Cases and authorities

Constitutional law - Constitutional relief - Jurisdictional error - Whether the Migration Review Tribunal made a jurisdictional error. Practice and procedure - Constitutional relief - Migration Regulations 1994 (Cth) - Whether the applicant was entitled to have his application determined on the basis that the "special need relative" criterion was still available. Practice and procedure - Constitutional relief - Remitter to the Federal Court - When remitter to the Federal Court is appropriate. 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. Mc

Criminal law – Conspiracy – Where appellant charged with conspiracy to defraud Commonwealth contrary to ss 86(1) and 29D of Crimes Act 1914 (Cth) – Where appellant charged with conspiracy to dishonestly cause loss to Commonwealth contrary to s 135.4(5) of Criminal Code (Cth) ("Code") – Where both charges related to single scheme to defraud Commonwealth of taxation revenue – Where two charges necessary because of legislative change – Whether s 135.4(5) of Code required prosecution to prove appellant entered into agreement after commencement of provision – Whether "state of affairs" could be physical element of s 135.4(5) of Code – Whether being party to an existing agreement a "state of affairs" – Whether s 135.4(5) of Code given retrospective effect if offence satisfied by continuation of agreement formed before commencement of provision. Words and phrases – "agreement", "conspiracy", "state of affairs". Crimes Act 1914 (Cth), ss 29D, 86(1) and 86(2). Criminal Code (Cth), ss 4.1, 4.2, 135.4(5) and 135.4(9).

Discrimination law – Racial discrimination – Certain geographical areas on Palm Island subject to restrictions as to nature and quantity of liquor which may be possessed – Palm Island population overwhelmingly Aboriginal – Appellant, an Indigenous member of Palm Island community, convicted of possessing liquor in restricted area on Palm Island – Whether restrictions affected enjoyment of right to equal treatment before tribunals protected by Art 5(a) of International Convention on the Elimination of All Forms of Racial Discrimination ("Convention") – Whether restrictions affected enjoyment of right to own property protected by Art 5(d)(v) of Convention – Whether restrictions affected enjoyment of right of access to places or services for use by general public protected by Art 5(f) of Convention – Whether restrictions engaged s 10 of Racial Discrimination Act 1975 (Cth) – Whether restrictions valid as special measure within meaning of s 8 of Racial Discrimination Act. Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency pursuant to s 109 of Constitution. Words and phrases – "human rights or fundamental freedoms", "racial discrimination", "right of access to any place or service intended for use by the general public", "right to equal treatment before the tribunals and all other organs administering justice", "right to own property", "special measure". Constitution, s 109. Liquor Act 1992 (Q), ss 168B, 173G, 173H. Racial Discrimination Act 1975 (Cth), ss 8, 10. Liquor Regulation 2002 (Q), ss 37A, 37B, Sched 1

Migration - Application for protection as refugee - Failure of Minister's delegate to afford interview to applicant - Whether failure amounts to breach of rules of natural justice - Whether delegate lacked jurisdiction and whether constitutional writ should issue. Migration - Refugee application - Asserted fear of extortion by criminals - Asserted fear of lack of protection by authorities for reasons of race - Whether fear of extortion outside grounds of protection - Whether relevant fear proved. Administrative law - Natural justice - Content of - Relevance of legislative framework for decision - Decision on refugee claim by delegate of Minister - No statutory obligation to interview applicant - Whether failure to interview amounts to breach of common law rules of natural justice. Practice - Proceedings for constitutional writ of prohibition - Refugee claim under Migration Act 1958 (Cth) - Use of pseudonym in High Court - Need for reasonably arguable case for issue of order nisi for constitutional writ - Review of decision of Minister's delegate - Avoidance of pernickety scrutiny of reasons. Practice - Costs - Migration Act proceedings - Application for refugee protection - Application fails - Review by Refugee Review Tribunal unavailable by reason of delay by applicant - Application of ordinary rule as to costs. Words and phrases - "fear". Constitution, s 75(v). Migration Act 1958 (Cth), ss 36, 54, 417, 496. Migration Regulations 1994, cl 866.221.

KRM v The Queen Criminal law - Practice and procedure - Sexual offences - Multiple counts - One count of maintaining relationship with child under 16 pursuant to s 47A Crimes Act 1958 (Vic) - Whether propensity warning required when presentment involves multiple counts of sexual offences and relationship count pursuant to s 47A - Whether propensity warning required in respect of individual acts that form basis of a charge under s 47A - Use of "separate consideration" warning - Operation of proviso. Criminal law - Sexual offences - s 47A Crimes Act 1958 (Vic) - Whether legislature can modify the need for particulars of criminal charges - Whether evidence of uncharged sexual acts admissible to prove the nature of the relationship between the accused and the complainant. Evidence - Propensity evidence - "No rational view" test - Application to relationship evidence. Crimes Act 1958 (Vic), s 47A. Mc

INJUNCTIONS – Application to restrain conversion of performance bonds under contract – whether seriously arguable question – balance of convenience

Workers' compensation - Journey - Workers Compensation Act 1987 (NSW) - Compensation for worker injured on journey from work to place of abode - Worker travelling home after stopping for a meal with a relative - Whether deviation or interruption to the journey. Workers' compensation - Practice and procedure - Compensation Court Act 1984 (NSW) - Appeal to Court of Appeal on a point of law only - Powers of the Court of Appeal. Words and phrases - "journey" - "direct route" - "fault" - "place of abode". Workers' Compensation Act 1926 (NSW), s 7. Workers Compensation Act 1987 (NSW), s 10. Compensation Court Act 1984 (NSW), s 32.

Trade practices - Restrictive trade practices - Misuse of market power - Wholesale distribution systems - Manufacturer appoints exclusive distributor to a sector of retail market and refuses to supply another potential distributor - Whether manufacturer took advantage of market power for purpose of deterring or preventing person from engaging in competitive conduct. Words and phrases - "take advantage of" - "market power". Trade Practices Act 1974 (Cth), s 46.

R & R Fazzolari Pty Limited v Parramatta City Council Mac's Pty Limited v Parramatta City Council Real property – Compulsory acquisition – Where Local Government Act 1993 (NSW) ("LG Act"), s 186(1), provided that council may acquire land "for the purpose of exercising any of its functions" – Where LG Act, s 188(1) provided that council may not acquire land by compulsory process if land being "acquired for the purpose of re-sale" – Relationship between purpose of exercising any council functions and purpose of re-sale – Meaning of "purpose of re-sale" – Whether acquisition of land by council pursuant to development agreement requiring council to hold land acquired on trust for private developer, in exchange for money and money's worth, as part of larger public-private partnership, is acquisition for purpose of re-sale. Real property – Compulsory acquisition – Where LG Act, s 188(2)(a) provided that land may be acquired by compulsory process even if acquisition for purpose of re-sale if land in question adjoins or lies in vicinity of other land acquired at same time under LG Act, Pt 1 of Ch 8, for purpose other than purpose of re-sale – Where adjoining land comprised public roads already vested in fee simple in council – Where Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 7B provided that State authority authorised to acquire land by compulsory process may do so even where land already vested in authority – Whether adjoining land nevertheless acquired under LG Act, Pt 1 of Ch 8. Statutes – Interpretation – Presumption that legislature does not intend to interfere with property rights unless contrary intention manifest – Consequences for identification of purpose of acquisition. Words and phrases – "function", "public-private partnership", "purpose of re-sale", "re-sale". Local Government Act 1993 (NSW), ss 24, 26, 186, 187, 188, 400B(1), 400B(2). Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 7B. Roads Act 1993 (NSW), ss 7(4), 145(3), 146(1)(e). FRENCH CJ Introduction Parramatta City Council ("the Council") is a council constituted for the area of the City of Parramatta under the Local Government Act 1993 (NSW)[1] ("the LGA"). It is "a body politic of the State with perpetual succession and the legal capacity and powers of an individual"[2]. Powers are conferred on the Council by the LGA. They include the power given by s 186 for the Council to "acquire land ... for the purpose of exercising any of its functions"[3]. In the case of a compulsory acquisition, that power is constrained by s 188(1), which provides: "A council may not acquire land under this Part by compulsory process without the approval of the owner of the land if it is being acquired for the purpose of re-sale." The constraint is qualified: "(2) However, the owner's approval is not required if: (a) the land forms part of, or adjoins or lies in the vicinity of, other land acquired at the same time under this Part for a purpose other than the purpose of re-sale". The term "function" in s 186 includes "a power, authority and duty"[4]. On 1 June 2007 the Council sent proposed acquisition notices to the owners of land in a block in the Parramatta city centre bounded by Smith, Darcy, Church and Macquarie Streets. The acquisitions were related to the redevelopment of the block. It was to be called "Civic Place" upon completion. The redevelopment was to be carried out under a Public Private Partnership ("PPP") made pursuant to the LGA between the Council and two companies, Grocon (Civic Place) Pty Ltd ("GCP") and Grocon Constructors Pty Ltd ("GCPL") (together referred to as "Grocon"). The PPP was to be effected by a development agreement between the Council and Grocon. Under that agreement the Council would transfer certain of the acquired land to Grocon and receive substantial financial payments and other consideration from Grocon. Two owners, R & R Fazzolari Pty Ltd ("Fazzolari") and Mac's Pty Ltd ("Mac's") (together referred to as "the appellants"), challenged the proposed acquisitions in the Land and Environment Court of New South Wales as being for the purpose of re-sale and therefore falling within the constraint on acquisition imposed by s 188(1) of the LGA. Biscoe J in the Land and Environment Court held the proposed acquisitions to be unlawful. Declarations were made and injunctive relief granted accordingly[5]. The Council appealed to the Court of Appeal of New South Wales. On 11 June 2008, the Court of Appeal unanimously allowed the appeals and set aside the declarations and orders made in the Land and Environment Court[6]. On 26 August 2008, the appellants were granted special leave to appeal against the decisions of the Court of Appeal. The resolution of these appeals depends upon the proper construction of the LGA in so far as it defines the powers of a council to acquire land by compulsory process. In accordance with established principles of statutory interpretation the preferable construction is that which authorises the least interference with private property rights. That requires a focus upon the purpose for which the Council proposes to acquire each of the parcels of land the subject of its notices. In this case the Council proposes to dispose of the acquired land to the developer and to receive consideration in money and other benefits. It seeks to characterise the purpose of the acquisition by reference to the larger ends of the Civic Place development. But it is what it intends to do with the appellants' land which, in this case, defines the relevant purpose which is that of re-sale. In my opinion, the appeals should be allowed with costs. The declarations made by the primary judge should be restored and further orders made as proposed in the joint judgment. The statutory and contractual framework The essential features of the statutory and contractual framework of the proposed acquisitions are: The Environmental Planning and Assessment Act 1979 (NSW) ("EPAA") provides for the making by the Minister of regional environmental plans in respect of a region[7]. The Sydney Regional Environmental Plan No 28 – Parramatta ("SREP28") was made under the EPAA. Clause 10 of SREP28 provides for the preparation by the Council of master plans outlining, inter alia, detailed provisions relating to development of land to which the master plan applies. A master plan for the Civic Place Development ("the Master Plan") was prepared by the Council pursuant to SREP28, adopted on 14 May 2003 and came into effect on 1 June 2003. The LGA provides that a council can enter into a PPP, being an arrangement between the council and a private person for the purpose, inter alia, of providing public infrastructure and facilities[8]. The LGA entitles a council entering into a PPP for a particular project "to proceed with the carrying out of the project" under the PPP[9]. A PPP was entered into by the Council with Grocon by way of an agreement entitled the "Civic Place Development Agreement" ("the Development Agreement") dated 21 July 2006. Conditions precedent of the Development Agreement included the acquisition, in the name of the Council, of Darcy Street and Church Street[10], vested in it under the Roads Act 1993 (NSW), and the freehold of properties in those streets including land owned by the appellants. Pursuant to the Development Agreement, Grocon was to construct a residential building of 31 storeys, known as Park Apartments, on the land owned by Mac's and a 40 storey commercial office tower, known as the Atria, on the land owned by Fazzolari with one level of retail and four levels of car parking beneath the surface of both areas of land. The Development Agreement provided that a number of parcels of land, including the appellants', would be consolidated and re-subdivided with most of it transferred to Grocon initially by a declaration of trust followed by transfer of legal title according to progressive completion of the development. Under the Development Agreement the Council was to receive from Grocon upfront participation payments, a revenue share, council facilities and public domain and a housing cash contribution. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) ("Just Terms Act") sets up procedures for the compulsory acquisition of land but, generally speaking, is not a source of power to acquire land[11]. There is a relevant exception to that general proposition. An authority of the State which is authorised by law to acquire land by compulsory process in accordance with the Just Terms Act may so acquire the land if it is vested in the authority itself[12]. The Development Agreement and the Deed of Trust The Development Agreement provided that, upon the requisite acquisitions of Darcy and Church Streets and certain private properties, the Council and GCP were required to do anything that either might reasonably require to ensure that the properties became part of the defined trust land[13]. The trust land was to be included in the site of the proposed development[14]. The appellants' properties, if acquired by Council, were to be subject to a declaration of trust by the Council in terms of a Deed of Trust exhibited to the Development Agreement[15]. The trustee was the Council and the beneficiary was GCP. The recitation to the Deed was in the following terms: "A The Beneficiary is the trustee of the Grocon Parramatta Trusts. The Beneficiary has agreed to procure the development of the Trust Land on the terms and conditions set out in the Development Agreement. Pursuant to the terms of the Development Agreement, including payment of the Transfer Consideration by the Beneficiary, the Trustee has agreed to hold the Trust Land and all Receipts and Rights on trust for the Beneficiary (in its capacity as trustee of the Grocon Parramatta Trusts) as provided in this deed." The term "Transfer Consideration" was not defined in the Deed of Trust or the Development Agreement. Under the Deed of Trust the Council agreed with GCP, inter alia, that it would exercise its power to transfer or otherwise deal with the trust land in any manner that GCP requested[16]. The general operation of the trust was set out in a document entitled "Outline of Key Development Agreement Provisions", provided to Council before it entered into the Development Agreement. That explanation was in the following terms[17]: "The effect of the Land Trust is as follows: (a) Council will transfer the equitable title of the site to GCP (that is an effective transfer of title to GCP); (b) Council will, however, remain registered as the owner on the land titles register maintained by the NSW Land & Property Information; (c) when the Council Related Works and the Open Space Works are completed, legal title to those parcels will be progressively transferred to Council; (d) when the Development Component is completed and subdivided into each of the individual parcels containing the different staged office, retail, residential and car park elements of the Development Component, Council will execute a transfer of the legal title in those parcels progressively to the Developer or its nominee or will be changed as trustee of the trustee [sic] (so as to effect that transfer); (e) the Developer will indemnify Council for all costs arising from the Land Trust, including any stamp duty, land tax, council or other rates, insurance costs or other costs; and (f) if additional land is acquired by the Developer, such as the Australia Post Site, this will be incorporated into the trust, at the request of the Developer." Various payments were to be made by both Grocon and the Council under the terms of the Development Agreement. These were summarised in the outline document. The key payments were: An initial cash payment of $51 million (plus GST) by GCP to the Council ten business days after the date on which the last of the conditions precedent was satisfied or waived, subject to a proportionate reduction if the grant of development consent did not achieve the minimum acceptable floor space area. 3.8 per cent of project revenues to be paid by GCP to the Council. An additional payment by GCP to the Council in relation to the residential component of the project. An additional payment to the Council by GCP in the event that total revenue from the project exceeded the total cost of the project by an agreed percentage ("Super Profit Share"). A payment by the Council to GCP of $29.7 million (plus GST) as a contribution to defined "Council Related Works" on the date of expiry of a fit-out period after notice of practical completion and upon written notice by GCP indicating that the project revenue exceeded $400 million. A payment by the Council not exceeding $8.87 million by way of rental covering a three year period during which it is entitled to remain in its existing facilities or to new premises being constructed as part of the Council Related Works. Council's applications for compulsory acquisition approval On 24 December 2003, the Council applied to the Department of Local Government seeking ministerial approval for the compulsory acquisition of private properties in Darcy Street and on 24 November 2004 applied for approval for the compulsory acquisition of Darcy Street itself. The Darcy Street private property included Fazzolari's land at 20-22, 24 and 26 Darcy Street. Ministerial approval for the acquisition of Darcy Street, the Darcy Street properties and also 160 Church Street, the land owned by Mac's, was notified to the Council by letter dated 15 December 2006 from the Director General of the Department of Local Government. On 13 December 2006 the Council applied to the Department of Local Government seeking ministerial approval for the compulsory acquisition of part of Church Street. Item 4 of Annexure 2 to that application was headed "Purpose of the Acquisition". This required a statement of the "public purpose" for which the land was being acquired. Reference was made to the Development Agreement and the provision, pursuant to that Agreement, of 12,000 square metres of public open space in the Parramatta CBD together with various other community facilities. The Council said: "The inclusion of part of Church Street will result in the delivery of an additional 2,925 square metres of revitalised public open space. The provision of these public facilities will not be feasible without including Church Street and Darcy Street." Its statement continued: "The purpose of acquiring the relevant part of Church Street is to enable Parramatta City Council to: . own the land free of encumbrances and interests; . close this part of Church Street; and . include part of Church Street in the overall Civic Place Development, so that the Civic Place Development including the expected public facilities can proceed." Reference was also made to the acquisition of a substratum beneath Church Street contiguous to the Civic Place site which would be transferred to the developer, GCP, at a later date for the purpose of construction of public car parking and one level of retail development. Annexure 1 to the application set out a checklist of information effectively requiring references to be given to where that information could be found in the text of the completed application. One of the items of information required was a "[s]tatement on why any resale proposal is ancillary to the purpose of the acquisition". The Council identified Item 9.1 of Annexure 2 in answering that request. Item 9.1 of Annexure 2 appeared under the heading "Re-sale" and repeated the substance of what appeared in Item 4 above. A further requirement of the checklist was: "(If acquisition is for re-sale) Indication of any intervening council activity, such as prior subdivision approval by the council." The Council referred to Item 9.2 and Attachment I of Annexure 2. Attachment I referred to the transfer to GCP of the Church Street substratum already covered in Item 4. On 14 March 2007, the Council was notified by the Director General of the Department of Local Government of ministerial approval for the acquisition of part of the Church Street road reserve. In respect of the compulsory acquisition of part of Darcy Street, the General Manager of the Council sent a proposed acquisition notice to the Council itself. The notice addressed to the Council began: "The Parramatta City Council of New South Wales requires the whole of your interest in the land comprising Darcy Street, Parramatta, for a public purpose, namely the Civic Place Development. A full description and title details of the land are in the attached schedule." The trial judge's findings The primary judge, Biscoe J, reached the following principal conclusions: The decision of the Council to acquire the appellants' properties compulsorily was not made for the purpose of exercising any of its functions within the meaning of s 186(1) of the LGA[18]. The decision of the Council to acquire the appellants' properties compulsorily was not made for the purpose of exercising any of its functions under s 186(2)(b) of the LGA[19]. The Council was seeking to acquire the appellants' properties compulsorily for the purpose of re-sale within the meaning of s 188(1)[20]. The appellants' properties did not adjoin or lie in the vicinity of other land to be acquired under the LGA for a purpose other than a purpose of re-sale within the meaning of s 188(2)(a)[21]. The primary judge found that the constraint imposed on the power of compulsory acquisition by s 188(1) applied to the proposed acquisition of the appellants' properties. He said[22]: "In my opinion, a re-sale within the meaning of s 188 includes a transfer of land for a consideration which includes money. That is sufficient to cover what the council intends to do with the applicants' land in the present case." The possibility under the Deed of Trust and the Development Agreement that the properties could return to full ownership of the Council if the project were to cease was no answer to the application of s 188(1). His Honour said[23]: "Relevantly, s 188(1) is only concerned with whether the proposed acquisition of the applicants' land is for 'the purpose' of re-sale, not with a possibility that a re-sale contemplated by a contract might not occur in the event that the contract does not go ahead." (emphasis in original) The question which arose under s 188(2)(a) was whether the appellants' properties adjoined or lay in the vicinity of other land to be acquired at the same time under the LGA for a purpose other than a purpose of re-sale within the meaning of s 188(2)(a). The Council argued that its acquisition of Church Street and Darcy Street was other than for re-sale. A purpose of acquiring the relevant part of Church Street was to "provide open space for giving effect to the development"[24]. A purpose of acquiring a part of Darcy Street was the creation of Station Square which would also be open space. His Honour rejected the Council's argument. He held that the reference to "other land" in s 188(2)(a) is a reference to land not already owned by the Council. The Council was already the owner of Church Street and Darcy Street. It could not rely upon the contemporaneous "acquisition" of its existing interest in those streets. In any event the purpose for which Darcy Street and Church Street were to be acquired included re-sale as a substantial purpose. His Honour made declarations that the proposed acquisitions were unlawful. Injunctive relief was also granted preventing publication of the proposed acquisition notices in the New South Wales Government Gazette and further steps to compulsorily acquire the properties. The Court of Appeal judgment The principal judgment in the Court of Appeal was delivered by Tobias JA, with whom Hodgson JA and Palmer J agreed subject to their own concurring reasons[25]. Key conclusions in the judgment of Tobias JA were: The implementation of the Master Plan was a function of the Council such that s 186(1) empowered it to acquire land for the purpose of exercising that function[26]. The Council's purpose in acquiring the appellants' properties was at all times, and remained, the implementation of the Civic Place project as contemplated by the Master Plan[27]. The primary judge's conclusion in relation to s 186(1) was incorrect[28]. The s 186(2)(b) question did not arise[29]. The Development Agreement did not propose a "re-sale" of the appellants' land within the meaning of s 188(1). The primary judge's conclusion in relation to s 188(1) was incorrect[30]. It was unnecessary to deal with the subsidiary questions arising under s 188(2)(a)[31]. There is no issue on the appeal to this Court about the conclusion of the Court of Appeal that, subject to any constraint imposed by s 188, the Council had power to make the proposed acquisitions under s 186. It is sufficient therefore to refer briefly to the reasoning of Tobias JA on the s 188 questions. Tobias JA held that the critical question not answered by the primary judge was whether the purpose, which he found the Council had, of transferring the appellants' land to Grocon for consideration, was its substantial purpose[32]. He found[33]: "The documentary history of this matter makes it clear in my view that the Council proposed and needed to proceed with the acquisition, if necessary by compulsory process, of the [appellants'] land irrespective of whether it was ultimately transferred to Grocon or any other developer." His Honour adopted what he called[34] "the test adumbrated by the High Court in CC Auto Port Pty Ltd[35]" requiring identification of "'the initiating and abiding purpose' of the proposed acquisition". He said[36]: "On the basis of that test, in my opinion the purpose of the proposed acquisition of the [appellants'] land was not one of re-sale." Tobias JA also rejected the proposition that the proposed acquisitions involved a re-sale of the appellants' land. He relied upon Chan v Dainford Ltd[37] for the proposition that the ordinary meaning of "sale" is the exchange of property for money. He acknowledged that the word "sale" must take its meaning from its statutory context and that its ordinary meaning could be extended expressly or by implication. There was nothing in s 188(1) to extend that ordinary meaning either expressly or by necessary implication. There was nothing to extend it to the complex financial arrangements the subject of the Development Agreement[38]. A difficulty with this aspect of his Honour's reasoning is that the invocation of the "complex" nature of the financial arrangements the subject of the Development Agreement does not expose a basis for rejecting their characterisation as "re-sale" in so far as they involve the transfer of the appellants' land to Grocon and the payment by Grocon of consideration to the Council in relation to that transfer (albeit without specific allocation of any part of the consideration to the appellants' lots). Where compulsory acquisition of a number of parcels of land as part of some overarching development scheme is concerned the general proposition nevertheless applies that "[t]he validity of the acquisition of each parcel depends upon the facts concerning that parcel"[39]. Grounds of Appeal The grounds of appeal set out in the notice of appeal for each of the appeals, amended by leave at the beginning of the hearing, were as follows: "2. The New South Wales Court of Appeal erred by construing the expression 'purpose of re-sale' in sub-section 188(1) of the Local Government Act 1993 (New South Wales) to require re-sale to be the dominant purpose when the Act as a whole means that re-sale could only ever be subservient to some other authorised purpose or statutory function proposed to be carried out by the respondent. 2A. The New South Wales Court of Appeal erred by not characterizing the proposed eventual transfer to Grocon (Civic Place) Pty Ltd and Grocon Constructors Pty Ltd or their nominee or nominees, in return for money and money's worth, of land including the appellant's land as, in the circumstances, a proposed 're-sale' within the meaning of subsec 188(1) of the Local Government Act 1993 (NSW)." The grounds as amended identify two issues. The first, embodied in ground 2A, is whether the transfer of land, including the appellants' land, and the receipt of payment would be a "re-sale" of the appellants' land for the purposes of s 188(1). The second is whether the proposed acquisition was for the purpose of re-sale of the land. Notice of Contention By its notice of contention, the respondent sought to uphold the decision of the Court of Appeal on the ground: "That the Court below failed to decided [sic] that if the appellants' land was to be acquired for the purpose of re-sale within the meaning of s 188(1), then the exception to s 188(1) contained in s 188(2)(a) would apply on the basis that the appellants' land forms part of, or adjoins or lies in the vicinity of, other land to be acquired at the same time under Part 1 of Chapter 8 of the Local Government Act 1993 (NSW) for a purpose other than the purpose of re-sale, such other land being the Darcy Street and Church Street road reserves or in the alternative each part of that land that is to be in Council ownership." Legislative history It is helpful to refer briefly to the legislative history leading up to the enactment of s 188. In Thompson v Randwick Corporation[40] this Court held that powers of compulsory acquisition conferred by the Local Government Act 1919 (NSW) could only be exercised with respect to land purchased or resumed for a purpose authorised elsewhere in that Act. Where a council attempted to resume more land than required to construct a proposed road, it was held not to be acting in good faith but actuated substantially by the purpose of profit-making by sale of the land not so required. The proposed resumption was therefore not for the purpose of the undertaking by the council of the statutory function of "improvement and embellishment of the area" within the meaning of s 321(d). In the following year, the Court held in Minister for Public Works v Duggan[41] that a council was not empowered by the Local Government Act 1919 to acquire land in excess of what it required to fulfil a statutory purpose then resell the excess and use the proceeds to defray the costs of the proposed scheme. In the course of its judgment, the Court said[42]: "The question when the whole of a person's lands may be acquired although part only is required for some undertaking so that the residue may be resold at a profit has frequently arisen in England. English legislation often specifies the lands that may be resumed for the statutory purpose. Even so, if the land is resumed for the benefit of a body trading for private gain, such as a railway company, the body may usually be restrained from resuming more of the land so specified than is actually required for the particular work. Public bodies usually may resume the whole of such lands although parts only are required for the particular purpose with a view to re-selling the residue at a profit. But these are all cases where the public body is on the face of the statute authorized to acquire the whole of the land and then empowered to re-sell the surplus land." It is important to note the use by the Court of the term "re-sell" to describe a sale following upon a compulsory acquisition. Following the decision in Duggan, the Local Government Act 1919 was amended by the Local Government (Land Acquisition) Amendment Act 1951 (NSW). The amendment extended the powers of councils with respect to the acquisition of land (including acquisition by resumption) by providing that lands acquired under the 1919 Act[43]: "may be so acquired for sale or re-sale and applying the proceeds thereof in defraying in whole or in part the expenses incurred by the council in carrying out any work upon lands:– (i) acquired for any purpose of this Act; and (ii) of which the lands acquired under paragraph (a) of subsection two of this section form part, or which adjoin or are in the vicinity of land acquired under paragraph (b) of that subsection." In the Second Reading Speech it was said, inter alia, that the Bill was designed to ensure that land could be acquired for re-sale and for recoupment in whole or in part of a council's expenditure on work done on land acquired in the same way, as was believed to be permissible under the existing provisions of the 1919 Act before the decisions of this Court in Thompson and Duggan[44]. The Minister referred to "the principle of recoupment" as "well established in local government law in both England and this country"[45]. Major changes to the law relating to local government in New South Wales were introduced with the enactment of the LGA. In the Second Reading Speech the Minister for Local Government described as one of the main features of the legislation that it involved "a fundamental shift from prescriptive to a permissive expression of local government law". This was said to be evidenced by "the conferral of broad general powers on councils accompanied by specific constraints on power – rather than vice versa."[46] The acquisition of land was not mentioned in the Second Reading Speech but explanatory notes tabled with the Speech stated, in relation to the Chapter of the LGA which includes ss 186 and 188[47]: "The chapter begins with setting out the purposes for which council may acquire land. The provisions are generally a re-enactment of the Local Government Act 1919 in that councils may acquire land by agreement or compulsory process in accordance with the Land Acquisition (Just Terms) Compensation Act 1991. However, a major variation occurs in the creation of a limitation on compulsory acquisition by council for the purpose of re-sale. A council may not acquire land by compulsory process without the approval of the owner if it is being acquired for the purpose of re-sale, as re-sale is not strictly a legitimate Local Government purpose. The Bill lapsed in 1992 and was reintroduced in a revised form in 1993. However, it was not suggested that any revisions in 1993 relevantly affected s 188 or rendered any less relevant the observations contained in the Second Reading Speech for the 1992 Bill. Importantly, in my opinion, the character of s 188(1) as a specific constraint on a broad power does not preclude the application to it of established approaches for the interpretation of statutes affecting property rights. The approach to interpretation Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretive approaches where statutes are said to affect such rights. Blackstone said that the common law would not authorise the "least violation" of private property notwithstanding the public benefit that might follow[48]. He accepted however that the legislature could compel acquisition and in so doing wrote[49]: "All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of power, which the legislature indulges with caution, and which nothing but the legislature can perform." It was and has remained the case in England and Australia that compulsory acquisition and compensation for such acquisition is entirely the creation of statute[50]. The attribution by Blackstone, of caution to the legislature in exercising its power over private property, is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights. It was expressed by Griffith CJ in Clissold v Perry[51], a land resumption case, thus[52]: "In considering this matter it is necessary to bear in mind that it is a general rule to be followed in the construction of Statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest." The presumption has been restated on more than one occasion in this Court[53]. That does not, of course, authorise the court to put to one side "the unambiguous effect of the words which the Parliament has seen fit to use"[54]. The terminology of "presumption" is linked to that of "legislative intention". As a practical matter it means that, where a statute is capable of more than one construction, that construction will be chosen which interferes least with private property rights. That approach resembles and may even be seen as an aspect of the general principle that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. It operates in the United Kingdom as a manifestation of a "principle of legality" and has been described in Australia as an aspect of the rule of law[55]. In its application to property rights this long-standing interpretive principle is consistent with international developments in the recognition of human rights since World War II. Although not specifically protected by the International Covenant on Civil and Political Rights, or the International Covenant on Economic, Social and Cultural Rights, the right to property was recognised in the Universal Declaration of Human Rights and in various other international instruments[56]. Discrimination, based on race, in relation to the enjoyment of property rights is prohibited by Art 5 of the International Convention on the Elimination of all Forms of Racial Discrimination 1965[57]. The constraint imposed by s 188 on the power conferred by s 186 is to be read conventionally according to the ordinary meaning of the words of the section having regard to their context and purpose and, in this case, having regard to the established rules for the construction of statutes affecting property rights. That has a particular consequence for the way in which the purpose of the relevant acquisition is identified. That identification will focus on the use to which the particular land to be acquired is to be put rather than larger developmental objectives involving other parcels of land. Whether the Development Agreement involved re-sale of the appellants' land The first question to be addressed is whether the proposed transfer of the appellants' land to GCP, coupled with the proposed payments to Council, would constitute a "re-sale" of the land within the meaning of that term in s 188(1). The word "re-sale" in s 188(1) is directed to sale by the council following compulsory acquisition of the land. It is used on the assumption that the antecedent compulsory acquisition by the council is to be treated as a forced sale to the council by the owner of the land. That usage is consistent with the use of the term "re-sell" in the passage quoted from Duggan. It is a usage which was reflected in the 1951 amendments to the Local Government Act 1919. The question which then arises is whether the proposed transfer of the appellants' land to Grocon is a "sale" of that land to Grocon. If so then, putting to one side the distinct question of the purpose of the proposed acquisition of the land by Council, it would be a "re-sale" by the Council within the meaning of s 188. The relevant ordinary meaning of the word "sale" is[58]: "the exchange of a commodity for money or other valuable consideration." This Court in Chan v Dainford Ltd[59] in construing s 71 of the Property Law Act 1974 (Qld) observed[60]: "The primary meaning of sale is an exchange of property, the subject of the sale, for money." That cannot be taken to exclude the possibility that a sale of land may involve its transfer for money and/or other valuable consideration. The constraint, protective of property rights, imposed by s 188 cannot be limited to cases in which the proposed re-sale is for money. Such a construction would artificially limit the scope of the word "re-sale" to one aspect of the ordinary meaning of the word "sale". It would also allow transactions to be structured by local authorities in such a way as to avoid the constraint imposed by s 188 while perpetrating the very mischief it is designed to prevent. The Development Agreement required the Council to transfer the appellants' land to Grocon. In consideration of the Council performing its obligations it was to receive money and other benefits from Grocon. It is not to the point that no element of the consideration moving from Grocon was allocated to the appellants' properties. The land was to be transferred, along with other land, in exchange for money and other consideration. The land was therefore to be the subject of a "re-sale" by the Council within the meaning of s 188. Whether the proposed acquisition was for the purpose of re-sale The Development Agreement necessarily involved the re-sale by the Council of the appellants' properties to Grocon. The question therefore arises whether the proposed acquisition of those properties was "for the purpose of re-sale" within the meaning of s 188(1). The conclusion is inescapable that re-sale was one of the purposes of the proposed acquisitions, albeit it was said to have been in aid of the larger purpose of the redevelopment of Civic Place in Parramatta. Whether they were acquisitions for the purpose of re-sale within the meaning of s 188(1) depends upon the proper construction of that sub-section. One constructional question is whether the purpose of re-sale necessary to attract the constraint imposed by s 188(1) must be: (i) the sole purpose or; (ii) the dominant purpose or; (iii) a substantial purpose; or whether it suffices that a purpose of re-sale be one among a number of purposes of the acquisition. That question can distract from a more important aspect of the operation of the section. The purpose with which the section is concerned is the purpose of the acquisition of the particular land to be acquired. Where a number of parcels of land are to be acquired in aid of some large scale redevelopment, it is nevertheless the purpose of the acquisition of each such parcel of land that is to be considered in determining whether it is within or beyond power. The constraint imposed by s 188(1) upon the general power conferred upon Council by s 186 to acquire land for the purpose of exercising any of its functions is a constraint which requires "the approval of the owner of the land if it is being acquired for the purpose of re-sale". The acquisition upon which the constraint operates is that of a particular parcel of land. The question which it poses is whether that parcel of land is being acquired for the purpose of re-sale. The primary judge found that[61]: "In the present case the purpose of the proposed acquisition of the applicants' land is not to use any part of their land for any public purpose, but rather to transfer the whole of it to Grocon, or to allow Grocon to develop it in order to make a profit." This finding, made in the context of the s 186(1) question, was sufficient to support his Honour's conclusion that s 188(1) applied to the acquisition. Given that the compulsory acquisition of land for re-sale will almost always be supported by reference to some larger public purpose, it cannot be a necessary condition of the application of s 188(1) that the purpose of re-sale be the sole or even the dominant purpose of acquisition. It should suffice that it is a substantial, ie non-trivial purpose. These alternative constructions, however, tend to become indistinguishable in their practical application when the inquiry is, as it should be, focussed on the purpose for which the particular parcel of land is to be acquired from its owner without that owner's approval. That purpose will be assessed by what the council intends to do with the land, ie whether it intends to re-sell it or to do something else with it in the exercise of its functions. It was in support of this proposition that the trial judge quoted[62] the following passage from Gleeson CJ's judgment in Woollahra Municipal Council v Minister for the Environment[63]: "In the context of planning law, a statement of the purpose for which land is being used is a description or characterisation of what is being done with, or upon, the land, not an account of the motives of the persons involved in that activity. The question in the present case is whether the use to which the land is being put, which is to be identified by reference to the nature of the activity being conducted upon it, is a use for a purpose authorised by the Act." The Council submitted that, having regard to the context provided by the Development Agreement, its purpose should not be characterised solely by reference to what would occur to a specific lot. The "integrated" nature of the development of Civic Place was invoked. In the circumstances it was said to be "inapt to suggest that Council's 'purpose' would have differed had the ultimate design resulted in a library or Council's chambers being erected upon [the appellants'] lands". The appellants in reply said that the Council's argument wrongly ignored the fundamental focus of the statutory power of acquisition upon individual pieces of land with individual owners. It was the purpose of acquisition of each owner's "lot" which had to be characterised in order to know whether the power could be exercised regardless of the owner's consent. In my opinion, for the reasons already given, the appellants' submission in this respect is correct. The Council's purpose in relation to the appellants' lots is the purpose of re-sale. If it be necessary to say so, it is a substantial purpose and indeed the dominant purpose in relation to those particular parcels of land. It follows that, subject to the possible application of s 188(2)(a), the proposed acquisition of the appellants' properties is caught by s 188(1) and lies beyond the power of the Council. Whether the proposed acquisition of the appellants' properties was valid under s 188(2)(a) The Council sought to support the decision of the Court of Appeal on the basis that the qualification in s 188(2)(a) upon the constraint imposed by s 188(1) was applicable to this case. As outlined earlier in these reasons, the learned primary judge held that s 188(2)(a) could not apply because it did not extend to the acquisition by the Council of "other land" already owned by the Council. In this case the "other land" to be acquired by the Council comprised the parts of Church and Darcy Streets which were the subject of its applications for compulsory acquisition approval in November 2004 and December 2006 respectively. In any event, the learned primary judge held that the acquisition of those parts of the streets included re-sale as a substantial purpose[64]. The Court of Appeal, having found that his Honour was mistaken in his answers to the earlier question about s 186(1), held that the application of s 186(2)(b) did not arise[65]. The appellants submitted that the proposed acquisition by the Council of Darcy Street and parts of Church Street would necessarily be made pursuant to s 7B of the Just Terms Act. That section provides: "An authority of the State that is authorised by law to acquire land by compulsory process in accordance with this Act may so acquire the land even if the land is vested in the authority itself." The term "authority of the State" is defined in s 4 of the Just Terms Act to include "a council or a county council within the meaning of the Local Government Act 1993". The appellants argued that it is by virtue of s 7B of the Just Terms Act that the Council is expressly authorised compulsorily to acquire land from itself. This would mean that the power of compulsory acquisition in respect of such land is made under s 7B, and not under the LGA nor covered by s 188(2)(a). It is not contentious that the Council's interest in Church and Darcy Streets derives from the Roads Act 1993. That Act provides, inter alia[66]: "All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority." The dedication of land as a public road[67]: "does not authorise the owner of the road to dispose of any interest (other than an easement or covenant) in the land ..." The Act also provides that the council of a local government area is the roads authority for all public roads within the area save for exceptions which are immaterial for present purposes[68]. While the Just Terms Act deals with procedures for the compulsory acquisition of land by authorities of the State and compensation on just terms for the owners of such land, s 7B goes beyond those procedures. It is a substantive source of power not conferred upon the Council by the LGA, to acquire an unencumbered interest in land vested in the Council itself, in this case the land known as Church and Darcy Streets. Because the qualification in s 188(2)(a) upon the constraint imposed by s 188(1) is only engaged where the "other land" acquired by the Council is acquired "under this Part", that is under Pt 1 of Ch 8 of the LGA, it does not apply where the other land is, as in this case, acquired under s 7B of the Just Terms Act. Conclusion For the preceding reasons each of the appeals to this Court should be allowed with costs. I agree with the proposal in the joint judgment that the declarations made by the learned primary judge should be restored. I agree with the orders proposed in the joint judgment.

Customs and excise - Duty - Proceeding by Collector of Customs for recovery of unpaid duty after goods released to owner - Dispute as to whether duty owed - Whether s 167 Customs Act 1901 (Cth) prevents owner of goods from disputing indebtedness other than by paying duty "under protest" and then commencing action against Collector of Customs for recovery of duty. Statutes - Construction - Presumption that legislation does not erode fundamental rights - Relevance and contents of presumption. Customs Act 1901 (Cth), ss 153, 165, 167, 273GA(2). GLEESON CJ. I agree that the appeal should be allowed, and with the reasons given by Gummow and Callinan JJ. To ask whether s 167 of the Customs Act 1901 (Cth) ("the Act") constitutes the only means by which a person may challenge the amount and rate of, and the liability of goods to, customs duty invites consideration of the circumstances in which a person might need or wish to make such a challenge. The manner in which the system of imposition of duties of customs operates, and the requirements affecting an entry of goods for home consumption, may well mean that, in most circumstances, a challenge of the kind mentioned will be made by a person who is compelled, in order to have the goods released, either to pay duty under protest pursuant to s 167, or to enter into an agreement upon terms and conditions satisfactory to the Customs authorities. Such an agreement might have the same practical effect as s 167. However, as the facts of the present case illustrate, circumstances could arise in which the authorities are not in such a position of advantage. Because of the chain of events leading up to the dispute, the Collector of Customs found it necessary to commence an action to recover a debt. In part, the action was based upon an agreement made by the appellant. There is a dispute as to the meaning and effect of that agreement. It does not arise in the present appeal. There was also a claim based upon a demand made under s 165 of the Act; but there is a dispute as to whether a valid demand was made. Again, that issue does not presently arise. The statement of claim alleges that the amount of duty payable in respect of the subject goods was $44,540.77 which constitutes a debt due and payable to the Crown. That allegation is to be read in the light of s 153 of the Act. The general rule in adversarial litigation is that it is for the party alleging a material fact, when that fact is put in issue, to prove the fact. In the case of an alleged debt, there may be a statutory provision which facilitates such proof. A familiar example in the area of revenue law is s 177 of the Income Tax Assessment Act 1936 (Cth), which provided that the production of a notice of assessment is conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct[1]. Or there may be a contractual provision in aid of proof, such as one which makes a certificate conclusive evidence of indebtedness, as in Dobbs v National Bank of Australasia Ltd[2]. Here, the respondent has alleged the debt, but (subject to whatever might be found to be the effect of the agreement earlier mentioned) cannot point to any provision which expressly relieves her of the necessity of proving the allegation, or which facilitates such proof. The argument must be that, by implication, s 167 produces such a result. The argument was not put in those terms. It was submitted that s 167 constitutes a code concerning the manner of disputing liability to duty. It was said that there was no right given by any other provision of the Act to put in issue an allegation that duty was owing to the Collector. Yet, if the Act, in certain circumstances, puts the Collector in a position of having to allege that an amount is due, what need is there of a statutory "right" to dispute such an allegation? Litigants who are met with allegations in civil actions do not need to point to any statutory right to dispute such allegations. The capacity to make and dispute allegations is an ordinary incident of the adversarial process. To say that s 167 is a code concerning disputing liability to duty must, upon analysis, mean that, by implication, s 167 not only provides (as in terms it does) that a taxpayer may take a certain course but, also, that, unless the taxpayer takes that course, an allegation by the Collector that a certain amount of duty is owing must be taken to be proved. That seems to me to throw upon s 167 more weight than it will bear. The provisions of s 273GA of the Act cannot be called in aid in support of the construction of s 167 for which the respondent contends. Those provisions were included in the Act many years after ss 153, 165 and 167. It was not suggested that ss 153, 165 and 167 changed their meaning when s 273GA was included. It follows that, whatever their meaning, it existed before s 273GA was enacted, and s 273GA cannot be used in an attempt to discover that meaning. Mc

Precedents – High Court – Statements of principle binding upon intermediate appellate courts and trial courts until reconsidered by High Court. Contract law – Contractual construction – Whether essential to identify ambiguity in language of contract before court may have regard to surrounding circumstances and object of transaction. Words and phrases – "ambiguity", "binding", "High Court", "precedents".

Green v The Queen Quinn v The Queen Criminal law – Appeal – Appeal against sentence – Appeal by Crown – Parity principle – Where primary judge imposed sentence having regard to parity principle as between appellants and other co-offender – Where s 5D of Criminal Appeal Act 1912 (NSW) provided that primary purpose of appeals against sentences by the Crown is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons" – Where appellate court increased each appellant's sentence – Whether appellate court erred in allowing Crown appeal and thereby creating disparity between sentences of appellants and other co-offender – Whether appellate court erred in finding, absent any submission from Crown, that sentence imposed on other co-offender manifestly inadequate. Words and phrases – "appeal", "Crown appeal", "parity principle", "sentencing". Criminal Appeal Act 1912 (NSW), s 5D. Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2), 25(2).

State of New South Wales v Taylor Workers' Compensation - Election between permanent loss compensation and damages - Where worker seeks to revoke election to claim permanent loss compensation and to commence proceedings for recovery of damages - Where s 151A(5) of the Workers Compensation Act 1987 (NSW) limits the availability of revocation of such election - Whether par (c) of s 151A(5) is satisfied if, at the time of the election, a reasonable person in the position of the injured person would have no cause to believe that further deterioration of the condition would probably occur. Statutes - Interpretation - s 151A(5)(c) of Workers Compensation Act 1987 (NSW) - meaning of "no reasonable cause to believe". Words and phrases - "believe" - "would". Workers Compensation Act 1987 (NSW) s 151A. GLEESON CJ, Mc

Fingleton v The Queen Courts and judicial system - Magistrates - Judicial officers' immunities - Immunity conferred upon magistrates in the performance or exercise of an administrative function or power conferred under an Act - Appellant Chief Magistrate proposed to remove Co-ordinating Magistrate from that position - Whether immunity extends to a criminal charge against appellant of unlawful retaliation against a witness. Criminal law - Unlawful retaliation against a witness - "Without reasonable cause" - Whether trial judge misdirected jury as to the meaning of "reasonable cause" in s 119B of the Criminal Code (Q) - Relevance of the meaning of the terms "detriment" and "retaliation" to an assessment of "without reasonable cause". Constitutional law (Cth) - Federal judicial power - Appellate jurisdiction of the High Court - Criminal matter - Grounds of appeal - Point not taken at trial or before Court of Criminal Appeal - Whether new ground of appeal can be raised before the High Court - Whether following trial point waived or spent - Whether raising new ground deprives proceedings of the character of an "appeal" for purposes of s 73 of the Constitution. Words and phrases - "appeal", "without reasonable cause", "detriment", "retaliation", "under an Act". Magistrates Act 1991 (Q), ss 10, 21A. Criminal Code (Q), ss 30, 119B, 620. Constitution, s 73.

Customs and excise - Averment provision - Whether ultimate fact in issue in an excise prosecution is not properly the subject-matter of an averment provision - Whether Excise Act 1901 (Cth), s 144(1) draws a distinction between an ultimate fact in issue and other facts - Whether primary judge erred in finding that the material in the respondent's possession, custody or control was manufactured or partly manufactured goods. Constitutional law (Cth) - Whether the High Court should consider constitutional issues if not necessary to decide a case - Effect of absence of notice under Judiciary Act 1903 (Cth), s 78A. Constitutional law (Cth) - Averment provisions - Compatibility of statutory averment provisions with the judicial power and functions provided for by Ch III of the Constitution. Constitutional law (Cth) - Interpretation of Commonwealth statutes - Relevance of Constitution where not raised by parties - Whether High Court practice requires that constitutional questions not be considered in such cases - Whether any such consideration involves procedural unfairness to law officers entitled to notice of constitutional issues - Whether Constitution a necessary contextual consideration in interpretation of Commonwealth statutes. Interpretation - Statutes - Federal legislation - Relevance of the Constitution (Cth) - Whether necessary contextual consideration influencing or affecting meaning of law - Whether failure of parties to raise issue obliges Court to ignore constitutional considerations - Whether procedural fairness, including failure of parties to give notice to law officers of constitutional questions, obliges Court to ignore any constitutional considerations not raised by parties. Words and phrases - "averment", "excise duty", "ultimate fact in issue". Constitution, Ch III. Excise Act 1901 (Cth), ss 117, 144. Judiciary Act 1903 (Cth), s 78A. Excise Tariff Act 1921 (Cth). Excise Tariff Amendment Act (No 1) 2000 (Cth). Mc

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame Immigration - Applicant born in Papua prior to 1975 - Applicant acquired Australian citizenship by birth but required an entry permit to enter or reside in Australia - Applicant in Australia without a substantive visa - Whether ss 189, 196 and 198 of the Migration Act 1958 (Cth) could apply to the applicant - Whether the applicant ceased to be an Australian citizen under the Australian Citizenship Act 1948 (Cth) when Papua New Guinea became an independent sovereign state in 1975 by virtue of Papua New Guinea Independence Act 1975 (Cth) and regulations made thereunder - Whether the applicant became a citizen of Papua New Guinea by virtue of the provisions of the Papua New Guinea Constitution - Whether the applicant had a right of permanent residence in Australia within the meaning of the Papua New Guinea Constitution. Statutes - Whether the Papua New Guinea Independence Act 1975 (Cth), s 6 validly authorised the making of a regulation affecting citizenship. Constitutional Law (Cth) - Territories - Where Papua and New Guinea were acquired as external territories by the Commonwealth and then relinquished - Ambit of the law-making power conferred by s 122 of the Constitution respecting relations between Australia and inhabitants of an external territory - Whether power may be exercised to change a person's status from non-alien to alien without that person's consent. Constitutional law (Cth) - Naturalization and aliens - Whether the legislative power conferred in s 51(xix) of the Constitution may be exercised to change a person's status from alien to non-alien without that person's consent. Constitution, ss 51(xix), 122. Constitution of the Independent State of Papua New Guinea, ss 64, 65. Migration Act 1958 (Cth), ss 189, 196, 198. Papua New Guinea Act 1963 (Cth), ss 4, 5, 6. Papua New Guinea Independence Act 1975 (Cth), ss 4, 6. Papua New Guinea Independence (Australian Citizenship) Regulations 1975 (Cth), reg 4. GLEESON CJ, Mc

The Queen v Lavender Criminal law - Manslaughter - Involuntary manslaughter by criminal negligence - Respondent killed a 13 year old boy by running over him with a front end loader - Crimes Act 1900 (NSW), s 18 - Whether malice an element of the offence - Relevance of former statutory requirement that indictment include a charge of maliciously killing for murder but not for manslaughter - Interaction of provisions of the Crimes Act with the common law of punishable homicide - Application of the defence of honest and reasonable mistake of fact to manslaughter by criminal negligence - Distinction between murder and manslaughter. Statutes - Interpretation - Relevance of historical context in resolving questions of statutory construction - Relevance of past amendments to Act - Use of contemporary historical materials in statutory construction - Relevance of the rule of strict construction of penal statutes - Relevance of uniformity in the criminal law throughout Australia. Sentencing - Appeal on sentence - Whether matter before the High Court - Restoration of custodial sentence after entry of an acquittal by New South Wales Court of Criminal Appeal - Whether parties now entitled to seek leave of Court of Criminal Appeal to appeal against sentence. Practice and procedure - Trials - Jury directions. Words and phrases - "malice", "maliciously". Crimes Act 1900 (NSW), ss 5, 18. GLEESON CJ, Mc

Constitutional law (WA) - Imperial manner and form requirements respecting State legislation - Section 70 of the Constitution Act 1889 (WA) provided for the issue of annual sums to Aborigines Protection Board for the welfare of "the aboriginal natives" - Whether provision still in force - Whether repeal by Aborigines Act 1905 (WA) effective - Tabling requirement under s 32 of The Australian Constitutions Act 1850 (Imp) in respect of certain WA bills - Requirement not complied with - Whether compliance with requirement necessary to validly repeal s 70 of the Constitution Act 1889 (WA). Constitutional law (Cth) - Constitution of State of the Commonwealth - Whether provision in Constitution s 106 excludes construing application of Imperial manner and form requirements for amending State Constitution after federation - Whether compliance justiciable. Aboriginals - Constitutional law (WA) - Provision in Constitution Act 1889 (WA) for annual sum for welfare of "aboriginal natives" - Whether Imperial legislation complied with for repeal of such provision. Words and phrases - "Constitution of each State" - "repugnancy". Constitution, s 106. Constitution Act 1889 (WA), ss 70, 73. Aborigines Act 1905 (WA). The Australian Constitutions Act 1842 (Imp), ss 31, 33. The Australian Constitutions Act 1850 (Imp), ss 12, 32, 33. Western Australia Constitution Act 1890 (Imp), ss 2, 5. GLEESON CJ, GAUDRON, Mc

Ghantous v Hawkesbury City Council Negligence - Highways - Injuries to user of highway - Liability of highway authority - Whether immunity under the "highway rule" - Distinction between misfeasance and non-feasance. Negligence - Duty of care - Statutory authority - Highway authority - Content of duty of care - Relevant considerations. Negligence and nuisance - Whether nuisance in relation to public authorities subsumed by the law of negligence. Highways - Negligence and nuisance - Immunity under "highway rule" - Misfeasance and non-feasance - Whether liability subsumed in general principles of negligence. Precedent - Stare decisis - High Court - Departure from previous decisions - Relevant considerations. Words and phrases - "highway rule" - "immunity". Local Government Act 1919 (NSW), ss 220-277

Administrative law - Natural justice - Reasonable apprehension of bias - Affirmation by Refugee Review Tribunal of decision to refuse applications for protection visas - Credibility in issue before Tribunal - Constant interruptions of and challenges to evidence of applicant - Whether vigorous testing of evidence might lead a fair-minded lay person to apprehend bias on the part of the Tribunal - Appropriate modification of test for apprehended bias when applied to administrative proceedings - Whether relief under s 75(v) of the Constitution should be refused on discretionary grounds.

Application for stay of arbitration proceedings - Respondent to judgment entered under Building and Construction Industry Security of Payment Act fails to pay judgment debt but pursues arbitration - Suggested oppressive conduct

PROCEDURE - Interlocutory relief - Whether injunction restraining dealings with property should be granted in absence of undertaking as to damages - Whether order requiring first defendant to identify her property should be made in absence of evidence of intention to deal with property to disable satisfaction of any judgment of the Court - Whether first defendant should be ordered to return files taken from solicitor's office - Whether first defendant should be ordered to give discovery before pleadings

Real property – Torrens system land – Indefeasibility of title – Respondent company transferred property to appellant and appellant's husband ("Claude") – Claude acted fraudulently in purchasing property – Claude later transferred his interest in property to appellant for nominal consideration – Whether fraud brought home to appellant as registered proprietor or to her agent – Whether Claude appellant's agent – Whether appellant's title defeasible because Claude had acted as appellant's agent – Whether appellant's title defeasible because Claude and appellant were registered as joint tenants – Whether appellant's title defeasible because of Claude's fraud pursuant to s 118(1)(d) of Real Property Act 1900 (NSW). Words and phrases – "agent", "brought home to the person whose registered title is impeached or to his agents", "fraud", "joint proprietor", "joint tenant", "registered as proprietor of the land through fraud", "through". Real Property Act 1900 (NSW), ss 42(1), 100(1), 118(1).

G & M Aldridge Pty Ltd v Walsh Elecraft (Aust) Pty Ltd v Walsh K & V Plumbers Pty Ltd v Walsh Barden-Steeldeck Industries Pty Ltd v Walsh Companies - Winding up in insolvency - Preference - Payments made by project manager to unsecured creditors - Payments from property subject to fixed and floating charge - Payments made after crystallisation of floating charge - Chargee took no action in relation to payments - Whether payments had effect of giving creditors a preference, priority or advantage over general body of unsecured creditors. Words and phrases - "preference, priority or advantage". Bankruptcy Act 1966 (Cth), s 122(1), (2). Companies Code (Vic), s 451.

Azzopardi v The Queen Davis v The Queen Criminal law - Evidence - Accused not giving evidence - Right to silence - Distinction between comment and direction by trial judge - Circumstances where comment permissible. Criminal law - Evidence - Accused not giving evidence - Right to silence - Nature of permissible comment by trial judge - Comment that accused did not deny or contradict evidence already given about matters within his personal knowledge not permissible - Suggestion that accused did not give evidence because the accused was, or believed that he was, guilty of the offence concerned - Contravention of Evidence Act 1995 (NSW), s 20(2). Evidence - Criminal trial - Right to silence of accused - Comment by judge - Contravention of Evidence Act 1995 (NSW), s 20(2). Evidence Act 1995 (NSW), s 20(2).

Pleadings - Practice and procedure - Application to strike out sections of Further Amended Statement of Claim - Meaning of 'essential matters' - Whether proposition put by claimants was obviously untenable.

Negligence – hospital nurse injured in a two-person transfer of an elderly patient – injury suffered when nurse bore full weight of falling patient – risk of patient falling or losing balance reasonably foreseeable

PRACTICE AND PROCEDURE – application to join parties to appeal – Uniform Civil Procedure Rules 2005 51.4(3)

PROCEDURE - judgment and orders - consent orders - whether appropriate to make - PROFESSIONS AND TRADES - lawyers - unqualified persons and disqualified practitioners - whether the Supreme Court has power to make an order approving practise as a lay associate - where counsel signed short minutes of orders to that effect on behalf of the Law Society

PROCEDURE - application for stay - evidence of respondent's impecuniosity - stay granted

TORTS - negligence - motor vehicle accidents - where two consecutive rear-end collisions involving three vehicles in total - where appellant driver of first vehicle - assessment of appellant's contribution to damage to second vehicle at 60 per cent - whether finding of liability and contribution assessment supported by evidence at trial as to operation and activation of appellant's vehicle's tail lights, brake lights and indicator lights and vehicles' respective braking patterns - matter remitted for re-hearing as to liability

Leave to appeal - irregular execution of warrants - failure to announce police presence and intention to execute warrant - incomplete Notice to Occupiers - s138 Evidence Act - admission of illegally obtained evidence within discretion of Magistrate

BUILDER - Owner -Builder - Passive co-owner owed no duty of care to later purchasers - NEGLIGENCE - duty of care - to avoid causing economic loss - Owner-builder - Passive co-owner owed no duty of care to purchasers

EVIDENCE - credibility - surprise rule - where trial judge refused to allow the appellants to call witnesses impugning credibility of respondents' witness - whether pleadable accusation of fraud - EVIDENCE - prior inconsistent statement - cross examination of own witness - whether trial judge had regard to matters set out in s 192 of the Evidence Act 1995

APPEAL - issue not raised at trial - quantum meruit and new factual issue raised - summons dismissed

WORKERS COMPENSATION - back injury - finding of incapacity - sufficiency of evidence - WORKERS COMPENSATION - appeal from arbitrator - procedural fairness - REASONS - whether adequate and sufficient

Romanos v Pentagold Investments Pty Limited Vendor and purchaser - Contracts for sale of land - Balance of deposit to be paid on approval of development application - Time of essence - Default by purchasers - Notice of termination - Balance of deposit paid following day - Specific performance - Whether unconscientious for vendors to exercise right of termination - Whether termination effective in absence of prior notice to purchasers requiring payment of deposit within reasonable time. Equity - Relief against forfeiture - Contracts for sale of land - Default by purchasers - Whether unconscientious for vendors to exercise right of termination - Whether default occasioned by "accident" - Whether relief on the ground of "accident" available in face of essential time stipulation. GLEESON CJ, Mc

WORKERS' COMPENSATION - Police - Causation - Not excluded by medical evidence - Finding of causation open to lay tribunal

APPEAL – appellant seeks to depart from approach it took at trial to an issue of damages – no exceptional circumstances which would warrant permitting that course.

PRACTICE AND PROCEDURE - failure to comply with security for costs order - whether appeal should be dismissed - Uniform Civil Procedure Rules 42.21(3)

PRACTICE AND PROCEDURE - application for stay pending application for special leave - principles to be applied - no prospect of grant of special leave - application refused.

Leave to appeal - circumstances of damage to vehicle clearly within exclusion provisions of insurance policy

PROCEDURE – application to stay execution of primary judgment – respondent impecunious – risk that appeal will prove abortive if appellant succeeds and stay not granted – stay granted.

LEGAL PRACTITIONERS - suspension of practising certificate - whether suspension should be stayed pending appeal

CONSTITUTIONAL LAW – rights and freedoms implied in Commonwealth Constitution – freedom of political communication – State law provided for exclusion and removal of persons from a defined area for a defined period of time – State law burdened the freedom of communication on political matters – whether State law reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative and responsible Government

APPEAL - extension of time to file notice of appeal - adjustment of interests under Property (Relationships) Act - real property transferred to respondent with provision for relatively small payment to appellant - respondent sold it and spent money on buying home - respondent unwell - extension of time would work injustice on respondent - necessity to consider prospects of success in appeal in order to see what injustice to appellant in declining extension of time - prospects assessed as remote - evaluation made despite inability to examine all the evidence - extension of time refused.

CONTRACTS- Recovery on quantum meruit- Whether necessary to plead "contractual" or "restitutionary" quantum meruit- Pleading alleging "quantum meruit" sufficient to cover both types of claim. PRACTICE- Reference by court to referee- Referee's report adopted by court- Whether court's adoption of referee's error an appealable error of law- Held no appealable error.