Cases and authorities

Constitutional law (Cth) – Operation and effect of Constitution – Interpretation – Implied freedom of political communication about government or political matters – System of representative and responsible government – Validity of ss 132(1)(a) and 200(2) of Corrective Services Act 2006 (Q) – Whether statute complies with limitations on legislative power of State – Whether the impugned law effectively burdens freedom of communicating about government and political matters – Whether provisions reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government. Administrative law – Relationship between Judicial Review Act 1991 (Q) and determination of issues of legislative validity – Whether validity of particular conditions imposed pursuant to s 200(2) of Corrective Services Act 2006 (Q) question of constitutional law or of compliance by repository of power with statutory limits. Words and phrases – "constitutionally prescribed system of representative and responsible government", "effectively burdens freedom of communication", "impermissibly burdening", "implied freedoms", "political communication". Acts Interpretation Act 1954 (Q), s 9(1). Corrective Services Act 2006 (Q), ss 132(1)(a), 132(2)(d), 200(2). Criminal Code (Q), s 7. Judicial Review Act 1991 (Q), ss 20-40.

Statutes − Acts of Parliament − Interpretation − Statutory powers and duties − Construction − Conferral and extent of power − Minister purportedly appointed persons as temporary "contract teachers" under s 9(4) of Education Act 1972 (SA) − Section 15 empowered Minister to appoint "officers of the teaching service" on permanent or temporary basis − Section 9(4) empowered Minister to appoint such officers and employees "in addition to" employees and officers of teaching service as Minister considered "necessary for the proper administration of this Act or for the welfare of the students of any school" − Meaning of "in addition to" − Whether Minister empowered to appoint officers as teachers under s 9(4) − Whether s 15 provided exclusively for such appointments. Words and phrases – "in addition to", "officers and employees", "officers of the teaching service". Education Act 1972 (SA), ss 9(4), 15.

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs Appellant S396/2002 v Minister for Immigration and Multicultural Affairs Immigration - Refugees - Particular social group identified as homosexual men in Bangladesh - Whether well-founded fear of persecution - Whether error of law by Refugee Review Tribunal in finding that no real chance of persecution because appellants conducted themselves discreetly and would continue to do so - Whether finding had effect of requiring appellants to act discreetly to avoid persecution - Whether need to act discreetly to avoid serious harm constituted persecution. Migration Act 1958 (Cth), s 476(1)(e).

Australian Securities and Investments Commission v Hellicar Australian Securities and Investments Commission v Brown Australian Securities and Investments Commission v Gillfillan Australian Securities and Investments Commission v Koffel Australian Securities and Investments Commission v Terry Australian Securities and Investments Commission v O'Brien Australian Securities and Investments Commission v Willcox Australian Securities and Investments Commission v Shafron Corporations – Duties and liabilities of directors and officers – Contraventions of civil penalty provisions of Corporations Act 2001 (Cth) ("the Act") – Corporation released misleading announcement to Australian Stock Exchange ("ASX") – Australian Securities and Investments Commission ("ASIC") brought proceedings against respondents (and others) for contraventions of the Act – Section 180(1) of the Act required directors and officers to act with degree of care and diligence that reasonable person in that position would exercise – ASIC alleged directors contravened s_180(1) by approving draft announcement not materially different from misleading announcement released to ASX – ASIC alleged company secretary and general counsel of corporation contravened s 180(1) by not advising board that draft announcement was misleading – Whether directors approved draft announcement. Evidence – ASIC tendered minutes of board meeting recording tabling and approval of draft ASX announcement – Minutes subsequently approved – ASIC did not call corporation's solicitor, who had supervised preparation of draft minutes and attended board meeting – Whether ASIC owed respondents a "duty of fairness" in its conduct of litigation – Whether ASIC breached putative duty by not calling solicitor – Whether proper consequence of any such breach was to discount cogency of ASIC's case – Whether board minutes sufficient evidence to prove directors' approval of draft announcement. Words and phrases – "cogency of proof", "duty of fairness", "obligation of fairness", "onus of proof", "satisfaction on the balance of probabilities". Corporations Act 2001 (Cth), ss 180(1), 251A, 1317L. Evidence Act 1995 (NSW), s 140. Judiciary Act 1903 (Cth), ss 64, 79, 80.

Corporations – Duties and liabilities of directors and officers – Section 180(1) of the Corporations Act 2001 (Cth) ("the Act") required directors and officers of a corporation to discharge duties with degree of care and diligence that reasonable person in their position and with their responsibilities would exercise – "Officer" defined in s 9 of the Act – Paragraph (a) of definition provided that secretary of a corporation is an "officer" – Paragraph (b)(i) of definition provided that person who "participates in making" decisions that substantially affect business of corporation is an "officer" – Appellant was company secretary and general counsel of corporation – Whether appellant participated in making decisions substantially affecting business of corporation – Whether s 180(1) applied to all tasks that officer of corporation performed within that corporation – Whether responsibilities of company secretary and general counsel divisible – How scope of "responsibilities within the corporation" of an officer to be determined. Words and phrases – "in the capacity of", "occupied the office held by", "officer", "participate in making", "real contribution", "responsibilities within the corporation". Corporations Act 2001 (Cth), s 9 (definition of "officer"), s 180(1).

Constitutional law − Executive power of Commonwealth − Commonwealth entered funding agreement with private service provider for provision of chaplaincy services at State school ("Funding Agreement") − Funding Agreement made pursuant to National School Chaplaincy Program − Whether executive power of Commonwealth extends to matters in respect of which Parliament may legislate − Whether s 61 of Constitution or s 44(1) of Financial Management and Accountability Act 1997 (Cth) ("FMA Act") source of power to enter Funding Agreement − Whether s 61 of Constitution or s 44(1) of FMA Act source of power to pay service provider. Constitutional law − Powers of Commonwealth Parliament − Whether law providing for payments in circumstances identical to Funding Agreement would be law with respect to s 51(xx) of Constitution − Whether law providing for payments in circumstances identical to Funding Agreement would be law with respect to s 51(xxiiiA) of Constitution. Constitutional law − Freedom of religion − Prohibition on religious tests as qualification for any office under Commonwealth − Under Funding Agreement, "school chaplain" to provide services − Whether "school chaplain" holds office under Commonwealth − Whether Funding Agreement or payments to service provider prohibited by s 116 of Constitution. Constitutional law − Appropriations of moneys from Consolidated Revenue Fund − Commonwealth paid appropriated moneys to service provider pursuant to Funding Agreement − Whether Appropriation Acts authorised appropriations of moneys for purpose of payments under Funding Agreement. Constitutional law − Standing − Plaintiff's children attended State school party to Funding Agreement − Whether plaintiff has standing to challenge validity of Funding Agreement − Whether plaintiff has standing to challenge validity of appropriations to pay moneys pursuant to Funding Agreement − Whether plaintiff has standing to challenge validity of payments to service provider. Words and phrases – "appropriation", "benefits to students", "capacity to contract", "execution and maintenance of this Constitution", "executive power of the Commonwealth", "office under the Commonwealth", "ordinary and well-recognised functions", "religious test". Constitution, ss 51(xx), 51(xxiiiA), 61, 64, 81, 96 and 116. Financial Management and Accountability Act 1997 (Cth), s 44(1).

Shaw v Minister for Immigration and Multicultural Affairs Constitutional law (Cth) - Powers of the Parliament - Naturalisation and aliens - Applicant born in United Kingdom - Applicant entered Australia in 1974 - Applicant did not acquire Australian citizenship - Cancellation of applicant's visa by Minister - Whether power of cancellation validly extended to applicant - Whether applicant an "alien" for purposes of s 51(xix) of the Constitution - Whether applicant's statutory status as "British subject" at time of entry into Australia inconsistent with classification as "alien" - Whether applicant a "subject of the Queen" for purposes of s 117 of the Constitution. Constitutional law (Cth) - Powers of the Parliament - Whether applicant subject to removal under power with respect to immigration - Whether applicant subject to removal under power with respect to external affairs - Whether implied nationhood power relevant. Constitution, ss 51(xix), (xxvii), (xxix), 117. Citizenship Act 1948 (Cth), s 7. Migration Act 1958 (Cth), ss 15, 501. British Nationality Act 1948 (UK). British Nationality and Status of Aliens Act 1914 (UK).

of Australia Federal jurisdiction - Tort - Negligence - Accident on high seas - Action commenced by plaintiff in Supreme Court of Australian Capital Territory - Limitation law - Application of s 80, Judiciary Act 1903 (Cth) - Whether limitation law of Australian Capital Territory applies - Whether "laws of the Commonwealth" include common law of Australia unmodified by statute law in force in forum - Whether scope for adoption of additional common law choice of law rule. Constitution, s 75(iii). Judiciary Act 1903 (Cth), ss 56, 79, 80. Limitation Act 1985 (ACT), ss 11, 36, 56. Navigation Act 1912 (Cth), ss 260, 261, 261A. Limitation Act 1623 (21 Jac I c 16), s 3.

Arulthilakan v The Queen Mkoka v The Queen Criminal law - Murder - Appeals against conviction - Directions to jury concerning statutory murder - Whether trial judge erred in directing jury that presentation of a knife in the course of an armed robbery amounted to an "act of violence" for the purposes of s 12A, Criminal Law Consolidation Act 1935 (SA) - Whether misdirection gave rise to miscarriage of justice - Causation - Whether reference to "but for" test of causation constituted a misdirection - Whether presentation of a knife in the course of an armed robbery could be regarded as a substantial cause of death of deceased - Application of proviso in circumstances where not possible to tell whether jury's verdict of guilty of murder was based on statutory murder or common law murder. Criminal law and procedure - Trial for murder - Appeals against conviction - Whether High Court should allow appellants to raise for the first time a new point concerning the adequacy of the trial judge's directions on causation as an ingredient of the offence - Proviso - Whether in circumstances of established misdirection on ingredients of the offence of murder the conviction of the appellants was inevitable - Test for application of the proviso. Words and phrases - "act of violence". Criminal Law Consolidation Act 1935 (SA), ss 12A, 353(1).

Re Kavanagh's application High Court - Practice and procedure - Leave to issue proceedings - Applicant previously unsuccessful in application for special leave to appeal from State Supreme Court judgment - Applicant propounds for filing in the High Court motion claiming declarations invoking the International Covenant on Civil and Political Rights - Claims right to fair hearing violated in High Court and in State Supreme Court - Relevance of the International Covenant on Civil and Political Rights to Australian domestic law - Relevance in circumstances where the governing law is statutory and admits of no doubt or ambiguity - Whether propositions reasonably arguable. International law - Relevance to Australian domestic law - International law of human rights - International Covenant on Civil and Political Rights - Status of unincorporated treaty - Influence of Covenant on development of common law and in the resolution of ambiguous legislation - Duty of Australian courts to obey and give effect to clear domestic law applicable to the case - Inadmissibility of process in the High Court seeking declaration and orders based on alleged effect of Covenant. Constitution, covering cl 5, ss 75(i) and (iv), 76(i). Judiciary Act 1903 (Cth), ss 35(1) and (2). High Court Rules, O 58, r 4(3).

Rural Press Limited v Australian Competition and Consumer Commission Australian Competition and Consumer Commission v Rural Press Limited Trade practices - Exclusionary provisions - Arrangement between regional newspaper publishers providing that one would withdraw newspaper services from the prime circulation area of the other - Whether provision had purpose of preventing, restricting or limiting supply of services to, or acquisition of services from, particular persons or classes of persons - Trade Practices Act 1974 (Cth), ss 4D, 45(2)(a)(i), 45(2)(b)(i). Trade practices - Where regional newspaper publisher threatened to circulate new newspaper in prime circulation area of a second regional newspaper publisher, unless second publisher ceased circulation of its own newspaper in first publisher's prime circulation area - Where second publisher subsequently ceased circulation of newspaper in first publisher's prime circulation area - Whether an "arrangement" - Whether arrangement had purpose or effect of substantially lessening competition - Trade Practices Act 1974 (Cth), ss 45(2)(a)(ii), 45(2)(b)(ii). Trade practices - Accessorial liability - Whether officers of newspaper publisher were "involved in" publisher's contraventions - Whether officers participated in or assented to contraventions with actual knowledge of essential elements constituting the contraventions - Trade Practices Act 1974 (Cth), ss 75B(1), 76(1), 80(1). Trade practices - Misuse of market power - Whether publisher took advantage of market power in its prime circulation area in threatening to enter prime circulation area of second publisher - Trade Practices Act 1974 (Cth), s 46(1). Practice and procedure - Orders - Form of declarations. Words and phrases - "arrangement", "involved in", "take advantage of", "purpose", "particular persons or classes of persons". Trade Practices Act 1974 (Cth), ss 4D, 45(2)(a)(i), 45(2)(a)(ii), 45(2)(b)(i), 45(2)(b)(ii), 46(1), 75B(1), 76(1), 80(1).

EVIDENCE – Expert evidence – Application for directions permitting plaintiff to obtain and produce expert evidence – examination of issues - where evidence on which expert would report is not relevant to true issue before the court – directions refused - DISCOVERY – Oppression suit - ordinarily appropriate to make order for discovery in oppression suit – where relationship between proposed categories and issues not apparent on face of categories – categories should ordinarily be expressed in terms of issues in proceedings - orders for discovery made only in respect of disputed allegations in pleadings

Criminal law – Appeal against conviction – Jury misdirection – Appellant convicted of two counts of "culpable driving causing death" contrary to s 318(1) of the Crimes Act 1958 (Vic) ("the Act") – Jury had power under the Act to return an alternative verdict of "dangerous driving causing death" contrary to s 319(1) if satisfied that accused not guilty of offence charged under s 318 – Trial judge directed jury that dangerous driving established by proof accused drove in way that "significantly increased the risk of harming others" and that Crown did not have to show driving was "deserving of criminal punishment" – Whether trial judge misdirected jury – Whether R v De Montero (2009) 25 VR 694 should be followed – Whether departure from trial according to law or miscarriage of justice. Words and phrases – "culpable driving causing death", "deserving of criminal punishment", "dangerous driving causing death". Crimes Act 1958 (Vic), ss 318, 319, 422A(1).

Administrative law – Judicial review – Excess or want of jurisdiction – Appellant commenced proceedings in Industrial Relations Commission of South Australia ("Commission") – Commission had jurisdiction with respect to "industrial disputes" which meant a dispute about an "industrial matter" as defined by Fair Work Act 1994 (SA) ("Act") – Commission determined that it lacked jurisdiction because there was no industrial dispute – Full Court of Supreme Court of South Australia dismissed summons for judicial review because s 206 of Act excluded review except for "excess or want of jurisdiction", which phrase it interpreted as excluding failure or refusal to exercise jurisdiction – Whether Commission had duty to determine jurisdictional fact of existence of industrial dispute – Whether s 206 of Act precluded mandamus but not prohibition and certiorari – Whether "excess or want of jurisdiction" in s 206 of Act included jurisdictional error or only some species of jurisdictional error. Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – State Supreme Courts – Defining characteristics of State Supreme Courts – Application of Kirk v Industrial Court (NSW) (2010) 239 CLR 531 in determining characteristics of State Supreme Courts identified in Ch III of Constitution – Whether power to issue mandamus to inferior courts and to tribunals a defining feature of State Supreme Courts – Whether s 206 of Act limited State Supreme Court jurisdiction to exercise judicial review for jurisdictional error. Words and phrases – "excess or want of jurisdiction", "judicial review", "jurisdiction", "jurisdictional error", "jurisdictional fact", "mandamus". Constitution, Ch III. Fair Work Act 1994 (SA), ss 26, 206. Industrial Conciliation and Arbitration Act 1972 (SA), s 95. Supreme Court Act 1935 (SA), s 17(2).

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Jury misdirection – Respondent convicted of making document "connected with ... assistance in a terrorist act", knowing of that connection, contrary to s 101.5(1) of Criminal Code (Cth) ("Code") – Trial judge directed jury that words "connected with ... assistance in a terrorist act" had no special or technical meaning – Whether trial judge misdirected jury. Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Exception to liability – Evidential burden – Section 101.5(5) of Code created exception to liability under s 101.5(1) if making of document "not intended to facilitate ... assistance in a terrorist act" – Respondent bore evidential burden under s 101.5(5), as defined in s 13.3(6) – Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in a terrorist act. Words and phrases – "connected with", "evidential burden". Criminal Code (Cth), ss 13.3, 101.5.

Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co-accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co-accused made certain admissions in police interview and to witnesses ("out-of-court confessional statements") – Consideration of Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule. Words and phrases – "admissions", "against penal interest", "hearsay rule", "out-of-court confessional statements".

Extradition – First appellant determined to surrender first respondent for extradition to Republic of Hungary pursuant to s 22(2) of Extradition Act 1988 (Cth) ("Act") for qualifying extradition offence of "war crime" – "War crime" not offence under Hungarian law at time of acts said to constitute offence – Act applies in relation to Hungary subject to Treaty on Extradition between Australia and the Republic of Hungary ("Treaty") – Art 2.5(a) of Treaty states that extradition may be granted irrespective of when relevant offence committed, provided it was offence in Requesting State at time of acts or omissions constituting offence – Whether offence for which extradition sought must be offence in Requesting State at time of acts or omissions constituting offence. Words and phrases – "offence in relation to which extradition is sought", "qualifying extradition offence", "surrender determination". Extradition Act 1988 (Cth), ss 11, 22. Extradition (Republic of Hungary) Regulations (Cth). Treaty on Extradition between Australia and the Republic of Hungary, Art 2.5(a).

Criminal law – Manslaughter by criminal negligence – Appellant convicted of manslaughter and unlawfully doing grievous bodily harm – Section 288 of Criminal Code (Q) imposes duty on persons who undertake to administer surgical treatment to have reasonable skill and use reasonable care – Prosecution alleged appellant breached his duty by deciding to operate on certain patients – Whether "surgical treatment" in s 288 encompasses decision to operate. Criminal law – Miscarriage of justice – Change in prosecution case at late point in trial – Prejudicial evidence admitted – Whether test of criminal negligence is objective – Whether evidence remained relevant on revised case – Significance of tactical decisions by defence counsel. Criminal law – Appeal – Application of "proviso" – Irrelevant and prejudicial evidence admitted – Whether no substantial miscarriage of justice actually occurred – Consideration of Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365 and concept of fundamental error. Words and phrases – "fundamental error", "miscarriage of justice", "moral culpability", "no substantial miscarriage of justice has actually occurred", "proviso", "surgical treatment". Criminal Code (Q), ss 282, 288-289, 303, 320, 668E(1)-(1A).

Andrews v Australia and New Zealand Banking Group Limited Banker and customer – Penalty doctrine – Consumer and commercial credit card accounts – Honour fee – Dishonour fee – Late payment fee – Non-payment fee – Over limit fee – Whether those fees penalties – Whether penalty doctrine limited to circumstances where there is breach of contract – Significance of law respecting penal bonds – Grounds for equitable intervention – Whether penalty doctrine now wholly a rule of common law. Equity – Doctrines and remedies – Relief against penalties – Significance of law respecting penal bonds – Whether relief available only in cases of breach of contract – Whether penalty doctrine now wholly a rule of common law. Words and phrases – "bond", "condition", "dishonour fee", "exception fees", "honour fee", "penalty". Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 5, 21, 24(1A). Judiciary Act 1903 (Cth), s 80. Judicature Act 1873 (UK), s 24(11).

POSSESSION OF LAND - Mortgagor in default - No appearance by mortgagor - Mortgagor bankrupt - Judgment for monies and costs not sought - Trustee indicates no wish to intervene - Claim for possession sustained

PROCEDURE – Discovery – Discovery by category

Plaintiff S10/2011 v Minister for Immigration and Citizenship Kaur v Minister for Immigration and Citizenship Plaintiff S49/2011 v Minister for Immigration and Citizenship Plaintiff S51/2011 v Minister for Immigration and Citizenship Administrative law – Procedural fairness – Migration – Refugees – Review by Refugee Review Tribunal and Migration Review Tribunal – Ministerial discretion – Migration Act 1958 (Cth) confers powers upon Minister to dispense with statutory requirements for visa if "in the public interest to do so" – Dispensing powers must be exercised personally and are non-compellable – Plaintiffs refused visas and unsuccessfully sought merits review of those refusals – Plaintiffs requested Minister to consider exercising and to exercise dispensing powers – Requests by three plaintiffs refused by departmental officers pursuant to guidelines issued by Minister not forwarded to Minister – Request by one plaintiff refused by Minister – Whether statutory provisions conferring dispensing powers apt to affect adversely the sufficient interest of a party seeking exercise of those powers – Whether statutory provisions conferring dispensing powers excluded any obligation of Minister to accord plaintiffs procedural fairness. Words and phrases – "dispensing provision", "guidelines", "legitimate expectation", "procedural fairness", "public interest", "sufficient interest". Migration Act 1958 (Cth), ss 48B, 195A, 351, 417.

PRACTICE - whether to order mediation - question of timing - whether sufficient information available to parties - no question of principle.

Restitution – Payments made under mistake of fact – Defence of change of position – Where appellant made mistaken payments to respondents as result of fraud committed by third party – Where respondents applied payments to discharge third party's debts, ceased pursuing recovery of debts and continued to trade with third party – Whether retention of monies inequitable in all the circumstances. Words and phrases – "change of position", "detriment", "detrimental reliance", "disenrichment", "unjust enrichment".

Constitutional law (Cth) – Powers of Commonwealth Parliament – Commonwealth entered into funding agreement with private service provider for provision of chaplaincy services at state school – Funding agreement made under National School Chaplaincy and Student Welfare Program – Commonwealth paid money under funding agreement – Section 32B of Financial Management and Accountability Act 1997 (Cth) empowered Commonwealth to make, vary or administer arrangements, for purposes of specified programs, under which public money payable by Commonwealth – National School Chaplaincy and Student Welfare Program specified program for purposes of s 32B – Whether s 32B in its relevant operation supported by s 51(xx), (xxiiiA) or (xxxix) of Constitution. Constitutional law (Cth) – Executive power of Commonwealth – Executive power to spend and contract – Whether entry into and expenditure under funding agreement supported by executive power of Commonwealth. Constitutional law (Cth) – Reopening of previous decisions. Words and phrases – "appropriation", "benefits to students", "executive power of the Commonwealth". Constitution, ss 51(xx), 51(xxiiiA), 51(xxxix), 61. Acts Interpretation Act 1901 (Cth), s 15A. Financial Framework Legislation Amendment Act (No 3) 2012 (Cth), Sched 1, item 9. Financial Management and Accountability Act 1997 (Cth), s 32B. Financial Management and Accountability Regulations 1997 (Cth), Pt 5AA, Sched 1

Plaintiff S297/2013 v Minister for Immigration and Border Protection Migration – Refugees – Protection visas – Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided – Minister signed instrument limiting number of protection visas granted in current financial year – Plaintiff's protection visa application not determined by Minister pursuant to that determination – Whether power under s 85 extended to protection visas – Whether instrument valid. Words and phrases – "harmonious construction", "implied repeal", "leading provision", "legislative instrument", "subordinate provision". Legislative Instruments Act 2003 (Cth), s 56. Migration Act 1958 (Cth), ss 36, 39, 65, 65A, 84, subdiv

Migration – Refugees – Protection visas – Power of Minister under s 85 of Migration Act 1958 (Cth) to determine maximum number of visas of specified class granted in specified financial year, in circumstances where s 65A imposed time limit in which protection visa applications must be decided – Minister signed instrument limiting number of protection visas granted in current financial year – Plaintiff's protection visa application not determined by Minister pursuant to that determination – Whether power under s 85 extended to protection visas – Whether instrument valid. Words and phrases – "harmonious construction", "implied repeal", "leading provision", "legislative instrument", "subordinate provision". Legislative Instruments Act 2003 (Cth), s 56. Migration Act 1958 (Cth), ss 36, 39, 65, 65A, 84, subdiv

Industrial law (Cth) – General protections – Adverse action – Section 346 of Fair Work Act 2009 (Cth) prohibits employer from taking adverse action against employee because employee "is ... an officer or member of an industrial association" or "engages ... in industrial activity" – Section 361 creates presumption that adverse action taken for prohibited reason unless employer proves otherwise – First respondent was employee of appellant and officer of second respondent – Second respondent was industrial association – First respondent engaged in industrial activity – Chief Executive Officer of appellant took adverse action against first respondent – Chief Executive Officer gave evidence at trial that adverse action taken for innocent reasons and not for prohibited reasons – Trial judge accepted that evidence – Whether adverse action taken for prohibited reason. Words and phrases – "because", "substantial and operative factor". Fair Work Act 2009 (Cth), ss 342, 346, 360, 361.

Migration – Refugees – Application for protection visa – Whether Australia had protection obligations towards appellant – Exclusion from Refugees Convention – Art 1F(b) – Serious reasons for considering that appellant had committed serious non-political crimes prior to admission – Protection visa refused on basis of Art 1F(b) – Review by Administrative Appeals Tribunal – Whether open to Tribunal to apply exclusion – Whether Tribunal fell into jurisdictional error – Whether Tribunal misconstrued test – Whether evidence logically probative of serious reasons for considering appellant had committed serious non-political crimes. Administrative law – Judicial review – Grounds of review – Jurisdictional error – Refugees Convention – Art 1F(b) – Whether Tribunal fell into jurisdictional error – Whether Tribunal misconstrued test – Whether evidence logically probative of serious reasons for considering appellant had committed serious non-political crimes. Words and phrases – "jurisdictional error", "serious non-political crime", "serious reasons for considering", "standard of proof". Migration Act 1958 (Cth), s 36(2)(a). Convention relating to the Status of Refugees (1951), Art 1F(b).

Plaintiff M150 of 2013 v Minister for Immigration and Border Protection; Plaintiff S297/2013 v Minister for Immigration and Border Protection Practice and procedure – Court ordered writs of mandamus issue directing Minister to consider and determine plaintiffs' protection visa applications – Minister sought extension of return date to consider criterion for grant of protection visa in cl 866.226 of Sched 2 to Migration Regulations 1994 (Cth). High Court Rules 2004 (Cth), rr 25.08.3, 25.08.4. Migration Regulations 1994 (Cth), Sched 2, cl 866.226.

Contract – Employment contract – Implied terms – Employee's position made redundant – Employer's conduct denied employee opportunity of redeployment – Whether term of mutual trust and confidence should be implied by law in employment contracts. Words and phrases – "duty of cooperation", "employment contract", "employment relationship", "necessity", "relational contract", "term of mutual trust and confidence", "terms implied by law", "terms implied in fact".

Criminal law – Appeal – Application to extend time within which to apply for leave to appeal against sentence – Principles to be applied in determining whether extension of time should be granted – Whether applicant required to demonstrate that refusal of application would occasion substantial injustice – Relevance of principle of finality – Relevance of prospect of success should extension be granted – Whether extension of time should be granted. Criminal law – Appeal – Appeal against sentence – Appellate court's power to re-exercise sentencing discretion – Where error of the kind identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 established – Whether appellate court must form positive opinion that some other sentence is warranted in law before intervening. Words and phrases – "Abdul test", "principle of finality", "substantial injustice", "warranted in law". Criminal Appeal Act 1912 (NSW), ss 6(3), 10(1)(b). Criminal Appeal Rules (NSW), rr 3A, 3

Corporations – Managed investment schemes – Role of responsible entity under Ch 5C of Corporations Act 2001 (Cth) – Construction of scheme constitution – Where responsible entity granted all powers "legally possible" for person or corporation to have – Where responsible entity made in specie distribution of scheme property to unit holders – Whether distribution beyond responsible entity's powers under scheme constitution. Trusts – Managed investment schemes – Responsible entity as statutory trustee –Whether general principles of law relating to trusts apply to responsible entity's functions under scheme constitution. Practice and procedure – Federal Court of Australia – Where Federal Court made declaration that responsible entity had no power under scheme constitution to distribute scheme property to unit holders – Where unit holders not represented in appeal – Whether Federal Court erred in exercising discretion to make declaration. Words and phrases – "in specie distribution", "managed investment scheme", "responsible entity", "return of capital". Corporations Act 2001 (Cth), ss 9, 124, 231, 601FB(1), 601FC, Ch 5C. Federal Court of Australia Act 1976 (Cth), ss 21–23. Trusts Act 1973 (Q), s 33(1)(l).

Hunter and New England Local Health District v McKenna Hunter and New England Local Health District v Simon Negligence – Duty of care – Statutory duties – Mental Health Act 1990 (NSW) provided for admission and detention of mentally ill persons in hospital – Act prohibited detention or continuation of detention of mentally ill person in hospital unless medical superintendent formed opinion that no other care of less restrictive kind appropriate and reasonably available – Alleged negligence of hospital and medical staff in discharging mentally ill person – Whether hospital and medical staff owed common law duty of care to protect other persons against harm caused by mentally ill person upon discharge – Whether duties under Act inconsistent with common law duty of care. Words and phrases – "duty of care", "inconsistent duties", "mentally ill person". Mental Health Act 1990 (NSW), Ch 4, Pt 2, Div 1.

Liftronic Pty Limited v Unver Negligence - Contributory negligence - Apportionment of responsibility - Whether Court of Appeal erred in setting aside jury's apportionment of responsibility - Whether jury's apportionment reasonable. Employer and employee - Negligence - Contributory negligence - Employer's duty to provide safe system and place of work - Conduct amounting to contributory negligence by employee - Respective roles of jury giving verdict at trial and appellate court deciding appeal against jury's apportionment. Practice and procedure - When parties bound by conduct of case. Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10(1).

PROCEDURE - Miscellaneous Procedural Matters - Proceedings as to whether defendant divorced under Pakistani law - Late application to amend defence to put in issue matters raised by an amended statement of claim - Plaintiff claimed prejudice from withdrawal of implied consession by failure to plead to amendment in that areas of investigation in Pakistan had not been followed and should be followed - Whether leave should be granted in likelihood of a need to vacate the trial

APPEAL – re-opening of appeal – setting aside of order as to costs – new issue not raised at trial – raising of points previously abandoned – finality in litigation – no explanation of legitimacy of change of course – prejudice – respondent should not be required to assess how conduct of appeal may have been different

WORKERS COMPENSATION - appeal against decision of Workers Compensation Commission - Deputy President's refusal of leave to adduce fresh evidence - refusal within Deputy President's discretion - evidence of workplace injury - employment not a substantial contributing factor - no appealable error demonstrated

DAMAGES - Dust Diseases Tribunal - mesothelioma - general damages - whether trial judge had regard to anger and distress that was not "parasitic" to injury - whether anger was part of response to the disease. - DAMAGES - general damages - mental trauma - pain and suffering - anger and outrage.

TORTS- Occupiers liability- Respondents as occupiers of building site- Appellant worker suffered serious injuries walking down a stairwell carrying a heavy trolley- At first instance focus on safety of stairs- Primary judge finds no fault with stairs- Pleadings faintly suggest that respondents are negligent in not providing lift services and co-ordinating movements of materials- Primary judge disposing of such allegation in few words- Held no error but even had that case been fully considered, there was insufficient material to demonstrate the liability of the respondents.

WORKERS COMPENSATION – appeal from decision of arbitrator – appeal must be allowed unless error of arbitrator could not possibly have affected the result - EVIDENCE – workers compensation - subpoena for production – employer entitled to assess financial records of claimant

Challenge to credit based fact-finding - implied actual authority to enter loan agreement

CONTRACTS - specific performance - where memorandum setting agreement of mediation contained unfinalised parts - whether memorandum an enforceable agreement or merely an agreement to agree - construction of clauses of agreement to mediate as to means of reaching settlement - MEDIATION - where memorandum setting agreement of mediation contained unfinalised parts - whether memorandum an enforceable agreement or merely an agreement to agree - construction of clauses of agreement to mediate as to means of reaching settlement

DAMAGES - appeal against quantum of damages - challenge to trial judge's findings on impairment of earning capacity - EVIDENCE - witnesses - corroboration - plaintiff's contemporaneous statements

TORT - Manufacturer - Statutory Liability for supply of defective goods - Supply - TRADE PRACTICES - Consumer Protection - Liability of Manufacturer for supply of defective goods - Supply

PRACTICE AND PROCEDURE – stay application – multiple appellants – personal and corporate – evidence of impecuniosity of corporate appellant only – evidence directors had assets sufficient to secure judgment – no offers to preserve status quo by personal appellants or by directors of corporate appellant – stay refused.

DEFAMATION - Contextual imputations - Jury entitled to read between lines - Contextual imputations may be conveyed between the lines in addition to express imputations

CRIMINAL PROCEDURE - Summary proceedings - Withdrawal of charge by prosecutor - Resulting dismissal of charge - No right in accused to certificate of dismissal which would bar later proceedings on the same charge

NEGLIGENCE - Employer and Employee - Employee's appeal on damages conceded - System of work requiring workers to dismount unaided from conveyor belt at height of 550 millimetres - Whether safe system of work - Whether risk of ankle injury by contact with angle iron upon dismounting foreseeable - Whether contributory negligence on part of appellant - Cross appeal by employer dismissed