Cases and authorities

Public international law – Foreign State immunity – Sections 11(1) and 22 of Foreign States Immunities Act 1985 (Cth) ("Act") together provide that a separate entity of a foreign State is not immune from jurisdiction in a proceeding that concerns a "commercial transaction" – Respondent commenced proceedings against appellant for conduct allegedly contrary to Pt IV of Trade Practices Act 1974 (Cth) – Whether appellant immune under Act from exercise of jurisdiction – Whether civil penalty proceeding concerns a "commercial transaction". Words and phrases – "commercial transaction", "conferral of jurisdiction", "jurisdiction", "sovereign immunity ". Constitution, s 51(xxix). Foreign States Immunities Act 1985 (Cth), ss 3(1), 9, 10, 11, 22, 38, 40. Judiciary Act 1903 (Cth), s 39B. Trade Practices Act 1974 (Cth), Pt

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III — Sections 596A and 596B of Corporations Act 2001 (Cth) confer power upon court exercising federal jurisdiction to order, on application of receiver, examination of person about examinable affairs of corporation – Whether conferral of non-judicial power. Corporations Act 2001 (Cth), ss 596A, 596

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Section 47B(1)(a) of Road Traffic Act 1961 (SA) created offence for person to drive motor vehicle while prescribed concentration of alcohol present in blood – Section 47K(1) of Act created presumption that breath analysis reading corresponded to blood alcohol level at time of analysis – Section 47K(1a) of Act provided presumption could only be rebutted if defendant arranged for blood sample to be taken in accordance with prescribed procedures and adduced evidence that analysis of blood demonstrates that breath analysis reading instrument gave exaggerated reading – Where respondent charged with offence against s 47B(1)(a) and pleaded not guilty – Where breath analysis reading indicated blood alcohol level above prescribed concentration – Where respondent arranged for blood sample to be taken but sample unable to be analysed through no fault of appellant or respondent – Where appellant sought to tender evidence of breath analysis reading – Whether there exists residual common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudicial misuse where admission would render trial of accused unfair – Whether respondent's trial unfair in relevant sense if evidence of breath analysis reading admitted. Words and phrases – "Bunning v Cross discretion", "Christie discretion", "forensic unfairness", "general unfairness discretion", "Lee discretion", "unfair trial". Road Traffic Act 1961 (SA), ss 47B(1)(a), 47K. Road Traffic (Miscellaneous) Regulations 1999 (SA), reg 11, Sched 1.

Procedure – Freezing orders – Power of Supreme Court of Western Australia to make freezing order in relation to prospective judgment of foreign court which would be registrable under Foreign Judgments Act 1991 (Cth) – First respondent commenced proceeding against appellant in High Court of Singapore – Proceeding remains pending – First respondent applied to Supreme Court for freezing order under O 52A of Rules of the Supreme Court 1971 (WA) against appellant's assets – Freezing order made – Whether freezing order in relation to prospective foreign judgment within inherent power of Supreme Court. Words and phrases – "federal jurisdiction", "freezing order", "inherent jurisdiction", "inherent power", "prospective enforcement". Foreign Judgments Act 1991 (Cth), Pt 2, s 17. Judiciary Act 1903 (Cth), ss 39(2), 79. Supreme Court Act 1935 (WA), s 167(1)(a). Rules of the Supreme Court 1971 (WA), O 52

Torts - Negligence - Duty of care - Roads authority - Independent contractor employed by roads authority to perform work on public road - Work not extra-hazardous - Independent contractor performed work negligently - Road user injured - Whether roads authority owed road user a non-delegable duty of care - Common features of relationships attracting non-delegable duties of care in common law of Australia - Whether existence of non-delegable duty of care consistent with Brodie v Singleton Shire Council [2001] HCA 29; (2005) 206 CLR 512 - Whether exception to general rule that a party is not liable for the negligence of an independent contractor. Statutes - Interpretation - Roads Act 1993 (NSW) - Nature of powers given to roads authority - Power of roads authority to carry out road work - Right of member of the public to pass along public road - Whether statutory scheme evinced an intention that roads authority owed road user a non-delegable duty of care - Whether statutory scheme inconsistent with existence of a non-delegable duty - Significance of statute for applicable rule of the common law. Words and phrases - "non-delegable duty of care", "highway rule", "non-feasance rule". Roads Act 1993 (NSW), ss 5, 7, 71, 145, 146.

Practice and procedure - Legal professional privilege - Solicitor summonsed to give evidence before the New South Wales Crime Commission ("the Commission") - Whether the communication of a client's name or the communication of the client's contact details was a privileged communication. Legal practitioners - Solicitor and client - Legal professional privilege -Whether the communication of a client's name or the communication of the client's contact details was a privileged communication. Statutes - Interpretation - New South Wales Crime Commission Act 1985 (NSW) ("the Act") - Section 18B(4) of the Act - Entitlement of legal practitioner appearing as a witness before the Commission to refuse to answer a question if the answer would disclose a privileged communication - Whether disclosing a client's name and address would disclose a privileged communication. Statutes - Interpretation - Section 18B(4) of the Act - Entitlement of legal practitioner appearing as a witness before the Commission to refuse to answer a question if the answer would disclose a privileged communication - Whether s 18B(4) of the Act qualifies this entitlement by providing that the legal practitioner must, if required, "furnish to the Commission the name and address of the person to whom or by whom the communication was made". Words and phrases - "confidential communication", "dominant purpose", "legal professional privilege", "privileged communication". New South Wales Crime Commission Act 1985 (NSW), ss 3, 5, 6(1), 13(1), 13(8), 18(2), 18B(1), 18B(4).

Smith v The Queen The Queen v Afford Criminal law – Fault element – Intent – Inferential reasoning – Importation of commercial quantity of border controlled drug – Where accused persons brought substance into Australia – Where substance concealed in items – Where accused persons denied intent to import substance – Where accused persons perceived real or significant chance of presence of substance when entering Australia – Whether permissible to infer intent for purposes of Criminal Code (Cth) from awareness of real or significant chance of presence of substance – Whether process of inferential reasoning identified in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 applicable – Whether jury directions conflated intent with recklessness. Words and phrases – "inferential reasoning", "intent to import", "intention", "jury directions", "real or significant chance", "reckless", "unsafe verdict". Criminal Code (Cth), ss 5.2, 5.4, 5.6, 307.1.

CONTRACTS - construction of contract - agreement to lend shares - plaintiff sues to recover shares - what was lending agreement and terms of agreement - whether variation of agreement to delay replacement - what was plaintiff's entitlement to shares - where company restructured - where shares consolidated - whether specific performance should be granted.

Bankruptcy – Creditor's petition – Where petitioning creditor relied upon judgment debt – Where judgment debt resulted from contested hearing – Where no suggestion of fraud or collusion in obtaining judgment – Where evidence adduced to suggest debt not truly owing – Whether Bankruptcy Court has, and should exercise, discretion to "go behind" judgment to investigate debt. Words and phrases – "debt truly owing", "fraud, collusion or miscarriage of justice", "'go behind' a judgment", "miscarriage of justice". Bankruptcy Act 1966 (Cth), s 52. KIEFEL CJ, KEANE AND NETTLE JJ. A Bankruptcy Court exercising jurisdiction under s 52 of the Bankruptcy Act 1966 (Cth) ("the Act") may, in some circumstances, "go behind" a judgment in order to be satisfied that the debt relied upon by the petitioning creditor is truly owing. The Bankruptcy Court may take this course in order to satisfy itself that there is an extant petitioning creditor's debt as a necessary foundation for the making of a sequestration order. In this case, the primary judge decided not to go behind a judgment in favour of the appellant, Ramsay Health Care Australia Pty Ltd ("Ramsay"). The judgment was given after a trial at which both parties were represented, and there was no suggestion that the judgment had been obtained by fraud or collusion. On that basis, the primary judge rejected an application by the judgment debtor that he should investigate whether the debt was truly owing. The Full Court of the Federal Court held that the primary judge erred in declining to investigate whether the debt was truly owing, given that the material before the primary judge raised substantial questions as to whether there was, in truth and reality, a debt due to Ramsay. Ramsay appealed to this Court. At the conclusion of the hearing of the appeal, because there was some urgency attending the determination of the matter, and because at least a majority of the Court was of opinion that the decision of the Full Court was correct, the Court made orders dismissing Ramsay's appeal with costs. What follows are our reasons for joining in the making of those orders. Background Ramsay and associated corporate entities operate private hospitals within Australia and overseas. In November 2012, Ramsay entered into an agreement with Compton Fellers Pty Ltd trading as Medichoice ("Medichoice"), whereby Medichoice agreed to import medical products on Ramsay's behalf and was appointed Ramsay's distributor to coordinate the procurement, importation, logistics and inventory management of the products[1]. The directors of Medichoice were Adrian Compton (the respondent in this appeal) and Anna Stevis[2]. The shares in the company were owned by Mr Compton and his wife, Amy[3]. Pursuant to cl 3.1 of a "Guarantee and Indemnity" ("the Guarantee") executed in connection with the agreement, which Mr Compton signed in his personal capacity, Mr Compton irrevocably and unconditionally guaranteed to Ramsay the payment of all money that Medichoice might become liable to pay Ramsay on any account in connection with Medichoice's performance of its obligations under the agreement[4]. Pursuant to cl 12 of the Guarantee, the parties agreed that "[a] certificate from Ramsay stating that an amount is owing or an event has occurred is taken to be correct unless the contrary is proved". The agreement expired on 30 June 2013. Medichoice subsequently went into liquidation and took no further active part in the proceedings. The judgment debt On 2 June 2014, Ramsay commenced proceedings in the Commercial List of the Equity Division of the Supreme Court of New South Wales against Mr Compton, claiming money purportedly owing to it by Mr Compton under the Guarantee. Prior to the trial of Ramsay's action against Mr Compton, both sides retained solicitors and briefed counsel in the proceedings. Both sides also filed and served evidence on the issue of the quantum of the alleged indebtedness. Ramsay's commercial list statement filed in the Supreme Court proceedings put in issue the quantum of Mr Compton's indebtedness to Ramsay; but Mr Compton's commercial list response raised only a non est factum defence to Ramsay's claim. At the trial in the Supreme Court before Hammerschlag J, Mr Compton relied solely on his non est factum defence[5]. He did not tender evidence in respect of quantum, nor did he seek to dispute the quantum of the alleged debt. As Hammerschlag J noted in his reasons for judgment, "[q]uantum is not in dispute"[6]. Mr Compton's non est factum defence failed[7]; and, in the absence of any issue as to the quantum of the debt alleged by Ramsay, Hammerschlag J awarded judgment for Ramsay against Mr Compton in the amount of $9,810,312.33[8] ("the Judgment"), being the amount stated in a Certificate of Debt adduced by Ramsay in accordance with cl 12 of the Guarantee. Mr Compton did not appeal from the Judgment; and on 29 April 2015, Ramsay served a bankruptcy notice on Mr Compton requiring that he pay the amount of the Judgment or make arrangements for settlement of the debt by 20 May 2015. The bankruptcy proceedings Mr Compton failed to comply with the bankruptcy notice, thereby committing an act of bankruptcy[9]. On 4 June 2015, Ramsay presented a creditor's petition in reliance upon that act of bankruptcy in the Federal Court of Australia[10]. On 7 July 2015, Mr Compton filed a notice stating grounds of opposition to the creditor's petition. Mr Compton contended that "no debt is or was really owed by [Mr Compton] to [Ramsay] because the [J]udgment is not founded on a debt that in truth and reality was or is owed by [Mr Compton] to [Ramsay]" and that "the Court should exercise its discretion to go behind the [J]udgment upon which the Creditor's Petition is based and consider whether the amount of the claimed debt as a whole is actually owed by [Mr Compton] to [Ramsay]". Section 52(1) of the Act relevantly provides: "At the hearing of a creditor's petition, the Court shall require proof of: ... (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor." Mr Compton filed an interim application, seeking an order that there be a separate determination of the question of whether the Court should exercise its discretion to go behind the Judgment to investigate the debt upon which the creditor's petition was based, and to consider whether it was actually owed. It may be noted here that no objection was raised to the separate determination of the question of whether to go behind the Judgment. This practice provides a convenient way of proceeding where a question is raised as to whether a judgment establishes the amount truly owing to the petitioning creditor. This procedure was approved by the Full Court of the Federal Court in Wolff v Donovan[11]; but it is apparent from the decision of Philp J in Petrie v Redmond[12] that this had been the practice of the Bankruptcy Court for many years before the decision in Wolff v Donovan. The primary judge's decision The primary judge (Flick J) dismissed Mr Compton's interim application[13]. At the hearing before the primary judge, Mr Compton sought to rely on a "reconciliation" of the indebtedness between the parties[14]. It was submitted on Mr Compton's behalf that, if accepted, the "reconciliation" established that it was Ramsay that owed money to Medichoice, and not the other way around[15]. The "reconciliation" was supported by evidence on affidavit from Ms Stevis. In addition, Richard Albarran (one of three joint liquidators of Medichoice) gave affidavit evidence to the effect that it was more likely that Ramsay was indebted to Medichoice than vice versa[16]. Before the primary judge, senior counsel for Ramsay said that it was an "open question" whether the calculations set forth in the "reconciliation" with respect to "offsets" and "rebates" were factually correct[17]. He submitted that "the best finding of fact your Honour could make on this application in relation to the issue is that perhaps there's enough evidence to show that there is a matter that upon further inquiry might lead to a different result". The primary judge declined to go behind the Judgment. His Honour approached the issue before him on the basis that two questions were involved: first, whether the discretion to go behind the Judgment had arisen at all; and secondly, whether that discretion should be exercised in favour of going behind the Judgment[18]. It may be that his Honour unduly complicated the resolution of the application before him: there was only one discretion to be exercised. As Barwick CJ explained in Wren v Mahony[19]: "The Court's discretion in my opinion is a discretion to accept the judgment as satisfactory proof of [the petitioning creditor's] debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner." The primary judge decided not to make his own investigation as to whether the debt relied on by Ramsay was truly owing. In concluding that he had no discretion to go behind the Judgment, his Honour noted that: . Mr Compton was represented by counsel in the proceedings before the Supreme Court; . there was available evidence that had been filed in that Court addressing the quantum of any debt that may be owed; and . a forensic decision had been made to confine the issue to be resolved by that Court to the enforceability of the Guarantee[20]. His Honour considered that, even if the circumstances had enlivened the discretion to go behind the Judgment, the discretion should not be exercised in this case, for the same reasons, together with further reasons including that: . the factual materials upon which the "reconciliation" was carried out were available to Mr Compton at the time of the Supreme Court hearing; . no explanation was advanced on behalf of Mr Compton as to why the quantum of indebtedness was not put in issue before the Supreme Court or why the "reconciliation" was not previously undertaken; . Ramsay maintained that there remained outstanding an indebtedness of a significant amount, although it accepted that the amount may be less than $9,810,312.33; and . there was a "disturbing discrepancy" between the affidavits of Ms Stevis before the Supreme Court and before the Federal Court[21]. It is convenient to note here that the "disturbing discrepancy" referred to by the primary judge was the difference between Ms Stevis' estimate, for the purposes of the Supreme Court proceedings, of a balance of account in favour of Medichoice of approximately $2.45 million, and her estimate of $2.26 million in the bankruptcy proceedings[22]. Given the relatively small amount of this discrepancy, and Mr Albarran's evidence in the bankruptcy proceedings, it is readily understandable that the primary judge was not disposed to treat the discrepancy as indicating a want of good faith on the part of Mr Compton in seeking to challenge the debt. Mr Compton sought leave to appeal from this decision to the Full Court of the Federal Court. The Full Court In a unanimous judgment, the Full Court (Siopis, Katzmann and Moshinsky JJ) granted leave to appeal and allowed Mr Compton's appeal. Ramsay argued that the decision of this Court in Corney v Brien[23] established that a Bankruptcy Court should not go behind a judgment which follows a full investigation at trial at which both parties were represented. Ramsay argued that this decision stands for the proposition that "fraud, collusion or miscarriage of justice" are exhaustive of the circumstances in which a Bankruptcy Court may or should go behind a judgment. The Full Court rejected that argument, concluding that neither the plurality judgment in Corney v Brien, nor the reasons of Fullagar J, established such a narrow view of the function of a Bankruptcy Court[24]. The Full Court applied the approach of Barwick CJ (with whom Windeyer and Owen JJ agreed) in Wren v Mahony[25] that in circumstances "where reason is shown for questioning whether behind the judgment ... there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof" but rather must "exercise its ... discretion to look at what is behind the judgment"[26]. The Full Court went on to hold that the primary judge erred in focusing on[27]: "the way in which Mr Compton conducted his case in the Supreme Court rather than on the central issue, which was whether reason was shown for questioning whether behind the judgment there was in truth and reality a debt due to the petitioning creditor". The Full Court held that a focus upon that "central issue" reveals that substantial reasons were shown for questioning whether Mr Compton was indebted to Ramsay. The Court held that the evidence supporting the "reconciliation" and Ramsay's concession that there was a "question" as to the debt raised a question which required resolution before the Bankruptcy Court could proceed to make a sequestration order. While some, and possibly all, of the factual materials underpinning the "reconciliation" may have been available before the Supreme Court, the issue for the Bankruptcy Court was not the finality of forensic choices made by the parties in the litigation which resulted in the Judgment, but the requirement of s 52(1) of the Act that the Bankruptcy Court have satisfactory proof of the petitioning creditor's debt before proceeding to make a sequestration order[28]. The Full Court held that the primary judge erred in concluding that the discretion to go behind the Judgment had not been enlivened. Their Honours said that these same considerations tended towards a conclusion that the primary judge also erred in holding that should the discretion be enlivened, it should not be exercised[29]. The Full Court proceeded to consider afresh whether to go behind the Judgment[30], and concluded that the Bankruptcy Court should go behind the Judgment, to determine whether there was in truth and reality any debt owing to the petitioning creditor. Accordingly, the Full Court granted leave to appeal and allowed Mr Compton's appeal, ordering that the Bankruptcy Court should go behind the Judgment[31]. By special leave, Ramsay appealed to this Court, arguing that the Full Court erred in setting aside the decision of the primary judge to decline to go behind the Judgment. The parties' arguments in this Court Ramsay Ramsay again put at the forefront of its submissions the contention that this Court's decision in Corney v Brien[32] established that a Bankruptcy Court's discretion to go behind a judgment after a contested hearing is enlivened only in the event of some fraud, collusion or miscarriage of justice. There was no suggestion of fraud or collusion, and Ramsay argued that the expression "miscarriage of justice" refers, in this context, only to circumstances which impeach the judgment such that the judgment should never have been obtained. Ramsay argued that the Full Court did not, and could not, conclude that the Judgment was affected by miscarriage of justice in this special sense. These propositions were said to be consistent with the principle of finality in litigation, which is part of the common law framework in which the discretion conferred by s 52 of the Act should be considered. It was said that the statutory discretion conferred by s 52 should be applied in a manner giving primacy to a final judgment given after a contested hearing. Ramsay argued that the Full Court took too broad a view of the holding in Wren v Mahony[33]. That broad view was said to overlook the circumstance that Wren v Mahony involved a default judgment, with Barwick CJ observing that "[t]here had been no more in the Supreme Court than a contest at the pleading stage of the action"[34]. As to the concession before the primary judge that there was an "open question" as to whether the debt was in fact owed, Ramsay submitted that this amounted to no more than an acceptance of the obvious proposition that if the Bankruptcy Court were in due course to go behind the Judgment, there would be a factual contest as to the amount of the debt, a contest which would be resolved on further evidence to be adduced by Ramsay. Mr Compton Mr Compton submitted that, by reason of s 52(1)(c) of the Act, and as Wren v Mahony[35] concluded, the question for the Bankruptcy Court was whether the judge was persuaded that there was a debt truly owing to the petitioning creditor. It was said that the Bankruptcy Court should go behind a judgment where sufficient reason is shown for questioning whether behind the judgment there is in truth and reality a debt due to the petitioning creditor, and that sufficient reason was shown in this case. An examination of the competing arguments shows that, both in point of authority and in point of principle, Ramsay's contentions should be rejected and those advanced for Mr Compton accepted. Corney v Brien By reason of s 52 of the Act, a Bankruptcy Court must be satisfied with the proof of "the fact that the debt ... on which the petitioning creditor relies is ... still owing", if the court's power to make a sequestration order is to be enlivened. The plurality in Corney v Brien did not hold that a Bankruptcy Court must treat a judgment as satisfactory proof of the petitioning creditor's debt save in cases of fraud, collusion or miscarriage of justice. Rather, the plurality held that a Bankruptcy Court has "undoubted jurisdiction" to go behind a judgment in those circumstances[36]. To say that the court may do a thing in certain circumstances is not to say it may do that thing only in those circumstances. In point of authority, it is important to appreciate that, in Corney v Brien, the plurality referred with evident approval to the earlier decision in Petrie v Redmond[37]. An examination of the decision in Petrie v Redmond shows that it stands squarely against the propositions for which Ramsay contends in this case. In Petrie v Redmond[38], Philp J, sitting as the Bankruptcy Court, decided, of his own motion, to go behind a judgment given after a trial where both parties "were represented by independent counsel, and there is no suggestion of fraud or collusion in the obtaining of the judgment", to investigate an issue that had not been raised in the course of the contested proceedings which led to the judgment. Having heard argument on that issue, his Honour concluded that it should be resolved in favour of the petitioning creditor. On the basis that he would not be "doing any injustice to the other creditors", Philp J proceeded to order a sequestration. On appeal to the High Court, Latham CJ, with whom Rich and McTiernan JJ agreed, said of the course taken by Philp J: "The judge was doing only what he was required to do to satisfy himself that there was a petitioning creditor's debt."[39] Wren v Mahony In Wren v Mahony[40], Barwick CJ, with whom Windeyer and Owen JJ agreed, said: "The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor's debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment: to what is its consideration." There are good reasons why this statement should not be given the artificially narrow application urged on behalf of Ramsay. First, it is not correct to say that Wren v Mahony involved a default judgment. In truth, it involved a default that resulted from the defendant's failure to plead a good defence, having chosen to defend the claim on a point of law that was resolved against him. The primary judge in bankruptcy declined to reconsider the resolution of the point of law; and the High Court held that the primary judge erred in failing to reconsider the point, which the High Court went on to uphold. Secondly, Wren v Mahony held that a Bankruptcy Court may go behind a judgment, notwithstanding that the judgment was obtained after a contested hearing. That can be seen by reference to the reasons of the dissentients, reasons that were necessarily rejected by the majority[41]. In this regard, Menzies J, with whom Walsh J agreed, expressly rested his judgment in the case[42]: "solely upon my view that it was within the discretion of the judge of the Court of Bankruptcy not to reconsider the judgment of the Supreme Court of New South Wales obtained in the circumstances stated". The circumstances to which Menzies J referred were that the Bankruptcy Court was "faced with a judgment of the Supreme Court of one of the States, fairly obtained without collusion or fraud after a contested hearing"[43]. This statement reflects a submission made by the respondent's counsel, who submitted: "No cases have gone behind the judgment where the only issue has been litigated, in the absence of fraud or collusion."[44] As the consideration of Petrie v Redmond shows, that submission was incorrect. In point of authority then, the decision of the majority in Wren v Mahony stands as a rejection of Ramsay's proposition that the circumstance that a judgment of the Supreme Court was obtained without collusion or fraud after a contested hearing precludes the possibility of sufficient reason for questioning whether behind that judgment there was, in truth and reality, a debt due to the petitioner. Wren v Mahony has long been accepted as standing against the proposition advanced by Ramsay. Thus, in Simon v O'Gorman Pty Ltd[45], Lockhart J, with whom Fisher J agreed, said: "The circumstances in which the court will inquire into the validity of a judgment debt are not closed; but it is clear that the court will not inquire as a matter of course into that question. Circumstances tending to show fraud, collusion or miscarriage of justice or that a compromise was not a fair and reasonable one are the most frequent examples of the exercise by the court of this jurisdiction. The courts are reluctant to exercise this jurisdiction where the judgment was entered after a full investigation of the issues at a trial where both parties appeared and had ample opportunity to put their case to the court". To the same effect are statements by Davies, Lockhart and Neaves JJ in Ahern v Deputy Commissioner of Taxation (Qld)[46], and Sackville, North and Hely JJ in Wenkart v Abignano[47]. As Lockhart J explained in Simon, "fraud, collusion or miscarriage of justice" are the most frequent examples of the exercise of a Bankruptcy Court's jurisdiction to go behind a judgment; but the overarching obligation imposed by s 52(1) of the Act requires a Bankruptcy Court to be satisfied that there is, in truth and reality, a debt. It is convenient to note here that Ramsay relied, as did the primary judge, on the decision of Hely J in Commonwealth Bank of Australia v Jeans[48], in which his Honour refused to go behind a judgment, saying of the case before him[49]: "[T]he circumstances of this case are far removed from a case in which a judgment is entered by default. There was a fully contested hearing ... on the issue of the debtor's liability under the guarantee, after the debtor had a reasonable opportunity to raise whatever grounds he wished to rely upon to resist the Bank's case based upon the guarantee. As is always the case, the scope of the contest was determined by the respective cases put forward by the parties, who are ordinarily bound by the way in which they have chosen to conduct the proceedings." It must be understood, however, that in Jeans, Hely J explicitly applied the approach in Wren v Mahony in reaching his decision. Hely J refused to go behind a judgment on a guarantee given after the trial judge had refused the debtor leave to withdraw his admission that he had signed the guarantee. Leave to withdraw the admission was refused for reasons which included the circumstance that the debtor had repeatedly and deliberately admitted that he had signed the guarantee[50]. The circumstances which justified refusal of leave to withdraw the admission meant that no question was raised in good faith in the Bankruptcy Court as to whether the debt based on the guarantee was truly owing. By contrast, in the present case, the primary judge did not conclude that the "discrepancy" in the evidence of Ms Stevis to which he referred[51] revealed a want of good faith in Mr Compton's application. It may be that the investigation which the primary judge declined to conduct would have led to the conclusion that the evidence disputing the debt was not reliable. However, that conclusion could only have been reached had his Honour proceeded to investigate the issue. Impeaching the judgment Ramsay's argument that "miscarriage of justice" in this context is confined to the kind of miscarriage of justice which would suffice to impeach the obtaining of the judgment echoes the contention unsuccessfully advanced in the course of argument in Wren v Mahony[52] by the respondent's counsel, who submitted: "The Bankruptcy Court must not become an appeal court from other tribunals." That submission resonated only with the dissentients, Menzies J[53] and Walsh J[54]. That the submission failed to carry the day is understandable because the concern to which it gave voice is misconceived. In point of principle, scrutiny by a Bankruptcy Court of the debt propounded by a judgment creditor seeking a sequestration order in no sense involves an attempt to impeach the judgment. A Bankruptcy Court is not concerned with whether the judgment should be set aside as upon an appeal, or even as a default judgment or a judgment obtained by fraud may be set aside; nor is a Bankruptcy Court concerned to deny the effect of the judgment as "res judicata" between the parties to it. A Bankruptcy Court is not concerned to prevent the judgment creditor from invoking the ordinary processes of execution available under the general law. Rather, a Bankruptcy Court is concerned with whether the debt on which it is based is truly a basis for the making of a sequestration order[55]. A Bankruptcy Court has a statutory duty to be "satisfied" as to the existence of the petitioning creditor's debt; a creditor should not be able to make a person bankrupt on a debt which is not provable. The scrutiny required by s 52 as to whether there is, in truth and reality, a debt owing to the petitioning creditor serves to protect the interests of third parties, particularly other creditors of the debtor. It is of critical importance to appreciate that such persons were not parties to the proceedings that resulted in the judgment debt. It has long been recognised that their interest in being paid their debts in full should not be prejudiced by the making of a sequestration order in reliance on a judgment debt which does not reflect the true indebtedness of the debtor to the petitioning creditor[56]. In In re Fraser; Ex parte Central Bank of London, Lord Esher MR said[57]: "The decision is based upon the highest ground – viz, that in making a receiving order, the Court is not dealing simply between the petitioning creditor and the debtor, but it is interfering with the rights of his other creditors, who, if the order is made, will not be able to sue the debtor for their debts, and that the Court ought not to exercise this extraordinary power unless it is satisfied that there is a good debt due to the petitioning creditor. The existence of the judgment is no doubt prima facie evidence of a debt; but still the Court of Bankruptcy is entitled to inquire whether there really is a debt due to the petitioning creditor." Almost a century later, the effect of the authorities on the topic was summarised in similar terms in Ahern v Deputy Commissioner of Taxation (Qld)[58] by Davies, Lockhart and Neaves JJ: "[B]efore a person can be made bankrupt the court must be satisfied that the debt on which the petitioning creditor relies is due by the debtor and that if any genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before he is made bankrupt. Bankruptcy is not mere inter partes litigation. It involves change of status and has quasi-penal consequences." The cases do not suggest that the merger of a debt in a judgment limits the power of a Bankruptcy Court to go behind a judgment so that it is confined to circumstances in which the judgment itself might be set aside. Nothing in Corney v Brien supports Ramsay's argument in this respect. And the protean character of the concept "miscarriage of justice" suggests that it is not limited to cases where the judgment is so tainted that it may be set aside. The circumstance that under the general law a prior existing debt is taken to merge in a judgment has not been regarded as in some way operating to relieve a Bankruptcy Court of the paramount need to have satisfactory proof of the petitioning creditor's debt. In Wren v Mahony itself, Barwick CJ expressly adverted to the principle of the general law that a debt merges in a judgment, and went on to observe[59] that "[t]he judgment is never conclusive in bankruptcy" and that that is so "even though under the general law, the prior existing debt has merged in a judgment". As his Honour said, in s 52(1)(c) of the Act "the emphasis is upon the paramount need to have satisfactory proof of the petitioning creditor's debt"[60]. It may also be noted that the reasons of the dissenting judges in Wren v Mahony were not grounded on any conceptual concern that the judgment extinguishes the prior existing debt. A similar view prevails in the United Kingdom. In Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc[61], Lord Hoffmann – with whom Lord Bingham of Cornhill, Lord Hutton, Lord Rodger of Earlsferry and Lord Carswell agreed – referred to the proposition that under the general law, "[t]he judgment itself is treated as the source of the right" of the creditor, but went on to say: "The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established." Ramsay sought to support its contention that, by the time a creditor's petition is presented on the basis of a judgment, any cause of action arising from the original underlying factual contest has merged with that judgment and the "debt" referred to in s 52(1)(c) is the debt comprised in the judgment itself, by reference to observations of Etherton J in Dawodu v American Express Bank[62]. There, his Lordship, acknowledging that the phrase "miscarriage of justice" is capable of wide application, said that, in this context, what is required is that[63]: "the court be shown something from which it can conclude that had there been a properly conducted judicial process it would have been found, or very likely would have been found, that nothing was in fact due to the claimant." It is not entirely clear that this statement supports Ramsay's argument, but if it does, it is at odds with the course of authority. Indeed, Etherton J had, earlier in his judgment[64], referred with evident approval to the statement of Warner J in McCourt and Siequien v Baron Meats Ltd and the Official Receiver[65] that "the grounds upon which a bankruptcy court may go behind a judgment are more extensive than the grounds upon which an ordinary court of law or equity may set it aside". Ramsay also sought support for its argument in the observation of Buckley LJ in In re Van Laun; Ex parte Chatterton[66]: "It is sufficient, in the language of Lord Esher, to shew miscarriage of justice – that is to say, that for some good reason there ought not to have been a judgment." That statement, understood in context, does not support Ramsay's argument at all. It appears after Buckley LJ had said[67]: "It is well settled that the Court can inquire into the consideration for a judgment debt." Indeed, his Lordship went on to hold that it was permissible to say to a putative creditor "'Very well, you say you are a creditor; make out your case as if there was ... no judgment. Satisfy me that the amount for which you say you are creditor is right.'"[68] Clearly, his Lordship was not concerned with whether there was reason to set aside a judgment, but with whether the evidence established the true state of accounts between the parties. Finally in this regard, it is to be noted that in no case has it been said that whether, or the extent to which, a Bankruptcy Court may go behind a judgment turns in any way upon the choice of the petitioning creditor to base its petition upon the anterior debt or the judgment. Indeed, if it were thought that the choice to rely upon the judgment might limit the scope for the Bankruptcy Court to go behind the judgment, no petitioning creditor would ever choose to base its petition upon the antecedent debt rather than a judgment for the debt. Finality in litigation Before the primary judge, there were, in the words of Barwick CJ in Wren v Mahony[69], "substantial reasons ... for questioning whether behind [the] judgment there was in truth and reality a debt due to the petitioner". It may be accepted, as Ramsay argued, that the concession made by its senior counsel before the primary judge was made only for the purpose of the inquiry into whether the court should go behind the Judgment (as opposed to the findings which should be made at the subsequent hearing that would take place if the court chose to investigate the debt for itself). The concession was no more than an acknowledgment of the existence of evidence which might tend towards a different result from that reflected in the Judgment. But that concession meant that, before the primary judge, there was evidence which, if left unanswered, would support the conclusion that Mr Compton was not indebted to Ramsay at all. While the failure of Mr Compton to rely upon this evidence at trial was unexplained, there was on the face of things a real question as to whether Mr Compton had failed to present his case on its merits at the trial in the Supreme Court. It is no answer to the latter point for Ramsay to say, as the primary judge did, that Mr Compton is bound by the conduct of his case on his behalf at the trial in the Supreme Court. As has been seen, the notion that a party is bound by the conduct of his or her case has never been a sufficient reason not to look behind a consent judgment or a default judgment. That is because a Bankruptcy Court is concerned, not to discipline litigants or to protect finality in the administration of justice as between parties to litigation, but to protect the interests of third parties who were not participants in the litigation which led to the judgment in question. For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt[70] in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability. In Petrie v Redmond[71], Latham CJ, with whom Rich and McTiernan JJ agreed, said that the Bankruptcy Court: "is entitled to go behind the judgment and inquire into the validity of the debt where there has been fraud, collusion or miscarriage of justice. ... Also the court looks with suspicion on consent judgments and default judgments. ... The Bankruptcy Court does not examine every judgment debt. Special circumstances must be established before it will do so. It is impossible to lay down any general rule." The first two sentences of that passage were cited with evident approval by Dixon, Williams, Webb and Kitto JJ in Corney v Brien[72]. The passage was explicitly concerned with consent judgments and default judgments. As a matter of practical experience, these are the sorts of cases in which third parties can be expected to be disadvantaged by the making of a sequestration order based on a judgment which was not the outcome of the rigorous processes of adversarial litigation. The same concern may also arise in a case where the judgment was obtained in circumstances which suggest a failure on the part of the judgment debtor to present his or her case on its merits in the litigation that led to the judgment. In the present case, the unexplained failure by Medichoice and Mr Compton to present and rely upon evidence of the kind on which the "reconciliation" is based before the trial in the Supreme Court is consistent with the possibility that the present was such a case. To say this is not to say that a suspicion of inadequate representation is of itself sufficient to give rise to a question worthy of investigation by a Bankruptcy Court. But in this case, there was evidence before the primary judge which, while it remained uncontradicted, was apt to suggest that the debt was not truly owing; and as noted above, the primary judge did not consider that this evidence was not adduced in good faith. If it were the case that this evidence was not adduced by reason of a failure on the part of Mr Compton or those representing him and Medichoice in the Supreme Court to present their case on its merits, that failure should not enure to the disadvantage of persons who were not parties to those proceedings. Third parties, such as Mr Compton's creditors, should not have been prejudiced by the making of a sequestration order with that question unresolved. Conclusion The Full Court was correct to conclude that there was a substantial question as to whether the debt on which Ramsay relied was owing. That being so, the Bankruptcy Court should proceed to investigate this question in order to decide whether it was open to it to make a sequestration order.

Equity – Where judgment given by Supreme Court of South Australia, as varied by Full Court of Supreme Court of South Australia – Where successful party engaged in malpractice – Where malpractice later discovered – Where perfected judgment set aside – Where no pleading or proof of fraud – Nature of court's equitable power to set aside perfected judgment – Whether equitable power extends to malpractice not amounting to fraud – Whether power to set aside perfected judgment conditional upon unsuccessful party having exercised reasonable diligence to discover fraud or malpractice. Procedure – Perfected judgment – Rescission – Where two applications brought to set aside judgment – Where judgment set aside for malpractice – Whether proper course application in original proceeding or fresh action. Words and phrases – "actual fraud", "causation", "equitable jurisdiction", "equitable power", "equity", "finality", "fraud", "fresh action", "malpractice", "misconduct", "new trial", "not amounting to fraud", "perfected judgment", "perfected orders", "power", "proper application", "reasonable diligence", "setting aside". Supreme Court Act 1935 (SA), s 17(2)(a)(i).

Amaca Pty Limited v Latz Latz v Amaca Pty Limited Negligence – Personal injury – Damages – Assessment of present value of future loss – Where claimant diagnosed with terminal malignant mesothelioma post-retirement – Where claimant's life expectancy reduced – Where claimant receiving superannuation pension under Superannuation Act 1988 (SA) and age pension under Social Security Act 1991 (Cth) – Whether superannuation pension entitlement which would have been received during remainder of pre-illness life expectancy compensable loss – Whether age pension entitlement which would have been received during remainder of pre-illness life expectancy compensable loss – Whether reversionary pension payable under s 38(1)(a) of Superannuation Act to partner on claimant's death should be deducted from damages award. Words and phrases – "age pension", "capital asset", "compensable loss", "compensatory principle", "loss of earning capacity", "lost years", "net present value", "offsetting or collateral benefit", "pension", "pre-illness life expectancy", "reversionary pension", "superannuation pension". Social Security Act 1991 (Cth), Pt 2.2. Superannuation Act 1988 (SA), Pt 5.

Practice and procedure – Victoria – Stay of proceeding – Where appellant commenced proceeding in Supreme Court of Victoria – Where appellant made applications for leave to file and serve amended statement of claim – Where applications refused with costs taxed immediately – Where costs unpaid because appellant impecunious – Where appellant made further application – Where leave to amend statement of claim granted but proceeding stayed under Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.03(3) until interlocutory costs orders paid – Whether primary judge erred in making order to stay proceedings. Words and phrases – "conduct which falls for condemnation", "costs taxed immediately", "impecunious", "interlocutory costs order", "only practical way to ensure justice between the parties", "stay of proceeding", "strong grounds". Civil Procedure Act 2010 (Vic), ss 7, 8, 9, 65C, 65E. Supreme Court Act 1986 (Vic), ss 24, 25. Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 63.03(3), 63.20.1.

Migration – Refugees – Appeal as of right from Supreme Court of Nauru – Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where appellant established well-founded fear of persecution – Where Tribunal found alternative "home area" – Whether Tribunal properly applied internal relocation principle – Whether Tribunal failed to consider family unity – Whether Supreme Court erred in affirming Tribunal's determination. Words and phrases – "family unity", "home area", "in all the circumstances", "internal relocation principle", "reasonableness of relocation", "relocation". Appeals Act 1972 (Nr), s 44. Nauru (High Court Appeals) Act 1976 (Cth), s 5, Sched, Art 1. Refugees Convention Act 2012 (Nr), ss 3, 4, 5, 6, 22, 31, 34, 43, 44. Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967), Art 1A(2).

Criminal law – Appeal against conviction – Where cannabis and drug paraphernalia found at four properties including respondent's home – Where $120,800 in cash found at respondent's home – Where respondent charged with cultivation and trafficking of cannabis found at three properties not including his home – Where Crown alleged offences of trafficking constituted of possession of cannabis on particular date for purpose of sale – Where evidence of cash led as evidence respondent engaged in business of cultivating cannabis for sale – Whether evidence of cash wrongly admitted at trial. Words and phrases – "accoutrements of drug trafficking", "business of trafficking", "cash", "drug trafficking", "indicia of trafficking", "intermediate appellate court", "possession", "profit making enterprise", "propensity", "purpose of sale", "tendency". Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 4, 5, 70(1), 71AC, 72A. Evidence Act 2008 (Vic), ss 55, 56, 136, 137. Jury Directions Act 2015 (Vic), ss 12, 15, 16.

Equity – Knowing assistance in breach of fiduciary duty – Remedies – Account of profits – Causation – Where employees of first respondent breached fiduciary duties to respondents by assisting appellant, and then joined appellant – Where appellant knowingly assisted in breaches of fiduciary duty – Where primary judge found profits of appellant's business not direct result of appellant's knowing assistance – Whether account of profits available. Equity – Knowing assistance in breach of fiduciary duty – Remedies – Account of profits – Assessment of quantum – Whether knowing assistant obliged to account for entire capital value of business acquired – Whether account of profits may be ordered in respect of anticipated profits. Words and phrases – "account of profits", "actual profits", "anticipated profits", "as a result of", "but for", "causation", "disgorgement" "knowing assistance", "material contribution".

Criminal law – Prohibited drug – Appeal against conviction – Fresh evidence – Miscarriage of justice – Where appellant convicted of possession of prohibited drug with intent to sell or supply it to another – Where expert witness gave evidence at trial casting doubt on credibility of appellant's testimony – Where expert witness gave evidence in earlier proceedings inconsistent with evidence given in appellant's proceedings – Where earlier inconsistent evidence not disclosed to appellant at trial – Where Court of Appeal of Supreme Court of Western Australia admitted expert witness's earlier inconsistent evidence as fresh evidence but determined that no miscarriage of justice had occurred – Whether miscarriage of justice occurred. Words and phrases – "credible and cogent", "fresh evidence", "miscarriage of justice", "new evidence", "onus of proof", "significant possibility of acquittal", "yield". Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 11(a).

Practice and procedure – Permanent stay of proceedings – Abuse of process – Where respondent (in personal capacity) was controlling mind of former trustee and related company – Where respondent (in personal capacity), former trustee and related company commenced proceedings in Supreme Court of New South Wales – Where respondent (in personal capacity) and former trustee discontinued as parties in Supreme Court proceedings – Where Supreme Court proceedings permanently stayed – Where respondent (as trustee) pursued substantially same claims in Federal Court of Australia – Where primary judge permanently stayed proceedings for abuse of process – Whether on appeal Full Court erred in finding no abuse of process and setting aside permanent stay – Whether Full Court failed to consider overarching purpose of conduct of civil litigation. Words and phrases – "abuse of process", "administration of justice", "conduct of civil litigation", "discontinue", "final determination", "just resolution", "overarching purpose of the conduct of civil litigation", "permanent stay", "related parties", "unconditional discontinuance", "unjustifiably oppressive". Federal Court of Australia Act 1976 (Cth), ss 23, 37M, 37N. Federal Court Rules 2011 (Cth), r 26.14. Uniform Civil Procedure Rules 2005 (NSW), rr 12.3(1), 12.4.

Immigration – Nauru – Refugees – Application for refugee status – Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Whether Tribunal failed to act according to principles of natural justice – Whether Tribunal failed to assess evidence provided by appellant in relation to his claim to have a well-founded fear of persecution by reason of his political opinion – Whether Tribunal failed to give appellant an opportunity to comment on evidence concerning membership of political party – Whether Supreme Court of Nauru erred in affirming Tribunal's determination. Words and phrases – "evidence material to assessment", "principles of natural justice", "well-founded fear of persecution". Refugees Convention Act 2012 (Nr), ss 5, 22(b), 40(1).

Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal made adverse finding as to credibility of appellant – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether Tribunal's adverse finding made without logical foundation – Whether Tribunal failed to properly consider appellant's claims relating to treatment in Iran as a returned asylum seeker. Words and phrases – "adverse credibility finding", "country information", "failed asylum seeker", "political profile", "well-founded fear of persecution". Refugees Convention Act 2012 (Nr), ss 3, 5, 6, 31.

Pilmer v The Duke Group Limited (in liquidation) Contract - Breach - Damages - Calculation of loss - Contract of retainer for valuation of subject of takeover bid - Plaintiff company effected takeover in reliance on valuation made in breach of duty of care - Had valuation been accurate plaintiff would not have proceeded - Consideration included cash and issue and allotment of shares - Whether plaintiff suffered loss by issue of shares - Whether damages include sum representing market value of shares issued under agreement. Companies - Company finance - Share capital - Maintenance of capital - Company limited by shares - Company issuing new shares - Issue and allotment otherwise than for cash - Whether company suffers loss by reason of issuing new shares. Equity - Fiduciary duties - Duty of loyalty - Conflict of duties and interests - Conflict of duty and duty - Accountant retained by company to give independent expert valuation report to be placed before shareholders - Whether accountant owed fiduciary duties to company - Principles of causation in equity. Equity - Equitable remedies - Equitable compensation - Assessment - Reduction for contributing fault. ASX (Australian Stock Exchange Ltd) Listing Rules, Listing Rule 3J(3). Mc

High Court – Appellate jurisdiction – Leave to appeal – Circumstances when leave necessary – Distinction between interlocutory and final judgment – Where Judiciary Act 1903 (Cth) s 34(2) requires leave to appeal from interlocutory judgment of High Court exercising original jurisdiction – Where single Justice dismissed application for order to show cause – Where appellant filed notice of appeal without seeking leave to appeal – Whether judgment appealed from interlocutory or final – Whether appeal incompetent. Courts – Jurisdiction – Different dimensions of jurisdiction – Where respondent entered unconditional appearance to the appeal – Whether submission to personal dimension of jurisdiction precludes respondent from impugning competency of appeal based on lack of subject matter jurisdiction. Words and phrases – "application for an order nisi", "application for an order to show cause", "finally determines", "incompetent", "interlocutory judgment", "leave to appeal", "personal dimension of jurisdiction", "subject matter dimension of jurisdiction". Judiciary Act 1903 (Cth), s 34(2). High Court Rules 1952 (Cth), O 55 r 1(2). High Court Rules 2004 (Cth), r 25.03.3(a).

High Court – Practice and procedure – Original jurisdiction – Appeal from Supreme Court of Nauru – Where High Court had original jurisdiction under s 5 of Nauru (High Court Appeals) Act 1976 (Cth) to hear and determine appeals from Supreme Court of Nauru provided for in Agreement between Government of Australia and Government of Republic of Nauru – Where Agreement terminated on 13 March 2018 – Where termination of Agreement did not affect hearing and determination of appeals "instituted" in High Court before date of termination – Where appellant filed notice of appeal before date of termination but one day outside period fixed by r 42.03 of High Court Rules 2004 (Cth) – Where appellant filed summons seeking order under r 4.02 of High Court Rules enlarging time for filing of notice of appeal – Where affidavit accompanying summons explained delay in filing notice of appeal – Where notice of appeal, summons and affidavit served on solicitors who acted for respondent in Supreme Court of Nauru – Where notice of appeal, summons and affidavit later served personally on respondent – Where order enlarging time for filing of notice of appeal not made before date of termination of Agreement – Where respondent did not enter appearance and did not appear at hearing of High Court appeal – Whether appeal "instituted" before date of termination of Agreement – Whether, if appeal instituted, High Court should exercise jurisdiction to hear and determine appeal. Words and phrases – "appeal", "institute", "irregularity", "jurisdiction", "notice of appeal", "rule-making power", "service", "with such variations as are necessary". High Court Rules 2004 (Cth), rr 2.03.1, 4.02, 9.01.5, 42.03, Pts 42, 43. Judiciary Act 1903 (Cth), ss 77T, 86. Nauru (High Court Appeals) Act 1976 (Cth), ss 5, 6, 10(3).

Evidence – Criminal trial – Sexual offences – Tendency evidence – Admissibility – Where appellant acolyte and complainant altar boy – Where appellant alleged to have followed complainant into church's public bathroom and committed offences – Where evidence that appellant, while working as an assistant housemaster, sexually offended against homesick boarding students who sought out appellant in private bedroom led as tendency evidence – Where tendency expressed as appellant having sexual interest in young teenage boys under his supervision and to act on that interest – Where tendency evidence of acts occurring ten years before offences charged – Where no evidence other than complainant's evidence that appellant had offended again in ten year period – Where tendency evidence unchallenged in cross-examination – Whether tendency evidence possessed significant probative value. Words and phrases – "sexual interest", "significant probative value", "tendency evidence", "tendency expressed at a high level of generality", "tendency to act in a particular way", "tendency to have a particular state of mind". Evidence Act 1995 (NSW), ss 97, 101.

COSTS - Calderbank offer - whether reasonable to refuse. COSTS - offer of compromise - offer not comparable with result

Ltd Commissioner of Taxation v Murray Leisure Group Pty Ltd CPH Property Pty Ltd v Commissioner of Taxation Income Tax - Income Tax Assessment Act 1936 (Cth) Pt IVA - Income Tax Assessment Act 1936 (Cth) s 79D - Whether allowability of deduction for interest on borrowed funds a tax benefit - Whether allowability of deduction would, but for a scheme, have been defeated by s 79D - quarantining of interest deductions to foreign source income - Whether s 79D capable of application where no income was derived from a foreign source - Whether anticipated income from the transaction of which the borrowing was a part would have been income derived from a foreign source. Income tax - Income Tax Assessment Act 1936 (Cth) Pt IVA - Dividend stripping - Corporate reorganisation - Relocation of holding structure from United Kingdom to Bahamas - Whether transfers of shares in United Kingdom companies a scheme by way of or in the nature of dividend stripping - Whether s 177E intended to apply only to schemes which can be said to have the dominant purpose of tax avoidance. Words and phrases - "dividend stripping", "income from a foreign source". Income Tax Assessment Act 1936 (Cth), Pt IVA, ss 51, 79D, 160AFD, 177A, 177C, 177D, 177E, 177

Taxation - Income tax - Superannuation funds - Whether trustee of superannuation fund was entitled to claim losses from previous years as allowable deductions - Trust deed had been amended between periods when losses incurred and year of income - Whether amendments amounted to re-settlement - Whether lack of continuity in fund between periods when losses incurred and year of income - Indicia of continuity for purposes of Pt IX of Income Tax Assessment Act 1936 (Cth). Income Tax Assessment Act 1936 (Cth), ss 79E, 80, 267, 272, 278. Superannuation Industry (Supervision) Act 1993 (Cth), ss 10, 45. GLEESON CJ, GAUDRON, Mc

Immigration - Application for protection visa - Claim to refugee status - Claim rejected by Refugee Review Tribunal - Application to High Court for constitutional writs - Whether order nisi should issue - Unrepresented applicant held in immigration detention - Applicable principles - Mention by Tribunal of humanitarian considerations - Whether jurisdictional error demonstrated - No reasonably arguable case. High Court Practice - Constitutional writs under s 75(v) of the Constitution - Application for order nisi - Applicable principles - Whether grounds reasonably arguable - Absence of demonstrated jurisdictional error. Administrative law - Breach of rules of natural justice - Allegation of apprehended or ostensible bias - Whether amounts to jurisdictional error - Whether propounded grounds for order nisi for constitutional writs reasonably arguable. Legal aid - Unrepresented litigant in immigration detention - Application for order nisi for constitutional writs - Role of a federal court in respect of application. Constitution, s 75(v). Migration Act 1958 (Cth), ss 417, 476(2)(a). High Court Rules O 55 r 17.

Courts – Appeals – Jurisdiction and powers – Section 67(1) of Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) provided for appeal from Consumer, Trader and Tenancy Tribunal to Supreme Court "[i]f, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law" – Appellants purported to terminate building contract because of builder's failure to meet obligations – Validity of termination turned on disputed claims for extension of time – Tribunal decided that material properly before it supported conclusion that disputed claims for extension had been served – Whether that question could be raised on appeal to Supreme Court – Whether "no evidence ground" raises question of law. Words and phrases – "question with respect to a matter of law", "no evidence ground". Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 66(2), 67. Home Building Act 1989 (NSW), ss 48A(1), 48K(1). Supreme Court Act 1970 (NSW), s 75

Sinanovic v The Queen (No 1) High Court Practice - Bail - Application for bail pending application for special leave to appeal against conviction - Bail refused in State Supreme Court - Principles governing admission to bail prior to determination of special leave application - Whether exceptional case demonstrated. Criminal law and procedure - Bail - High Court Practice - Undetermined application for special leave to appeal - Availability of bail - Principles governing grant of bail - Whether exceptional circumstances established. Crimes Act 1900 (NSW), s 178

Brownlee v The Queen Constitutional law - Trial by jury - State law permitting reduction during trial of number of jurors - State law permitting separation of jurors after jurors retire to consider verdict - Whether trial "by jury" within meaning of s 80 of Constitution. Constitutional law - Trial by jury - Waiver of requirements by accused -Whether waiver possible - Whether waiver in fact - Whether leave required to reconsider past authority on constitutional question. Words and phrases - "trial ... by jury". Constitution, s 80. Judiciary Act 1903 (Cth), s 68. Jury Act 1977 (NSW), ss 22(a)(i), 54(b). GLEESON CJ AND Mc

Marshall v Director-General, Department of Transport Real property - Resumption of land by public body - Compensation - Whether compensation for injurious affection is payable in respect of land taken for the statutory purpose but not, or not yet, physically used for that purpose. Words and phrases - "injurious affection" - "compensation" - "depreciation" - "severed land" - "residual land" - "road purposes". Acquisition of Land Act 1967 (Q), ss 4, 7, 12, 20. Land Act 1962 (Q) ss 44, 45. Land Clauses Consolidation Act 1845 (UK), s 63. Lands Acquisition Act 1955 (Cth), s 23.

FAI General Insurance Company Limited v Australian Hospital Care Pty Ltd Insurance - Professional indemnity insurance - Claims made and notified policy - Term of policy deeming claim against insured made after expiry of period of cover to be covered by policy if, during period of cover, insured became aware of occurrence which gave rise to the claim and gave written notice to insurer - Claim by third party made after expiry of period of cover - Insured became aware of occurrence which gave rise to claim during period of cover but failed to notify insurer - Whether insurer entitled to refuse indemnity for failure to give notice - Whether s 54 of Insurance Contracts Act 1984 (Cth) applicable. Insurance Contracts Act 1984 (Cth), s 54.

DP v Commonwealth Central Authority Family law - Children - Family Law (Child Abduction Convention) Regulations - Orders for return of child to country of habitual residence - Refusal to make such an order - Grave risk of exposure to physical or psychological harm to child - "narrow construction" - Onus of proof of establishing that Greece lacked appropriate facilities for child suffering Autistic Spectrum Disorder - Court erred in accepting finding of trial judge that return of child to Greece would not constitute a grave risk of physical or psychological harm to child - Question of available facilities a question of fact not assumption. International law - Treaties - Interpretation - Child Abduction Convention - Incorporation by Family Law (Child Abduction Convention) Regulations - Approach to construction - Whether "narrow construction" of exceptions to return of child required to achieve stated purposes of Convention. Words and phrases - "grave risk of physical or psychological harm". Family Law Act 1975 (Cth), s 111B(1). Family Law (Child Abduction Convention) Regulations, regs 14, 16(3)(b). Convention on the Civil Aspects of International Child Abduction. JLM v Director-General NSW Department of Community Services Family law - Children - Family Law (Child Abduction Convention) Regulations - Orders for return of child to country of habitual residence - Refusal to make such an order - Grave risk of exposure to physical or psychological harm to child - "Narrow construction" - Evidence of serious risk of mother committing suicide if child returned to father in Mexico - Court erred in finding that the mother's suicide would not expose child to grave risk of physical or psychological harm - Relevance of mother as originator of the source of the risk of harm. International law - Treaties - Interpretation - Child Abduction Convention - Incorporation by Family Law (Child Abduction Convention) Regulations - Approach to construction - Whether "narrow construction" of exceptions to return of child required to achieve stated purposes of Convention. Words and phrases - "grave risk of physical or psychological harm". Family Law Act 1975 (Cth), s 111B(1). Family Law (Child Abduction Convention) Regulations, regs 14, 16(3)(b). Convention on the Civil Aspects of International Child Abduction.

Constitutional law - High Court and federal judiciary - Implied or inherent powers - Practice and procedure - Application for special leave to appeal referred for hearing to Full Court of High Court - Proposed appeal concerns constitutional challenges to validity of Extradition Act 1988 (Cth) - Applicants subject to extradition determinations apply for bail - Applicants in custody for more than 31 months - Whether implied or inherent jurisdiction and power to grant bail - Purposes of constitutional jurisdiction and power - Whether ousted by bail provisions of the Act. Extradition - Bail - High Court - Implied or inherent power to grant bail - Purposes of implied constitutional jurisdiction and powers to grant bail to applicant for special leave to appeal referred to Full High Court - Need for proof of exceptional circumstances - Proof of prolonged detention in severe custodial circumstances - Terms and conditions appropriate to applications - Entitlement of applicants to be separately considered. Criminal law and procedure - Bail - Extradition Act 1988 (Cth) proceedings - Constitutional challenge to Act referred to Full High Court for argument as on appeal - Whether High Court has jurisdiction and power in the absence of a grant of special leave to appeal to grant bail - Whether in the circumstances bail should be granted - Whether exceptional circumstances established to enliven Court's jurisdiction and powers - Whether discretion to grant bail should be exercised - Terms and conditions relevant to the grant of bail - Relevance of earlier considerations of bail applications by Federal Court of Australia - Relevance of extended detention of applicants in severe custodial conditions unsegregated from convicted prisoners - Relevance of security against risk of absconding established by the evidence - Whether electronic tag and home detention shown to be a lawful and suitable condition of bail - Extent of sureties and financial security appropriate to the favourable exercise of the bail discretion. Words and phrases - "exceptional circumstances". Extradition Act 1988 (Cth), ss 21, 53. Director of Public Prosecutions Act 1983 (Cth), ss 6(1)(k) and (n).

High Court Practice - Second special leave application where special leave previously refused - Registrar directed by a Justice to refuse to issue process without leave of a Justice first had and obtained - Application for such leave - Principles governing reopening of special leave application - Nature and purpose of such application - Powers of the High Court to reopen hearing of application - Whether exceptional circumstances established to warrant reopening - Whether change of circumstances shown - Whether ground proposed was argued and considered in original special leave hearing. Practice and procedure - Interlocutory orders - Reopening of interlocutory determination - High Court practice - Special leave application - Special leave refused - Application to reopen - Principles applicable to reopening - Whether exceptional circumstances demonstrated - Whether change of circumstances shown. Judiciary Act 1903 (Cth), s 35A. Crimes Act 1900 (NSW), s 178A. High Court Rules, O 58 r 4(3), O 69A r 9.

Taxes and duties – GST – Whether supply "GST-free" under s 38-190(1) of A New Tax System (Goods and Services Tax) Act 1999 (Cth) – Foreign currency sold on departures side of customs barrier at Australian international airport – Acquired for use outside Australia – Whether an input taxed financial supply or a supply in relation to rights. Words and phrases – "financial supply", "supply in relation to rights". A New Tax System (Goods and Services Tax) Act 1999 (Cth), ss 9-5, 9-10, 9-30, Div 38. A New Tax System (Goods and Services Tax) Regulations 1999 (Cth), Div 40.

Practice and procedure – Action – Death of worker – Survival of cause of action – Section 66(1) of Succession Act 1981 (Q) ("Succession Act") provided causes of action vested in deceased person shall survive for benefit of person's estate – Section 66(2) limited damages recoverable "in any action brought" where cause of action survives under s 66(1) – Whether s 66(1) creates new cause of action – Discussion of history of survival of causes of action. Workers' compensation – Insurance – Statutory scheme – Insurer's right of indemnity against third party for compensation paid – Insurer paid compensation to worker exposed to asbestos manufactured and supplied by respondents – Worker died and no proceedings instituted by worker or estate against any persons – Section 207B(7) of Workers' Compensation and Rehabilitation Act 2003 (Q) ("Compensation Act") gave insurer, in these circumstances, right of indemnity against third party up to amount of compensation paid to worker, but only "to the extent of that person's liability for the damages" – Whether s 66(2) of Succession Act limits amount recoverable under right of indemnity in s 207B(7) of Compensation Act – Nature of cause of action created by s 207B(7) – Difference between liability and damages recoverable – Relevance of history of s 66(2) of Succession Act. Words and phrases – "in any action brought", "liability", "to the extent of that person's liability for the damages". Common Law Practice Act 1867 (Q), s 15D. Succession Act 1981 (Q), s 66. Workers' Compensation and Rehabilitation Act 2003 (Q), s 207B. Law Reform (Miscellaneous Provisions) Act 1934 (UK), 24 & 25 Geo V c 41, s 1.

Stamp duties – Conveyance – Partnership – Dissolution of partnership – Retirement Deed effected retirement of one partner and reconstitution of partnership and continuation of business by remaining partners – Nature of partner's interest in partnership assets – Whether Retirement Deed a conveyance of interest in personal property – Whether satisfaction of retiring partner's interest and creation of new partnership assured or vested interest in personal property. Words and phrases – "conveyance on sale", "dissolution of partnership", "equitable interest of partner". Stamp Duties Act 1923 (SA), s 60. Partnership Act 1891 (SA), ss 20, 39.

Courts and judges - Federal jurisdiction in State courts - Whether s 39(2) of the Judiciary Act 1903 (Cth) conferred jurisdiction on the District Court of New South Wales to hear and determine an action to recover a penalty under the Income Tax Assessment Act 1936 (Cth). Federal jurisdiction in State courts - Limitations on the jurisdiction of State courts - Whether s 44(1)(a) of the District Court Act 1973 (NSW) was a limit on the jurisdiction of the District Court of New South Wales within the meaning of the Judiciary Act 1903 (Cth). Federal jurisdiction in State courts - Statutory interpretation - s 44(1)(a) of the District Court Act 1973 (NSW) gave the District Court of New South Wales jurisdiction to hear and dispose of certain classes of actions - Whether s 44(1)(a) should be given an ambulatory or fixed time construction. Statutory interpretation - Subsequent regulatory change - s 44(1)(a) of the District Court Act 1973 (NSW) defined the jurisdiction of the District Court of New South Wales by reference to the allocation of work between the Divisions of the Supreme Court of New South Wales - Whether a subsequent reallocation of work between the Divisions of the Supreme Court of New South Wales alters the jurisdiction of the District Court of New South Wales. Words and phrases - "ambulatory", "amount payable", "court of competent jurisdiction", "penalty". Income Tax Assessment Act 1936 (Cth), Pt VI, Div 9, subdiv B; Pt VI, Div 2. Judiciary Act 1903 (Cth), s 39(2). Taxation Laws Amendment Act (No 3) 1998 (Cth). Courts Legislation Further Amendment Act 1998 (NSW). District Court Act 1973 (NSW), s 44(1).

Constitutional law (Cth) - Inconsistency of laws - The third respondent, Optus Administration Pty Ltd, was granted a licence under Pt VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), which subjected it to the scheme of liability contained in that Act - Whether the Accident Compensation Act 1985 (Vic) and the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) were invalid to the extent that they altered, impaired or detracted from the operation of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Constitutional law (Cth) - Legislative power - Insurance - Meaning of "other than State insurance" - Whether ss 104(1), 108(1), 108A(7)(a) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) were invalid as laws with respect to "State insurance" within the meaning of s 51(xiv) of the Constitution - Whether the scheme established by the Accident Compensation Act 1985 (Vic) and the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) constituted "State insurance". Constitutional law (Cth) - Legislative power - Insurance - Meaning of "other than State insurance" - Whether the Safety, Rehabilitation and Compensation Act 1988 (Cth) was invalid for indirectly circumventing the exclusion of "State insurance" in s 51(xiv) of the Constitution. Statutes - Interpretation - Interaction between the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Accident Compensation Act 1985 (Vic) and the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) - Whether the operation of s 44(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is such as to remove liabilities or obligations to which s 82 of the Accident Compensation Act 1985 (Vic) and s 7(1)(a) of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic) would otherwise attach. Words and phrases - "alter, impair or detract", "at common law or otherwise", "other than State insurance". Constitution, ss 51(xiii), 51(xiv), 109. Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 44, 45, 104(1), 108(1), 108A(7); Pts II, VIII. Accident Compensation Act 1985 (Vic), ss 5(1), 82(1), 134AB; Pt IV, Div 8A. Accident Compensation (WorkCover Insurance) Act 1993 (Vic), ss 5, 7(1).

Constitutional law – States – Reception of English law – Status in Victoria of constitutional principle recognised in s 12 of Bill of Rights 1688. Contract – Construction – Enforceability of contractual obligation – Treasurer of State of Victoria directed Port of Portland Authority to sell its assets and business to appellant under contract ("Contract") – Section 4A(1) of Port of Portland Authority Act 1958 (Vic) gave Treasurer power to make direction – Treasurer party to Contract on behalf of State – State agreed, in cl 11.4(a) of Contract, to amend statutes to ensure port improvements excluded from land value used to calculate appellant's land tax – State agreed, in cl 11.4(b), to refund or allow to appellant excess tax if amendments did not become law – Whether cl 11.4(b) void as dispensation by executive from land tax legislation contrary to s 12 of Bill of Rights – Whether cl 11.4(b) effected dispensation – Whether cl 11.4(b) authorised by legislature enacting s 4A(1). Land tax – Valuation of land – Whether State's obligation in cl 11.4(b) arose –Legislative amendments made in purported conformity with cl 11.4(a) – Whether amendments ensured port improvements excluded from land value – Statutory scheme provided for "general valuation" of all rateable land in municipal district every six years – At time of Contract, no valuation for part of appellant's land by reason of former municipal rates exemption – Whether valuer had power to make supplementary valuation – Whether supplementary valuation could take into account amendments not in force at time of last general valuation – Whether court or tribunal could take into account amendments on objection against general valuation of balance of land. Words and phrases – "dispensation", "dispensing power", "general valuation", "supplementary valuation". Bill of Rights 1688 (1 Will & Mar Sess 2 c 2), s 12. Imperial Acts Application Act 1980 (Vic), ss 3, 8. Land Tax Act 1958 (Vic), ss 3(2), 3(2A). Valuation of Land Act 1960 (Vic), ss 2(1), 2(2AA), 5A(1), 13DF, 42(1).

Negligence - Occupier's liability - Duty of care - Eye injury suffered by player of indoor cricket - Failure to provide protective helmet - Failure to warn of specific risk of eye injury - Whether conduct of occupier reasonable in the circumstances - Relevance of industry practice and rules of game - Relevance of obviousness of risk - Voluntary assumption of risk - Causation of damage.

Regie Nationale des Usines Renault SA v Zhang Private international law - Forum non conveniens - Tort - Allegedly negligent design and manufacture overseas of motor vehicle by foreign company registered, but not carrying on business, in Australia - Motor vehicle accident in New Caledonia - Continuing damage suffered in New South Wales - Action commenced in New South Wales Supreme Court - Supreme Court declined to exercise its jurisdiction and stayed the proceedings - Whether exercise of discretion miscarried - Relationship between Supreme Court Rules authorising orders declining jurisdiction and judicial decisions on forum non conveniens - Whether Supreme Court a clearly inappropriate forum - Relevance of circumstance that foreign law is to be applied as the lex causae - Whether discretion to grant stay of proceedings should be re-exercised. Private international law - Choice of law - Tort - Allegedly negligent design and manufacture overseas of motor vehicle by foreign company registered, but not carrying on business, in Australia - Motor vehicle accident in New Caledonia - Continuing damage suffered in New South Wales - Whether French law would be the lex causae applied in a trial in New South Wales -Whether Australian common law should recognise the lex loci delicti as the substantive law to be applied in actions for torts committed in a foreign law area - Whether the "double actionability" rule applies - Whether a single choice of law rule should be adopted consistently in Australia in respect of both international and intranational torts - Whether "flexible exception" applies to recognition of lex causae - Whether public policy exceptions applicable to lex causae. Practice and procedure - Pleadings - Requirements as to pleadings of applicant on a stay motion seeking to rely upon a foreign lex causae. Practice and procedure - Action - Stay - Cause of action arising out of jurisdiction - Motor vehicle accident in New Caledonia - Action brought in New South Wales - Plaintiff alleges defective design and manufacture of the motor vehicle - Defendants not present in New South Wales - Plaintiff relies on "long arm" provision in Supreme Court Rules and damage in jurisdiction to found action - Application by defendants for stay - Applicable law - Principles - Forum non conveniens. Words and phrases - "inconvenient forum". Supreme Court Rules 1970 (NSW), Pt 10. GLEESON CJ, GAUDRON, Mc

Minister for Immigration and Multicultural Affairs v Bhardwaj Immigration - Immigration Review Tribunal - Powers and duties of Tribunal - Capacity of Tribunal to correct own error - Decision cancelling visa - Failure to consider correspondence from respondent - Reconsideration of decision - Whether decision involving jurisdictional error is a nullity - Whether Tribunal may of its own motion reconsider its decision - Whether validity of decision open to collateral attack. Administrative law - Judicial review - Procedural fairness - Administrative decision - Tribunal required to give respondent opportunity to appear - Decision made after Tribunal mistakenly assumed respondent declined to appear - Whether jurisdictional error constituted by denial of procedural fairness - Whether failure to exercise jurisdiction - Whether Tribunal authorised to make fresh decision - Whether invalidity of decision could be raised in collateral attack on validity of decision in proceedings. Words and phrases - "decision on review". Migration Act 1958 (Cth), Pts 5 and 8, ss 360, 367 and 368. Acts Interpretation Act 1901 (Cth), s 33(1).

Stamp duties – Conveyance on sale – Interest in land – Sale Agreement provided for sale to appellants of chattels of WMC Resources Ltd ("WMC") – Sale Agreement required WMC to grant appellants, for a fee, licences to use "Fixtures" – "Fixtures" defined in Sale Agreement as items "affixed to land, and an estate or interest in which is therefore an estate or interest in land" – Most WMC assets on land subject of WMC mining tenements – Whether Sale Agreement transferred interest in land – Whether interest in items affixed to land subject of mining tenements interest in land – Whether such items "Fixtures". Real property – Mining tenements – Mining plant – Whether interest of holder of mining tenement interest in land – Whether interest in mining plant, affixed to land, interest in land – Relevance of general law concerning fixtures. Stamp duties – Conveyance on sale – Interest in land – Some WMC assets on WMC freehold land – On termination of licences, appellants required to acquire WMC's right, title and interest in "Fixtures" – WMC warranted it had title to "Fixtures" notwithstanding their affixation to freehold – Whether obligation to acquire "Fixtures" on WMC freehold effected transfer of interest in land – Nature of title to "Fixtures" dealt with under licences – Whether appellants' obligation to rehabilitate land, or negative covenant preventing WMC assigning freehold without assignee being bound by licences, created interests in land. Words and phrases – "fixture", "mining lease", "mining plant". Mining Act 1904 (WA), ss 108(3), 273. Mining Act 1978 (WA), s 114. Stamp Act 1921 (WA), ss 19(a), 63(1), 70(2).

Plaintiff M168/10 v The Commonwealth Plaintiff M169/10 v Minister for Immigration and Citizenship Plaintiff M170/10 v The Commonwealth Plaintiff M171/10 v Minister for Immigration and Citizenship Plaintiff M172/10 v The Commonwealth Plaintiff M173/10 v Minister for Immigration and Citizenship Plaintiff M174/10 v The Commonwealth Plaintiff M175/10 v Minister for Immigration and Citizenship Injunctions – Interlocutory injunctions – Migration – Detention under Migration Act 1958 (Cth) ("Act") – Plaintiffs arrived in Australian waters by boat and treated as unlawful non-citizens under Act – Plaintiffs detained on Christmas Island and transported to mainland to be placed in immigration detention – Plaintiffs sought interlocutory injunctions restraining detention or effecting release, claiming that detention on Christmas Island and subsequent detention on mainland unlawful – Whether prima facie case that continuing detention of plaintiffs on mainland unlawful. Words and phrases – "prima facie case". Migration Act 1958 (Cth), ss 189(1), 189(3).

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") –Where visa applicant's migration agent asked RRT to arrange "independent assessment of [applicant's] mental health, if required" – Section 427(1)(d) Migration Act 1958 (Cth) gave RRT power to require Secretary to arrange for making of medical examination – Whether duty on RRT to consider exercising power under s 427(1)(d) – Whether general duty to inquire. Words and phrases – "information". Migration Act 1958 (Cth), ss 424, 424A, 427(1)(d), 430. FRENCH CJ and

A v State of New South Wales Torts - Malicious prosecution - Whether prosecutor acted without reasonable and probable cause - Public rather than private prosecution - Applicant acquitted of offence charged - Prosecutor had no personal knowledge of the facts underlying the charge - Whether prosecutor did not honestly form the view that there was a proper case for prosecution or whether the prosecutor formed that view on an insufficient basis. Torts - Malicious prosecution - Whether prosecutor acted maliciously - Whether the sole or dominant purpose of the prosecutor was other than the proper invocation of the criminal law. Words and phrases - "malicious prosecution", "malice", "absence of reasonable and probable cause".

Criminal law – Joint criminal enterprise – Extended common purpose – Respondent alleged to be party to a joint criminal enterprise – Respondent convicted of murder – Appeal against conviction allowed on the ground of a wrong direction on a question of law – Conviction quashed and verdict of acquittal entered. Criminal law and procedure – Retrial – Whether the verdict of acquittal should be set aside and a new trial ordered – Whether retrial can be ordered where the classification of the joint criminal enterprise differs from that presented at the first trial – Whether difference of classification constitutes a new case not made at the first trial – Meaning of "new case" – Whether retrial appropriate where case at trial adopted by prosecution for tactical reasons – Whether granting retrial on a "new case" is consistent with even-handed disposition of criminal appeals. Courts – Court of Criminal Appeal – Criminal Appeal Act 1912 (NSW), s 8(1) – Discretion of Court of Criminal Appeal to order new trial upon successful appeal against conviction – Circumstances to be taken into account. Courts – High Court of Australia – Practice and procedure – Special leave to appeal – Application by Crown for special leave to appeal against a verdict of acquittal entered by a Court of Criminal Appeal – Circumstances to be taken into account. Words and phrases – "new case", "foundational crime", "extended common purpose". Crimes Act 1900 (NSW), ss 18, 33B, 546C. Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 6(2), 8(1).

Copyright - Artistic works - Works of artistic craftsmanship - The respondent obtained an injunction against infringement by the appellants of the respondent's ownership of copyright in works constituted by a "plug" from which a mould for a yacht hull could be derived, and in the hull and deck mouldings of that yacht - Whether works protected by copyright or should have been protected, if at all, under the designs registration law. Copyright - Artistic works - Works of artistic craftsmanship - Whether "work of artistic craftsmanship" is a composite phrase to be construed as a whole - Relevance of aesthetic appeal to the existence of a work of artistic craftsmanship - Relevance of machine production to the existence of a work of artistic craftsmanship - Relevance of functional or utilitarian constraints to the existence of a work of artistic craftsmanship - Whether the "plug" and mouldings constituted works of artistic craftsmanship. Copyright - Anti-overlap provisions - Interaction between the statutory protection of copyright and designs - Absence of registered "corresponding design" - Exclusion of copyright protection in the three-dimensional reproduction of artistic works, other than works of artistic craftsmanship, where the "corresponding design" has been "applied industrially" - Whether the "plug" and mouldings were protected by copyright. Intellectual property - Anti-overlap provisions - Interaction between statutory protection of copyright and designs - Position of works of artistic craftsmanship in the statutory scheme - Meaning of "corresponding design". Words and phrases - "applied industrially", "artistic work", "corresponding design", "work of artistic craftsmanship". Copyright Act 1911 (Imp), ss 4, 22(1). Copyright Act 1912 (Cth), ss 4, 8. Copyright Act 1968 (Cth), ss 10, 21(3), 31(1)(b)(i), 36(1), 74, 77. Copyright Amendment Act 1989 (Cth). Copyright Regulations 1969 (Cth). Designs Act 1906 (Cth). Designs Act 2003 (Cth).