Cases and authorities

of Australia Constitutional Law (Cth) - Powers of federal Parliament - Territories - Section 3 of the Norfolk Island Amendment Act 2004 (Cth) ("the Act") amended the Norfolk Island Act 1979 (Cth) so as to make Australian citizenship a necessary qualification for voting for, and standing for election to, the Legislative Assembly of Norfolk Island - Whether the provisions of the Act giving effect to the amendments were supported by s 122 of the Constitution. Constitutional Law (Cth) - Territories - Whether the challenge to the validity of the Act presented a political question not amenable to judicial determination - Whether "laws for the government" of a territory, to be valid, must provide for a form of government appropriate to the circumstances of the particular territory. Constitutional Law (Cth) - Territories - Territories "placed by the Queen under the authority of and accepted by the Commonwealth" - Territory granted institutions of representative government - Whether law enacted in reliance on s 122 may validly remove or curtail features of representative government so granted. Norfolk Island Amendment Act 2004 (Cth), s 3, Sched 1. Norfolk Island Act 1979 (Cth), ss 38-39

Chattel Securities Act 1987 (Vic) - Meaning of "security interest" - Where respondent had entered into a conditional sale agreement for motor vehicles with a third party - Where sale agreement contained a "Romalpa clause" - Where appellant was a purchaser from the third party - Competing interests of appellant and respondent - Whether respondent held a security interest - Whether including conditional sales within the meaning of security interest is consistent with the purpose and text of the Chattel Securities Act 1987 (Vic) - Whether rights over property owned by the debtor must be "conferred" on the creditor for a security interest to exist - Whether an interest over goods which is reserved, not created, can constitute a security interest. Chattel Securities Act 1987 (Vic) - Priorities - Competing interests of appellant and respondent - Whether respondent's "security interest" lost for want of registration. Property - Chattels - Priorities - Interest of vendor under a conditional sale. Statutory construction - Legislative history - Relevance of textual differences between original and re-enacted versions of statute - Relevance of common law concepts when construing statutory definitions. Words and Phrases - "security interest". Chattel Securities Act 1987 (Vic), ss 3(1), 3(3), 7(1), 7(6). Goods Act 1958 (Vic), ss 27, 31.

Criminal law – Evidence – Admissibility and relevance – Propensity evidence – Evidence of uncharged acts – Appellant former psychiatrist charged with offences relating to sexual misconduct with two former patients – Evidence of sexual misconduct with three former patients adduced at trial – Whether trial judge erred in ruling evidence of uncharged acts had significant probative value. Criminal law – Evidence – Admissions – Appellant conceded having consensual sexual activity with both complainants – Whether concession constituted admission for the purposes of s 32 of Evidence Act 1906 (WA) – Whether concession rendered consent the only live issue at trial. Words and phrases – "significant probative value". Evidence Act 1906 (WA), ss 31A, 32.

Cole v South Tweed Heads Rugby League Football Club Limited Negligence - Duty of care - Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state - Level of specificity of formulation of duty of care - Whether respondent owed duty to take reasonable care to monitor and moderate amount of alcohol served to appellant - Whether respondent owed duty of care to take reasonable care that appellant travelled safely away from respondent's premises - Whether duty of care existed to protect persons from harm caused by intoxication following deliberate and voluntary decision on their part to drink to excess - Whether duty took into account the vulnerability of some persons to alcohol consumption - Relevance of statutory provisions, creating offences in relation to conduct on club premises and requiring police to eject intoxicated persons from premises, to existence or content of duty of care owed by respondent where no allegation made of breach of statutory duty - Registered Clubs Act 1976 (NSW). Negligence - Breach of duty and causation - Appellant seriously injured by motor vehicle shortly after leaving respondent's premises in intoxicated state - Whether respondent's offer of safe transport to appellant discharged any duty owed by respondent to take reasonable steps for appellant's safety - Whether assurance by other patrons that they would look after appellant discharged any onus on respondent - Whether, assuming respondent in breach of duty to monitor and moderate consumption, breach of duty was a cause of injuries ultimately sustained - Remoteness of damage - Reasonable foreseeability. Words and phrases - "intoxication". Registered Clubs Act 1976 (NSW), ss 44A, 67

Edwards v Santos Limited Practice and procedure – Federal Court of Australia – Summary judgment – Applications by defendants to dismiss proceedings summarily under s 31A(2) of Federal Court of Australia Act 1976 (Cth) – Plaintiffs "registered native title claimant" under s 253 of Native Title Act 1993 (Cth) ("NTA") in respect of certain land – Plaintiffs and first and third defendants negotiating Indigenous Land Use Agreement ("ILUA") under NTA that included land first and third defendants claimed was encumbered by "Authority to Prospect" ("ATP") granted by second defendant under Petroleum Act 1923 (Q) – ATP entitled first and third defendants to apply to Minister for grant of lease of encumbered land for purpose of petroleum exploration – Plaintiffs sought declarations that grant of lease to first and third defendants would not be valid and any lease granted would not be a "pre-existing right-based act" within meaning of s 24IB of NTA – Whether plaintiffs have sufficient interest for grant of declaratory and injunctive relief – Whether questions raised by plaintiffs hypothetical – Whether plaintiffs seeking advisory opinion. Practice and procedure – Federal Court of Australia – Jurisdiction – Section 213(2) of NTA conferred jurisdiction on Federal Court with respect to "matters arising under" NTA – Where determination of whether lease would be valid and whether lease would be a pre-existing right-based act may affect ILUA negotiations – Whether negotiation of ILUA a matter arising under NTA. Practice and procedure – High Court – Original jurisdiction – Costs – Application pursuant to s 75(v) of Constitution for writs directed to Federal Court to quash orders of that Court – Section 26 of Judiciary Act 1903 (Cth) empowers High Court to award costs in "all matters brought before the Court" – Section 32 empowers High Court in exercise of original jurisdiction to grant all such remedies as parties are entitled to "so that as far as possible all matters in controversy between the parties" may be "completely and finally determined" – Where High Court quashes orders of Federal Court – Whether High Court may make costs order in place of orders quashed. Words and phrases – "advisory opinion", "certiorari", "completely and finally", "hypothetical", "matter", "reasonable prospects of success", "standing", "sufficient interest". Federal Court of Australia Act 1976 (Cth), ss 31A(2), 33(4B)(a). Judiciary Act 1903 (Cth), ss 26, 32. Native Title Act 1993 (Cth), s 213.

Issue estoppel - Whether decision of Review Officer under the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") Pt IIIA Div 3 is a final decision for the purposes of issue estoppel - Application by employer under s 60 of the Act disputing liability to pay compensation for injuries incurred at work - Review Officer found that the worker's injury had "resolved" - Leave to institute proceedings under s 93D of the Act for damages at common law refused on the grounds of issue estoppel. Issue estoppel - Whether the issues arising in District Court proceedings were the same issues decided by the Review Officer - Review Officer's findings were ambiguous. Words and phrases - "issue estoppel", "final decision". Workers' Compensation and Rehabilitation Act 1981 (WA), Pt IIIA and ss 5(1), 18, 21, 58, 60, 62, 71, 93D. GLEESON CJ, Mc

Pacific Carriers Limited v BNP Paribas Contract - Carriage of goods - Carriage by sea - Delivery of goods without surrendering bills of lading - Indemnity to carrier. Contract - Construction and interpretation - Relevant principles - Objective interpretation of commercial documents - Letters of indemnity executed by trader in favour of carrier relating to unloading cargo without bills of lading - Where documents also signed by officer of the respondent bank - Whether letters of indemnity purported to bind the respondent as an indemnifying party. Contract - Agency - Ostensible authority - Documents of the kind commonly relied upon and intended to be relied upon by third parties - Whether the assumption made by the appellant that the respondent was party to the letters of indemnity was induced or assisted by the respondent's conduct in such a way that it would be unjust to permit the respondent to depart from the assumption.

Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs Immigration - Appellant charged with offence of escape by unlawful non-citizen from immigration detention contrary to s 197A of the Migration Act 1958 (Cth) - Appellant sought issue of witness summonses pursuant to Magistrates Court Act 1991 (SA) seeking production of documentary material relating to conditions and complaints about conditions at detention centre - Whether material sought by witness summonses could have assisted appellant in his defence - Whether, by reason of conditions at detention centre, it could be said that appellant did not escape from "immigration detention" within the meaning of the offence. Immigration - Constitutional law (Cth) - Whether detention under harsh or inhumane conditions is authorised by the Migration Act 1958 (Cth) - Whether Migration Act 1958 (Cth) only authorises detention under conditions that are reasonably capable of being seen as necessary for migration control purposes - Whether detention in harsher conditions would be punitive and therefore could not validly be authorised except as a consequence of the exercise of the judicial power under Ch III of the Constitution - Distinction between lawful authority to detain and means by which detention is achieved and enforced - Relevance of potential availability of other civil, criminal or administrative remedies to the construction of the statutory offence - Relevance of Constitutional principles and international law to construction of statutory offence. Constitutional law (Cth) - Construction of the Constitution - Whether international law applicable to interpretation of the Constitution. Words and phrases - "detain", "detainee", "immigration detention". Constitution, Ch III. Migration Act 1958 (Cth), ss 3A, 5, 189, 196, 197A, 273. Magistrates Court Act 1991 (SA), s 20.

HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ AHMED ALI AL-KATEB APPELLANT AND PHILIPPA GODWIN, DEPUTY SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS RESPONDENTS Al-Kateb v Godwin [2004] HCA 37 6 August 2004 A253/2003 ORDER 1. Appeal dismissed. 2. The respondents to pay the appellant's costs in this Court. Cause removed under s 40 of the Judiciary Act 1903 (Cth) Representation: C M O'Connor with A Hamdan for the appellant (instructed by Hamdan Lawyers) D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the respondents (instructed by Australian Government Solicitor) Interveners: D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Al-Kateb v Godwin Immigration - Unlawful non-citizens - Detention pending removal from Australia - No real prospect of removal from Australia in reasonably foreseeable future - Whether detention lawful under Migration Act 1958 (Cth) - Whether detention is temporally limited by purpose of removal - Whether requirement to remove as soon as reasonably practicable implies time limit on detention. Statutes - Acts of Parliament - Construction and interpretation - Where meaning ambiguous or uncertain - Presumption of legislative intention not to invade personal common law rights. Constitutional law (Cth) - Judicial power of the Commonwealth - Unlawful non-citizen in immigration detention - No real prospect of removal from Australia in reasonably foreseeable future - Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution - Whether detention involves an exercise of judicial power of the Commonwealth by the Executive - Whether detention is for a non-punitive purpose. Constitutional law (Cth) - Construction and interpretation - Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms. Constitution, Ch III. Migration Act 1958 (Cth), ss 189, 196, 198.

HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND ABBAS MOHAMMAD HASAN AL KHAFAJI RESPONDENT Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38 6 August 2004 A254/2003 ORDER 1. Appeal allowed. 2. Orders 1, 2, 3, 4, 5, 6 and 8 of the Federal Court of Australia made 5 November 2002 set aside and in lieu thereof order that the application to that Court be dismissed. 3. The appellant to pay the respondent's costs in this Court. Cause removed under s 40 of the Judiciary Act 1903 (Cth) Representation: D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the appellant (instructed by Australian Government Solicitor) S W Tilmouth QC with M B Manetta and H M Heuzenroeder for the respondent (instructed by Jeremy Moore & Associates) Interveners: D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji Immigration - Unlawful non-citizens - Detention pending removal from Australia - No real prospect of removal from Australia in reasonably foreseeable future - Whether detention lawful under Migration Act 1958 (Cth) - Whether detention is temporally limited by purpose of removal - Whether requirement to remove as soon as reasonably practicable implies time limit on detention. Statutes - Acts of Parliament - Construction and interpretation - Where meaning ambiguous or uncertain - Presumption of legislative intention not to invade personal common law rights. Constitutional law (Cth) - Judicial power of the Commonwealth - Unlawful non-citizen in immigration detention - No real prospect of removal from Australia in reasonably foreseeable future - Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution - Whether detention involves an exercise of judicial power of the Commonwealth by the Executive - Whether detention is for a non-punitive purpose. Constitutional law (Cth) - Construction and interpretation - Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms. Constitution, Ch III. Migration Act 1958 (Cth), ss 189, 196, 198.

Statutes - Acts of Parliament - Interpretation - Meaning of "threatening, abusive and insulting words" under Vagrants, Gaming and Other Offences Act 1931 (Q) ("Vagrants Act"), s 7(1)(d) - Where appellant arrested for using insulting words to a person in a public place contrary to s 7(1)(d) - Whether "insulting words" must be reasonably likely to provoke physical retaliation. Statutes - Acts of Parliament - Interpretation - Whether, if Vagrants Act s 7(1)(d) invalid, appellant's arrest was lawfully authorised by the Police Powers and Responsibilities Act 1997 (Q) ("Police Powers Act"), s 35(1) - Whether convictions for obstructing and assaulting police are valid. Statutes - Acts of Parliament - Construction and interpretation - Relevance of international obligations assumed by the Commonwealth after enactment of State statute - Whether State Acts to be interpreted to be consistent with international law of human rights and fundamental freedoms. Constitutional law (Cth) - Implied freedom of communication about government or political matters - Whether Vagrants Act, s 7(1)(d) effectively burdened freedom of communication about government or political matters - Whether s 7(1)(d) reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government - Whether s 7(1)(d) invalid to the extent that it penalised persons using insulting words where those words had a political content or purpose and the penalty constituted a burden on the freedom of political communication. Constitutional law (Cth) - Implied freedom of communication about government or political matters - Whether Police Powers Act, s 35(1) invalid to the extent that it seeks to make lawful the arrest of a person on a charge under Vagrants Act, s 7(1)(d) for uttering insulting words in the course of making statements concerning political and governmental matters. Words and Phrases - "insult", "insulting", "threatening, abusive and insulting words", "to any person", "public place". Acts Interpretation Act 1954 (Q), ss 9, 14B. Criminal Code (Q), ss 23(2), 340(b). Police Powers and Responsibilities Act 1997 (Q), ss 35(1), 38, 120. Vagrants, Gaming and Other Offences Act 1931 (Q), ss 7(1)(d), 7A(1)(a), 7A(1)(c).

Industrial law (Cth) - Industrial action - Whether industrial action protected action - Industrial action in support of claims in respect of proposed certified agreement - Where proposed agreement included bargaining agent's fee payable to unions - Where bargaining agent's fee to be paid by all employees including non-union members - Whether bargaining agent's fee provision about matter pertaining to the relationship between employer and employee - Whether proposed agreement an agreement about matters pertaining to the relationship between an employer and its employees - Whether "protected action" in s 170ML of the Workplace Relations Act 1996 (Cth) includes industrial action in support of a proposed agreement that is not capable of certification under Div 4 of Pt VIB. Industrial law (Cth) - Industrial action - Whether prohibition on industrial action in s 170NC of the Workplace Relations Act 1996 (Cth) includes industrial action in support of a proposed agreement that is not capable of certification under Div 4 of Pt VIB - Legislative objective of s 170NC. Statutes - Interpretation - Presumption against abrogation of common law rights - Presumption against depriving persons of access to courts - Scope of interpretative presumptions - Application of presumptions to ss 170ML and 170MT of the Workplace Relations Act 1996 (Cth). Workplace Relations Act 1996 (Cth), ss 170LI, 170ML, 170MT, 170

Permanent Trustee Australia Limited v Commissioner of State Revenue Constitutional law (Cth) - Taxation - Whether s 55 of the Constitution applies to a law made in exercise of the power conferred by s 52(i) of the Constitution - Where Commonwealth law applies State taxing laws to Commonwealth places within that State - Whether invalid as a law imposing taxation and dealing with matters other than the imposition of taxation - Whether invalid as a law imposing taxation and dealing with more than one subject of taxation. Constitutional law (Cth) - Commonwealth laws of regulation of trade, commerce or revenue not to give preference to one State or any part thereof over another State or any part thereof - Revenue laws - Where Commonwealth law applies State taxing laws to Commonwealth places within that State - Where effect of law is that different rates of tax apply in Commonwealth places depending on the State in which place is located - Whether prohibition in s 99 of the Constitution applies with respect to revenue laws supported by s 52(i) of the Constitution - Whether the Commonwealth law infringed the prohibition in s 99 of the Constitution. Constitutional law (Cth) - Places acquired by Commonwealth for public purposes - Exclusive legislative power of Commonwealth Parliament - Extent of power - Whether decisions in Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89 and Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 should be re-opened. Constitutional law (Cth) - Exclusive legislative power of the Commonwealth - Delegation - Whether Commonwealth law permitting State Treasurer to modify applied State taxing law confers the legislative power of the Commonwealth on the Executive Governments of the States. Constitution, ss 52(i), 53, 54, 55 and 99. Commonwealth Places (Mirror Taxes) Act 1998 (Cth), ss 3, 6, 8, 9 and Sched 1. Commonwealth Places (Mirror Taxes Administration) Act 1999 (Vic), s 7. Stamps Act 1958 (Vic), ss 17, 17A and Third Schedule.

Damages - Contract - Tort - Trade practices - Breach of contract and negligent provision of advice - Misleading and deceptive conduct - Respondent relied on valuation advice from appellant in purchasing commercial premises - Risk of decline in market value of premises from competing business not taken into account in advice - Whether damages assessed at date of contract to purchase premises or only once risk eventuated - Whether damages based on "true value" or "market value" of premises at date of contract - Whether assessment of "true value" at date of contract includes subsequent events - Purpose of damages under Trade Practices Act 1974 (Cth), s 82. Words and phrases: "true value", "real value", "market value", "contingent loss", "actual loss". Trade Practices Act 1974 (Cth), ss 51A, 52(1), 82. GLEESON CJ, Mc

Pty Ltd Contract - Loan - Written agreement and prior oral agreement - Written agreement inconsistent with terms of alleged prior oral agreement - No allegation of mistake or claim to rectification - Borrower bound by written agreement. Contract - Loan - Direction to lender to apply money lent in payment of moneys due from borrower to third party - Series of connected and legally effective transactions creating and satisfying debts - One of those transactions satisfying amount due from borrower to third party - No payment by cheque or cash - Does a loan require the transfer of "real money" - Whether loan made as agreed. Practice and Procedure - Appeal and new trial - Remitter for further consideration. GLEESON CJ, Mc

Zhu v The Treasurer of the State of New South Wales Tort - Interference with contractual relations - Contract between the plaintiff and TOC Management Services Pty Ltd ("TOC") authorised and obliged the plaintiff to sell memberships in an "Olympic Club" to residents of China - Sydney Organising Committee for the Olympic Games ("SOCOG") interfered with the plaintiff's contract - Whether SOCOG had obligations to protect intellectual property under the Olympic Charter and the contract by which Sydney hosted the 2000 Olympic Games - Whether the plaintiff contravened the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth), s 12 - Whether SOCOG's interference with the plaintiff's contract was justified. Tort - Interference with contractual relations - Defence of justification - TOC owed contractual obligations to SOCOG not to engage in certain conduct - Contract between TOC and the plaintiff obliged the plaintiff to engage in conduct contrary to the contract between TOC and SOCOG - Whether SOCOG held "proprietary" or "quasi-proprietary" rights - Whether SOCOG held an "actually existing superior legal right" - Whether SOCOG's conduct was "reasonably necessary" - Whether SOCOG was justified in interfering with the contract between TOC and the plaintiff. Contract - Deed Poll - Plaintiff executed Deed Poll in favour of SOCOG - Plaintiff was required to execute Deed Poll pursuant to contract between the plaintiff and TOC - Plaintiff did not know there was a separate contract between SOCOG and TOC - Whether Deed Poll and contracts inconsistent - Construction of Deed Poll and contracts - Whether the plaintiff's activities required SOCOG's prior written consent - Whether the plaintiff breached the Deed Poll or his contract. Words and phrases - "interference with contractual relations", "justification", "proprietary right", "quasi-proprietary right", "superior legal right", "reasonably necessary". Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth), s 12. Sydney Organising Committee for the Olympic Games Act 1993 (NSW).

Jenkins v The Queen Criminal law - Direction to jury - Accomplice warning - Prosecution witness pleaded guilty to criminal offences related to charges against appellant - Testimony of witness substantially undisputed - Defence did not seek to attack credit of witness - Defence case relied in part on evidence of witness - No warning sought at trial as to reliability of witness - Whether trial judge obliged to warn jury that it would be dangerous to convict on uncorroborated evidence of an accomplice - Whether trial judge obliged to warn jury that evidence was potentially unreliable and must be subjected to careful scrutiny.

Lockwood Security Products Pty Ltd v Doric Products Pty Ltd Patents - Validity - Fair basing of claims - Patent for a door lock - Specification included a consistory clause and described a preferred embodiment - Central claim essentially repeated consistory clause - Whether claim was "fairly based" on the matter described in the specification within s 40(3) of the Patents Act 1990 (Cth) or travelled beyond it - Whether test of fair basing involves consideration of "merit", "inventive step", "technical contribution to the art" or general "fairness" - Whether grounds of invalidity under Patents Act must be kept distinct. Words and phrases - "consistory clause", "fairly based", "fair basing", "inventive step", "invention", "merit", "real and reasonably clear disclosure", "technical contribution to the art", "the matter described in the specification". Patents Act 1952 (Cth), s 40(2). Patents Act 1990 (Cth), ss 18(1), 40(2), 40(3), 45(1), 59, 138(3), Sched 1. Patents Act 1949 (UK), s 4(4). Patents Act 1977 (UK), ss 14, 72(1)(c). GLEESON CJ, Mc

Real Property - Easements - Subdivision of land - Adjoining lots on a subdivision - Proposed plan of subdivision depicted "proposed right of way 10 wide" across one lot - Council approved subdivision - Whether creation of easement was a condition of the grant of approval of the subdivision - Easement not registered under the Real Property Act 1900 (NSW) - Whether appellant required to grant registered easement of right of way. Real Property - Land titles under the Torrens system - Exceptions to indefeasibility of registered title - Whether Council's consent to the subdivision created a right in rem that could be relied upon by the respondent to require the appellant to grant a registered easement of way - Whether such a right consistent with s 42(1) of the Real Property Act 1900 (NSW). Local Government - Town planning - Whether the creation of a right of way was a "condition" of a "development consent" under s 76A(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPAA") - Whether purchase and occupation of land was to "carry out development" of the subdivision and therefore a breach of s 76A(1) of the EPAA - Whether s 123 of the EPAA empowers the making of orders to remedy or restrain a breach of the EPAA to a person who had not committed any breach of the EPAA. Courts - Land and Environment Court - Powers of Court - Orders to remedy or restrain breaches of the EPAA. Words and Phrases - "carry out development", "condition", "development consent". Conveyancing Act 1919 (NSW), s 88B. Conveyancing Act Regulations (NSW), reg 52A. Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76A(1), 123. Local Government Act 1919 (NSW), Div 7 Pt XIIA, Div 7 Pt XII, ss 327(2), 342V(1A), 342U(2). Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW). Real Property Act 1900 (NSW), ss 42(1), 96D. Mc

Constitutional law (Cth) - Defence - Offences by defence members - Service offences - The Defence Force Discipline Act 1982 (Cth) created a range of offences based on offences against the laws of the Australian Capital Territory, and provided for trial and punishment of these offences exclusively by service tribunals - Whether trials for these offences require an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution - Whether service tribunals can validly exercise jurisdiction over service offences. Defence and war - Offences by defence members - Service offences - The Defence Force Discipline Act 1982 (Cth) created a range of offences based on offences against the laws of the Australian Capital Territory, and provided for trial and punishment of these offences exclusively by service tribunals - Whether trials for these offences require an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution - Whether service tribunals can validly exercise jurisdiction over service offences. Words and phrases - "essentially disciplinary", "exclusively disciplinary", "service offence", "Territory offence", "the judicial power of the Commonwealth". Constitution, Ch III, ss 51(vi), 71, 75(v), 76(ii), 77(i), 80. Defence Force Discipline Act 1982 (Cth), ss 33(a), 61, 114(3), 115, 129, 190. Crimes Act 1900 (ACT), s 60. Defence Force Discipline Appeals Act 1955 (Cth), s 52.

Libke v The Queen Criminal law - Practice and procedure - Cross-examination - Appellant convicted at trial before jury of certain sexual offences against intellectually impaired person - Whether "miscarriage of justice" under s 668E(1) of Criminal Code (Q) by reason of manner in which prosecutor conducted cross-examination of appellant - Role of trial judge during the cross-examination - Application of the "proviso" in the circumstances - Requirements of Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300. Criminal law - Practice and procedure - Directions to jury - Whether trial judge gave adequate directions on issue of consent as it related to cognitive capacity and intellectual impairment - Whether trial judge gave adequate directions on defence provided by s 216(4) of Criminal Code (Q) that accused had belief on reasonable grounds that person was not intellectually impaired. Words and phrases - "cognitive capacity to give consent", "intellectually impaired person". Criminal Code (Q), ss 24, 216, 229F, 348(1), 348(2), 349(2)(a), 668E(1). GLEESON CJ. I have had the advantage of reading, in draft form, the reasons for judgment of Hayne J. I agree, for the reasons given by Hayne J, that the appeal should be dismissed. I would add two brief observations. First, the argument that the conduct of the prosecutor during his cross-examination of the appellant resulted in an unfair trial, and a miscarriage of justice, involved a question of degree. As Mullins J pointed out in the Court of Appeal, the cross-examination of the appellant extended over 44 pages of transcript. In the course of that cross-examination, counsel made certain inappropriate comments. It is difficult for an appellate court, relying only on the written record, to assess the impact of undisciplined conduct by counsel. It is also difficult, away from the atmosphere of the trial, to measure the significance of the absence of intervention by the trial judge or by opposing counsel. Those difficulties are to be taken into account by way of caution in approaching any attempt to minimise the complaints made on behalf of the appellant. Even so, having read the whole of the evidence of the appellant, I would not interfere with the Court of Appeal's conclusions that the conduct of the prosecutor did not make the trial unfair. Secondly, I agree that, in the circumstances of this case, in order to raise for the jury's consideration the defence provided by s 216(4) of the Criminal Code (Q), it was not necessary for the appellant to go beyond saying that the complainant "seemed fine". The appellant did not have to show that he thought there was a real question about the complainant's intellectual capacity, and arrived at an answer to that question. Most of the beliefs that form the basis of our dealings with other people are more in the nature of undisturbed assumptions than conclusions based on a process of reasoning. It was for the members of the jury to decide, in the light of all the material before them, including their assessment of the appellant, and their observation of the complainant, whether the appellant's evidence that the complainant "seemed fine" established a belief by the appellant that the complainant was not intellectually impaired, and whether that belief was on reasonable grounds. The case was left to the jury on the basis that it was open to decide those issues favourably to the appellant on the basis of that limited evidence. It was not necessary, and it would probably not have been to the appellant's advantage, for the trial judge to give more elaborate directions on the point. It is not surprising that trial counsel did not seek further directions.

COSTS – upon failure of joint venture between family members – analogy with partnership and s 66G Conveyancing Act proceedings – where plaintiffs fail on main contested issues

Conveyancing - Land titles under the Torrens system - Execution against land under the Torrens system - Recording of a writ for the levy of property in respect of land under the Real Property Act 1900 (NSW) ("the Act") - Appellants obtained judgment against the sixth respondent ("judgment debtor") - Judgment debtor was registered proprietor of land - Judgment debtor agreed to sell land to the first to fourth respondents ("purchasers") - Prior to settlement, a writ for the levy of property was recorded in respect of the land - Following settlement, Registrar-General refused to register transfers - Purchasers sought interlocutory injunction restraining appellants and Sheriff of NSW from executing the writ - Nature of interest of purchasers in land - Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of a writ for the levy of property. Practice and procedure - Enforcement - Enforcement of judgment debt by way of writ for the levy of property in respect of land - Purchasers of property sought interlocutory injunction restraining appellants and Sheriff of NSW from executing writ - Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of writ. Statutes - Interpretation - Meaning and effect of s 105A(2) of the Act - s 105A(2) prohibited the Registrar-General from registering, during a "protected period", a dealing that affected land subject to a writ for the levy of property - Whether person claiming estate or interest not recorded in the Register and not preserved by the Act is entitled to an injunction to prevent execution of writ. Words and phrases - "judgment creditor", "judgment debtor", "protected period", "writ for the levy of property", "writ of execution". Real Property Act 1900 (NSW), ss 42, 43A, 74F, 74H, 105, 105A, 105B. Civil Procedure Act 2005 (NSW), ss 112, 113, 115. GLEESON CJ. I have had the advantage of reading in draft form the reasons for judgment of Crennan J. I agree that the appeal should be dismissed with costs, for the reasons given by her Honour. I would add the following brief comments. The judgment creditors had, and have, no interest in the subject land. Section 105(1) of the Real Property Act 1900 (NSW) ("the Act") makes that clear. Nobody suggests otherwise. Furthermore, there having been no sale of the land by the Sheriff pursuant to the writ for levy of the property, there is no transferee to whom the provisions of s 105B(2) of the Act apply. At the time of the proceedings in the Court of Appeal, the only people with any interest in the land were the registered proprietor (the relevant judgment debtor) and the purchasers to whom she sold the land. It is, therefore, strictly inaccurate to speak of the dispute as one of "priorities"; of the principal contending parties to the litigation, only the purchasers have an interest in the land. That the purchasers have an interest in the land appears to be accepted. It is acknowledged, indeed asserted, that, prior to the recording of the writ for levy of the property, they could have lodged a caveat. The fact that they could have lodged a caveat is relied upon argumentatively to deflect criticism of the statutory construction for which the appellants (the judgment creditors) contend. Basten JA, who dissented in the Court of Appeal, qualified his conclusion about the effect of the legislation by reference to the possibility of a caveat. He said: "The apparent effect [of the 1976 amendments to the Act] is twofold. First, they preclude the purchaser for valuable consideration from the registered proprietor having his or her interest immediately recorded in the register, unless the application were lodged prior to the application to record the writ, or the transfer had the Sheriff's consent. Secondly, the Sheriff's purchaser will be entitled to have the transfer to him or her registered, pursuant to s 105A(1)(a) during the protected period. The purchasers from the registered owner will thus be pre-empted, unless they caveated their interest before the recording of the writ." To lodge a caveat, the purchasers from the registered proprietor required a caveatable interest. What might that interest have been, if not the interest described by Crennan J? Thus, by hypothesis, the purchasers (from the registered proprietor) have a caveatable interest in the land, the judgment creditors have no interest in the land, and there is no purchaser from the Sheriff. It may be accepted that the purpose of the 1976 amendments was to protect purchasers from the Sheriff; but in the events that occurred, there are no such persons requiring protection. There is no statutory provision forbidding intervention, of the kind undertaken by the Court of Appeal, to protect the interest of those who had purchased from the registered proprietor; and it is accepted that by lodging a caveat the purchasers could have obtained such protection. The complaint is not that the orders of the Court of Appeal contradicted any provision of the Act, but that they intercepted impermissibly a statutory process which had as its ultimate object the making of a sale by the Sheriff and the bringing into existence of a transferee who would in due course enjoy the protection of s 105B(2). That appears to me to overstate the purpose and the legal effect of the statutory scheme. This is demonstrated by the consideration mentioned above, that is, the acknowledged consequences of lodging a caveat. The appellants' argument proves too much. As appears from the speech of Minister Crabtree, the purpose of the 1976 amendments was to bring about the result that "a purchaser at a sale in execution takes the estate or interest then appearing upon the register"[1]. The purpose was not to turn unsecured creditors into secured creditors, or to defeat the interests of people who, to the knowledge of the judgment creditors and the Sheriff, had contracted to buy the land. It was not to require the Sheriff to sell land which the Sheriff knew had already been sold to a bona fide purchaser for full value, conduct that would ordinarily be regarded as improper. Injunctive relief of the kind given by the Court of Appeal did not negate the protection intended to be conferred on a purchaser from the Sheriff; there was no such purchaser. In J & H Just (Holdings) Pty Ltd v Bank of New South Wales[2], Barwick CJ said of a caveat: "Its purpose is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title, it may operate to give such notice." It being accepted that, if the purchasers had lodged a caveat before the writ for levy of the property was recorded, then by that form of statutory injunction they would have protected their position against a threat of sale to a third party by the Sheriff, it is difficult to see why the injunction granted by the Court of Appeal was inconsistent with the legislative scheme, or subversive of the legislative purpose. It protected the interest of the purchasers, and it did not interfere with the legal rights of anyone else. There is a further matter, also related to legislative purpose. It is referred to at the end of the reasons of Crennan J. The land was sold by the registered proprietor to the purchasers for $1 million. It was heavily encumbered. Basten JA recorded that, on settlement, "[t]he funds distributed to those persons having secured interests [in the land] ... amounted to a figure in excess of $900,000". The judgment debtor (the registered proprietor) had very little "equity" in the land, using that term in its colloquial or commercial sense. If the appellants succeed in their arguments, then the practical result appears to be that, at the expense of the purchasers from their debtor, they will have obtained blood from a stone. This incongruous result seems unlikely to reflect any legislative intent. The response that is offered is to say that, although the result seems unjust, it could have been avoided by the timely lodging of a caveat by the purchasers. Yet, if that is so, it shows that the legislative scheme is not as far-reaching as the appellants contend.

n Trade Practices - Third party access regime for natural gas pipelines - East Australian Pipeline Pty Limited ("EAPL") owned a natural gas pipeline which was a Covered Pipeline under the National Third Party Access Code for Natural Gas Pipeline Systems ("the Code") - EAPL was required to submit to the Australian Competition and Consumer Commission ("the ACCC") an Access Arrangement for use of the pipeline by third parties - ACCC rejected EAPL's proposed Access Arrangement and adopted its own Access Arrangement incorporating a Reference Tariff based on a lower initial Capital Base ("ICB") than that proposed by EAPL - ACCC arrived at an ICB in a novel fashion - Section 8.10 of the Code sets out a number of factors which are to be considered in establishing the ICB for an existing pipeline - Proper construction of s 8.10 of the Code - Whether s 8.10 of the Code permits a novel asset valuation methodology. Administrative Law - Administrative review of a regulatory decision - Australian Competition Tribunal ("the Tribunal") varied the determination by the ACCC substituting a new ICB - Grounds for review included a ground that "the exercise of the relevant Regulator's discretion was incorrect or unreasonable having regard to all the circumstances" - Nature and scope of the Tribunal's jurisdiction to review decision of the ACCC. Administrative Law - Judicial review of the outcome of an administrative review - Full Court of the Federal Court set side the Tribunal's determination of the ICB -Whether error of law within the meaning of s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) established - Whether there was jurisdictional error attracting the Federal Court's jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth). Gas Pipelines Access (South Australia) Act 1997 (SA), s 39 of Sched 1, s 8.10 of Sched 2. Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1)(f). Judiciary Act 1903 (Cth), s 39

Taxes and duties - Income tax and related legislation - Collection and recovery of tax - Collection of tax due and payable by a non-resident from a third party - Two non-resident shareholders in Virgin Blue Holdings Limited ("Virgin Blue") allegedly derived income or profits or gains of a capital nature from a source in Australia - Directors of Virgin Blue declared a dividend due for payment on 15 December 2005 to those who were shareholders on a specified record date of 28 November 2005 - After the record date but before the date for payment of the dividend, the Deputy Commissioner of Taxation ("the Commissioner") issued notices to Virgin Blue pursuant to s 255 of the Income Tax Assessment Act 1936 (Cth) ("the Act") purporting to require Virgin Blue to retain an amount from the dividend owed to each shareholder to meet the shareholder's tax liability - The following day, which was before the date for payment of the dividend, the shareholders agreed to assign their rights to the dividend to a third party and informed Virgin Blue of that agreement - The following day, which was still before the date for payment of the dividend, the Commissioner issued tax assessment notices to the shareholders and further notices to Virgin Blue pursuant to s 255 of the Act - Whether Virgin Blue was required to retain the dividend to pay the shareholders' tax liability. Taxes and duties - Income tax and related legislation - Whether s 255 of the Act required the Commissioner to assess a non-resident's tax liability before the Commissioner could require a third party to pay the tax due and payable by that non-resident - Relevance of relationship between s 218 and s 255 of the Act. Corporations - Share capital - Shares - Dividends - Assignment of rights to receive a dividend - Whether a shareholder could assign its rights to receive a dividend to a third party - Whether a corporation was bound to recognise a shareholder's assignment of its rights to receive a dividend to a third party - Relevance of statutory contract under s 140(1) of the Corporations Act 2001 (Cth) - Time at which Virgin Blue incurred a "debt" to its shareholders in respect of the dividend - Relevance of distinction between declaring a dividend and determining that a dividend is payable - Relevance of "record date". Equity - Assignments in equity - Whether the shareholders' agreement to assign the rights to the dividend purported to effect an equitable assignment or a statutory assignment pursuant to s 199 of the Property Law Act 1974 (Q). Words and phrases - "declare", "debt", "determine", "due", "due and payable", "final dividend", "interim dividend", "record date". Corporations Act 2001 (Cth), ss 140(1), 254T, 254U, 254V. Company Law Review Act 1998 (Cth). Income Tax Assessment Act 1936 (Cth), ss 218, 255, 256, 257. Property Law Act 1974 (Q), s 199.

Constitutional law (Cth) - Limitations on legislative powers - Acquisition of property on just terms - Declaration by the Australian Competition and Consumer Commission ("the Commission") that certain telecommunications services were "declared services" for the purposes of the Trade Practices Act 1974 (Cth) ("the Act") - The plaintiff owned the infrastructure needed to provide the declared services - Requirement in s 152AR of the Act that other service providers be given access to the plaintiff's infrastructure for the purpose of providing the declared services in direct competition with the plaintiff - Further requirement in s 152AY of the Act that access to infrastructure be given on terms and conditions agreed between the plaintiff and the access seeker or, in the absence of such agreement, pursuant to one of two alternative methods that relied upon the approval or determination of the Commission (with the Australian Competition Tribunal exercising review powers) - Whether the Commission's declaration and the subsequent obligation on the plaintiff to make its infrastructure available to its competitors effected an acquisition of property other than on just terms. Communications law - Telecommunications services - Infrastructure to provide declared services - Requirement that other service providers be given access to plaintiff's infrastructure for the purpose of providing declared services in direct competition with the plaintiff - Whether obligation to provide access effected an acquisition of property other than on just terms. Constitution, s 51(xxxi). Trade Practices Act 1974 (Cth), Pt

Criminal law – Appeals – Application of the proviso – Statutory requirement that reasons for judgment include the principles of law applied and the findings of fact relied upon – Failure to give reasons meeting statutory requirements in respect of central issue at trial – Failure to comply with statutory requirements an error of law – Appeal against conviction to be allowed unless Court of Appeal satisfied that no substantial miscarriage of justice had occurred – Whether no substantial miscarriage of justice had occurred. Criminal law – Evidence – Identification – Complainant indecently dealt with by one of two males with whom she and her sister were sharing a bed – Complainant unable to identify the perpetrator by visual or aural means – Complainant adamant that the appellant was responsible – Whether identification warning needed – Whether finding of guilt unreasonable or not supported by evidence. Criminal Appeals Act 2004 (WA), s 30. Criminal Procedure Act 2004 (WA), ss 119, 120.

Criminal law - Sentencing - Federal offences - Appellant convicted of possessing a "commercial quantity" of the narcotic MDMA (ecstasy) - Customs Act 1901 (Cth) fixed the commercial quantities of certain narcotics and imposed maximum penalties that did not distinguish between the narcotics - Whether appellant should have been sentenced on the basis that MDMA was less harmful than heroin. Practice and procedure - Appellant did not demonstrate factual assertion that MDMA was less harmful than heroin - Whether controversy "moot" or "academic". Words and phrases - "commercial quantity", "moot", "trafficable quantity". Customs Act 1901 (Cth), ss 233B, 235.

Criminal law - Appeal and new trial - Orders dismissing appeals formally recorded - Reasons for judgment contained substantial factual errors - Whether superior court of record can reopen proceedings after its orders disposing appeals formally recorded - Whether power to reopen appeals - Finality of litigation - Procedural fairness. Criminal Practice - Court of Criminal Appeal (NSW) - Appeal - Power to reopen proceedings after orders disposing of appeals formally recorded - Finality of litigation - Avoidance of injustice to parties - Procedural fairness. Courts - Court of Criminal Appeal (NSW) - Appeal - Reasons for judgment contained substantial factual errors - Power to reopen proceedings after orders disposing appeals formally recorded - Relevance of status and general powers of Court - Whether implied or inherent powers to avoid injustice to parties suffice to sustain orders reopening proceedings. Words and phrases - "finality", "perfecting", "procedural fairness", "reopen", "superior court of record". Criminal Appeal Act 1912 (NSW), ss 3-23. Criminal Appeal Rules 1952 (NSW), rr 51, 53.

Criminal law - Slavery - Licensed brothel - Foreign sex workers - Whether respondent "intentionally possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership" contrary to Criminal Code (Cth) ("the Code"), s 270.3(1)(a) - Elements of offence. Criminal procedure - Directions to jury - Fault element of offence - Relevance of respondent's state of mind - "Intention" - Whether court required to direct on all aspects of definition of "intention" in Code, s 5.2 or only on aspect of definition attaching to physical element or elements of offence. Criminal law - Conviction - Whether verdicts unreasonable or not supported by evidence - "Proviso" in Crimes Act 1958 (Vic), s 568(1) - Whether verdict of acquittal or re-trial appropriate. Constitutional law - External affairs power - International Convention to Suppress the Slave Trade and Slavery (1926) - Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices similar to Slavery (1956) - Implementation of treaty by legislation regulating conduct in Australia - Whether Code, ss 270.1 and 270.3(1)(a) within legislative power - Constitution, s 51(xxix). Words and phrases - "possess", "powers attaching to the right of ownership", "slave", "slavery". Criminal Code (Cth), ss 5.1, 5.2, 5.6, 270.1, 270.2, 270.3.

BHP Billiton Iron Ore Pty Ltd v National Competition Council BHP Billiton Iron Ore Pty Ltd v National Competition Council Trade practices - Competition - Access to services - "Service" defined in s 44B of Trade Practices Act 1974 (Cth) to include use of "infrastructure facility" such as road or railway, but not to include use of "production process" - Federal Court of Australia declared railway line service to be s 44B service - Whether access sought by third party to railway line service use of production process. Words and phrases - "access agreement", "infrastructure facility", "facility", "service", "use of a production process". Trade Practices Act 1974 (Cth), Pt

Taxes and duties - Duty payable on lease instrument - Lease defined as agreement "by which" a right to use land is conferred on or acquired by a person - Appellant entered into rail access agreement with Rail Access Corporation giving appellant access rights to rail lines and rail infrastructure facilities - Statute provided party to access agreement with right to access land in or on which rail infrastructure facilities situated - Whether access agreement dutiable as agreement "by which" a right to use land is conferred on or acquired by a person - Whether statute imposing duty refers to source of rights to use land or directs attention to what is received by grantee - Interrelationship between statute conferring right to access land and access agreement. Taxes and duties - Duty payable on lease instrument - Whether rail lines and rail infrastructure facilities themselves land in which grantee under access agreement acquired rights. Statutes - Construction - Statute vests rail lines and rail infrastructure facilities in grantor and land in or on which rail lines and rail infrastructure facilities lie in another statutory body - Whether grantor under access agreement able to grant rights to access land owned by other body. Statutes - Construction - Relevance of general law principles of property to rights with respect to land created by statute for statutory purposes. Words and phrases - "by which", "conferred on or acquired by", "right to use land". Duties Act 1997 (NSW), ss 164, 164A(b), 166(1)(a). Transport Administration Act 1988 (NSW), Sched 6A, cl 5(1).

Imbree v McNeilly [No 2] McNeilly v Imbree [No 2] Procedure - Costs - Offers of compromise - Calderbank offer - Effect.

Kennon v Spry Spry v Kennon Family law – Courts having jurisdiction in matrimonial causes – Powers – Jurisdiction under s 79(1) of Family Law Act 1975 (Cth) to make orders – "Proceedings with respect to the property of the parties to the marriage or either of them" – Definition of "property" of parties to marriage – Whether right of wife with respect to due administration of trust and discretionary power of husband to appoint whole of trust assets to wife constituted part of the property of the parties to the marriage. Family law – Courts having jurisdiction in matrimonial causes – Powers – s 85A of Family Law Act 1975 (Cth) – Court's power to make orders respecting property the subject of "ante-nuptial or post-nuptial settlements made in relation to the marriage" – Whether contributions by parties to existing trust are post-nuptial settlements – Whether just and equitable – Interests of third parties. Family law – Courts having jurisdiction in matrimonial causes – Powers – s 79(1) of Family Law Act 1975 (Cth) – Whether "parties to the marriage or either of them" includes reference to persons who were parties to marriage since dissolved before court makes an order – Power of court to proceed in property settlement "as if" changes to property rights otherwise brought about by anterior divorce had not yet occurred. Family law – Divorce and other matrimonial causes – Division of assets – Trusts and trustees – Wife one of the class of objects of discretionary trust – Right in equity to due administration of trust – Whether existence of such a right depends on entitlement to any fixed and transmissible beneficial interest in trust fund. Statutory construction – Family Law Act 1975 (Cth) – Policy regarding contributions to property – Relevance to provisions relating to orders with respect to settlement of property. Statutory construction – Family Law Act 1975 (Cth) – s 85A – Purposes with respect to settlement – Degree of association ("made in relation to") between settlement of property and marriage. Words and phrases – "ante-nuptial or post-nuptial settlements"; "made in relation to"; "parties to the marriage or either of them"; "property"; "with respect to the property of the parties to the marriage". Family Law Act 1975 (Cth), Pt VIII, ss 4, 79, 80, 85A, 106

Agricultural and Rural Finance Pty Limited v Bruce Walter Gardiner Contracts - Interpretation - Where indemnity agreement provided that indemnity effective and enforceable if borrower "punctually paid" amounts under related loan agreement - Meaning of "punctually" - Whether context of agreement required departure from dictionary meaning - Whether conduct of lender in accepting late payment could render such payment "punctual". Contracts - "Waiver" of contractual right - Meaning of "waiver" - Waiver distinguished from contractual variation and promissory estoppel - Whether doctrine referred to as "waiver" exists in form of election between inconsistent rights, common law doctrine of forbearance, or abandonment or renunciation of right - Whether any other residual form of "waiver" exists - Whether acceptance of late payments under loan agreement and other conduct constituted "waiver" by lender and indemnifier of condition for indemnity taking effect, that the borrower have "punctually paid" amounts under loan agreement. Contracts - Election between inconsistent rights - Point at which choice between inconsistent rights arises - Whether indemnifier faced with choice between inconsistent rights. Contracts - Forbearance from exercising contractual right - Relationship with estoppel - Influence of Statute of Frauds. Contracts - Abandonment or renunciation of contractual right - Point at which time comes for abandoning or renouncing right - Whether time had come for lender or indemnifier to abandon or renounce right to insist on punctual payment under loan agreement. Equity - Equitable doctrines - Election - Distinct character and application. Words and phrases - "abandonment", "approbate and reprobate", "election", "forbearance", "punctually", "renunciation", "waiver".

Family law – Matrimonial cause – Proceedings to alter property interests – Where wife was indebted to Commissioner for certain taxation related liabilities plus general interest charge – Where wife applied for order that husband be substituted for wife as debtor and husband be solely liable to Commissioner for debt – Where s 90AE(1)(b) of Family Law Act 1975 (Cth) permitted court to make order directed to creditor of one party to marriage to substitute other party to marriage in relation to debt owed to creditor – Whether s 90AE bound Commissioner in relation to debt owed to Commonwealth – Whether s 90AE(1)-(2) of Family Law Act granted court power to make order sought by wife. Practice and procedure – Question stated – Where question of law stated by Federal Circuit Court of Australia under s 94A(3) of Family Law Act for opinion of Full Court of Family Court of Australia – Where question concerned jurisdiction to make order – Where preconditions to making of order in s 90AE(3) of Family Law Act unlikely to be satisfied – Whether stated case procedure was appropriate. Words and phrases – "bind the Crown", "case stated", "common probability of fact", "creditor", "Crown immunity", "debt of a party to a marriage", "party to a marriage", "person", "presumption", "property of the parties to a marriage", "property settlement proceedings", "question of law", "rights, liabilities or property interests of a third party", "tax debt", "third party". Family Law Act 1975 (Cth), ss 79, 80, 90AA, 90AC, 90ACA, 90AD, 90AE, 94A, Pts

Administrative law - Practice and procedure - Prerogative writs - Proceedings collateral to application under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - Application by respondent for summary dismissal - Application for judge's recusal - Allegations of bias - Validity of s 31A of the Federal Court of Australia Act 1976 (Cth) - Validity of O 20 r 5 of the Federal Court Rules. Federal Court of Australia Act 1976 (Cth), s 31A. Federal Court Rules, O 20 r 5.

Immigration – Refugees – Review by Refugee Review Tribunal ("RRT") – Person telephoned, for purpose of obtaining information from that person, without procedures set out in ss 424(3) and 424B of Migration Act 1958 (Cth) ("Act") being followed – Whether RRT breached ss 424(3) and 424B of Act. Immigration – Refugees – RRT did not give notice to first respondent of file note of conversation between RRT employee and third person – Whether RRT was required by s 424A of Act to give notice – Whether file note was "the reason, or a part of the reason, for affirming the decision that is under review". Words and phrases – "get any information", "invite", "reason, or a part of the reason". Migration Act 1958 (Cth), Pt 7 Div 4, ss 424, 424A, 424

Australian Securities & Investments Commission v Lewski Australian Securities & Investments Commission v Wooldridge Australian Securities & Investments Commission v Butler Australian Securities & Investments Commission v Jaques Australian Securities & Investments Commission v Clarke Companies – Managed investment schemes – Officers – Duties – Where each first respondent director of second respondent responsible entity of managed investment scheme – Where four directors resolved to amend scheme's constitution to introduce new fees payable to responsible entity out of scheme's assets – Where all five directors resolved to lodge and lodged amended constitution with Australian Securities & Investments Commission ("ASIC") – Where all five directors resolved to pay fees and caused payments to be made – Where ASIC alleged contraventions of Corporations Act 2001 (Cth) by responsible entity and directors – Where proceedings alleging contraventions in relation to amendment resolution time-barred – Whether amendments to constitution adversely affected members' rights – Whether Full Court erred in holding amendments valid from lodgement until set aside – Whether Full Court erred in holding no breaches of duty occurred because of honest belief that constitution validly amended – Whether Full Court erred in holding directors not involved in contravention of s 208 of Corporations Act by responsible entity. Words and phrases – "adversely affect", "breach of duty", "essential element of the contravention", "financial benefit", "honest belief", "improper use of a position", "interests", "interim validity", "invalid", "involved in a contravention", "listing fee payments", "lodgement", "loyalty", "member approval", "members' rights". Corporations Act 2001 (Cth), Pt 5C.3, ss 9, 79, 136, 208, 209(2), 229, 601FC, 601FD, 601GA(2), 601GC, 601LC, 1317K, 1318, 1322.

Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where s 29(10) of Electoral Funding Act 2018 (NSW) ("EF Act") substantially reduced cap on electoral expenditure applicable to third-party campaigners from cap applicable under previous legislation – Where third-party campaigners subject to substantially lower cap than political parties – Where s 35 of EF Act prohibits third-party campaigner from acting in concert with another person to incur electoral expenditure exceeding cap – Where preparatory materials to EF Act recommended reduction in cap for various reasons, including that third parties should not be able to "drown out" political parties, which should have a "privileged position" in election campaigns – Where subsequent parliamentary committee report recommended that, before reducing cap, government consider whether proposed reduced cap would enable third-party campaigners reasonably to present their case – Where no evidence that such consideration was undertaken – Whether s 29(10) enacted for purpose compatible with maintenance of constitutionally prescribed system of representative government – Whether s 29(10) necessary to achieve that purpose – Whether necessary to decide validity of s 35. Words and phrases – "capped expenditure period", "compatible with maintenance of the constitutionally prescribed system of representative government", "deference to Parliament", "domain of selections", "domain of the legislative discretion", "effect of the law", "electoral expenditure", "expenditure cap", "justified", "legislative purpose", "legitimate purpose", "level playing field", "marginalise", "margin of appreciation", "necessity", "reasonably appropriate and adapted", "third-party campaigner". Constitution, ss 7, 24. Electoral Funding Act 2018 (NSW), ss 3, 29, 33, 35. Election Funding, Expenditure and Disclosures Act 1981 (NSW), ss 4, 4A, 95

Taxes and duties – Stamp duty – Transactions resulted in acquisition of all shares in corporation which held Crown leases containing options to renew – Section 56N(2)(b) of Taxation (Administration) Act (NT) ("Act") requires valuation for assessment of duty of "all land" to which corporation is entitled at time of acquisition – Section 4(1) of Act provides "land" includes "a lease of land" but that "'lease' ... does not include ... an option to renew a lease" – Whether "land" in s 56N(2)(b) includes option to renew lease. Leases – Definition – Whether lease includes option to renew. Statutes – Interpretation – Definitions – Whether definition contained in general definition provision displaced by contrary intention. Words and phrases – "land", "lease". Interpretation Act (NT), ss 62A, 62B. Taxation (Administration) Act (NT), Pt III Div 8A, ss 4(1), 56N, 56

Negligence – Duty of care – Liability of statutory authority – Water main installed under statutory power – Altered subsoil drainage leading to compromise of root system of roadside tree – Approximately 20 years later tree fell on passing vehicle during storm resulting in death to an occupant and personal injury to other occupants of vehicle – Whether death and injury a reasonably foreseeable consequence of installation of water main – Significance of temporal relation between allegedly negligent conduct and injury occurring – Significance of statutory authority's lack of control over the tree in interval between installation of water main and injury – Section 43A of Civil Liability Act 2002 (NSW) addressing civil liability in tort of public or other authorities exercising a "special statutory power" not relied upon. Words and phrases – "reasonable foreseeability". Civil Liability Act 2002 (NSW), ss 5B, 5C, 43A. Metropolitan Water, Sewerage, and Drainage Act 1924 (NSW), ss 30, 32.

C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board C.A.L. No 14 Pty Ltd v Scott Torts – Negligence – Duty of care – Operator of hotel and liquor licensee – Intoxicated patron died in road accident after leaving hotel on motorcycle – Where patron and licensee agreed motorcycle and its keys should be held by licensee and patron's wife called when patron ready to leave – Patron refused licensee's offer to call wife to collect patron as arranged and requested keys – Whether licensee had duty to take reasonable care to prevent intoxicated patron from riding motorcycle from hotel – Whether an exceptional case. Torts – Negligence – Breach – Whether alleged duty required licensee to call wife – Whether alleged duty discharged by offer to call wife. Torts – Negligence – Causation – Whether calling wife would have prevented death – Whether on balance of probabilities wife would have received and responded to call in time. Words and phrases – "balance of probabilities", "an exceptional case". Criminal Code (Tas), ss 43, 45. Liquor and Accommodation Act 1990 (Tas), ss 62, 78, 79, 79A, 80. Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 4, 5(1). Traffic Act 1925 (Tas), s 41A. FRENCH CJ. I agree that the appeals should be allowed and that the orders proposed by Gummow, Heydon and Crennan JJ should be made. I do so for the reason, explained by their Honours[1], that the appellants did not owe to the deceased, in the circumstances of this case, a relevant duty of care. I agree also with their Honours' conclusions on causation[2] and breach of duty[3]. I express no opinion on more general questions about the duty of care owed by publicans to their customers or to persons other than their customers. The resolution of these questions in future will be likely to require consideration of the liquor licensing laws and the civil liability statutes of the relevant State or Territory. The latter statutes now contain provisions dealing with the effect of intoxication upon one or more of duty and standard of care, breach and contributory negligence[4]. As pointed out in the joint judgment[5], the Civil Liability Act 2002 (Tas) was only enacted on 19 December 2002 and is irrelevant to these proceedings.

Adeels Palace Pty Ltd v Moubarak Adeels Palace Pty Ltd v Bou Najem Torts – Negligence – Duty of care – Where gunman shot two men at New Year's Eve function – Where shootings occurred on licensed premises – Whether defendant owed duty of care to prevent injury from conduct of other patrons – Relevance of statutory requirements under Liquor Act 1982 (NSW). Torts – Negligence – Breach of duty – Where no licensed security personnel on premises – Whether licensed security personnel ought to have been provided – Relevance of size and type of function – Relevance of past incidents at premises. Torts – Negligence – Causation – Whether absence of licensed security personnel necessary condition for shootings taking place – Whether "but for" test of causation satisfied – Relevance of nature of damage sustained – Whether an exceptional case. Words and phrases – "necessary condition of the occurrence of the harm", "factual causation", "scope of liability", "an exceptional case". Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E. Liquor Act 1982 (NSW), ss 2A, 103, 125.

Kirk v Industrial Relations Commission of New South Wales Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) Occupational health and safety – Statutory duty – Occupational Health and Safety Act 1983 (NSW), ss 15 and 16 provided duties of employer to "ensure the health, safety and welfare at work of all the employer's employees" and that "persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking" – Section 53(a) provided a defence where it was "not reasonably practicable ... to comply with the provision of this Act" – Breach of duty criminal offence – Statement of offences as particularised did not identify what measures defendant could have taken but did not take to fulfil duty – Whether statement of offence must identify act or omission said to constitute contravention of s 15 or s 16 – Whether failure to charge act or omission an error of law – Whether error on the face of the record – Whether jurisdictional error. Evidence – Competence and compellability of accused persons – Joint trial – Industrial Relations Act 1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules of evidence – Evidence Act 1995 (NSW), s 17(2) provided that a defendant is not competent to give evidence as witness for prosecution – No power of Industrial Court of New South Wales to dispense with s 17(2) – Defendant called as witness for prosecution – Whether jurisdictional error – Whether error on the face of the record. Administrative law – Jurisdictional error – Error of law on the face of the record – Whether orders in nature of certiorari available. Statutes – Privative clause – Industrial Court of New South Wales – Construction of privative clause – Whether privative provision effective to prevent review for jurisdictional error – Whether effective to prevent review for error of law on the face of the record – Relevance of exclusion of right to appeal to Supreme Court of New South Wales and to High Court of Australia. Constitutional law (Cth) – Chapter III – State Supreme Courts – Power of State Parliament to alter defining characteristic of Supreme Court of a State – Supervisory jurisdiction – Whether a defining characteristic is power to confine inferior courts and tribunals within limit of their authority to decide. Procedure – Costs – Appellate court exercising supervisory not appellate jurisdiction – Appellate court makes orders in nature of certiorari – Whether appellate court has power to make orders in place of orders quashed. Words and phrases – "act or omission", "certiorari", "description of offence", "error of law on the face of the record", "jurisdictional error", "privative provisions", "reasonably practicable", "superior court of record", "Supreme Court of a State", "the record". Constitution, Ch III, ss 71, 73, 75(v). Criminal Procedure Act 1986 (NSW), s 11. Evidence Act 1995 (NSW), ss 17(2), 190. Industrial Relations Act 1996 (NSW), ss 179, 163(2). Occupational Health and Safety Act 1983 (NSW), ss 15, 16, 53. Supreme Court Act 1970 (NSW), s 69. Supreme Court (Summary Jurisdiction) Act 1967 (NSW), ss 4, 6.

Real property – Compulsory acquisition – Parts of various lots reserved under town planning scheme for Primary Regional Roads – Whole lots subsequently acquired for purpose of railways and primary regional roads – Whether land reserved for one purpose could be acquired for another purpose – Whether valid acquisition under s 13 of Town Planning and Development Act 1928 (WA) – Whether valid acquisition under s 161 of Land Administration Act 1997 (WA) ("Land Act"). Real property – Compulsory acquisition – Section 161 of Land Act provided that acquisition must be for purposes of public work – Portions of lots cut off from access to public roads by railway – Whole lots acquired to avoid statutory obligation to construct crossings – Whether acquisition incidental to purposes of public work – Whether compulsory acquisition of whole lots valid – Whether severance possible where same taking order effected both valid and invalid acquisitions. Words and phrases – "for the purpose of a town planning scheme", "for the purposes of the work", "public work", "railway purposes". Land Administration Act 1997 (WA), ss 161, 177, 179. Public Works Act 1902 (WA), s 95. Town Planning and Development Act 1928 (WA), s 13(1).

Negligence – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent's delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases. Negligence – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance. Words and phrases – "balance of probabilities", "damage", "gist of the action", "loss of a chance of a better outcome", "standard of proof". GUMMOW ACJ. The appellant suffers irreversible brain damage. She was born in 1984 and brought her action in the Supreme Court of New South Wales by her tutor, who is her uncle. The respondent, Dr Gett, was the second defendant in the action and at all material times was a registered medical practitioner practising as a paediatrician and a visiting medical officer at the Royal Alexandra Hospital for Children in Sydney. The events giving rise to the litigation took place when the appellant, then aged six years, was a patient at the hospital. Changes to the common law subsequently made by the Civil Liability Act 2002 (NSW) did not apply directly to this case. The action was brought in negligence alone and there was no claim in contract. The appellant pleaded her case as one in which breach by the respondent of his duty to manage her with due care and skill caused or contributed to cause her injury, loss and damage, or, in the alternative, led to "the loss of an opportunity to avoid injury, loss and damage". The appellant at trial failed on the first ground but succeeded on the second. There are two central issues. The first is whether in a claim arising from personal injury the law of negligence permits the bifurcation in this way of the nature of the actionable damage attributable to the same breach of duty, so that failure of the case on the first branch may be overcome by success on the second. In substance, the respondent contends that these are not true alternatives and that the law of negligence does not recognise as compensable damage the loss of opportunity in question here. The second issue is whether, in any event, the evidence sufficiently supported the favourable finding at trial on the claim for loss of opportunity. The course of the litigation On 11 January 1991 the appellant was admitted to the hospital and came under the care of the respondent. The appellant had recently suffered from chickenpox which had resolved but both before and after that illness she suffered from headaches, nausea and vomiting. The respondent made a provisional diagnosis that the appellant was suffering from chickenpox, meningitis or encephalitis. The significant events which followed, and the course of the 36-day trial before Studdert J[1], were described as follows by the Court of Appeal (Allsop P, Beazley and Basten JJA)[2]: "On 14 January 1991, after suffering a seizure, and after a CT scan and EEG were performed [the appellant] was diagnosed as suffering from a brain tumour. She received treatment, including an operation to remove the tumour. She suffered irreversible brain damage, partly as a result of events on 14 January 1991, partly from the tumour (which had been growing for over 2 years), and partly from the operative procedure and other treatment (not said to be in any way negligently performed). The [appellant] brought proceedings against the [respondent] in negligence. The central allegation was that the CT scan that was undertaken on 14 January should have been performed earlier, either on 11 or 13 January, and that if it had, she would have had a better medical outcome. The plaintiff also brought proceedings against Dr Mansour, who had treated her in an earlier admission to hospital on 29-31 December 1990. The trial judge held that Dr Mansour was not negligent in his treatment of the [appellant] and there is no appeal from that decision. The trial judge held, however, that the [respondent] was negligent in failing to order a CT scan on 13 January 1991. His Honour found no earlier negligent act or omission, thereby concluding that the [respondent] acted reasonably in making his provisional diagnosis on 11 January that the [appellant] was suffering from chickenpox or varicella meningitis or encephalitis." The finding by Studdert J of negligence in failing to order a CT scan on 13 January was based upon an episode at 11 am on that day when nursing staff observed that the appellant's pupils were unequal and the right pupil was not reactive. However, his Honour was not persuaded on the balance of probabilities that the discovery of the tumour upon administration of a CT scan on 13 January would have led to the appellant being treated in such a way as would have avoided the seizure and deterioration in her condition on 14 January. The Court of Appeal continued its account of the trial as follows[3]: "Having found that the [respondent] breached his duty of care, the trial judge did not conclude that this negligence caused or contributed to the seizure and deterioration which occurred on 14 January. Rather, his Honour found that the [appellant] lost a chance of a better medical outcome had the brain tumour been detected on 13 January 1991, as it would have been if the CT scan had been performed that day." The trial judge had introduced his holding with respect to the loss of a chance by stating that on the balance of probabilities he was satisfied that, had a CT scan been called for at 11 am on 13 January, it would have been performed urgently, the tumour would have been detected and treatment, probably by administration of steroids rather than by drainage, would have reduced intracranial pressure. The absence of treatment "deprived [the appellant] of the chance of a better outcome"[4]. Further, the detection of the tumour on 13 January would have eliminated the time lost in carrying out the CT scan after the seizure on the next day and before urgent surgery was subsequently performed. There was then the question of remedy. The Court of Appeal described the outcome of the trial as follows[5]: "His Honour assessed the [appellant's] damages referable to her entire brain damages in a total amount of $6,092,586. His Honour found that it was probable that the [appellant's] decline on 14 January contributed to her ultimate disabilities and assessed that contribution to be no greater than 25%, representing an assessment of $1,523,146. An attack by the [respondent] on this divisible apportionment was abandoned at the appeal. The trial judge assessed that the loss of a chance of a better outcome, that is avoiding the damage referable to the deterioration on 14 January (the 25%), was 40%. The damages to which the [appellant] was thus entitled for a 40% loss of a chance was $610,000. His Honour thus ordered verdict and judgment for the [appellant] in that sum." The trial judge emphasised that the "loss of a chance" branch of the appellant's case, upon which alone she had succeeded, had not been her primary claim. This had been for recovery for negligence resulting in her brain damage and the appellant's case had been that, even if this result were restricted to the harm suffered on 14 January, her overall disability was indivisible. It may be accepted that the medical evidence had been led and cross-examined with that primary claim uppermost in mind. The Court of Appeal set aside the judgment for the appellant and entered judgment for the respondent. The appellant in this Court seeks the restoration of the outcome at trial. The principal ground of appeal is that the Court of Appeal erred in holding that the causal effects of the clinical negligence of the respondent should be assessed on the balance of probabilities alone rather than, as at trial, "on the basis of loss of a chance of a better outcome". That is to say, the appellant disputes the adverse outcome for her in the Court of Appeal on what earlier in these reasons is identified as the first of the central issues. It should be noted that in the Court of Appeal, (a) the respondent failed in his challenge to the finding that he had been negligent in failing, on 13 January, to consider other possible diagnoses and to order a CT scan on that day, and (b) the appellant failed in her contention that she had suffered more than the loss of the opportunity of a better outcome and that the primary judge should have found, on the balance of probabilities, that the negligence of the respondent had caused the whole of the brain injury referable to her seizure and deterioration on 14 January, being 25 per cent of her overall disability after the operation. The state of authority In ruling in favour of the appellant on the "loss of a chance" branch of her case, the trial judge drew support from the decisions of the Victorian Court of Appeal in Gavalas v Singh[6] and of the New South Wales Court of Appeal in Rufo v Hosking[7]. But, as Callaway JA emphasised in the first case[8], the appeal had turned upon the assessment of damages and, as M W Campbell AJA explained in the other case[9], the litigation there was conducted on the basis that if the facts supported a claim based on the loss of a chance then the action lay. Nevertheless, in the present case Studdert J regarded himself as bound by Rufo. Shortly after Rufo was decided by the New South Wales Court of Appeal, in Gregg v Scott[10] the House of Lords (Lords Hoffmann and Phillips of Worth Matravers MR and Baroness Hale of Richmond; Lords Nicholls of Birkenhead and Hope of Craighead dissenting) affirmed the rejection by the Court of Appeal (Simon Brown and Mance LJJ; Latham LJ dissenting)[11] of the submission by the plaintiff that the trial judge should have awarded him damages on the footing that the reduced chances of successful treatment of the cancer he suffered should be recoverable as damages in negligence. In breach of his duty of care owed to his patient Mr Gregg, Dr Scott had failed forthwith to refer him for a biopsy investigation in November 1994, and the cancer was undetected until November 1995. There was a delay in the commencement of treatment, in which time the cancer had spread. But Mr Gregg had been in remission since 1998. The trial was in 2001 and there was no discernible recurrence of the disease as the litigation proceeded to the House of Lords. Expert evidence treated a "cure" as disease-free survival for 10 years. It was an agreed fact that had Mr Gregg been promptly diagnosed and treated his chance of disease-free survival for 10 years would have been 42 per cent, but at the trial in 2001 this had been reduced to only 25 per cent. Mr Gregg was thus a survivor against what might be called the statistical odds. His sole complaint was that the breach of duty by Dr Scott had reduced his prospects of a "cure", being disease-free survival until at least 2008. However, the chronology meant that the chance had not yet run its course. It thus remained unsettled whether Dr Scott's breach of duty had destroyed the chance of a "cure". It may have been a paradox that Mr Gregg's resilience made it more difficult for him to establish his case. Nevertheless, how, it might be asked, had the damage, the loss of the chance which was the gist of the action, yet been sustained? Moreover, there was a risk of over-compensation if Mr Gregg recovered damages upon his action tried in 2001 for the reduction in his prospects of survival by reason of the negligent failure in diagnosis in 1994[12]. As a general proposition, and in many fields of law, assessments of compensation or value are made by taking into account all matters known at the later date, when conjecture is no longer essential[13]. Against that background, it is, with respect, unsurprising that one of the majority, Lord Phillips, said that it would be unsatisfactory to award damages for the reduction of the chance of a cure when the long-term result of treatment is still uncertain[14], thereby perhaps threatening the coherence of the common law[15]. A similar concern for coherence in the tort of negligence is apparent in the opinion of Baroness Hale. She asked how a personal injury law concerned with outcomes could live with an alternative of recovery for loss of a chance of an outcome[16]. Counsel for the present appellant, seeking to diminish the significance for this case of the reasoning of the majority in Gregg v Scott, emphasised that, unlike Gregg v Scott, it does not present the conundrum of a chance or prospect of the plaintiff dying earlier than would otherwise be the case as the basis for an action brought while the plaintiff still lived. Here, it was said, the end result, the appellant's disabilities, had been reached before the action was commenced. Earlier, in Laferrière v Lawson[17] the Supreme Court of Canada, on appeal from the Quebec Court of Appeal[18], had considered "loss of chance" in medical negligence. The reasons of the majority (La Forest J dissenting) were given by Gonthier J, who said of "the loss of chance analysis" that it added unnecessary and impermissible confusion to medical negligence cases because it "in fact hides a break in the causal link"[19]. However, in the British Columbia Court of Appeal it has been said by Southin JA that, in that Province, the relationship of patient and physician is essentially contractual. The patient has the right to performance of the contract on its terms and on that basis there might be recovery of damages representing the loss of a chance of less than 50 per cent of a better outcome[20]. But, as indicated above, there was no contractual claim in this case and no occasion to consider the approach taken by Southin JA[21]. Perhaps more immediately congenial to the appellant's case is the recent decision of the seven member Supreme Judicial Court of Massachusetts in Matsuyama v Birnbaum[22]. By reason of the failure in diagnosis by the defendant in 1995, Mr Matsuyama's cancer, which then might still have been curable, had metastasised to an advanced inoperable phase resulting in his premature death[23]. In upholding the finding of the jury that the misdiagnosis was a "substantial contributing factor" to the death of Mr Matsuyama, Marshall CJ said[24]: "the loss of chance doctrine views a person's prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physician's tortious conduct. Where a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages. Permitting recovery for loss of chance is particularly appropriate in the area of medical negligence. Our decision today is limited to such claims." Her Honour went on to stress that if "loss of a chance" is to be recognised as actionable it is better understood as an injury recognised by the law of tort, than as a separate cause of action or as a surrogate for the necessary element of causation in a negligence claim[25]. If recovery be sought for decrease in the patient's prospect of recovery, rather than the ultimate outcome, there has to be identification and valuation of that diminished prospect. With that I, with respect, agree. But that does not mean that issues of causation do not arise on such an analysis. It will be necessary to say more of this important consideration later in these reasons. However, as Kiefel J explains in her reasons, the form of the actual recovery in Matsuyama was in the controversial shape of "proportional damages" representing not the loss of a chance of survival but a percentage of a damages award on a statutory wrongful death claim by the executrix of Mr Matsuyama. In Matsuyama, Marshall CJ did emphasise two matters, both of which are uncontroversial and applicable to the present appeal. The first is the importance of determinations of fact based upon expert testimony rather than speculation based on insufficient evidence[26]. The second is the distinction between the injury or damage which is the gist of the action in negligence and the proper measure of damages[27]. Much of the difficulty derives from the multiple reference of the term "damage", which is used to identify that which the law accepts as sufficient injuria, and the measure of compensation represented by the sum for which judgment is entered[28]. In that regard Lord Walker of Gestingthorpe has emphasised that while questions of assessment of damages may involve quantifying future or hypothetical chances, the common law has not accepted that the attribution of liability should be proportionate to the proof of causation[29]. Nevertheless, in some of the cases there has been a tendency to run together questions of attribution of liability and the measure of damages recoverable. In the present case, the Court of Appeal considered, and properly so, that it could only be for this Court "to reformulate the law of torts to permit recovery for physical injury not shown to be caused or contributed to by a negligent party, but which negligence has deprived the victim of the possibility (but not the probability) of a better outcome". Their Honours added[30]: "Such an approach would not readily be limited to medical negligence cases, but would potentially revolutionise the law of recovery for personal injury. It would do so by reference to an assessment of increased risk of harm, verbally reformulated into loss of a chance or opportunity in order to equate it with the recognition in Sellars [v Adelaide Petroleum NL[31]] and like cases of the existence in commerce of a coherent notion of loss of a right or chance of financial benefit. No doubt the limits of the 'commercial' or financial opportunity or advantage dealt with in Sellars will be a matter of future debate: see the discussion in Gregg [v Scott[32] by Baroness Hale of Richmond]. In our view, its limits (unless expanded by the High Court) must fall short of a proposition which revolutionises the proof of causation of injury or [which redefines what is 'harm'] in personal injury cases." These reasons will seek to demonstrate that the reformulation of which the Court of Appeal spoke should not be made, and that the appeal to this Court must fail. However, this outcome will not require acceptance in absolute terms of a general proposition that destruction of the chance of obtaining a benefit or avoiding a harm can never be regarded as supplying that damage which is the gist of an action in negligence. The case for the appellant Studdert J had described the success of the appellant as the entitlement "to be compensated for the loss of a chance of a better outcome had the breach of duty not occurred"[33]. The identification of the chance lost as that of a "better outcome" is repeated elsewhere in the reasons. As noted by the Court of Appeal, the "better outcome" appears to have been avoidance of the brain damage referable to the deterioration on 14 January. This was assessed as a contribution of 25 per cent to the ultimate disabilities which the appellant suffers. The "chance" of avoiding that brain damage referable to the deterioration of 14 January was assessed by the trial judge as 40 per cent. In this Court counsel for the appellant submitted that at the heart of her case was the concept of the lessening of the gravity of the final result. As refined in the course of argument, the appellant's case is that the respondent's negligence deprived her of a chance, prospect or opportunity that had remained open only for a short period between 11 am on 13 January and her seizure and deterioration on 14 January. The chance, prospect or opportunity had been of avoiding so much of the eventual outcome, her disabled state, which as to 25 per cent was attributable to her seizure and deterioration on 14 January. The appellant sought to stigmatise the respondent's case as being that, because the likelihood of this better outcome was less than 50 per cent, it followed (a) that on the balance of probabilities the appellant would still have suffered as much as she did, and therefore (b) the chance, prospect or opportunity had no worth. However, if the likelihood of a better outcome had been found to be greater than 50 per cent then on the balance of probabilities the appellant would have succeeded, not failed, on the main branch of her case in negligence. The question of principle thus becomes whether the law permits recovery in negligence on proof to the balance of probabilities of the presence of something else, namely a chance, opportunity or prospect of an outcome the eventuation of which, however, was less than probable. The case for the respondent The respondent submitted that even if (which he disputed) the appellant had correctly formulated the applicable legal principles, the evidence had provided an insufficient basis for a favourable outcome based on anything more than speculation. The respondent also challenged the indeterminacy of the terms used by the trial judge, "better outcome" and "chance". The respondent submitted that the "chance" found was that steroids if administered, or a drain if inserted earlier, would have worked to lessen or avert brain damage, but that, in the way the evidence was led at the trial, these mere possibilities were not tied to evidence sufficient to found any assessment of the potential effectiveness of that chance. Indeed, at the trial, counsel for the respondent had submitted that there was no expert evidence as to the value of the lost chance or sufficiently identifying the actual harm suffered on 14 January. For the reasons which follow, the case presented by the respondent should be preferred to that presented by the appellant. This is so both with respect to the applicable principles, and with respect to what the respondent submits in any event to have been the weaknesses in the evidence. Before turning to matters of deep principle, something more should be said respecting the reasons of the trial judge. The reasons of the trial judge The trial judge began with the proposition, which the appellant properly accepted in submissions to this Court, that the existence of the chance of a better outcome had to be proved on the balance of probabilities. His Honour continued[34]: "I am satisfied on the probabilities as to the following: (i) that the failure to relieve the [appellant's] intracranial pressure during the twenty-four hour period prior to [her] decline on 14 January 1991 was causative of brain damage occurring at and following the time of the [appellant's] observed decline on 14 January; (ii) that the [appellant] lost the chance of that relief and of avoiding or minimising that damage by reason of the breach of duty of the [respondent]; (iii) that the chance was not so low as to be speculative, but was a good chance, although less than a fifty percent chance. ... Whilst I do not have the benefit of any expert opinion as to the value of the lost chance in percentage terms, I have decided that the loss of the chance had the breach of duty not occurred is to be measured at forty percent. In so concluding, I have regard to the following: (a) the probability that a CT scan if sought would have been performed urgently, on 13 January, revealing the presence of the medulloblastoma; (b) the probability that the detection of the medulloblastoma would have been followed immediately on 13 January by the placement of a drain or the prescription of steroids. ... I consider it more likely that steroids would have been prescribed rather than the placement of a drain; (c) whilst I consider that the placement of a drain would have proved more effective to relieve pressure, the probability is that the steroids would have had some beneficial effect, and would have reduced tumour related swelling; (d) the carrying out of the CT scan on 13 January would have avoided the time occupied in performing the CT scan and the EEG on 14 January. Should it still have proved necessary to insert the drain on 14 January, notwithstanding the prescription of steroids the day before, this procedure could have been carried out approximately two hours earlier than it was. ... (e) If, notwithstanding the prescription of steroids on 13 January, the decline had still occurred on 14 January, the elimination of the delay for the CT and the EEG on the later date and the earlier insertion of the drain would have increased the chance of a better outcome. ... After close attention to the matter and whilst acknowledging the difficulties of the task, I have decided that I should proceed with the assessment [of the value of the lost chance]. The [appellant] is entitled to damages referable to the loss of a chance of a better outcome in relation to the harm suffered on 14 January 1991 only. There were altogether four contributors to the totality of the brain damage from which the [appellant] presently suffers: (i) the medulloblastoma with its seeding, and the hydrocephalus; (ii) the damage that occurred on 14 January 1991; (iii) the surgery on 16 January 1991; (iv) the subsequent radiotherapy treatment. ... Having considered all the medical evidence, I think it probable that the event of 14 January made some contribution to the [appellant's] ultimate disabilities, particularly her cognitive loss and her ataxia, her loss of balance and her coordination impairment. However, I find on the probabilities that the contribution made by the event of 14 January 1991 to the above specified disabilities and to her disabilities generally was significantly less than the combined contribution of the remaining contributors. It is impossible to be precise about the matter, as reflection on the medical evidence reveals, but I find on the probabilities that the contribution of the event of 14 January 1991 to the aggregate brain damage and resulting disabilities with which the [appellant] has presented to this Court is no greater than twenty-five percent." (emphasis added) The Court of Appeal[35], however, held that if, contrary to its view, a loss of chance analysis were "legitimate" it would consider that the appellant lost, at most, a 15 per cent chance, not a 40 per cent chance, of avoiding the overall 25 per cent of the brain damage. The evidence The trial judge plainly had appreciated the difficulty in deriving from the evidence the conclusions he reached both as to the 25 per cent contribution to the appellant's disabilities and as to the 40 per cent chance of avoiding the deterioration on 14 January. This situation may be contrasted, for example, with that disclosed in Matsuyama[36], where there was before the jury extensive evidence by expert witnesses to support the opinion that the development of gastric cancer was classified into four distinct stages with each carrying a diminished chance of survival, measured by five disease-free years after treatment. It was the development of medical science to the point that, at least for some conditions, expert evidence could replace speculation that, in the view of the Massachusetts court, made it appropriate to recognise loss of chance as a form of injury[37]. No doubt the present case arose in very particular circumstances making it difficult to find the appropriate comparator or counter-factual. Usually this will require proof of what would have been the plaintiff's position in the absence of the breach of duty by the defendant. The difficulty in the present case arises from the substitution, for which the appellant contends, of loss of the chance of a better outcome for proof of physical injury, as the gist of the cause of action in negligence. The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can. The treatment in Malec v J C Hutton Pty Ltd[38] of the assessment of damages for future or potential events that allegedly would have occurred, but cannot now occur, or that allegedly might now occur, is an example. But in that case the claim giving rise to the assessment had been for physical injury, the contraction of a disease as a result of the negligence of the defendant. The imprecision allowed in the assessment of damages in such cases does not necessarily or logically apply where a claim for physical injury fails but is said to be saved by transmutation of the damage alleged into the loss of a chance of a better outcome. With that in mind, something should be said respecting McGhee v National Coal Board[39]. That decision of the House of Lords on appeal from Scotland may be read as deciding, on orthodox grounds, that the negligence of the defendants had materially contributed to the personal injury of the pursuer. That characterisation later was disputed by the House of Lords itself in Fairchild v Glenhaven Funeral Services Ltd[40], but it is unnecessary here to enter upon that debate. What is presently significant is that in the interim, when giving that orthodox reading of McGhee, Lord Bridge of Harwich in Wilsher v Essex Area Health Authority[41] had said of the speeches in McGhee that their conclusion manifested a "robust and pragmatic approach" to the drawing of a legitimate inference from "the undisputed primary facts of the case". This unremarkable use of language in the context of physical injury cases was then translated in Rufo into something more. In that case, the New South Wales Court of Appeal[42], after citing Lord Bridge's statement in Wilsher, concluded that if "a robust and pragmatic approach" were adopted to the primary facts of that case, then it was more probable than not that the chance of a better medical outcome was lost, with that chance being more than speculative or remote. In the present case, the trial judge proceeded in his assessment of the evaluation of the lost chance mindful of what he saw as the invitation in Rufo to take "a robust and pragmatic approach". But, as the respondent emphasised, this had been advocated by Lord Bridge with respect to the drawing of inferences from undisputed primary facts, whilst here there were deficiencies in the evidence necessary to support a finding for the appellant on a critical matter. This critical matter concerned what would have been the efficacy of steroid treatment in the short period of opportunity between the episode at 11 am on 13 January and the seizure the next day. The evidence in re-examination of one of the expert witnesses, the neurosurgeon Mr Ian Johnston, was as follows: "Q. What is your view as to whether or not the use of steroids would have had a role in avoiding the incident of the acute decline on 14 January 1991 in this patient? A. Well, this would be absolutely a guess; I mean, it's entirely speculative. I don't think they would have been sufficiently effective under those circumstances of this particular patient, Reema, to do that, but I don't know. Q. What was it about her condition that leads you to express that opinion? A. Well it was primarily the pressure was primarily due hydrocephalus [sic], but, you know, tumour-related swelling steroids would have improved [sic]. So it an issue [sic] of which was the more important and by how much. That is very speculative, I have to say. I mean, you could certainly make an argument that they would have improved the situation and that they may have prevented the episode, but, as I say, nobody could answer that with any certainty." Mr Klug's evidence in cross-examination was that, while in non-acute conditions the administration of steroids was very effective, faced with the situation on 13 January he would have had to have made a very careful assessment of the condition of the appellant and may have used a combination of steroids and a ventricular drain if there had been a risk of serious deterioration. But Mr Klug was not asked for an opinion as to the efficacy of that treatment in the period before the time of the seizure on the next day. This evidence provided a basis for no more than speculation as to the loss of a chance of a better outcome whether assessed at 40 per cent or (as the Court of Appeal indicated) 15 per cent. For that reason the appeal to this Court should fail. The issue of principle Further, and as an additional ground of decision, in personal injury cases the law of negligence as understood in the common law of Australia does not entertain an action for recovery when the damage, for which compensation is awarded consequent upon breach of duty, is characterised as the loss of a chance of a better outcome of the character found by the trial judge in this case. It should be said immediately that the principles dealing with recovery of damages for breach of contract offer no appropriate analogy. The action for breach of contract lies upon the occurrence of breach, but that in negligence lies only if and when damage is sustained. This has significance for the application of limitation statutes. But it has the further and relevant importance identified by Brennan J in Sellars v Adelaide Petroleum NL[43]. This is that in a negligence action, unlike an action in contract, the existence and causation of compensable loss cannot be established by reference to breach of an antecedent promise to afford an opportunity. In a contract case the plaintiff should be entitled at least to nominal damages for loss of the promised opportunity. The jury in Chaplin v Hicks[44] assessed at £100 (at the time a not inconsiderable sum) the damages for the breach found of the contractual obligation to take reasonable means to give the plaintiff an opportunity of presenting herself for selection by the defendant in a competition with 12 prizes of three-year theatrical engagements. The defendant, later Sir Seymour Hicks, was a well-known actor and theatrical manager in Edwardian London, who had built the Aldwych and Globe theatres, presented successful musical comedies, and discovered new talent, including that of the young P G Wodehouse as a lyricist[45]. With these matters in mind, it is readily seen that the plaintiff lost a chance of real value. The unsuccessful submission to the Court of Appeal by McCardie for the defendant[46] was that the only remedy was nominal damages, because substantial damages were so contingent as to be incapable of assessment. Chaplin v Hicks[47] is authority for the proposition that if a plaintiff, by the breach of contract by the defendant, has been deprived of something which has a monetary value, there is to be an assessment of damages notwithstanding difficulty in calculation or impossibility of making an assessment with certainty. This Court, speaking in McRae v Commonwealth Disposals Commission[48] of Chaplin v Hicks, said that the broken promise in effect had been to give the plaintiff a chance and that she would have had a real chance of winning a prize, and thus that it was proper enough to say that the chance was worth something. But these considerations do not appear in the frame of reference for the present case. As Brennan J indicated in Sellars[49], in an action in tort where damage is the gist of the action, the issue which precedes any assessment of damages recoverable is whether a lost opportunity, as a matter of law, answers the description of "loss or damage" which is then compensable. In D'Orta-Ekenaike v Victoria Legal Aid[50], McHugh J said: "Reasonable foreseeability of physical harm is generally enough to impose a duty of care on a person who knows or ought reasonably foresee that physical harm is a likely result of his or her conduct. Liability will arise when the duty is breached and where there is a causal relationship between the breach and the harm." Further, harm to the interests of the plaintiff which is not sustained by injury to person or property, in the ordinary sense of those terms, nevertheless may qualify in at least some cases as the compensable damage consequent upon a breach of a duty of care as understood in the tort of negligence. The decisions in Hill v Van Erp[51] and Perre v Apand Pty Ltd[52] respecting recovery for "economic loss" are well-known examples. Where the act or omission complained of does not amount to interference with or impairment of an existing right, some care is needed in identifying the interest said to have been harmed by the defendant and said to be sufficient to attract the protection of the law in this field. The point was made by McPherson JA in Christopher v The Motor Vessel "Fiji Gas"[53]. That process of identification requires a sense of the existing and inherent principles of the law[54]. One of those principles favours the development of the common law, and in particular the tort of negligence, in a coherent fashion[55]. In the present case, with reference to what had been said in Sellars[56] when dealing with an action to recover "loss or damage" under s 82 of the Trade Practices Act 1974 (Cth) for contravention of s 52 of that statute, the Court of Appeal referred to the existence in commerce of a coherent notion of loss of a right of a chance of financial benefit. In that regard, the statement of principle by Brennan J in Sellars[57] is significant: "As a matter of common experience, opportunities to acquire commercial benefits are frequently valuable in themselves, not only when they will probably fructify in a financial return but also when they offer a substantial prospect of a financial return. The volatility of the market for speculative shares testifies to both the valuable character of commercial opportunities and the difficulty of assessing the value of opportunities which are subject to serious contingencies. Provided an opportunity offers a substantial, and not merely speculative, prospect of acquiring a benefit that the plaintiff sought to acquire or of avoiding a detriment that the plaintiff sought to avoid, the opportunity can be held to be valuable. And, if an opportunity is valuable, the loss of that opportunity is truly 'loss' or 'damage' for the purposes of s 82(1) of the Act and for the purposes of the law of torts." More generally, in Naxakis v Western General Hospital[58] Gaudron J observed that while, "where no other loss is involved", there was no reason in principle why loss of a chance or commercial opportunity should not constitute damage for the purposes of tort law, different considerations apply where the risk has eventuated and there has been physical injury. Her Honour continued[59]: "The notion that, in cases of failure to diagnose or treat an existing condition, the loss suffered by the plaintiff is the loss of chance, rather than the injury or physical disability that eventuates, is essentially different from the approach that is traditionally adopted. On the traditional approach, the plaintiff must establish on the balance of probabilities that the failure caused the injury or disability suffered, whereas the lost chance approach predicates that he or she must establish only that it resulted in the loss of a chance that was of some value[60]." Several considerations thus are presented. One may be seen from the statement by Professor David Fischer made upon consideration in 2001 of decisions in the United States, Australia and other common law jurisdictions[61]: "A major rationale for loss of a chance where plaintiff cannot prove traditional damage is that the chance of obtaining a benefit or avoiding a harm has value in itself that is entitled to legal protection. Thus, destruction of this chance ought to be regarded as damage giving rise to an actionable tort. Characterizing the damage as the loss of a chance of avoiding harm (or gaining a benefit) relieves the plaintiff of the burden of proving that the harm itself (or lost benefit itself) occurred. At the same time, the characterization preserves the requirement that plaintiff prove [damage] by the usual standard of proof. Note, however, that under the 'chance has value' characterization, it is often easier to prove actionable damage. It is usually easier to prove that defendant created a risk of harm (or a risk of loss of benefit) than to prove that defendant caused the harm itself (or benefit itself)." (footnotes omitted) But why should the law favour the weakening of the requirement for proving causation such that, in the situation posited by Gaudron J (which is found in the present litigation), the plaintiff should have the benefit and the defendant the detriment of an easier proof of actionable damage for a negligence action? It may be said that the "all or nothing" outcome on the balance of probabilities leads to "rough justice". But the traditional approach in personal injury cases represents the striking by the law of a balance between the competing interests of the parties, and the substitution of the loss of a chance as the actionable damage represents a shift in that balance towards claimants. Again, there may be a view that, especially with respect to medical treatment, the substitution assists in the maintenance of standards where there is a less than even chance of a cure. This was a consideration which Baroness Hale adverted to in Gregg v Scott[62]. But any such potential benefit to the public weal has to be weighed against, for example, the prospect of "defensive medicine" with emphasis upon costly testing procedures in preference to a sequential deductive approach to diagnosis and treatment. In Gregg v Scott, Baroness Hale went on[63]: "But of course doctors and other health care professionals are not solely, or even mainly, motivated by the fear of adverse legal consequences. They are motivated by their natural desire and their professional duty to do their best for their patients. Tort law is not criminal law. The criminal law is there to punish and deter those who do not behave as they should. Tort law is there to compensate those who have been wronged. Some wrongs are actionable whether or not the claimant has been damaged. But damage is the gist of negligence. So it can never be enough to show that the defendant has been negligent. The question is still whether his negligence has caused actionable damage. ... In this case we are back to square one: what is actionable damage?" In that situation, it should be remembered that the duty of care and its breach are assumed. The determination of the existence and content of a duty of care is not assisted by looking first to the harm sustained by the plaintiff and then reasoning, as it were, retrospectively[64]. Nor is it appropriate to reason that, duty and breach being established, the plaintiff who on the balance of probabilities cannot establish actionable damage nevertheless must have a remedy. Finally, there is the consideration which weighed with Gaudron J in Naxakis[65], Gonthier J in Laferrière[66] and Lord Hoffmann in Gregg v Scott[67]. Where, as in the present case, and unlike in Gregg v Scott itself, the relevant risk of a bad outcome in a pre-existing but undiagnosed or untreated condition has eventuated before the institution of the litigation, the factors bound up in the earlier chance have played themselves out. What is in issue is past events, preceding in this case disabilities from which the appellant suffers. The cause of the disabilities, on the evidence, may be uncertain. But the difficulty which this presents is not overcome by removing the analysis of the facts and law to the more abstract level for which the appellant contends. Conclusions and orders The Court of Appeal reached the correct result on the matters of which the appellant complains in this Court. Further, the Court should not so modify the common law as to produce a different result. The appeal should be dismissed with costs.

Intellectual property – Trade marks – Standing – Trade Marks Act 1995 (Cth) ("the Act"), ss 88 and 92 – Appellant and respondent both registered trade marks in class 5 for pharmaceutical products – Appellant sought cancellation of registration of respondent's trade mark under s 88 and removal of trade mark from Register under s 92 of the Act – Respondent claimed appellant not impeded in ownership and use of own trade mark by registration of respondent's trade mark – Whether appellant "aggrieved" under s 88(1) or s 92(1) of the Act – Whether "aggrieved" to be construed liberally – Whether actual desire or intention to use trade mark required to be "aggrieved" – Whether proof of adverse impact required to be "aggrieved". Statutes – Statutory interpretation – Meaning of "aggrieved" – Subject, scope and purpose of statute – Whether "aggrieved" should be construed liberally. Words and phrases – "aggrieved person", "person aggrieved". Trade Marks Act 1995 (Cth), ss 52, 59, 88, 92.

Extradition – Eligibility for extradition from Australia – Extradition objections – Whether objection established on basis that on surrender the respondent might be "punished, detained or restricted" in liberty "by reason of" his "political opinions" – Where respondent claimed prior service in Croatian armed forces was treated by Croatian courts as mitigating factor in sentencing – Where respondent alleged to have served with forces other than Croatian armed forces – Whether respondent's ineligibility for mitigating factor in sentencing was punishment – Whether such punishment was "by reason of" respondent's "political opinions". Words and phrases – "by reason of", "political opinions", "punished". Extradition Act 1988 (Cth), ss 7(c), 19(2)(d).

E. & J. Gallo Winery v Lion Nathan Australia Pty Limited Intellectual property – Trade marks – Respondent sought removal of appellant's registered trade mark from Register for non-use during prescribed statutory period – Previous foreign registered owner of trade mark authorised by licence attachment of trade mark to goods offered for sale and sold overseas – Goods offered for sale and sold in Australia during statutory period without knowledge of appellant, previous registered owner and licensee of trade mark – Whether trade mark used in Australia by registered owner or authorised user – Whether registered owner or authorised user must knowingly project goods bearing trade mark into course of trade in Australia – Whether use in good faith. Words and phrases – "in the course of trade", "use in good faith". Trade Marks Act 1995 (Cth), ss 92(4), 100(1), 100(3).