Taxation Administration Act 2003 (WA), ss 34, 37, 40. State Administrative Tribunal Act 2004 (WA), s 29.

Land tax - Valuation of land - Improved residential property in Sydney - Assessment of unimproved value of land - Whether s 6A(1) Valuation of Land Act 1916 (NSW) includes use of improved land sales - Relevance of "scarcity" - Valuation by reference substantially or exclusively to sales of unimproved land invalid. Practice and procedure - Appeals - s 56A Land and Environment Court Act 1979 (NSW) - Question of law - Principles of assessment of land value - Relevance of scarcity. Land and Environment Court Act 1979 (NSW), s 56A. Land Tax Management Act 1956 (NSW), s 56. Valuation of Land Act 1916 (NSW), ss 4(1), 5, 6A(1). Mc

Tofilau v The Queen; Marks v The Queen; Hill v The Queen; Clarke v The Queen Criminal law - Evidence - Confessions and admissions - Scenario evidence - Undercover police officers posing as a criminal gang used scenarios involving staged criminal conduct to gain the trust of persons suspected of committing a serious crime - On condition that the person tell the gang boss the truth about his prior criminal activity, the gang boss offered that person membership of the gang with concomitant material benefits and the prospect of illegally avoiding prosecution for prior crimes - Whether the resulting confessions were admissible. Criminal law - Evidence - Confessions and admissions - "Inducement rule" - History of the "inducement" requirement - Whether the promises made to the confessionalists were "inducements" - History of the "person in authority" requirement - Whether undercover police officers posing as gang members were "persons in authority" - Whether a person who represented himself as having the capacity to influence illegally a criminal prosecution was a "person in authority" - Whether a person must be known by the suspect to have actual lawful authority to influence the course of the prosecution to be a "person in authority". Criminal law - Evidence - Confessions and admissions - "Basal voluntariness" - History of the "basal voluntariness" rule - Meaning of "voluntariness" - Whether the use of deception by the police obviated "voluntariness" - Whether inducements obviated "voluntariness" - Whether in the circumstances the confessionalists' wills were overborne - Relevance of analogy to "duress". Criminal law - Evidence - Confessions and admissions - Discretionary grounds for exclusion - "Public policy" discretion - Whether the use of deception by the police was improper. Criminal law - Evidence - Confessions and admissions - Discretionary grounds for exclusion - Unfairness discretion - Whether in all the circumstances it was unfair to the confessionalist to use against him a confession obtained by police deception. Criminal law - Evidence - Confessions and admissions - Discretionary grounds for exclusion - Prejudice discretion - Whether the prejudicial impact of the circumstances in which the confession was obtained was greater than the probative value of the confession. Criminal law - Evidence - Confessions and admissions - Discretionary grounds for exclusion - Reliability discretion - Whether the circumstances in which the confession was made rendered the confession inherently unreliable. Words and phrases - "basal voluntariness", "duress", "free choice", "inducement", "oppression", "overborne", "person in authority", "right to silence", "scenario evidence", "scenario techniques", "unfairness", "voluntary". Evidence Act 1958 (Vic), s 149.

APPEAL - Local Court - matter of law - costs certificate - filing of an affidavit - appeal dismissed

Real property - Torrens title - Transfer of mortgage - Separate mortgage and loan agreements - Debts or obligations secured by mortgage - Whether s 62 of the Land Title Act 1994 (Q) ("the Act") operated to vest in transferee of the mortgage the right to recover monies under the loan agreement - Relevance of the historical and legislative purpose of s 62 of the Act - Relevance of connection of the loan to the mortgage - Whether a right to recover monies under the loan agreement was a right "to recover a debt or enforce a liability under the mortgage" within the meaning of s 62(4) of the Act. Statutes - Interpretation - Meaning of "under the mortgage" in s 62 of the Act - Whether a right to recover a debt or enforce a liability under the mortgage includes a right to recover a debt or enforce a liability secured by the mortgage. Words and phrases - "under the mortgage". Land Title Act 1994 (Q), s 62. GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Kiefel J. I agree with the order proposed by her Honour, and with her reasons for that order.

Corporations law – Winding up – Insolvency – Liquidators appointed to manager of forestry investment schemes – Liquidators sought to sell assets of manager unencumbered by schemes – Assets included land over which leases granted by manager – Whether liquidators could disclaim leases granted by manager under s 568(1) of Corporations Act 2001 (Cth) – Whether lease "a contract" under s 568(1)(f) – Whether disclaimer of lease terminated tenant's estate or interest in land. Words and phrases – "effect of disclaimer", "lease of land", "property of the company that consists of ... a contract", "rights, interests, liabilities and property". Corporations Act 2001 (Cth), ss 568(1), 568(1A), 568D(1).

Immigration – Refugees – Nauru – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined respondent not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Supreme Court of Nauru allowed appeal because Tribunal found respondent's claims implausible without rational basis – Whether Tribunal's reasons adequate. Words and phrases – "adequate reasons", "basic inconsistencies", "implausible", "independent country information", "probative material", "rational inference", "speculation or conjecture". Migration Act 1958 (Cth), s 430(1). Refugees Convention Act 2012 (Nr), s 34(4).

Immigration – Refugees – Nauru – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where appellant applied to Refugee Status Review Tribunal for merits review of Secretary's determination – Where Tribunal sent letter to "Team Leader" of claims assistance provider inviting appellant to attend hearing – Where appellant and his representatives failed to attend Tribunal hearing – Where Tribunal affirmed Secretary's determination in appellant's absence – Where Supreme Court affirmed Tribunal's decision – Whether invitation to attend Tribunal hearing given to appellant – Whether legally unreasonable for Tribunal to decide matter without taking further action to allow or enable appellant to appear. Words and phrases – "authorised representative", "given", "invitation to appear", "jurisdictional requirement", "legally unreasonable". Interpretation Act 2011 (Nr), ss 100, 101. Refugees Convention Act 2012 (Nr), ss 40(3), 41(1).

The Queen v A2 The Queen v Magennis The Queen v Vaziri Statutes – Construction – Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who "excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person" is liable to imprisonment – Where two respondents charged with having "mutilated the clitoris" of each of complainants – Where other respondent charged with assisting those respondents following commission of those offences – Where defence case that procedure performed on complainants merely ritualistic – Where trial judge directed jury that word "mutilate" in context of female genital mutilation means "to injure to any extent" – Where trial judge directed jury that "clitoris" includes "clitoral hood or prepuce" – Whether "otherwise mutilates" should be given ordinary meaning or take account of context of female genital mutilation – Whether "clitoris" includes clitoral hood or prepuce – Whether trial judge misdirected jury as to meaning of "mutilate" and "clitoris". Appeals – Where s 6(2) of Criminal Appeal Act 1912 (NSW) provides that if appeal against conviction allowed, subject to special provisions of Act, Court of Criminal Appeal "shall ... quash the conviction and direct a judgment and verdict of acquittal to be entered" – Where s 8(1) provides that on appeal against conviction, Court of Criminal Appeal may order new trial if it considers that miscarriage of justice has occurred and it can be more adequately remedied by order for new trial than any other order – Where Court of Criminal Appeal allowed appeals against convictions based on construction of s 45(1)(a) of Crimes Act and on other grounds including that verdicts unreasonable or unsupported by evidence – Whether open to Court to quash conviction and decline to make further order – Whether sufficient evidence to warrant order for new trial – Whether matter should be remitted to Court of Criminal Appeal for redetermination of ground alleging that verdicts unreasonable or unsupported by evidence. Words and phrases – "child abuse", "clitoris", "context", "de minimis injury", "female genital mutilation", "injury", "khatna", "mischief", "misdirected the jury", "mutilation", "offence provisions", "otherwise mutilates", "purposive construction", "ritualised circumcision", "sufficient evidence", "tissue damage", "umbrella term". Crimes Act 1900 (NSW), s 45. Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW). Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1).

Industrial law - Reinstatement - Employer ordered to reinstate dismissed employee to the position in which he was employed prior to being dismissed - Employer reinstated employee subject to conditions - Employee paid wage but not provided with work - Whether reinstatement order made under s 170CH of the Workplace Relations Act 1996 (Cth) requires employer to provide employee with work - Whether employee was reinstated to the position in which he was employed prior to being dismissed. Federal Court - Jurisdiction - Power - Whether Federal Court may make an order for enforcement of reinstatement order. Words and phrases - "position", "reappoint", "reinstate". Workplace Relations Act 1996 (Cth), ss 178, 170CH, 170JC(3). Mc

Company law - Duties of directors - Claims against directors for contraventions of Companies (South Australia) Code, s 229 - Respondents directors and sole shareholders of company - Directors caused company to grant mortgage to secure director's liability to bank - Bank exercised rights under mortgage - Resulting debt of director to company - Alleged novation of the debt owed so as to reduce director's liability to the company - Novation not shown to have occurred - Whether directors exercised due care and diligence - Whether directors improperly used position to gain personal advantage or cause detriment to corporation - Consideration of circumstances in which shareholders may ratify or excuse breaches of duties owed by directors - Relationship of offences under the Code to common law duties of directors and officers. Words and phrases - "improper", "impropriety". Companies (South Australia) Code, ss 229, 588FA, 588FC, 588FF. Corporations Act 2001 (Cth), ss 182, 183, 184.

Succession - Family provision - Deed between husband and wife - Mutual wills executed pursuant to deed - Effect of deed and wills upon family provision claim - Whether property the subject of deed and wills available as part of estate out of which provision made - Whether deed invalid for reasons of public policy - Inheritance (Family Provision) Act 1972 (SA), s 7. Precedent - High Court and Privy Council - Conflict between two Privy Council decisions - Circumstances in which High Court should depart from Privy Council decisions - Where decision of Privy Council was on a matter of State law in appeal directly from primary judge in a State Supreme Court, rather than from High Court. Words and phrases - "estate". Inheritance (Family Provision) Act 1972 (SA), s 7.

Damages - Breach of contract - Proof of damage - Calculation of damages - Joint venture mining contract - Respondent carried out mining operations for appellant - Rates based on genuine estimates of cost of operations - Respondent inflated cost estimates - Whether breach of contractual obligation of good faith - Whether sufficient evidence from appellant to prove damage - Whether sufficient evidence for trial judge to make a calculation of damages on proper principles - Significance of respondent's admission that cost estimates exceeded actual bona fide estimates of costs - Continuing obligation during litigation to correct fraudulent conduct. GLEESON CJ, Mc

Youyang Pty Limited v Minter Ellison Morris Fletcher Trusts - Express trust - Money received by firm of solicitors to be held for a specific purpose and in accordance with specific conditions - Misapplication of funds by firm - Breach of express trust - Liability of firm as trustee - When breaches of trust occurred - Remedies - Restoration of trust fund - Causation - Whether appellant suffered a recoverable loss in consequence of firm's breaches of trust - Whether appellant would not have suffered loss but for breach of trust - When loss is to be assessed. Supreme Court Act 1970 (NSW), s 94. GLEESON CJ, Mc

De Sales v Ingrilli [No 2] Practice and procedure - Costs - Appeal - Appeal allowed - Calderbank offer - Calderbank offer rejected by appellant - Where amount recovered by appellant exceeds amount offered by respondent. Supreme Court Act 1935 (WA), s 32.

SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs Immigration - Refugees - Decision of Refugee Review Tribunal ("Tribunal") - Tribunal invited the first appellant to appear to give evidence and present arguments under Migration Act 1958 (Cth), s 425 - Evidence was later taken from first appellant's daughter in absence of first appellant - Tribunal affirmed decision under review by relying on information obtained from first appellant's daughter - Tribunal failed to give the first appellant particulars in writing of information - Tribunal failed to invite the first appellant in writing to comment on information - Whether Tribunal breached Migration Act, s 424A. Immigration - Construction of Migration Act, s 424A - Whether the provisions of Pt 7 Div 4 have sequential or ambulatory operation - Relevance of Refugee Convention in case of ambiguity. Immigration - Jurisdictional error - Whether a breach of Migration Act, s 424A amounts to jurisdictional error that invalidates the decision. Immigration - Procedural fairness - General law - Whether Tribunal breached rules of procedural fairness. Administrative Law (Cth) - Certiorari - Mandamus - Jurisdictional error - Whether grant of relief should be withheld on discretionary grounds - Relevant factors - Judiciary Act 1903 (Cth), s 39B. Practice - Joinder of party - Tribunal was not named as a party for the relief sought under Judiciary Act, s 39B - Whether the Tribunal was a necessary party to the proceedings - "officer or officers of the Commonwealth" - Judiciary Act, s 39B. Judiciary Act 1903 (Cth), s 39B. Migration Act 1958 (Cth), ss 424A, 425.

Markarian v The Queen Criminal law - Sentence - Principles - Drug offence - Appellant acted as driver for heroin dealer - Appellant pleaded guilty and asked that four other offences be taken into account by sentencing judge - Whether Court of Criminal Appeal adopted impermissible approach to sentencing by means of staged approach - Whether staged approach to be preferred to instinctive synthesis of sentencer - Relevance of maximum available sentence - Relevance of quantity of drug. Criminal law - Appeal - Prosecution appeal against sentence - Court of Criminal Appeal increased sentence from 2 years and 6 months to 8 years - Whether Court of Criminal Appeal was wrong to find that the original sentence was manifestly inadequate - Whether re-sentencing discretion miscarried. Criminal law - Sentence - Re-sentencing - Further offences - Additional discrete sentence added to head sentence for further offences disclosed by offender - Whether such approach a breach of totality principle. Criminal law - Sentence - Principles - Failure by trial judge and Court of Criminal Appeal to consider an obligatory requirement of sentencing statute in determining appellant's sentence - Whether sentencing discretion of trial judge and Court of Criminal Appeal miscarried because of such omission. Words and phrases - "staged approach", "two-stage approach", "instinctive synthesis". Crimes (Sentencing Procedure) Act 1999 (NSW), Div 3 Pt 3, s 21A, s 31, s 32, s 34(1), s 101A. Criminal Appeal Act 1912 (NSW), s 5D. Drug Misuse and Trafficking Act 1985 (NSW), s 33(2).

Criminal law - Evidence - Confessions and admissions - Admissibility of - Discretion to exclude - Covert and surveillance operation squad - Secretly tape recorded statements made by the respondent to undercover police - Such evidence was the primary evidence implicating the respondent - Previous refusal to answer police questions - Statements voluntarily made - Reliability - Unfairness discretion - Public policy discretion - Unduly prejudicial evidence - Right to silence - Eliciting confessions - Judges' Rules - Duty to caution - Seriousness of the offence - Arson. Evidence - Criminal trial - Exclusion of evidence - Reformulation of tests - Voluntariness test - Unfairness test - Public policy test - Unduly prejudicial test. HIGH COURT OF AUSTRALIA BRENNAN CJ, TOOHEY, GAUDRON, GUMMOW AND KIRBY JJ STEVEN FRANCIS PAVIC APPELLANT AND THE QUEEN RESPONDENT 20 January 1998 M13/1997 ORDER Appeal dismissed. On appeal from the Court of Appeal of the Supreme Court of Victoria Representation: D Grace QC with O P Holdenson for the appellant (instructed by The Office of David Grace QC) W H Morgan-Payler QC with D M Salek for the respondent (instructed by P Wood, Solicitor to the Director of Public Prosecutions (Victoria)) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Pavic v The Queen Criminal law - Evidence - Confessions and admissions - Admissibility of - Discretion to exclude - Secretly tape recorded statements made by the appellant to friend as agent of police - Previous refusal to answer police questions - Statements voluntarily made - Reliability - Unfairness discretion - Public policy discretion - Unduly prejudicial evidence - Right to silence - Eliciting confessions - Duty to caution - Seriousness of the offence - Murder. Evidence - Criminal trial - Exclusion of evidence - Reformulation of tests - Voluntariness test - Unfairness test - Public policy test - Unduly prejudicial test.

Palmer v The Queen Criminal law - Sexual offences - Cross-examination of accused as to whether complainant had motive to lie - Relevance - Inviting jury to speculate - Risk of reversal of onus of proof - Whether judge's directions capable of neutralising prejudicial effect of cross-examination. Criminal law - Sexual offences - Unsafe and unsatisfactory verdict - Alibi.

Pyrenees Shire Council v William Ross Day & Anor Eskimo Amber Pty Ltd & Ors v Pyrenees Shire Council Negligence - Duty of care - Omission by public authority to exercise statutory powers - Absence of statutory duty - General reliance - Control - Reasonable foreseeability - Proximity - Policy considerations - Public duty - Mandamus - Whether municipal council under a public or common law duty to neighbouring property owners to take positive action to exercise its discretionary powers to notify of or remove fire-risks of which it is aware in order to prevent injury or property damage - Whether such duties are owed to occupiers. Local Government Act 1958 (Vic), ss 695 (1A), 885, 891.

Chief Commissioner of Stamp Duties v William Francis Buckle & Ors Stamp duties - Deed of settlement establishing discretionary trust - Trust property comprised land purchased with proceeds of two loans - Duty assessed on supplemental deed altering destination of corpus of trust property in default of appointment - Ad valorem duty payable in respect of "unencumbered value of the property ... conveyed" - Identification of property conveyed - Whether duty payable on unencumbered value of assets which comprised the trust fund or amount which took into account vicissitudes inherent under the deed of settlement. Trusts and trustees - Nature of trustee's right of exoneration and recoupment - Whether trustee's right constitutes beneficial interest in trust assets - Whether trustee's right an encumbrance on the interests of beneficiaries conveyed which is to be disregarded for purposes of s 66(1) of the Stamp Duties Act 1920 (NSW). Stamp Duties Act 1920 (NSW), ss 65, 66. BRENNAN CJ, TOOHEY, GAUDRON, Mc

Ex Parte Abebe High Court - Practice - Judicial review - Rejection of claim of refugee status - Conduct of proceeding - Refusal to grant order nisi - Referral of application to Full Court under O 55 r 2. High Court Rules, O 55 r 2.

Negligence - Duty of care - Source of duty - Reasonable foreseeability - Proximity - Policy considerations - Statutory powers - Public authority's power to control and manage land - Public right to enter - Statutory discretion - Whether municipal council under a public or common law duty to protect members of the public who may foreseeably fail to take reasonable care for their own safety - Obvious dangers. Negligence - Standard of care - Reasonable foreseeability - Obviousness of risk - Gravity of risk - Nature of precautions required - Relevance of provision of facilities by public authority in control and management of land upon which the public may enter as of right - Relevance of statutory functions, powers and duties - Whether failure to take reasonable care for entrant's own safety with regard to obvious dangers breaks the chain of causation - Whether such failure amounts to contributory negligence. Local government - Liability of local authority in negligence - Relevance of statutory functions, powers and duties - Suggested immunity for policy decisions - Applicability of policy/operational decisions distinction - Whether Nagle v Rottnest Island Authority imposes excessive burden on authority - Whether Nagle should be overruled. Conservation Commission Act 1980 (NT), ss 19, 20.