Cases and authorities

Constitutional law - Cross-vesting of federal, State and Territory jurisdiction - State law vesting jurisdiction in Federal Court to order winding-up of company - Whether State has power to confer State jurisdiction on federal courts - Federal law enabling Federal Court to accept vesting of State jurisdiction under State law - Validity of laws - Whether Ch III of the Constitution excludes the vesting of State jurisdiction in federal courts - Conditions under which State jurisdiction may be vested in federal courts. Constitutional law - Issue of examination orders and examinations summons pursuant to Corporations Law - Validity - Whether exercises of judicial power. The Constitution, s 51(xxxviii), Ch III, ss 107, 109, 122 Australia Act 1986 (Cth) Colonial Laws Validity Act 1865 (Imp) Companies Act 1961 (NSW) Corporations Act 1989 (Cth), s 56(2) Corporations Law, ss 596A, 596B Corporations (New South Wales) Act 1990 (NSW), s 42(3) Corporations (Victoria) Act 1990 (Vic), s 42(3) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Extradition – Surrender determination by Attorney-General or Minister – Where respondent convicted by Indonesian court in his absence and sentenced to life imprisonment – Where Minister required to be satisfied that surrender would not be "unjust, oppressive or incompatible with humanitarian considerations" within meaning of extradition treaty between Australia and Indonesia – Whether Minister's satisfaction required to be based upon "Australian standards" of fair trial. Words and phrases – "Australian standards", "surrender determination", "unjust, oppressive or incompatible with humanitarian considerations". Extradition Act 1988 (Cth), ss 10(1), 11, 22. Extradition (Republic of Indonesia) Regulations 1994 (Cth), Schedule. Extradition Treaty between Australia and the Republic of Indonesia, Art 9(2)(b).

Peters v The Queen Criminal law - Conspiracy to defraud - Elements of - Whether dishonesty an essential element - Tests of dishonesty in R v Ghosh and R v Salvo - Actus reus and mens rea - Agreement to use dishonest means - Intention to prejudice or imperil the rights or interest of others - Direction to jury. Crimes Act 1914 (Cth), ss 86(1)(e) and 86

Commonwealth of Australia v WMC Resources Ltd (formerly Western Mining Corporation Ltd) Constitutional law - Acquisition of property - Application of s 51 (xxxi) to areas geographically external to Australia - Statutory permit to explore for petroleum granted in area of disputed sovereignty - Law reducing area covered by permit - Whether permit property capable of acquisition - Whether rights under permit could be extinguished without just terms compensation - Constitutional guarantee of just terms. The Constitution, ss 51 (xxix), (xxxi). Petroleum (Australia-Indonesia Zone of Cooperation) Act 1990 (Cth). Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 (Cth). Petroleum (Submerged Lands) Act 1967 (Cth). Seas and Submerged Lands Act 1973 (Cth).

Nicholas v The Queen Constitutional law - Separation of judicial power of the Commonwealth - Legislative response to Ridgeway v The Queen - Whether Parliament usurping judicial power - Whether legislation impermissibly specific in application - Integrity of judicial process - Retrospective operation of statute. Evidence - Importation of prohibited drugs - "Controlled delivery" by law enforcement officer - Rationale for Ridgeway discretion to exclude evidence - Public policy. The Constitution, Ch III. Crimes Act 1914 (Cth), s 15X. Crimes Amendment (Controlled Operations) Act 1996 (Cth). Customs Act 1901 (Cth), s 233

Ex Parte Seniet Abebe Immigration - Removal of immigrant from Australia - Claim of refugee status - Assertion of persecution by repeated rape whilst in official custody - Allegation of well-founded fear if returned to country of former habitual residence - Argument that Refugee Review Tribunal failed to deal with allegation - Request for interlocutory injunction to restrain immediate removal from Australia - Arguability of ground - Unavailability of further review in Federal Court - Exclusion of judicial review by Federal Court - Protection of utility of application to High Court for constitutional writ directed to Tribunal - Balance of convenience - Interlocutory injunction issued. Practice - High Court - Interlocutory injunction - Protection of utility of application under Constitution, s 75(v) - Threatened removal of prosecutor from Australia - Exclusion of judicial review in Federal Court by Migration Act 1958 (Cth), s 476 - Arguability of contentions - Need for further evidence - Balance of convenience - Temporary injunction granted. Constitution, s 75(v). Migration Act 1958 (Cth), s 476.

Costs - Statutory power under environmental planning and assessment legislation to award costs - Relevant considerations - "Public interest" - Arguable case - Significant issues of interpretation of that legislation - Whether discretion with respect to costs miscarried. Environmental Planning and Assessment Act 1979 (NSW), s 123. Land and Environment Court Act 1979 (NSW), s 69.

Real property (SA) - Torrens system - Indefeasibility of title - Exceptions - Statutory fraud - Existence or non-existence of statutory fraud - Consequence of statutory fraud. Practice - High Court - Cross-appeal dismissed but merits addressed inadequately by intermediate court of appeal - Not inevitable that cross-appeal would fail - Special leave granted - Cross-appeal remitted to intermediate court. Real Property Act 1886 (SA), s 69. BRENNAN CJ, GAUDRON, Mc

Ivan John Kendle & Anor v Peter Michael Melsom & Anor Mortgages - Receivers and managers - Joint and several appointment - Validity of appointment - Nature of duties of appointees - Effect of appointment on liability in tort. BRENNAN CJ and Mc

Insurance - Construction of policy - Whether "permanent total loss" of foot - Some use of injured foot with orthotic aids - No total loss. Words and Phrases - "Permanent total loss". BRENNAN CJ. I agree with Hayne J. The appeal should be dismissed. McHUGH J. I agree with the judgment of Hayne

Forestview Nominees Pty Limited v Perpetual Trustees WA Limited Real property (WA) - Torrens system - Restrictive covenant - Enforceability of - Application by successors in title of burdened land for declaratory relief that restrictive covenant not enforceable - Intention of parties to covenant to exclude enforcement of restrictive covenant by tenant of benefited land - Consistency with the doctrine in Tulk v Moxhay - Restrictive covenant enforceable. Equity - Restrictive covenant - Principles upon which the doctrine in Tulk v Moxhay rests. Transfer of Land Act 1893 (WA), s 129A. GAUDRON, Mc

Ravenor Overseas Inc & Ors v Philip Martin Readhead & Ors Practice - High Court - Case stated - Question reserved - Judiciary Act 1903 (Cth), s 18. Practice - High Court - Remitter - Judiciary Act 1903 (Cth), s 44. Fisheries Management Act 1991 (Cth). Judiciary Act 1903 (Cth), ss 18, 44.

Qantas Airways Limited v Christie Industrial Law - Termination of Employment - Whether termination of employment at initiative of employer - Whether contract of employment ended with effluxion of time. Industrial Law - Termination of Employment - Discrimination on the basis of age - "Rule of 60" - Inherent requirement of the particular position - International airline pilot - Distinction between "position" and "job". Discrimination Law - Termination of Employment - Discrimination on the basis of age - "Rule of 60" - Inherent requirement of the particular position - International airline pilot - Distinction between "position" and "job". Industrial Relations Act 1988 (Cth), ss170DE, 170DF, 170EA, 170EDA, 170EE. BRENNAN CJ. I am in respectful agreement with what Gaudron J has written except in relation to the final, and critical, question of fact, namely, whether it was an inherent requirement of the position which Mr Christie occupied as a pilot of Qantas B747-400 aircraft that such a pilot should not be excluded from flying those aircraft to or over those countries which enforce the Rule of 60. In particular, I agree that a stipulation in a contract of employment is not necessarily conclusive to show whether a requirement is inherent in an employee's position. The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer's undertaking and, except where the employer's undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation. In so saying, I should wish to guard against too final a definition of the means by which the inherent nature of a requirement is determined. The experience of the courts of this country in applying anti-discrimination legislation must be built case by case. A firm jurisprudence will be developed over time; its development should not be confined by too early a definition of its principles. Evidence is not needed to show that the commercial operation of an international airline requires the efficient deployment of B747-400 aircraft to meet customer demand. The employment of pilots to take those aircraft on the routes selected is a necessary aspect of the undertaking. So too is the allocation of pilots to the scheduled flights. The evidence showed that the method of allocating pilots to particular flights had been established by practice between Qantas and the Pilots Association in 1987. It was a preferential bidding system which discriminated among pilots only on the basis of seniority of service. One element of that practice was that pilots could not bid for more than two one-day flights in any eight-week period. The essential requirements of the position were, apart from the necessary aeronautical skills and licences, a capacity to fly on Qantas' international routes and a consequential ability to participate effectively in the bidding process equally with other Qantas international pilots. Once Mr Christie attained the age of 60, the Rule of 60 effectively precluded him from flying on the majority of Qantas' international routes. Wilcox CJ found that, in consequence of that limitation[1] - "[Mr Christie] could not bid in the normal way; he would have to pick and choose amongst the available slip patterns. [The trips open to bidding.] In order to make up his hours, he would need to use a large proportion of Qantas' short flights, flights that would otherwise be used to make up the hours of other B747-400 Captains." Mr Christie appealed against this finding but the majority of the Full Court did not find it necessary to deal with this ground of appeal. Gray J held the bidding and roster system to be irrelevant[2] and Marshall J found that the finding by Wilcox CJ did not "bear upon the question as to whether it was an inherent requirement of the position of a Qantas B747-400 captain that the occupant of that position be aged less than 60 and/or be able to fly B747-400 aircraft anywhere Qantas flies"[3]. But the bidding system was an integral part of the Qantas administrative machinery by which it organised its services. That system was not discriminatory in its design or operation. In my opinion, the ability to participate effectively in the system equally with other pilots of similar seniority was an inherent requirement of Mr Christie's position. The ground of appeal to the Full Court challenging the finding of Wilcox CJ that Mr Christie would need to use a large proportion of Qantas' short flights in order to make up his hours was repeated in an amended notice of contention in this Court. That issue was not dealt with by the majority judgments in the Full Court. If the correctness of the finding by Wilcox CJ raised by that ground in the notice of contention were critical to the result of this litigation, it would be necessary to remit the issue to the Full Court of the Industrial Relations Court[4] to hear and determine the issue. But the system of bidding is merely the machinery by which Qantas selected pilots for duty on its scheduled flights. It was the ability of each pilot to participate effectively in the system equally with other pilots of similar seniority that made the bidding system an equitable, efficient and non-discriminatory method of selecting pilots for duty. The question is not whether Mr Christie would need to use a large proportion of short flights to make up his hours but whether he would necessarily make up his hours by excluding from his bids flights to or over those countries which apply the Rule of 60. As Mr Christie would be constrained to exclude flights to or over some countries from his bids, he could not participate equally with other pilots of similar seniority in the bidding system. His exclusion from flights to and from some destinations would require other pilots to be selected for duty on those flights more frequently than if Mr Christie had been available for that duty. Even if, the Rule of 60 apart, Mr Christie's seniority would have allowed him to exclude those flights from his bids which filled the required number of flying hours, that hypothetical exclusion would have been made in exercise of his rights as an equal participant in the bidding system. There would have been a continuing possibility of bidding successfully for the flights from which he is now compulsorily excluded. But his inability to bid and to be selected for some flights skews the equitable operation of the system. As this consideration makes the "large proportion of ... short flights" issue unnecessary to pursue, there is no need to remit the matter to the Full Court of the Industrial Relations Court. I would allow the appeal.

Advanced Building Systems Pty Limited & Anor v Ramset Fasteners (Aust) Pty Limited Patents - Revocation - Whether an "invention" within meaning of Act - Relationship between obviousness and lack of novelty - Meaning of "inventive merit". Patents Act 1952 (Cth), s 100. BRENNAN CJ, GAUDRON, Mc

Commonwealth of Australia v SCI Operations Pty Limited Commonwealth of Australia v ACI Operations Pty Limited Customs and Excise - Customs Duties - Paid and lawfully retained - Entitlement to refund later arising under statute - Duty refunded on granting of Commercial Tariff Concession Order - Whether interest payable from the date of application for a Commercial Tariff Concession Order or from the date the Commercial Tariff Concession Order was made. Judgments and Orders - Inclusion of interest in sum for which judgment given - Whether s 51A(1) of the Federal Court of Australia Act 1976 (Cth) applicable. Restitution - Interest on moneys received under statutory right to refund - Whether there is a right independent of statute to recover interest where defendant has been unjustly enriched by use of plaintiff's money - Whether interest payable from date of application for Commercial Tariff Concession Order. Acts Interpretation Act 1901 (Cth), s 8. Customs Act 1903 (Cth), s 163, Part XVA, ss 269C, 269N. Customs Tariff Act 1987 (Cth), Pt III Sched 4. Customs Regulations (Cth), regs 126(f), 127(1), 128, 128A. Federal Court of Australia Act 1976 (Cth), s 51

Kartinyeri & Anor v The Commonwealth of Australia Constitutional law (Cth) - Power of the Parliament to make laws with respect to "the people of any race for whom it is deemed necessary to make special laws" - Nature and extent of power. Constitutional law (Cth) - Characterisation - Amendment or partial repeal - Operation and effect. Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), ss 3, 4, 9, 10, 11, 12, 13, 15, 16, 18, 21ZA, 22, 26. The Constitution, ss 51(xxvi), 128. Hindmarsh Island Bridge Act 1997 (Cth), ss 3, 4, Sched 1. BRENNAN CJ AND Mc

South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management & Ors Practice and Procedure - Special leave to appeal from decision to strike out pleadings - Grounds for refusal - Nature of pleadings - Even if leave granted, applicants could only obtain right to replead - Previous judgment would not preclude bringing fresh proceedings. Environmental law - Nature of obligations under environmental management plans. Conservation and Land Management Act 1984 (WA), s 33. Environmental Protection Act 1986 (WA), s 47. Wildlife Conservation Act 1950 (WA). GAUDRON, Mc

Suresh v The Queen Criminal law - Sexual offences - Prior complaint evidence - Admissibility - Requirement that evidence of complaint be early or recent. Criminal law - Sexual offences - Prior complaint evidence - Effect of admission of prior consistent complaint evidence on credibility of complainant - Whether accused deprived of chance of acquittal that is fairly open where prior consistent complaint evidence wrongly admitted - Application of proviso. Criminal law - Sexual offences - Prior complaint evidence - Summing up to jury - Jury directed that complaint evidence relevant to identification of accused as sexual offender. Criminal law - Prior inconsistent statement - Complaint evidence relied on by defence as prior inconsistent statement - Admissibility of prior inconsistent statement - Purpose of rules governing admissibility of prior inconsistent statements. Criminal law - Whether prior complaint evidence should be led which does not specifically identify accused - Relevance and probative value of prior complaint evidence which does not specifically identify accused. The Criminal Code (WA), s 689(1). Evidence Act 1906 (WA), ss 20, 21, 22 and 36

Samuel Capper v Andrew Thorpe Real Property - Notices - Default notice - Service by post - Contract deeming notice to be served 48 hours after posting - Whether consistent with legislative provisions as to notice. Real Property - Notices - Default notice - Service by post - "served on the purchaser in writing" - Whether service effected upon receipt of a postal notice advising that an article awaits collection. Real Property - Notices - Default notice - Whether receipt of a copy of notice amounts to service. Statutes - Interpretation - Intention of the Legislature - Use of legislative debates. Sale of Land Act 1970 (WA), s 6. Interpretation Act 1984 (WA), ss 75(1), 76. Interpretation Act 1918 (WA), s 31 (repealed). GAUDRON, Mc

Extradition - Application on behalf of extradition country for issue of warrant of arrest - Meaning of "extradition country" - Whether "Hong Kong" specified in Extradition (Hong Kong) Regulations a "territory for the international relations of which a country is responsible" - Whether "Hong Kong" specified in Regulations commencing on 29 June 1997 refers from 1 July 1997 to the Hong Kong Special Administrative Region of the People's Republic of China. Evidence - Certificate by Minister for Foreign Affairs - Certificate containing views on matters within peculiar responsibility of Minister - Admissibility of certificate. Words and phrases - "extradition country" - "territory for the international relations of which a country is responsible". Extradition Act 1988 (Cth), ss 5, 12. Extradition (Hong Kong) Regulations (Cth). GAUDRON, Mc

Cannane & Anor v J Cannane Pty Limited & Anor; Cannane & Anor v Official Trustee in Bankruptcy as Trustee of the Bankrupt Estate of John Vincent Cannane Bankruptcy - Disposition of Property - Intention of bankrupt to use corporate vehicle owned by bankrupt for purchase of business for the purpose of a "back door listing" - Transfer of share in corporate vehicle to family members for nominal but adequate consideration in expectation of increase in value - Subsequent purchase of business by corporate vehicle and commensurate increase in value of share - Whether disposition of property for undervalue - Whether creditors entitled to the increased value of share - Whether intent to defraud creditors. Corporations - Winding up - Undue preference - Disposition of property - Intention to use subsidiary corporate vehicle for purchase of business for the purpose of a "back door listing" - Transfer and issue of shares in corporate vehicle to family members of director for nominal but adequate consideration in expectation of increase in value - Subsequent purchase of business by corporate vehicle and commensurate increase in value of shares - Whether disposition of property for undervalue - Whether creditors entitled to the increased value of shares - Whether intent to defraud creditors. Words and Phrases - "Acts of intent to defraud creditors". Bankruptcy Act 1966 (Cth), ss 120, 121. Corporations Law, s 565. BRENNAN CJ AND Mc

PCS Operations Pty Ltd & Ors v Maritime Union of Australia & Ors Maritime Union of Australia & Ors v Patrick Stevedores No 1 Pty Ltd & Ors; Ex parte the Honourable Daryl Williams, Attorney-General for the Commonwealth Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors High Court - Removal - Whether matter arising under the Constitution or involving its interpretation. Constitutional Law - Federal Court - Jurisdiction. The Constitution, ss 75, 76, 77. Federal Court of Australia Act 1976 (Cth), s 32. Judiciary Act 1903 (Cth), s 40(1). Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 9. Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), s 4.

& Anor Practice and Procedure - Extension of time to enter an appeal for hearing - Appeal lodged within time - Procedural default - Delay - Assessment of merits in exercise of discretion to extend time - Whether appeal is "arguable" or "fairly arguable" - Determination of "real prospect of success" - Availability of evidence. BRENNAN CJ AND Mc

Project Blue Sky Inc & Ors v Australian Broadcasting Authority Statutes - Construction - Reconciliation of conflicting provisions - Intention of legislature - Presumption that provisions intended to achieve consistent goals - Leading and subordinate provisions - Grammatical meaning and legal meaning. Statutes - Construction - Acts done in breach of a condition regulating a statutory power - Whether invalid - Mandatory and directory provisions - Purpose-based test. Media law - Television - Regulation of programming - Australian Broadcasting Authority - Standard prescribing Australian content requirements - Whether inconsistent with legislative requirement that functions be performed consistently with Australia's international obligations. Media law - Television - Regulation of programming - Australian Broadcasting Authority - Power to make standards that "relate to ... the Australian content of programs" - Whether restricted to standards conferring preferential treatment. Trade law - Australia New Zealand Closer Economic Relations Trade Agreement. Broadcasting Services Act 1992 (Cth), ss 3, 122, 158, 160. Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 (Cth), s 21. Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 applied.

Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors High Court and Federal Judiciary - Federal Court of Australia - Power under s 298U of the Workplace Relations Act 1996 (Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) to grant interlocutory injunctions to restrict purported termination of labour supply agreements, termination of employment of employees, obtaining stevedoring services, engaging in conduct having the effect of termination employment of employees, and engaging in conduct having the effect of the divestment of assets or dealing with assets otherwise than in the ordinary course of business. Equity - Equitable Remedies - Mareva injunctions and other interlocutory injunctions - Whether within jurisdiction of the Federal Court of Australia to grant injunction with the effect of fettering discretion of administrators appointed under Pt 5.3A of the Corporations Law - Whether effect of such injunction requires company to trade while insolvent - Whether injunction necessary to prevent frustration of process - Whether confined to maintaining status quo at the time of making application - Whether available to protect the subject matter of litigation conferring greater rights than when application made - Whether serious question to be tried - Whether appropriate on balance of convenience - Effect on third parties - Exercise of supervisory jurisdiction. Corporations - Companies - Management and Administration - Appointment of administrators under Pt 5.3A of the Corporations Law - Powers and duties in administration of company - Personal liability in administration of company - Jurisdiction of court fettering discretion of administrators - Jurisdiction of court to make orders compelling administrators to retain employees and to trade while insolvent contrary to responsibilities under the Corporations Law. Industrial Law - Commonwealth - Stevedoring Industry - Whether restructuring of companies so as to remove assets from employer company with the effect of dismissing, injuring or altering the position of employees by reason of their membership of a union contravenes Pt XA of the Workplace Relations Act 1996 (Cth) - Nature of interlocutory injunctive relief available under s 298U of that Act. Tort - Joint or Several Tortfeasors - Conspiracy - Whether interlocutory injunction an appropriate remedy - Whether interlocutory mandatory injunction an appropriate remedy. 2. Corporations Law, Pt 5.3A, s 1321. Federal Court of Australia Act 1976 (Cth), ss 23, 32. Workplace Relations Act 1996 (Cth), Pt XA, ss 298K, 298L, 298T, 298U, 298V. BRENNAN CJ, Mc

Patrick Stevedores No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors Procedure - Stay - Stay of injunction - Preservation of the authority of the court. Tait v The Queen [1962] HCA 57; (1962) 108 CLR 620.

Patrick Stevedores No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors Procedure - Stay - Stay of injunction.

Commissioner of Taxation v Orica Limited Income tax - Agreement for third party to discharge taxpayer's future liability to repay debentures - Taxpayer pays third party net present value of liabilities - Whether difference between net present value and face value of liabilities is assessable income - Whether income according to ordinary concepts - Historical cost approach - Economic equivalence - Single transaction - Whether profit-making scheme. Income tax - Capital gains - Whether difference between net present value and face value of liabilities is a capital gain - Whether taxpayer's rights against third party under agreement are an asset - Whether performance of contractual obligations amounts to disposal of asset. Income Tax Assessment Act 1936 (Cth), ss 19, 25, 25A, 160A, 160M. Words and phrases - "income", "asset", "discharge", "satisfaction".

South-West Forest Defence Foundation Inc v Executive Director of the Department of Conservation and Land Management and Anor Bridgetown-Greenbushes Friends of the Forest Inc v Executive Director of the Department of Conservation and Land Management & Ors Costs - Public interest litigation. GAUDRON, Mc

Defamation - Defence of fair and accurate report - Meaning to be determined before considering fairness of report - Whether newspaper report of meeting of Royal Commission fair and accurate - Whether letter or statement by way of contradiction or explanation is reasonable which inaccurately controverts the fairness or accuracy of report - Whether assessment of reasonableness of letter or statement by way of contradiction confined to consideration of facts known at time of writing. Defamation - Practice - Pleadings - Whether plaintiff should plead all distinct meanings to be relied on - Whether the defendant can plead different meanings and justify them - Whether the plaintiff should be confined to meanings pleaded - Relevance of considerations of delay, disadvantage, prejudice and embarrassment of fair trial of action - Reliance by plaintiff on different meanings pleaded by defendant - Reliance by plaintiff on meanings comprehended in or less injurious than meanings actually pleaded - Reliance by parties on variants of meanings pleaded. Defamation - Common law privilege - Whether privilege extends to publication of a fair report of the proceedings of a royal commission. Damages - Defamation - Applicability to report that is not fair or accurate of approach of subtracting effect of non-actionable parts of defamatory article from defamatory parts in calculating damages - Requirement of special damage in law of slander - Evidence of general loss of business as proof of special damage - Lost earning capacity as special damage in defamation law - Recovery for lost earning capacity productive of actual loss. Civil Procedure - Pleadings - Defence to respond to Statement of Claim - Embarrassment arising from introduction of a false issue. Words and Phrases: "fair and accurate report", "meeting of any royal commission", "reasonable letter or statement by way of contradiction or explanation". Wrongs Act 1936 (SA), s 7(1). Supreme Court Rules (SA), r 46.19(1). BRENNAN CJ AND Mc

Insurance - Insurance Brokers - Breach of duty or contractual obligation by broker to disclose insured's full claims history to insurer - Compromise settlement by insured of claim against insurer and remainder of claimed damages sought from broker - Whether settlement reasonable - Whether sufficient evidence brought by insured to demonstrate the strength of the insurer's defence of non-disclosure - Whether broker's breach of duty or contractual obligation relevantly caused insured's loss - Whether settlement rendered the remainder of insured's damages too remote. Words and phrases - "A reasonable insurer". Insurance Contracts Act 1984 (Cth), s 28.

Phonographic Performance Company of Australia Limited & Ors v Federation of Australian Commercial Television Stations Copyright - Sound recording embodied in sound-track of cinematograph film - Whether broadcast of film constitutes broadcast of sound recording. Copyright Act 1968 (Cth), ss 23(1), 85, 110(3), 113. International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (the Rome Convention).

Sinanovic v The Queen Practice and procedure - High Court - Applications for leave of a Justice to issue process - Motion to set aside decision refusing special leave to appeal - Motion by prisoner without legal representation - Wife permitted to speak on prisoner's behalf - Prisoner claims difficulties in Court of Criminal Appeal and High Court by reason of being unrepresented, non English speaking and illiterate - Provision made for supply by Crown of trial transcript - Motion refused as having no prospect of success. International law - Human rights - Right to equality before courts - International Covenant on Civil and Political Rights, Art 14.1 - Whether breached by failure to provide legal representation to illiterate prisoner with difficulties of communication - Decision that no substance in ground of appeal - Relevance of unincorporated international law for Australian domestic law - Motion to re-open special leave hearing refused. Criminal law - Appeal - Legal representation - Whether right to legal counsel at public expense - Prisoner claims severe difficulties of communication - Whether proceedings should have been adjourned - Applicability to appeals against conviction of Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. High Court Rules, O 58 r 4(3).

Gipp v The Queen Criminal Law - Sexual offences - General evidence of history of sexual abuse - Whether evidence admissible as similar fact or propensity evidence - Whether admission of evidence amounted to a miscarriage of justice - Whether directions or failure to direct by trial judge as to use of that evidence amounted to a miscarriage of justice. Criminal Law and Procedure - Nolle prosequi - Purported entry of nolle prosequi in respect of some but not all counts in indictment - Whether this procedural irregularity amounted to a miscarriage of justice - Whether leaving the evidence with respect to these charges before the jury amounted to a miscarriage of justice. Appeal - Points and objections not taken below - Role of court of criminal appeal. Words and phrases - "unsafe and unsatisfactory" - "miscarriage of justice". Criminal Code Act 1899 (Q), ss 563, 668

Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd Practice - High Court - Order for security for costs - Proceedings in original jurisdiction of the Court - Order for security for costs within inherent jurisdiction - Width of jurisdiction and matters relevant to its exercise - Constitutional challenge to validity of winding up order - Companies insolvent - Whether collateral challenge to orders of Federal Court doomed to fail - Order for security for costs refused. Costs - High Court - Security for costs - Original jurisdiction - Absence of express provision for security - Reasons for express provision for security in case of appeals - Inherent jurisdiction to order security - Whether security for costs should be ordered - Order refused. Corporations - Insolvent corporations - Winding up order made by Federal Court - Challenge to constitutional validity of order - Determination deferred pending decision in Gould v Brown (1998) 72 ALJR 375; 151 ALR 395; [1998] HCA 6 - Challenge by proceedings in original jurisdiction of High Court - Public importance and urgency of resolution of challenge - Whether security for costs should be ordered - Order refused. Corporations - Insolvent corporations - Commencement of proceedings in High Court - Whether governed by Corporations Law s 1335 - Whether High Court is a "court" within the section - Special definition of "court" - Description inapplicable to proceedings invoking the original jurisdiction of the High Court under the Constitution - Discretion to order security for costs at large within inherent jurisdiction of the Court - Order refused. Constitutional law - Australian Constitution - Federal judicature - Judicial power of the Commonwealth - Cross-vested jurisdiction in Federal Court as to matters arising under a State Corporations Law - Whether constitutionally valid - Challenge by company ordered to be wound up - Relevance of importance of determination of challenge to application for order for security for costs - Order refused. Constitutional law - Federal judicature - Judicial power of the Commonwealth - Application for security for costs - Whether doomed to fail - Whether challenge to constitutional validity of winding up order a collateral attack bound to be dismissed - Order for security for costs refused. 2. Federal Court - Original jurisdiction - Application of State laws - Cross-vesting legislation - Validity - Challenge by company ordered to be wound up - Public importance of challenge - Application for order for security for costs refused. Constitution, ss 75, 76(i). Corporations Act 1989 (Cth), s 56(2). High Court Procedure Act 1903 (Cth), repealed, ss 32, 33, 35, Schedule. Judiciary Act 1903 (Cth) ss 26, 30(a), 35AA, 42, 44, 78B. Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9(2). Corporations Law, ss 58AA, 459A, 1335. Companies (New South Wales) Code, s 533 Corporations (New South Wales) Act 1928 (1990) (NSW), s 42(3). High Court Rules (Statutory Rules, No 118), O XXVIII rr 9 and 17. High Court Rules, O 70 r 7, O 71 rr 5 and 6.

Commissioner of Taxation v Murry Income tax - Capital gains - Exemptions - Goodwill - Disposal of taxi licence and shares - Whether disposal of a "business" that "includes, or includes an interest in, goodwill of the business" - Nature of goodwill - Sources of goodwill - Value of goodwill. Words and phrases - "asset", "goodwill". Income Tax Assessment Act 1936 (Cth), Pt IIIA, ss 160A, 160ZZR. GAUDRON, Mc

Re JJT & Ors; Ex Parte Victoria Legal Aid Costs - Power to make order against a non-party - Order of Family Court requiring Victoria Legal Aid to provide for future costs of child's separate representation - Whether order "as to costs" - Whether order as to security for costs. Family law - Order of Family Court requiring Victoria Legal Aid to provide for future costs of child's separate representation - Whether supported by power to make such other orders as the court considers necessary to secure separate representation - Power to make interim maintenance orders. Words and phrases - "order as to costs". Family Law Act 1975 (Cth), ss 68L, 117. GAUDRON J. I agree generally with the judgment of Hayne J. I would, however, add a few observations of my own. The power conferred by s 117(2) of the Family Law Act 1975 (Cth) ("the Act") is a power to "make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just." That power is not simply a power to make an order for costs. Were it so, it would only authorise orders to indemnify for "costs actually incurred in the conduct of litigation"[1]. However, a power to make an "order as to costs" is a broader power. And when regard is had to the consideration that s 117(2) expressly authorises interlocutory orders, that sub-section must, in my view, be construed as authorising orders requiring a party to proceedings under the Act to provide another party with funds to conduct those proceedings[2]. Doubtless, the power to award maintenance under s 74 of the Act also extends to orders that a party to the marriage provide the other with funds to conduct proceedings under the Act. I mention this matter because, as between parties to a marriage who are also parties to litigation, an order to provide funds for the conduct of litigation as to their mutual rights and obligations is as aptly described as a maintenance order as an "order as to costs". And it may be that, in the absence of statutory power either as to costs or maintenance, a superior court has inherent power in proceedings between de facto couples to make an order that one party provide the other with funds to conduct proceedings, if that is necessary to enable the proper conduct of litigation with respect to their property[3]. And in that situation, an order might as easily be described as a mandatory injunction or an order for interim provision as an "order as to costs". One other matter should be noted with respect to s 117(2), namely that its terms are, if anything, wider than the bare power "to award costs" considered in Knight v FP Special Assets Ltd[4]. Accordingly, it follows that the sub-section authorises orders against persons who are not parties to proceedings in the exceptional circumstances in which that course is appropriate. At least that is so if the order is one which indemnifies for costs actually incurred, an order of that kind being properly described as an "order as to costs". Notwithstanding the width of the power conferred by s 117(2) of the Act, an order under that sub-section must, as Hayne J points out, be an "order as to costs [or] security for costs". The order in question in this case is plainly not an order for security. And an order against a person, who is not a party to proceedings and who has no interest in them or their outcome and no control over them, to provide funds to another is not, in my view, an order as to costs even though its purpose is to enable that other person to be legally represented in the proceedings. Rather, it is simply a maintenance order, or, where, as here, made against a legal aid body, an order for the provision of legal aid. I agree entirely with the observations of Hayne J with respect to s 68L of the Act. The order nisi for certiorari should be made absolute and order 3 of the orders made by Faulks J in the Family Court on 9 September 1997 should be quashed. Given the developments that have occurred since the order nisi was granted, it is not now necessary for prohibition to issue. Accordingly, the order nisi for prohibition should be discharged.

Director of Public Prosecutions v B Criminal law - Practice and procedure - Prosecution attempted to enter nolle prosequi - Whether court has power to refuse to accept entry of nolle prosequi - Jurisdiction of Full Court of Supreme Court to answer questions reserved - Whether questions arose "at the trial" - Time at which criminal trial upon an information begins - No power to issue advisory opinion. Words and phrases - "at the trial". Criminal Law Consolidation Act 1935 (SA), ss 285A, 350.

Simpson v The Queen Criminal law - Murder - Whether accused "ought to have known" that his unlawful act was likely to cause death - Whether sufficient evidence tendered of state of knowledge of accused - Inferential proof of accused's knowledge. Whether judge failed to give direction in accordance with Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 - Whether miscarriage of justice. Words and phrases - "knew or ought to have known". Criminal Code Act 1924 (Tas), s 157(1)(c). GAUDRON AND Mc

Wayne Ronald Hembury v Chief of the General Staff Military law - Court martial procedure - Requirement that members vote in ascending order of seniority - Misdirection as to voting order - Whether a "material irregularity" giving rise to a "substantial miscarriage of justice". Military law - Court martial procedure - "substantial miscarriage of justice" - Whether jurisprudence deriving from general criminal law applicable. Military law - Review jurisdiction of Defence Force Discipline Appeal Tribunal and Federal Court of Australia - Whether involves an exercise of Commonwealth judicial power. Words and phrases - "substantial miscarriage of justice" - "material irregularity". Defence Force Discipline Appeals Act 1955 (Cth), s 23(1)(c). Defence Force Discipline Rules (Cth), r 33. Mc

Krakouer v The Queen Criminal law - Attempt to possess drugs with intent to sell or supply - Conspiracy to possess drugs with intent to sell or supply - Misdirection reversing onus of proof for an element of offences - Substantial miscarriage of justice - Whether misdirection went to the root of proceedings - Whether appellant lost a real chance of acquittal - Whether foresight of sale or supply sufficient to constitute intent to sell or supply. Misuse of Drugs Act 1981 (WA), ss 11, 33. Criminal Code (WA), s 689.

Garcia v National Australia Bank Limited Equity - Wife guaranteed debts of husband's company as a volunteer - Wife did not fully understand effect of guarantees - Whether guarantees liable to be set aside - Bank did not explain document to wife - Bank not on notice of unconscionable dealing between husband and wife - Principle in Yerkey v Jones explained. Precedent - Binding effect of previous decisions of High Court - Ascertainment of binding rule. Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, explained and followed. Barclays Bank Plc v O'Brien [1994] 1 AC 180, not followed. GAUDRON, Mc

Bateman's Bay Local Aboriginal Land Council and Anor v The Aboriginal Community Benefit Fund Pty Limited and Anor Administrative law - Standing - Application for injunctive relief to restrain alleged ultra vires activities by statutory authority with recourse to public moneys - Operation of contributory funeral benefit business by statutory authority - Attorney-General's fiat refused - Whether applicant has sufficient special interest - Commercial activities of applicant in competition with statutory authority. Words and phrases - "special interest". Funeral Funds Act 1979 (NSW), s 11. Aboriginal Land Rights Act 1983 (NSW), ss 12, 23.

Farrell v The Queen Criminal law - Expert evidence - Whether expert evidence admissible which discloses existence of mental disability likely to bear on reliability of complainant's evidence - Whether possibility of impairment of memory by alcohol and substance abuse within experience of ordinary persons - Whether knowledge of effect of anti-social personality disorder within experience of ordinary persons. Criminal law - Jury direction on weight to be given to expert evidence about credibility and reliability of complainant witness - Whether misdirection deprived appellant of fairly open chance of acquittal. Criminal Code Act 1924 (Tas), s 402(2).

Penney v The Queen Criminal law - Appellant convicted of attempted murder of his wife by setting fire to car - Whether verdict was unsafe or unsatisfactory or productive of a "miscarriage of justice" entitling the appellant to an acquittal or retrial - Significance of a defective police investigation - Whether misdirection on elements of offence and motive - Relevance in this context of marital discord. Criminal Law Consolidation Act 1935 (SA) s 353. McHUGH J. I agree that this appeal should be dismissed for the reasons given by Callinan

Commissioner of Taxation v Australia and New Zealand Savings Bank Limited Income Tax - Deductions and rebates in calculating taxable income - Annuities - Purchase by trust - Whether whole of annuity payments capital or exempt income of the trust - Interest on money borrowed to acquire units in trust - Whether interest expense to be apportioned on ground that it was partly incurred in relation to the gaining or production of exempt income. Words and Phrases - "exempt income". Income Tax Assessment Act 1936 (Cth), ss 27H, 51(1), 97.

H A Bachrach Pty Ltd v The State of Queensland & Ors Constitutional law - Restrictions on Commonwealth and State legislation imposed by Constitution, Ch III - Judicial power - Whether Local Government (Morayfield Shopping Centre) Act 1996 (Q) interferes with the exercise of judicial power or judicial process of the Supreme Court of Queensland, contrary to requirements of Ch III. The Constitution, Ch III. Local Government (Morayfield Shopping Centre) Act 1996 (Q). Local Government (Planning and Environment) Act 1990 (Q).

Negligence - Causation - Failure to warn of inherent risk of operation about which patient had specifically inquired - Plaintiff would have inevitably required the same operation at some time in the future but would have postponed the operation performed if properly warned - Surgery was performed with due skill and care but risk materialised - Whether there was a causal connection between failure to warn and plaintiff's physical injury - Whether damage suffered was physical injury or loss of chance. Negligence - Damages - Whether damages should be discounted to account for possible future events. Medicine - Medical practitioners - Failure to warn of inherent risk of operation about which patient had specifically inquired.