Cases and authorities

Parliamentary elections (Cth) – House of Representatives – Counting of votes – Where s 274(2A)-(2C) of Commonwealth Electoral Act 1918 (Cth) provides for indicative two-candidate preferred count in each Division – Where s 7(3) of Commonwealth Electoral Act confers power on Australian Electoral Commission to do all things necessary or convenient for or in connection with performance of its functions – Where practice of Australian Electoral Commission to publish information about indicative two-candidate preferred count for a Division after close of polls in that Division – Whether publication of information for a Division before polls closed in all parts of nation has any demonstrated effect on electoral choices – Whether information inaccurate or misleading – Whether publication constitutes imprimatur to any particular candidate or outcome – Whether publication authorised by s 7(3). Constitutional law (Cth) – Parliament – Elections – Whether publication of information about indicative two-candidate preferred count prior to close of polls nationally contrary to ss 7 and 24 of Constitution – Whether factual foundation of challenge established. Words and phrases – "direct and popular choice", "effect on electoral choices", "factual foundation", "imprimatur", "indicative two-candidate preferred count", "necessary or convenient", "partiality", "scrutiny of votes". Constitution, ss 7, 24. Commonwealth Electoral Act 1918 (Cth), ss 7, 274.

Practice and procedure – Costs – Legal practitioners – Barristers – Where self-represented litigant may not obtain any recompense for value of his or her time spent in litigation – Where exception commonly referred to as "Chorley exception" exists for a self-represented litigant who is a solicitor – Where first respondent is a barrister – Where first respondent undertook legal work in litigation in which she was represented – Where first respondent incurred costs on her own behalf and for legal services provided by herself – Whether Chorley exception operates to benefit barristers – Whether Chorley exception recognised as part of common law of Australia. Words and phrases – "anomalous", "Chorley exception", "common law of Australia", "costs", "costs payable", "creature of statute", "employed solicitors", "equality before the law", "exception to the general rule", "exercise of professional skill", "incorporated legal practice", "indemnity", "judicial abolition", "professional legal services", "prospective overruling", "remuneration", "rule of practice", "rules committees", "self-represented litigants", "statutory power". Civil Procedure Act 2005 (NSW), ss 3(1), 98(1).

EVIDENCE – Facts excluded from proof – privilege – client legal privilege and litigation privilege – Waiver of privilege – whether disclosure was obviously mistaken

Criminal practice – Private prosecution – Authority to prosecute – Where private citizen sought to commence criminal proceeding for offence of crime against humanity contrary to s 268.11 of Criminal Code (Cth) – Where offence located within Div 268 of Criminal Code – Where s 268.121(1) provides that proceedings under Div 268 must not be commenced without Attorney-General's written consent – Where Attorney-General did not consent – Where s 268.121(2) of Criminal Code provides that offence against Div 268 "may only be prosecuted in the name of the Attorney-General" – Where s 13(a) of Crimes Act 1914 (Cth) provides that any person may "institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth" unless contrary intention appears – Whether s 268.121(2) expresses contrary intention for purpose of s 13(a) – Whether s 268.121(2) precludes private prosecution of offence against Div 268. Words and phrases – "commencement of proceedings", "committal", "consent", "consent of the Attorney-General", "contrary intention", "crime against humanity", "in the name of", "indictable offence against the law of the Commonwealth", "private prosecution", "prosecuted in the name of the Attorney-General", "relator proceeding", "right to prosecute", "summary proceedings", "trial on indictment". Crimes Act 1914 (Cth), s 13(a). Criminal Code (Cth), ss 268.11, 268.121. Judiciary Act 1903 (Cth), ss 68, 69.

Administrative law - Judicial review - Injunction and declaratory relief - s 39B of the Judiciary Act 1903 (Cth) - Whether the appellants are entitled to an order restraining the Australian Prudential Regulation Authority ("APRA") from acting on a "preliminary view" formed by its Senior Manager that the first and third appellants were not "fit and proper" to act as senior managers of a foreign general insurer. Administrative law - Royal Commissions - Protection of witnesses - s 6M of the Royal Commissions Act 1902 (Cth) - Appellants gave evidence at the HIH Royal Commission - Whether s 6M prevents the use of that evidence by APRA in deciding whether to disqualify the first and third appellants pursuant to s 25A of the Insurance Act 1973 (Cth) - Whether potential disqualification caused a "disadvantage" to the appellants - Whether potential disqualification arose "for or on account of" the first and third appellants' evidence to the Royal Commission - Whether the proper exercise of APRA's statutory powers and functions may constitute a "disadvantage" arising "for or on account of" evidence given before a Royal Commission. Insurance -- Prudential regulation - Disqualification - APRA may take steps pursuant to s 25A of the Insurance Act 1973 (Cth) where a person is not "fit and proper" to act as a senior manager of a foreign general insurer - Whether APRA may take into account evidence given at a Royal Commission by or about that person - Whether s 6M of the Royal Commissions Act 1902 (Cth) prevents the use of such evidence for the purposes of s 25A of the Insurance Act 1973 (Cth). Statutes - Interpretation - Whether s 6M of the Royal Commissions Act 1902 (Cth) distinguishes between the giving of evidence and the content of the evidence so given. Words and phrases - "for or on account of", "disadvantage". Insurance Act 1973 (Cth), s 25A. Royal Commissions Act 1902 (Cth), s 6

Income tax - Derivation of income - Respondent acquired shares which were later the subject of a buy-back arrangement that gave the respondent "sell-back rights" - The sell-back rights were held on trust and sold for the absolute benefit of the respondent - The increase in value of the sell-back rights was subject to capital gains tax upon sale - Whether the remaining income from the sale was subject to either income tax or capital gains tax - Whether the remaining proceeds of sale amounted to a derivation of income according to ordinary concepts - Whether character of receipt as income to be determined according to its quality in the hands of the recipient or the character of the expenditure by the other party - Whether sell-back rights can be treated as being "severed" or "detached" from the respondent's shares for taxation purposes. Income tax - Statutory interpretation - Whether subdiv D of Div 2 of Pt III of the Income Tax Assessment Act 1936 (Cth) formed a "code" regarding taxation of receipts by shareholders from companies. Words and phrases - "for the absolute benefit of", "income", "in satisfaction", "code", "sell-back right". Corporations Law, Ch 2J, ss 257A-257J. Income Tax Assessment Act 1936 (Cth), Pt III, Div 2, subdiv D. Income Tax Assessment Act 1997 (Cth), s 6-5.

Criminal law – Murder – Appeal – Appeal against conviction – Where appellant convicted by jury – Where Crown case based entirely on circumstantial evidence – Where circumstantial evidence related to opportunity and motive and miscellany of other inculpatory matters – Where evidence of opportunity and motive extremely weak – Where evidence connecting accused to alleged murder weapon based on glaringly improbable identification evidence – Whether verdict unreasonable or cannot be supported having regard to evidence. Words and phrases – "basis for an inference", "circumstantial case", "contamination of recollection", "credibility and reliability", "glaringly improbable", "identification evidence", "identification of object", "motive", "murder weapon", "opportunity", "unreasonable verdict". Criminal Code (Qld), s 668E(1).

Dasreef Pty Limited v Hawchar Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) provided that rule excluding evidence of opinion did not apply where "a person has specialised knowledge based on the person's training, study or experience" and person's opinion "wholly or substantially based on that knowledge" – Respondent sued appellant in Dust Diseases Tribunal of New South Wales – Respondent claimed he was negligently exposed to unsafe levels of silica while working for appellant – Witness gave evidence about approximate level of respirable silica to which respondent may have been exposed – Opinion treated as admissible to found calculation of numerical or quantitative level of exposure to respirable silica – Whether opinion admissible for that purpose – Requirements for admissibility. Procedure – Specialist tribunal – Dust Diseases Tribunal of New South Wales – Ability of judge constituting Tribunal to draw on experience as member of specialist tribunal when making findings of fact – Section 25 of Dust Diseases Tribunal Act 1989 (NSW) required Tribunal to apply rules of evidence – Section 25B provided exception subject to various requirements – Trial judge drew on "experience" that silicosis usually caused by very high levels of silica exposure in concluding that respondent's silicosis caused by exposure to silica – Section 25B neither invoked nor complied with – Whether trial judge entitled to draw on "experience" in making finding of fact. Procedure – Objection to admissibility of evidence – Evidence taken on voir dire – Trial judge did not rule on objection at conclusion of voir dire – Desirability of ruling on objection to admissibility as soon as possible. Words and phrases – "based on the person's training, study or experience", "basis rule", "opinion rule", "specialised knowledge", "specialist tribunal", "voir dire", "wholly or substantially based on that knowledge". Dust Diseases Tribunal Act 1989 (NSW), ss 25, 25B, 32. Evidence Act 1995 (NSW), ss 55(1), 76(1), 79(1). Dust Diseases Tribunal Rules (NSW), r 9.

Criminal law – Sentence – Offence of persistent sexual exploitation of child – Where applicant convicted of persistent sexual exploitation of child contrary to s 50(1) of Criminal Law Consolidation Act 1935 (SA) ("CLCA") – Where Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 handed down after sentencing – Where Chiro required sentencing judge to ask jury to identify underlying acts of sexual exploitation found proved or otherwise sentence on basis most favourable to offender – Where not known which alleged acts of sexual exploitation jury found had been proved beyond reasonable doubt – Where applicant not sentenced on basis of facts most favourable to applicant – Where s 9 of Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) ("Amending Act") provided that sentence imposed for offence against s 50 of CLCA not affected by error or otherwise manifestly excessive merely because, relevantly, sentencing court sentenced person having regard to acts of sexual exploitation it determined proved beyond reasonable doubt – Whether s 9(1) of Amending Act engaged – Whether sentencing remarks identified acts of sexual exploitation determined by sentencing court to have been proved beyond reasonable doubt. Words and phrases – "acts of sexual exploitation", "extension of time", "facts most favourable", "persistent sexual exploitation of a child", "proved beyond a reasonable doubt", "sentence", "sentencing judge", "sentencing remarks", "underlying acts". Criminal Law Consolidation Act 1935 (SA), s 50. Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA), s 9.

Legal practitioners – Negligence – Advocates' immunity from suit – Where settlement offer made and rejected on first day of trial – Where rejection of settlement offer followed by judicial decision – Where damages awarded lower than settlement offer – Where solicitor and barrister alleged to have given negligent advice in relation to settlement offer – Whether advice affected conduct of case in court by bearing upon court's determination of case – Whether advocate immune from suit. High Court – Stare decisis – Whether Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16 should be reopened. Words and phrases – "advocates' immunity", "affecting the conduct of the case", "finality", "functional connection", "intimately connected", "judicial determination", "possibility of challenge to findings". KIEFEL CJ. I agree with Edelman J. BELL J. I agree with Edelman J. GAGELER J. I agree with Edelman J. KEANE J. I agree with Edelman J. NETTLE J. I agree with Edelman J that, in light of the majority's reasoning in Attwells v Jackson Lalic Lawyers Pty Ltd[1], this appeal must be allowed. With all respect, however, I do not agree that Mr Kendirjian's negligence action against the respondents does not give rise to a possibility of a challenge to the findings of the District Court. Where an advocate's advice to a plaintiff to reject an offer of settlement of the plaintiff's claim results in the claim proceeding to a judgment which is less favourable than the offer, a later claim by the plaintiff that the advocate was negligent in so advising will call into question whether the advocate had a reasonable basis to advise rejection of the offer. I remain of the view I expressed in Attwells that[2], where that occurs, it is likely to result in the re-litigation of issues that were determined at trial, including the strength of the plaintiff's claim; the weight to be given to evidence, taking into account considerations of credibility and reliability of witnesses; and the correct application of legal principle and authority. I accept of course, as Edelman J observes, that the assessment of whether the advocate's advice was negligent is to be undertaken as at the time the advice was given and not at the time of the unfavourable judgment. But in the scheme of things, it is not improbable that one or other side might attempt to demonstrate the way things were, or should have appeared, when the advice was given by reference to the way things were during and at the conclusion of the trial. For example, an advocate faced with such a negligence claim might contend that the trial judge's assessment of the plaintiff's credit and reliability was so unlikely or unwarranted that it could not reasonably have been anticipated at the time of advice, or that the trial judge's assessment of damages was so remarkably parsimonious by reference to current practice that it could not reasonably have been foreseen. Equally, a plaintiff might contend that the trial judge's assessment of the issues in the case was so predictable that the advocate's failure to anticipate it was negligent. Such examples can be multiplied. Of course, as between Mr Kendirjian and the defendant to the District Court proceedings, issues of that type have now been conclusively determined by the Court of Appeal's dismissal[3] of Mr Kendirjian's appeal from the judgment of the District Court. But such issues have not yet been determined conclusively as between Mr Kendirjian and the respondents. And although, as the pleadings stand in this matter, it is not clear that either of the respondents is advancing a defence of the kind alluded to above, the negligence claim has not yet proceeded very far and the possibility of further amendments to the pleadings cannot be excluded. This view notwithstanding, in light of the majority's reasoning in Attwells I agree with the orders proposed by Edelman J. GORDON J. I agree with Edelman J that, in accordance with the reasoning of the majority in Attwells v Jackson Lalic Lawyers Pty Ltd[4], this appeal must be allowed. I also agree with the additional reasons of Nettle J. Those reasons are consistent with the view I expressed in Attwells[5]. In Attwells, the majority said that it was "not necessary to determine whether the [advocate's] immunity attaches only to the kinds of decision which a lawyer charged with the conduct of a case in court may make without instructions from the client"[6] (emphasis added). The central allegation in this appeal is that the lawyers charged with the conduct of Mr Kendirjian's case in earlier personal injury proceedings made a decision (to reject an offer of settlement) that could not be made without instructions from the client. Where a court has been asked to make an order to carry a compromise into effect, the court may refuse to give effect to the compromise, and may set aside an order already made, where counsel has acted contrary to instructions, at least before the order has been perfected[7]. Accordingly, in some, perhaps many, cases where it is alleged that a lawyer has acted without instructions, it will be necessary to first explore whether the result of which the client complains can be, or could have been, set aside before considering issues about immunity from suit. Here, according to Mr Kendirjian, the matter went to judgment because, among other things, counsel rejected a settlement offer as being "too low" without his express instructions. It was not submitted in this Court that the judgment ultimately entered could have been set aside on account of the alleged conduct of counsel for Mr Kendirjian. Counsel purported to act as the agent of Mr Kendirjian in rejecting the offer. Just as an agent gives an implied warranty of authority to the third party with whom they deal[8], it is arguable that there will be an implied contract that makes an agent liable to their principal for exceeding their actual authority[9]. On that hypothesis, liability for an agent's breach of a duty to act only as authorised and without exceeding authority would arise under that implied contract[10]. And both the nature and extent of the duty, and the resulting breach, would fall to be considered and determined by reference to the law of contract[11]. The central allegation would be that the agent acted without authority, not that the agent was negligent in the exercise of their authority. That is not to say anything about whether such a case might also support a claim sounding in tort, based on a breach of some differently formulated duty[12]. Because, as this Court now holds, there is no immunity from suit in this case, and there has yet to be a trial of Mr Kendirjian's claim against his lawyers, these are matters about which no concluded view can or should be expressed. And how the point expressly left open by the majority in Attwells should be determined is not decided in this appeal.

Constitutional law – Parliamentary elections (Cth) – Senate – Reference to Court of Disputed Returns – Where person elected and re-elected as senator – Where person stood to gain financially from Commonwealth paying rent under lease of person's electorate office – Where person's bank account nominated by lessor as bank account for payment of rent by Commonwealth – Where payment of rent reduced person's contingent liability as guarantor under loan facilities – Where person had prospect of receiving distribution of rent proceeds as beneficiary of discretionary trust – Whether person had indirect pecuniary interest in lease agreement with Commonwealth – Whether person incapable of being chosen or of sitting as senator under s 44(v) of Constitution – Whether vacancy should be filled by special count of ballot papers – Whether special count would distort voters' real intentions. Words and phrases – "distortion of the voters' real intentions", "expectation of pecuniary benefit", "incapable of being chosen", "indirect pecuniary interest", "special count", "true legal intent of the voters". Constitution, s 44(v). Commonwealth Electoral Act 1918 (Cth), ss 168(1), 272(2), 273(27), 360, 376. Parliamentary Entitlements Act 1990 (Cth), s 4(1), Item 7 of Pt 1 of Sched 1.

Courts and judges - Bias - Reasonable apprehension of bias - Application for disqualification for bias - Statement by trial judge about evidence to be relied upon - Whether statement gave rise to reasonable apprehension of bias. GLEESON CJ, GAUDRON, Mc

Immigration law and administrative law - Refugee - Refugee Review Tribunal decision refusing to grant protection visa - Application in original jurisdiction of High Court for constitutional writs and injunction - Whether denial of natural justice by reason of statutory provision restricting representation and cross-examination at the hearing - Whether denial of natural justice by failing to investigate the applicant's claims and documents adduced - Whether denial of natural justice by taking into account an irrelevant consideration in refusing to investigate the applicant's claims and documents adduced - Whether denial of natural justice by making findings of facts so unreasonable that no reasonable Tribunal could have come to them - Whether denial of natural justice by failing to warn that a document referred to in a decision relied upon by the applicant would be relied upon - Whether denial of natural justice by failing to provide a fair and just mechanism for review and by failing to act according to the substantial justice of the case. The Constitution, s 75(v). Migration Act 1958 (Cth), ss 415(1), 420, 424(1), 427(1)(d), 427(6). Mc

Re Ruddock & Ors; Ex parte Reyes Constitutional law - Constitutional relief - Jurisdictional error - Whether the Immigration Review Tribunal made a jurisdictional error. Practice and procedure - Constitutional relief - Whether writ of prohibition properly sought against the Minister. Practice and procedure - Constitutional relief - Whether writ of mandamus properly sought against the principal member of the Migration Review Tribunal. Practice and procedure - Constitutional relief - Whether person constituting tribunal should be respondent to application for constitutional relief. McHUGH J (Ex Tempore). This is an application made, without filing any documents, for an injunction against the Minister for Immigration and Multicultural Affairs to restrain him from deporting the applicant, Alicia Reyes, and her family tomorrow. The application for an injunction is made in the context of an application, which has been filed in the Court today, for orders nisi to be issued directed to three persons. The first is Mr Phillip Ruddock in his capacity as the Minister for Immigration and Multicultural Affairs, the second is Ms Kim Wilson in her capacity as a member of the Immigration Review Tribunal, and the third is Ms Sue Tongue in her capacity as the principal member of the Migration Review Tribunal. The draft order nisi calls on the three respondents to show cause why a writ of prohibition should not be issued out of this Court directed to the Minister prohibiting him or his agents or delegates from acting upon or giving effect to or enforcing a decision of the second respondent made on or about 23 February 1998. In that decision, the second respondent held that neither the applicant nor her husband were entitled to the grant of a class 816 special permanent entry permit. The respondents are also asked to show cause why a writ of certiorari should not be issued out of this Court directed to the second respondent removing into this Court and quashing the decision. Finally, the respondents are asked to show cause why a writ of mandamus should not be issued out of this Court directing the third respondent to appoint a member of the Migration Review Tribunal to rehear and determine the applicant's application for a class 816 special permanent entry permit in accordance with law. In support of the application for orders nisi the applicant, Alicia Reyes, has filed an affidavit dated today, 27 September 2000. In her affidavit, she recites that she arrived in Australia with her husband from the Philippines in 1988 and that from 1988 until 1991 they were in hiding in Australia. She states that, in May or June 1994, she applied to the Department of Immigration and Multicultural Affairs for a class 816 special permanent entry permit or a class 818 highly qualified on-shore permanent entry permit. In January 1996, the application was refused by a delegate of the Minister. In May 1996, the decision of the delegate was affirmed by the Migration Internal Review Office. In June 1996, the applicant applied to the Immigration Review Tribunal for review of the decision, but on 23 February 1998 the Tribunal affirmed the decision of the delegate not to grant her or her husband a class 816 or class 818 entry permit. The reasons of the Tribunal show that the applicant failed to meet the criteria for a class 816 or a class 818 entry permit. Apparently there was no evidence which could arguably support the application for a class 818 permit, and the application turned on whether or not the applicant could make out a case for a class 816 entry permit. To do so, it was necessary for her to establish seven criteria, five of which had to be met at the time of the application and two of which had to be determined as at the date of the decision. In its reasons, the Tribunal drew attention to the fact that neither the applicant nor a related person had the relevant academic qualifications, nor had they completed academic work or had qualifications sufficient to meet the Australian standard for the criteria in cl 816.721(2)(a). The Tribunal expressly said that this part of the matter was uncontested. The Tribunal went on to say that the issue became whether or not the occupation of the applicant's husband was sufficient to come within the criteria in cl 816.721(2)(b). In that respect the applicant's claim to meet the criteria was a derivative one based on her husband's qualification. To deal with that qualification the Tribunal had to be satisfied that the husband: "held an overseas trade qualification, or had work experience, that is assessed as meeting Australian education or training standards for that trade." In giving its reasons the Tribunal said: "In this matter, absent clear qualifications which would have been capable of assessment by the relevant authority, the Tribunal has considered the material provided and has come to the view that the occupation of the Applicant's husband is not a trade. The occupations claimed become that of furniture assembler and junior upholsterer with Anes Studio [sic] work as a warehouse store person and warehouse manager. I have considered the information provided and the work that is carried out. In my view, the work does not meet the relevant criteria to be considered as a trade. I do not regard either occupation as a handicraft although clearly both occupations require some skill. I am not satisfied on the basis of the material provided that the skill involved is sufficient to nominate the occupations as a trade with all that involves. On the basis of this consideration the Applicant fails to meet one of the key criteria in relation to the application." The Tribunal affirmed the decision not to grant a class 816 or class 818 entry permit. In support of her claim for an order nisi, the applicant said that the decision of the Tribunal was wrong for three reasons. First, it had recited that she had failed the STEP test twice. The applicant asserts that that is not correct and that she sat that test once and passed it. But whether that be so or not, that matter was referred to only as a matter of historical fact in the reasons of the Tribunal. It had nothing whatever to do with the decision it came to. Secondly, the applicant claimed that the Tribunal had held that her academic attainments did not meet cl 816.721(2)(a) in Sched 2 of the Migration (1993) Regulations. I have already pointed out that the Tribunal's reasons recite that that was not contested and that the issue in the case became whether or not the applicant's husband could satisfy the alternative limb under cl 816.721(2)(b) of having an overseas trade qualification or work experience that met the relevant Australian standards for that trade. Thirdly, the applicant claimed that the Tribunal erred in holding that her husband's occupation as "a furniture assembler and junior upholsterer" and also his work as a warehouse manager were not sufficient to satisfy the test of "trade" in cl 816.721(2)(b) in Sched 2 of the Regulations. The applicant asserts that his "occupation satisfied the test of 'trade' in cl 816.721(2)". On the face of the affidavit filed in support of the order nisi, it seems to me very clear that the applicant had no case for the issue of orders nisi for prerogative writs in this Court. At the highest, only factual errors were alleged. Because I was concerned to give the applicant every opportunity to put further material before me which might show an arguable case of error sufficient to attract s 75(v) of the Constitution, I intimated that I would adjourn the proceedings until tomorrow morning to enable the applicant to put further evidence before me to make out a case. However, Mr Zipser, who appears for the applicant, candidly conceded that there was no material that he could put on by that time which would advance his case. Nor did he indicate that he knew of other evidence that would support his case. Faced with his statement that he could not put on any additional material by tomorrow morning, it seemed to me, in all the circumstances, that I should continue with the hearing of the application in view of the fact that arrangements had been made to deport the applicant tomorrow. As a result, the application for the injunction continued, and Mr Zipser valiantly attempted to persuade me that there was some material upon which I would be justified in granting an order nisi with the result that I should injunct the Minister from deporting the applicant until the order nisi had been determined. In my view, notwithstanding his valiant attempts to make out a case, there is nothing before the Court that would enable it to issue an order nisi directed to any of the respondents. Nor is there anything before me which would justify the Court injuncting the Minister. The reasons for decision of the Tribunal show that the case before it turned on a simple question of fact - whether the material put forward concerning the husband's work as a furniture assembler and junior upholsterer constituted a trade for the purpose of the relevant criteria. There is nothing to suggest that there was any error of law. Indeed, error of law in itself would not be sufficient to obtain an order nisi. To succeed in an application for an order nisi, the applicant would have to make out a case of jurisdictional error. If there was any error - and I cannot see any error - it would seem only to be an error within jurisdiction and not an error which would constitute jurisdictional error. In oral argument, Mr Zipser referred to another matter which he claimed would justify the grant of orders nisi. In its reasons, the Tribunal said: "The Tribunal had the benefit of a submission from Belen Oag in relation to this matter and that submission argued that the qualifications that Mr Reyes has, and experience, are such that he would meet entry standards for the occupation of forklift operator and that a similar situation would apply in relation to the occupation of store person. In cases such as this the Tribunal has to make an assessment about whether or not the occupation that the person in question, in this case the Applicant's husband, has is a trade." Mr Zipser contends that the Tribunal's reasons do not deal with the question of forklift operator and, if I understood him correctly, with the occupation of store person. As to the latter, however, it is clear that the Tribunal's reasons, which I have set out earlier, show that, in so far as the occupation of store person was concerned, the Tribunal considered but rejected it as a trade. However, it is true, as Mr Zipser points out, that there is no further mention of the submission that the husband would meet entry standards for the occupation of forklift operator. I think the short answer to that is that it would only meet the entry standards if being a forklift driver constituted a trade for the purpose of the criteria. The Tribunal, in examining the applicant's case, took the view that there was no relevant trade, a decision which would seem to be absolutely correct in respect of a forklift operator, a position which requires a good deal of skill but is not ordinarily thought of as a trade. In my view, the contention that the Tribunal has committed a jurisdictional error by not dealing with an argument of the applicant's solicitor must be rejected. Mr Zipser also sought to put an argument in respect of the question of educational qualifications. Even though there had been no contest at the Tribunal hearing, he submitted, or said he would want to submit, that the applicant's qualifications did meet the criteria and for that reason there was an error sufficient to warrant the grant of an order nisi. There seem to me to be a number of answers to that. The first is that, it being common ground that she did not meet the educational qualifications, the Tribunal made no error of law or fact in coming to the conclusion that that particular criterion had not been made out. Secondly, even if it was open to argue this point in support of an order nisi, it would seem to be very much a question of fact and certainly not one which could be regarded as giving rise to a jurisdictional error. For those reasons, it seems to me that there is no ground whatever for the issue of orders nisi as sought or for granting an injunction against the Minister. Before leaving the case, I should mention a matter that I referred to at the outset of the hearing, namely, that the relief sought was misconceived. I pointed out that, having regard to the gravity of the issue so far as the applicant was concerned, I would not deal with the matter on that basis but would look at the substance of the matter. Nevertheless, because this is not the first time that I have seen a summons for an order nisi seeking relief such as that directed to the parties in this case, it is necessary that something should be said about the relief sought. In the first place, there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the Minister. As was conceded, as the law stands at the moment and on the facts of the case, the Minister was under a duty, in accordance with s 198 of the Act, to deport the applicant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error. However, if the decision of the Tribunal had been quashed and a further hearing ordered, it would be proper in an appropriate case to injunct the Minister from deporting the applicant while the matter was still before the appropriate Tribunal. But such an order against the Minister would be incidental to the principal relief which would be obtained, namely, the quashing of the Tribunal's decision and the ordering of a further determination of the applicant's claim before the appropriate Tribunal. The second matter to which I refer is that the writ of certiorari is directed to the second respondent "in her capacity as a member of the Immigration Review Tribunal". However, it is not the proper practice, and never has been, to make persons constituting tribunals the respondent in applications for prerogative relief. The respondent should be the Tribunal itself, apart from those cases falling within O 55 r 8 of the High Court Rules. In that respect I would refer to Brown v Rezitis[1] and to Kerr v Commissioner of Police and Crown Employees Appeal Board[2]. The third matter I mention is that relief by way of mandamus was sought against the third respondent in her capacity as the principal member of the Migration Review Tribunal. However, mandamus will not lie except for the breach of some public duty imposed upon a person. There is not the slightest suggestion, nor could there be, that the third respondent is in breach of any duty. Indeed, even if the order of the Tribunal was quashed, no relief could be sought against the principal member of the Migration Review Tribunal. Of course, it may be that at some subsequent time if the principal member failed to appoint a person to carry out the duties of that Tribunal, it would be proper to order mandamus against her. But it is certainly not lawful to issue mandamus against a person such as the principal member of the Migration Review Tribunal in respect of something that has not occurred and where no breach or potential breach of duty on that person's part has been shown. If jurisdictional grounds had been made out in this particular case, a serious question would still arise as to whether or not writs of certiorari or mandamus should be directed to the Tribunal. In my view, in a case of this nature, if there are grounds, the proper relief that should be sought is a mandamus directed to the Tribunal to re-hear the matter according to law, and certiorari to quash the original decision. In an appropriate case, it may be necessary also to restrain the Minister from deporting the applicant pending the determination of the Tribunal of the re-hearing. But the principal relief would be mandamus and certiorari, not prohibition against the Minister, which is not a relevant remedy. Mandamus and certiorari are both discretionary remedies. In the case of certiorari, there are time limits which have long since expired. In the case of mandamus, more than 2½ years have elapsed since the decision of the Tribunal. It appears from the applicant's affidavit that she did not apply to the Federal Court for review of the Tribunal's decision because of the advice of her solicitors. Instead, she joined in a class action in February 1998 which was dismissed in June 1999. She has made three applications for the exercise of power by the Minister under s 351 of the Act. In all the circumstances, I think I would have hesitated before issuing orders nisi for writs of mandamus and certiorari, given the history of the matter and the long delay that has taken place. There being no grounds for the issue of orders nisi, it follows that the application must be dismissed. Similarly, the application for an injunction against the Minister must also be dismissed. [1] [1970] HCA 56; (1970) 127 CLR 157 at 169. [2] [1977] 2 NSWLR 721.

Immigration - Refugees - Review Tribunal - Failure to afford procedural fairness - Prosecutor denied opportunity to be heard on matters affecting credibility - Whether prosecutor denied possibility of a successful outcome. Administrative law - Constitutional writs - Nature of Constitutional writ of prohibition - Procedural fairness - Availability of writ of prohibition for failure to accord procedural fairness - Whether prohibition available as of right or by discretion - Whether application should be rejected due to delay. Constitutional law - Construction of Constitution - Meaning to be given to words in s 75(v) - Relevance of meaning at time of commencement of Constitution. Words and phrases - "a writ ... of prohibition", "procedural fairness", "prerogative writ". Constitution, ss 75(iii), 75(v). Migration Act 1958 (Cth).

Legal practitioners - Negligence - Immunity from suit - Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution - First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings - Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial - Evidence of guilty plea led at first trial - Applicant convicted but verdict quashed on appeal and new trial ordered - Applicant acquitted on retrial - Respondents alleged to have been negligent in advising applicant to plead guilty at committal - Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding - Whether advocate's immunity available to respondents - Whether advocate's immunity applied in respect of advice allegedly given in conference. Legal practitioners - Immunity from suit - Legal Profession Practice Act 1958 (Vic) - Barristers liable for negligence to same extent as solicitor as at 1891 - Extent of solicitor's liability for negligence in 1891. Courts - Judicial process - Judicial process as an aspect of government - Nature of the judicial process - The need for finality of judicial determination - Whether advocate's immunity necessary to ensure finality of judicial process. Courts - Abuse of process - Whether rules about abuse of process provide sufficient satisfaction of the finality principle - Nature of client's complaint - Whether distinction exists between civil and criminal proceedings - Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome. High Court - Whether Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 should be reconsidered - Relevance of statutory changes since Giannarelli v Wraith - Relevance of developments in common law in England and Wales - Relevance of experience in other jurisdictions. Courts - Practice and procedure - Summary determination of action without trial - Whether claim revealed an arguable cause of action. Legal Profession Practice Act 1958 (Vic), s 10. Legal Practice Act 1996 (Vic), s 442.

Pico Holdings, Inc v Wave Vistas Pty Ltd Contract - Parties to a contract - Sole director of first respondent company was principal actor on behalf of another company in securing a loan - Director, as borrower's actor, offered to use land owned by first respondent as further security to obtain a further extension of loan repayment - No reference was made to the first respondent, or to its ownership of the land, or to the fact that the borrower's actor was the first respondent's sole director - Lender agreed to extend the repayment date - Whether first respondent was a party to the agreement - Whether a reasonable person in position of lender could have understood that the first respondent was making an offer to provide security - Whether borrower's actor was in fact exercising his authority to offer the land as security - Whether the lender supplied consideration for the first respondent's promise. Corporations Law, ss 128(1), 128(4), 129(4), 180 and 181. GLEESON CJ, Mc

Negligence - Duty of care - Employer and employee - Safe system of work - Suitable plant and equipment - Employee injured when attempting to stand on moveable platform while loading a truck - Platform not in position - Employee stepped backwards onto platform in belief it was raised - Absence of warning beeper - Absence of oral warning - Whether employer failed to devise and implement a safe system of work - Whether employer failed to provide suitable plant and equipment. Negligence - Contributory negligence - Employee injured when attempting to stand on moveable platform while loading a truck - Platform not in position - Employee stepped backwards onto platform in belief it was raised - Whether employee should have looked behind him before stepping backwards. GLEESON CJ, Mc

Negligence - Duty of care - Psychiatric injury - Content of an employer's duty to an employee to take reasonable care to avoid psychiatric injury - Whether employer breached its duty to provide employee with a safe system of work by failing to take the steps identified by employee - Whether reasonable person in position of employer would have foreseen the risk of psychiatric injury to the employee - Relevance of employee's agreement to perform the work which brought about her injuries - Whether the law of negligence should be developed in such a way as to inhibit the making of agreements involving more work than an industry standard. Contract - Contract of employment - Freedom of parties to stipulate that an employee will do more work than an industry standard - Whether the law of negligence should be developed in such a way as to inhibit the making of agreements involving more work than an industry standard. Mc

Allianz Australia Insurance Limited v GSF Australia Pty Ltd Insurance - Motor vehicles - Third party liability insurance - Truck and trailer provided by first respondent to convey packed containers of food to airport - Appellant insurer of vehicle - Second respondent an employee of first respondent - Second respondent suffered back injury while assisting in unloading containers after vehicle's lifting mechanism became inoperative - Whether second respondent's injury an "injury" within the meaning of the Motor Accidents Act 1988 (NSW). Insurance - Motor vehicles - Third party liability insurance - Causation - Whether second respondent's injury a result of and caused during use or operation of the vehicle by a defect in the vehicle - Utility of "common sense" tests for causation and notions of proximate cause. Statutes - Construction - Purposive construction - Where object of the Motor Accidents Act 1988 (NSW), as amended, to contain overall costs of compulsory third party insurance scheme within reasonable bounds - Whether consistent with an expansive notion of causation of injury. Words and phrases: "a result of", "caused". Motor Accidents Act 1988 (NSW), ss 3(1), 69(1). Mc

Smith v ANL Limited Constitutional law (Cth) - Acquisition of property on just terms - Seaman injured on ship during course of employment - Legislation barred existing common law rights to bring action and allowed an action to be brought within six-month period - Whether a law with respect to the acquisition of property on just terms. Workers' compensation - Seafarers' compensation - Provisions in lieu of entitlement to damages at common law - Whether Act validly abolished entitlement - Whether abolition constituted acquisition of property on just terms. Constitution, s 51(xxxi). Seafarers Rehabilitation and Compensation Act 1992 (Cth), s 54. Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth), s 13.

PP Consultants Pty Limited v Finance Sector Union Industrial law (Cth) - Bank closed branch and appointed agent to conduct similar activities in conjunction with agent's pharmacy business - Whether award continued to apply to employees - Whether agent was successor, assignee or transmitee of the business or part of the business of the bank within the meaning of s 149(1)(d) of the Workplace Relations Act 1996 (Cth) - Whether agent conducting "business" of the bank - Whether agent conducting "business of banking". Words and phrases - "business", "business of banking". Workplace Relations Act 1996 (Cth), s 149(1)(d). GLEESON CJ, GAUDRON, Mc

Crampton v The Queen Criminal law - Direction to jury - Events allegedly occurred in 1978 - Complaint made in March 1997 - Whether Longman warning required - Requirements of Longman warning. Criminal law - Act of indecency with another male person - Whether defendant entitled to be acquitted on the basis that the evidence did not support a verdict of guilt on the correct interpretation of Crimes Act 1900 (NSW), s 81A. Constitutional law (Cth) - Whether the High Court can entertain grounds of appeal sought to be raised for the first time in the High Court. Words and phrases - "with". Constitution, s 73. Crimes Act 1900 (NSW), s 81

Appeal - Court of Appeal (NSW) - Conflicting versions of motor vehicle collision by appellant and respondent - Inconsistencies in evidence given at trial - Primary judge preferred version given by respondent - Court of Appeal rejected argument of material error at trial - Concurrent findings of facts relevant to liability - Difficulty of disturbing in High Court - Special leave revoked. Negligence - Motor vehicle collision - Conflicting versions of collision - Findings by primary judge and Court of Appeal - Concurrent findings of fact - Special leave revoked. Supreme Court Act 1970 (NSW), ss 45(4), 75

O'Donoghue v Ireland Zentai v Republic of Hungary Williams v United States of America Extradition - Function of State magistrates under s 19 of Extradition Act 1988 (Cth) ("Extradition Act") and application of s 4AAA of Crimes Act 1914 (Cth) ("Crimes Act") - Arrangements between Governor-General and State Governors under s 46 of Extradition Act - Whether power exercised by State magistrates under s 19(1) of Extradition Act conferred under Commonwealth law relating to criminal matters - Whether intention appears in Extradition Act not to apply rule set out in s 4AAA of Crimes Act that State magistrates need not accept power conferred by Commonwealth law - Whether State magistrates obliged to accept performance of functions under Extradition Act - Whether acceptance of power conferred by s 19(1) of Extradition Act may be inferred by course of conduct of State magistrates - Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act. Constitutional law (Cth) - Relationship between Commonwealth and States - Whether Commonwealth may unilaterally impose functions on State magistrates - Whether on true construction Extradition Act imposes functions on State magistrates - Whether such functions involve imposition of legal duties on State magistrates - Application of s 4AAA of Crimes Act - Whether State legislation approved exercise by State magistrates of functions and powers under s 19 of Extradition Act - Whether consent of State executive government sufficient to authorise imposition of functions on State magistrates. Words and phrases - "duty or power", "extradition", "magistrates". Crimes Act 1914 (Cth), s 4AAA. Extradition Act 1988 (Cth), ss 19, 46. Magistrates Courts Act 2004 (WA), s 6. Local Courts Act 1982 (NSW), s 23.

Negligence - Duty of care - Whether in the circumstances found an occupier of land owed a duty to take reasonable care to protect those lawfully on its land against the criminal acts of third parties.

Procedure – Costs. Federal Proceedings (Costs) Act 1981 (Cth), s 6.

Plaintiff S3/2013 v Minister for Immigration and Citizenship Immigration – Judicial review of migration decision – Original jurisdiction of High Court – Abuse of process – Where application for judicial review of migration decision determined by Federal Magistrates Court and unsuccessfully appealed to Federal Court of Australia – Where appeal by special leave available to High Court –Where grounds of application raised or ought to have been raised before Federal Magistrates Court or Federal Court – Whether application an abuse of process. Words and phrases – "abuse of process". Constitution, ss 73, 75(v). Migration Act 1958 (Cth), s 476. High Court Rules 2004, r 27.09.4(c).

; Ex parte Saint Re Macks; Ex parte Johnson Courts and judges - Federal courts - Jurisdiction - Orders made by Federal Court in exercise of jurisdiction conferred by cross-vesting legislation - Status of orders of Federal Court made without jurisdiction - Whether federal law can empower a federal court to make orders binding until set aside in proceedings in which that court had no jurisdiction. Constitutional law - Inconsistency - State laws providing for rights and liabilities of persons affected by ineffective judgments of federal courts - Whether any inconsistency between State laws and Federal Court of Australia Act 1976 (Cth) and Judiciary Act 1903 (Cth) - Validity of State laws. Constitutional law - Invalidity under Chapter III - State laws providing for rights and liabilities of persons affected by ineffective judgments of federal courts - Whether State laws confer jurisdiction upon a State court which is incompatible with Chapter III of the Constitution - Whether State laws repugnant to federal judicial power - Validity of State laws. Constitutional writs - Applications out of time - Whether certiorari should issue to quash order of federal court made without jurisdiction. Constitutional law - Interpretation - Substance and form - Significance of distinction - Application to elucidation of suggested inconsistency between federal and State laws and incompatibility of State laws with Chapter III of the Constitution. Words and phrases - "ineffective judgment", "relevant order", "superior court of record". Constitution, ss 51(xxxix), 71, 73, 75, 76, 77, 109. Corporations (South Australia) Act 1990 (SA). Corporations (Queensland) Act 1990 (Q). Corporations Law, s 58AA. Federal Courts (State Jurisdiction) Act 1999 (SA), ss 3, 4, 6, 7, 8, 9, 10, 11, 12, 14. Federal Courts (State Jurisdiction) Act 1999 (Q), ss 3, 4, 6, 7, 8, 9, 10, 11, 12, 14. Federal Court of Australia Act 1976 (Cth), ss 5(2), 24, 33. Judiciary Act 1903 (Cth), ss 35, 39.

Ebner v The Official Trustee in Bankruptcy Clenae Pty Ltd v ANZ Banking Group Ltd Courts and judges - Bias - Reasonable apprehension of bias - Direct or indirect shareholding by judge in a corporation which is a party to litigation or financially interested in its outcome - Whether judge automatically disqualified - Principles governing disqualification - Disclosure - Relationship between principles governing disqualification and requirement of disclosure - Necessity - Whether there is a principle of necessity - Circumstances for operation of principle of necessity. Constitutional Law (Cth) - Chapter III - Judicature of the Commonwealth - Impartiality of Judiciary - Bias - Reasonable apprehension of bias - Whether requirement of impartial and independent judge derived from implications arising from Chapter III of the Constitution. Words and Phrases: "impartial", "independent". Constitution, Ch III. GLEESON CJ, Mc

SERIOUS SEX OFFENDER – Interim Supervision Order – statutory conditions satisfied – issue of constitutional validity raised – urgent that orders issue – orders issued with minimum conditions

Principal and agent - Commission - Action for recovery of commission by agent - Sale of property - Whether agent was effective cause of sale - Whether engagement or appointment of agent complied with s 76(1)(c) of the Auctioneers and Agents Act 1971 (Q). Contract - Written agreement to engage agent and oral agreement to pay commission - Terms of the contract - Whether commission payable in respect of sale of part only of the property - Whether appointment of agent complied with s 76(1)(c) of the Auctioneers and Agents Act 1971 (Q). Words and phrases - "effective cause" - "implied terms" - "evidenced in writing". Auctioneers and Agents Act 1971 (Q), s 76(1)(c).

Income tax - Allowable deductions - Travel expenses incurred in travelling between unrelated places of work and business - Whether expenses incurred "in gaining or producing the assessable income". Words and phrases - "in gaining or producing the assessable income". Income Tax Assessment Act 1936 (Cth), s 51(1).

Stanoevski v The Queen Evidence - Evidence Act 1995 (NSW) - Character evidence - Accused raised own good character - Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue - Whether discretion to allow cross-examination miscarried. Words and phrases - "good character" - "credibility" - "leave, permission or direction" - "unfairness". Evidence Act 1995 (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192. Legal Profession Act 1987 (NSW), s 155.

Federal Magistrates Court - Federal Magistrates Act 1999 (Cth) - Validity. Constitution, ss 71, 72, 73, 79, 80. Federal Magistrates Act 1999 (Cth), ss 11, 17, 20, 37(2). Federal Magistrates (Consequential Amendments) Act 1999 (Cth), Scheds 11, 12.

Administrative law – Constitutional writs – Where plaintiff made admissions in proceedings in Federal Court of Australia that, because of operation of s 793 of Fair Work Act 2009 (Cth), it could be taken to have contravened s 500 of Act by conduct of its officers – Where, after judgment reserved in proceedings in Federal Court, plaintiff applied for leave to file application for leave to withdraw admissions and amend pleadings – Where leave refused – Whether decision to refuse leave amenable to appeal – Whether decision to refuse leave vitiated by jurisdictional error because of judge's failure to reach concluded view as to operation of s 793 – Whether final judgment imposing penalties for contraventions of s 500 on basis of admissions vitiated by jurisdictional error – Whether plaintiff denied procedural fairness. Practice and procedure – High Court of Australia – Original jurisdiction – Constitutional writs – Where plaintiff applied for order to show cause why relief in the nature of prohibition, mandamus and certiorari should not be granted – Where first defendant moved on summons seeking order pursuant to r 25.03.3(a) of High Court Rules 2004 (Cth) that application be dismissed – Considerations relevant to exercise of discretion to dismiss application – Availability of constitutional writs where Court's original jurisdiction invoked before exhaustion of statutory rights of appeal. Words and phrases – "administrative decision", "certiorari", "constitutional writs", "constructive failure to exercise jurisdiction", "error of law on the face of the record", "inappropriate invocation of jurisdiction", "jurisdictional error", "leave to file", "leave to withdraw admissions", "mandamus". Constitution, s 75(v). Fair Work Act 2009 (Cth), ss 500, 793. Federal Court of Australia Act 1976 (Cth), s 24(1)(a), (1E). High Court Rules 2004 (Cth), r 25.03.3.

Workers' Compensation (SA) - Injury - Statutory duty - Workman injured by collapse of structure negligently erected by employer - Structure could not have collapsed if erected according to design - Whether designer in breach of s 24(2a)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA) in failing to incorporate in the design elements to remove risks arising from negligent erection of structure. Words and phrases - "so far as is reasonably practicable". Occupational Health, Safety and Welfare Act 1986 (SA), ss 23, 24. Workers Rehabilitation and Compensation Act 1986 (SA), s 54.

Damages – Assessment – Remoteness – Usual undertaking as to damages – Supreme Court Rules 1970 (NSW) ("the Rules") – Respondent gave usual undertaking as to damages to court pending application for special leave to appeal to High Court – Court ordered money to which appellant otherwise entitled be paid into court in United States dollars – Appellant would have converted money from United States dollars to euros but for the order – Nature of "usual undertaking as to damages" in Pt 28 r 7(2) of the Rules – Relevance of contractual remoteness principles in Hadley v Baxendale [1854] EngR 296; (1854) 9 Exch 341 [156 ER 145] – Equitable origin of usual undertaking as to damages in Pt 28 r 7(2) of the Rules – What is "just and equitable" or "fair and reasonable" in the circumstances – Whether loss of preferential movement in exchange rates and interest flowed directly from order – Whether kind of loss could have been foreseen by respondent. Words and phrases – "usual undertaking as to damages". Supreme Court Rules 1970 (NSW), Pt 28 r 7(2). Uniform Civil Procedure Rules 2005 (NSW), Pt 25 r 8.

PROCEDURE - Injunctions - plaintiff sold leases to third party which on-sold to defendant - plaintiff unpaid and obtained judgment and leave to issue writ of possession - writ subsequently stayed permanently with consent of plaintiff - whether a prima facie case that plaintiff has lien over leases for unpaid purchases price - plaintiff also alleged sale to defendant at an undervalue - third party in voluntary administration - administrator investigating value of leases - whether injunction should go restraining defendant from mortgaging, encumbering or transferring lease

High Court – Practice and procedure – Leave to issue proceeding – No question arises differing in any material respect from questions arising in another application – Applicant adopts submissions made in that other application – Leave refused in that other application. High Court Rules 2004, r 6.07.

Criminal law - Sexual intercourse with child aged between 14 and 16 years -Whether common law ground of exculpation of honest and reasonable mistake of fact applies to offence under s 66C(3) of the Crimes Act 1900 (NSW) - Whether accused entitled to place reliance on honest and reasonable mistake of fact where conduct the subject of charge is denied. Criminal law - Onus and standard of proof - Whether accused obliged to establish honest and reasonable mistake of fact - Whether accused obliged to "enliven" issue of honest and reasonable mistake of fact - Whether accused obliged to adduce evidence in support of contention of honest and reasonable mistake of fact - Whether there was sufficient evidential foundation for contention of honest and reasonable mistake of fact - Whether issue of honest and reasonable mistake of fact sufficiently raised at trial - Whether trial judge obliged to direct jury on issue of honest and reasonable mistake of fact - Adequacy of trial judge's directions to jury. Criminal law - Appeal - Application of "proviso" - Whether there occurred substantial miscarriage of justice - Whether appellate court able to conclude that no substantial miscarriage of justice occurred where misdirection on onus and standard of proof is demonstrated. Words and phrases - "defence", "honest and reasonable mistake of fact", "substantial miscarriage of justice". Crimes Act 1900 (NSW), ss 66C(3), 66E(1A), 77. Criminal Appeal Act 1912 (NSW), s 6(1).

Northern Territory of Australia v Arnhem Land Aboriginal Trust Aboriginals - Land rights - Rights to exclude persons from tidal waters under Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("Land Rights Act") - Grants of "Estate in Fee Simple" extending to low water mark - Grants subject to Land Rights Act - Subject of grants "Aboriginal land" under Land Rights Act - Under Land Rights Act, s 70(1), a "person shall not enter or remain on Aboriginal land" - Defence under Land Rights Act, s 70(2A), if person enters or remains on land in accordance with that Act, or law of Northern Territory - Under Aboriginal Land Act (NT) relevant Land Council may grant permission to enter and remain on Aboriginal land - Meaning of "Aboriginal land" - Whether, without permission, licensee under Fisheries Act (NT) ("Fisheries Act") can fish in "intertidal zone", or in tidal waters within boundaries of grants - Whether fishing in those waters is to "enter or remain on Aboriginal land" - Construction of Land Rights Act, s 70(1) - Whether licensee under Fisheries Act does not contravene Land Rights Act, s 70(1), because enters or remains on land "in accordance with ... a law of the Northern Territory". Statutes - Construction - Whether Fisheries Act, by necessary implication, abrogated any pre-existing common law public right to fish in tidal waters - Whether Fisheries Act permits licensee to enter any place to fish in accordance with licence - "Application" of Fisheries Act - Public rights of navigation - Approach to interpretation - Whether legislation extinguishing Aboriginal rights requires specificity. Words and phrases - "Aboriginal land", "enter or remain on Aboriginal land", "Estate in Fee Simple", "public right of navigation", "public right to fish", "waters of the sea". Aboriginal Land Act (NT), ss 4, 5, 12. Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3(1), 70(1), 70(2A), 73(1). Fisheries Act (NT), ss 10(1), 10(2), 11.

Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act 1995 (NSW) ("Act") provided that rule excluding evidence of opinion does not apply where "opinion is based on what the person saw, heard or otherwise perceived about a matter or event" and evidence "is necessary to obtain an adequate account or understanding of the person's perception of the matter or event" – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation "? Fall from 1.5 metres onto concrete" – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall. Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78. Negligence – Causation – Whether circumstantial inferences sufficient to establish causation. Evidence Act 1995 (NSW), ss 69, 78.

Durham Holdings Pty Ltd v The State of New South Wales Constitutional law (NSW) - Property - Acquisition by State - State acquired coal and paid compensation to owner - Amount of compensation "capped" below true value of coal by instruments made pursuant to Coal Acquisition (Amendment) Act 1990 (NSW) - Whether instruments ultra vires because Act must be read with a presumption that a State does not intend to acquire property without adequate compensation - Whether State is required to acquire property on just terms - Whether Act in the nature of a Bill of Pains and Penalties. Mines and minerals - Coal - Acquisition by State - Compensation to owner pursuant to Coal Acquisition (Amendment) Act 1990 (NSW) - Whether instrument ultra vires the Act. Statutes - Interpretation - Acquisition of property - Presumption that not intended to acquire without adequate compensation - Whether presumption rebutted. Words and phrases - "acquisition of property" - "just terms". Constitution, s 106. Australia Act 1986 (Cth), s 2(2). Constitution Act 1902 (NSW), s 5. Coal Acquisition (Amendment) Act 1990 (NSW). GAUDRON, Mc

Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd Patents - Validity - Revocation - Whether invention sufficiently described - Whether complete specification includes claims - Whether sufficiency determined by reference to skilled addressee. Words and phrases - "invention" - "complete specification" - "skilled addressee". Patents Act 1952 (Cth). Patents Act 1990 (Cth), ss 40(2), 40(3), 138. GLEESON CJ, Mc

Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony's Primary School) v Hadba Negligence - Standard of care - Breach - Eight year old child injured when pulled from flying fox in school playground by fellow student - Whether standard of care owed by school authority extends to the necessity to provide constant supervision over play equipment. Negligence - Reasonable practicability - Whether constant supervision of dangerous equipment reasonably practicable. Negligence - Causation - Whether a different system would have prevented the respondent's injuries.

Aviation - Carriage by Air - Liability of carrier - International Convention imposing liability for damage sustained in the event of bodily injury suffered by a passenger, if the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking - Appellant allegedly contracted deep venous thrombosis while a passenger on long-haul international flight on aircraft operated by the respondents - Whether appellant should have been warned of the risk of deep venous thrombosis - Whether appellant should have been given advice on precautions that would minimise risk of its occurrence - Whether appellant's contracting deep venous thrombosis was an accident that took place on board the aircraft within the meaning of Art 17 Warsaw Convention 1929 as amended by the Hague Protocol 1955 and by Montreal Protocol No 4 1975. International Law - Treaties - Construction - Requirement of uniform interpretation by contracting states - Under Art 31 Vienna Convention on the Law of Treaties interpretation to be conducted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. Procedure - Summary judgment - Whether appellant's claim revealed an arguable cause of action - Whether claims bound to fail - Whether the pleading should be struck out and the action permanently stayed. Words and phrases - "accident", "unexpected", "unusual". Civil Aviation (Carriers' Liability) Act 1959 (Cth). Convention for the Unification of Certain Rules Relating to International Carriage by Air opened for signature at Warsaw on 12 October 1929 (the Warsaw Convention) as amended by the Protocol to amend the Warsaw Convention opened for signature at The Hague on 28 September 1955 (the Hague Protocol) and by the Protocol done at Montreal on 25 September 1975 (the Montreal Protocol No 4), Art 17. Convention on the Law of Treaties done at Vienna on 23 May 1969, Art 31.

Equity - Fiduciary duty - Guardian of infant children purchased asset at market value from unadministered estate of infants' deceased father - Children were residuary beneficiaries of that unadministered estate - Children sought rescission of sale 21 years later - Whether claim barred by Limitation Act 1935 (WA) - Whether guardian a trustee of an "express trust" - Whether guardian in breach of fiduciary duty in making purchase. Equity - Express trust - Whether fiduciary in whom title is not vested is an "express trustee" of property. Words and phrases - "express trust". Age of Majority Act 1972 (WA), s 5. Guardianship of Children Act 1972 (WA), s 10(1). Limitation Act 1935 (WA), s 47. Supreme Court Act 1935 (WA), s 25(2). Trustees Act 1962 (WA). GLEESON CJ, Mc