Cases and authorities

Contract - Negligence - Limitation of liability - Construction and interpretation - Contract for the international carriage of goods by air - Goods damaged by negligence of carrier - Goods damaged while in transit by road outside perimeter of airport of destination - Limitation of liability clause in air waybill - Whether limitation clause in air waybill applies to carriage by road. Contract - Air waybill for international carriage of goods by air - Whether limitation clause in an air waybill applies to ground transport beyond the perimeter of the airport of destination - Services incidental to such air carriage - Whether limitation of liability must be, and was, expressed clearly to attract restriction on recovery for admitted negligence in ground transport. Carriers - Carriage by air - Warsaw Convention, Arts 18 and 22 - Guadalajara Convention, Art 2 - Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 11 - Whether statutory limitation of liability applies to goods damaged outside perimeter of airport. Words and phrases - "carriage", "international carriage", "actual carrier", "contracting carrier", "air carriage", "other services incidental to such air carriage". Civil Aviation (Carriers' Liability) Act 1959 (Cth), ss 11(1), 25A, Sched 2. Customs Act 1901 (Cth), ss 40AA, 71E(1), 71(2)(a). Convention for the Unification of Certain Rules Relating to International Carriage by Air as amended at The Hague 1955 (Warsaw Convention), Arts 1, 18, 22, 31. Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier, Guadalajara 1961 (Guadalajara Convention), Art 2. McHUGH ACJ. The question in this appeal is whether a limitation of liability clause in a standard form air waybill applies to the road transport of cargo to a bonded warehouse located outside the perimeter of Melbourne Airport. If the clause is applicable, the respondents' liability for damage that occurred to the appellant's goods is reduced from almost A$1.7 million inclusive of interest to US$74,680 plus interest. The specific issues raised by the appeal are: 1. Does the limitation clause in the standard form air waybill concerning the goods apply in circumstances where the Warsaw Convention ts' liability for damage that occurred to the appellant's goods is reduced from almost A$1.7 million inclusive of interest to US$74,680 plus interest. [1] as amended at The Hague 1955[2] ("the Amended Convention") applies to the carriage in question? 2. Does the reference to "carriage" in the limitation clause of the air waybill: (a) mean "carriage by air", as defined in Art 18 of the Amended Convention; and (b) include other services or "other services incidental to such air carriage"? 3. Did the air waybill continue to have contractual force after the goods were delivered to the nominated airport of destination? Statement of the case Siemens Ltd ("Siemens") sued Schenker International (Australia) Pty Ltd ("Schenker Australia") and Schenker International Deutschland GmbH ("Schenker Germany") for damages in the New South Wales Supreme Court as the result of damage to goods that were to be delivered by the Schenker companies to Siemens. The Schenker companies did not dispute that, as bailees of the goods, they were liable for the damage. However, they claimed the benefit of a limitation of liability provision in Art 22 of the Amended Convention or, in the alternative, cl 4 of the standard form air waybill used by the parties. In the Supreme Court, Barrett J held[3] that, while the Amended Convention applied to the carriage by air, the limitation provision did not apply to limit the compensation payable because the damage to the goods occurred outside the airport boundary. His Honour also held that cl 4 of the air waybill did not apply because that limitation only related to carriage by air where the Amended Convention did not apply[4]. His Honour held that, in any event, the terms of the air waybill did not extend to that part of the journey consisting of transportation from Melbourne Airport (Tullamarine) to Schenker Australia's warehouse[5]. The Schenker companies appealed to the New South Wales Court of Appeal which allowed the appeal. The Court of Appeal (Meagher, Sheller and Stein JJA) held that, while the Amended Convention did not apply beyond the boundary of the airport[6], cl 4 of the air waybill applied to the road carriage[7]. Subsequently, this Court granted Siemens special leave to appeal against the decision of the Court of Appeal. Factual background and decisions below In late 1996, the Siemens group of companies ("Siemens Group") and the Schenker group of companies ("Schenker Group") had an overarching agreement (the "Richtungsverkehr" - literally "Direct Traffic") for the transportation of goods from Germany to Australia. Under that agreement, Schenker Germany undertook to deliver a consignment of telecommunications equipment from the Berlin factory of Siemens AG ("Siemens Germany") to Schenker Australia's bonded warehouse in Melbourne. Siemens had purchased the equipment from Siemens Germany on an FCA ("free to carrier") basis with the result that both property and risk passed at the FCA point. The FCA point in this case was within Tegel Airport in Berlin. The common understanding of the parties was that Schenker Germany and Schenker Australia would together provide all services required to transport the goods to Siemens. Schenker Germany's responsibility commenced at the German airport and ended upon unloading of the aircraft in Australia. Schenker Australia's responsibility commenced at the aircraft unloading point and continued to its bonded warehouse. Schenker Germany arranged for the equipment to be transported by road from Siemens Germany's factory to Tegel Airport in Berlin. It then arranged for Singapore Airlines to carry the goods by air from Tegel Airport[8] to Melbourne Airport. To this end Singapore Airlines issued a master air waybill ("the Master Air Waybill") in respect of the cargo in the standard form of the International Air Transport Association ("IATA")[9]. Schenker Germany issued a house air waybill ("the air waybill") in the standard form of the Fédération Internationale des Associations de Transitaires et Assimilés (International Federation of Freight Forwarders Associations) ("FIATA") for the transportation from Tegel Airport to Melbourne Airport. The air waybill provided for limited liability under the Amended Convention or, if the Convention did not apply, under cl 4 of the waybill. Under the Richtungsverkehr, Schenker Australia was required to collect the goods at Melbourne Airport and transport them by truck for a distance of about four kilometres to the bonded warehouse, which was located outside the boundary of Melbourne Airport. The description of the consignment under the Master Air Waybill was "consolidation cargo as per att[ached] cargo manifest". Delivery of that cargo to Siemens could only be given from the bonded warehouse after the consignment had been "deconsolidated", which involved breaking up the consignment so as to identify the individual consignees, and the cargo had obtained customs clearance. At least by April 1991 Schenker Australia had received permission from the Australian Customs Service to remove consolidations of undelivered cargo from airline freight terminals within Melbourne Airport to a customs approved warehouse, which included the bonded warehouse. Customs clearance would then be obtained after the cargo had been deconsolidated. However, Schenker Australia was not permitted to deliver the deconsolidated cargo until the clearance had been given. On or around 13 December 1996, Schenker Australia collected the equipment from Melbourne Airport. On 15 December 1996, shortly after the truck left the airport, some of the equipment fell from the truck as a result of the negligence of the truck driver and was damaged. Regimes governing transportation of the goods The transportation of the equipment was subject to several complementary regimes which applied to different stages of the journey. Each regime had a separate set of rules relating to liability for damage to the goods. These regimes consisted of the Richtungsverkehr, the Amended Convention, the Guadalajara Convention[10], the Singapore Airlines Master Air Waybill and the air waybill. The Richtungsverkehr The commercial relationship between the Siemens Group and the Schenker Group extended back to the 19th century, at least at the level of the German parent companies. In about 1972, the parties formalised the relationship by appointing the Schenker Group as "Richtungsverkehr Spediteur Luftfracht" (roughly translated, "one-way specific airfreight forwarder") to Australia. This was an exclusive appointment of the Schenker Group as a specific freight forwarder for the Siemens Group's airfreight forwarding requirements on the Germany to Australia route. An important reason for the appointment was the ability of the Schenker Group to receive consolidated cargo for deconsolidation and temporary storage, pending release from the Australian Customs Service. Until 1986, Schenker Australia occupied a warehouse within the Melbourne Airport boundary. In 1986, it moved its warehouse out of the airport to accommodate its increased business. The effect of the Richtungsverkehr was that the Siemens Group had a standing arrangement under which it could contact the Schenker Group and have cargo transported on agreed terms and at agreed rates. In 1991, negotiations between the parent companies in Germany, Siemens Germany and Schenker Germany, produced a new agreed basis for the carriage of goods between Germany and Australia. Although the Australian subsidiaries, Siemens and Schenker Australia, were not involved in the discussions, they acquiesced in the results and were parties to the resultant contracts, which were intended to bind all four companies with respect to the various roles that they were to play. A letter from Schenker Australia to Siemens, dated 5 May 1994, described the essence of the Richtungsverkehr as encompassing "a variety of services from the origin city in Germany to hand-over of the goods from Schenker stores in Australia". Further evidence of the scope of the Richtungsverkehr is contained in a letter from Schenker Germany to Siemens Germany, dated 17 January 1991, which states that the Richtungsverkehr involved costs arising from: "Receipt, handling and despatch. Transport to Frankfurt. Consolidation to Siemens 'Richtungsverkehr' including intensive separate documentation. Open freight account. Airfreight costs Frankfurt-Melbourne. Transit to customs controlled warehouse. Break bulk, physical and documentation. Information flow. Hand over in Australia to customs agent. Monthly status report, both to Siemens Melbourne and 'Vertrieb' in Germany. Interest loss through delay in payment." "Break bulk" refers to the process of deconsolidation. This correspondence shows that, under the Richtungsverkehr, the bonded warehouse was to be the end point of the transportation. The evidence does not reveal the exact legal nature and operation of the Richtungsverkehr. However, I see no reason to doubt the correctness of the following statement by Barrett J[11]: "It must be accepted that the 'Richtungsverkehr' arrangements, as in force from time-to-time, had contractual effect among the parties in relation to each individual consignment and its transportation according to the roles they played in that consignment and transportation. It must also be accepted that when, in accordance with practice, a house air waybill was issued in respect of particular transportation, its terms supplemented those of the standing arrangement." (emphasis added) There was no limitation of liability provision in the Richtungsverkehr. At the trial, none of the parties disputed that the provisions of the air waybill operated "as a part of or adjunct to the overall contract"[12]. The trial judge's findings in this regard were not challenged in the Court of Appeal. The Amended Convention The Amended Convention offers a scheme of presumptive air carrier liability for damaged goods[13] combined with a strict monetary limitation on this liability[14]. The Amended Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward[15]. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking[16]. For the purposes of the Amended Convention, the expression "international carriage" means[17]: "any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a break in the carriage or a transhipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for the purposes of this Convention." By virtue of s 11(1) of the Civil Aviation (Carriers' Liability) Act 1959 (Cth), the Amended Convention has the force of law in Australia. Australia and Germany are both High Contracting Parties[18]. The carriage in question was "international carriage" under the Amended Convention. The parties contemplated that the carriage would be substantially performed by aircraft. It was therefore subject to the rules of the Amended Convention. Article 18 of the Amended Convention imposes liability on the carrier. It provides: "1. The carrier is liable for damages [sic] sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air. 2. The carriage by air within the meaning of the preceding paragraph comprises the period during which the baggage or cargo is in charge of the carrier, whether in an aerodrome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. 3. The period of the carriage by air does not extend to any carriage by land, by sea or by river performed outside an aerodrome. If, however, such a carriage takes place in the performance of a contract for carriage by air, for the purpose of loading, delivery or trans-shipment, any damage is presumed, subject to proof to the contrary, to have been the result of an event which took place during the carriage by air." The carriage to which the Amended Convention applies ends, therefore, when the cargo ceases to be in the charge of the carrier or when it ceases to be within an aerodrome, whichever is the earlier. In this case, the presumption that the damage occurred during carriage by air was rebutted because the Schenker companies established that the damage occurred outside the Melbourne Airport perimeter[19]. Article 22 limits the amount recoverable under Art 18. Article 22.2(a) provides: "In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that the sum is greater than the passenger's or consignor's actual interest in delivery at destination." Article 31 provides that, where carriage is performed partly by air and partly by another mode of carriage, the provisions of the Amended Convention apply only to the carriage by air[20], where the carriage by air falls within the terms of Art 1. The Guadalajara Convention During argument in this Court, an issue arose as to whether Schenker Germany was an air carrier for the purposes of the Amended Convention. The Guadalajara Convention, which supplements the Warsaw Convention regime in relation to international carriage by air, differentiates between a "contracting carrier" and an "actual carrier". In this case, Singapore Airlines was the actual carrier of the equipment. Schenker Germany was the contracting carrier who made the agreement for carriage with the consignor and performed part of the carriage contemplated by that agreement. Article 2 of the Guadalajara Convention confirms the application of the Amended Convention to Schenker Germany as the contracting carrier. Both Australia and Germany are parties to the Guadalajara Convention. The Convention had the force of law in both Germany and Australia[21] at the time of the subject carriage. The air waybills The Amended Convention expressly provides for the use of air waybills. In this case, two air waybills operated in relation to the transportation of the equipment from Germany to Australia, the Master Air Waybill issued by Singapore Airlines and the air waybill issued by Schenker Germany. Air waybills are prima facie evidence of the conclusion of the contract, the receipt of the cargo and the conditions of carriage by air of goods[22] from the place of departure to the place of destination. Master air waybills are typically issued by a carrier in respect of a consolidated consignment, with a cargo manifest detailing each consignment. House air waybills are issued by the freight forwarder to each shipper in respect of that shipper's consignment. In the absence of an air waybill, a carrier is not entitled to avail itself of the limitation of liability under the Amended Convention[23]. The Master Air Waybill The first of the waybills, the Singapore Airlines Master Air Waybill, was in the IATA standard form. Although Singapore Airlines' liability under the Master Air Waybill is not in issue in these proceedings, the context in which the Master Air Waybill was developed is instructive in relation to the construction of the air waybill. The IATA air waybill is a standard form document. It contains a set of General Conditions of Carriage. These are modelled on the Warsaw Convention. The conditions were developed - originally by the International Air Traffic Association - in order to provide uniformity of liability and conditions for all carriage by air[24]. The IATA air waybill also provides a parallel regime for carriage by air which is not covered by the Warsaw Convention regime (including the Amended Convention)[25]. For example, the IATA air waybill may be used in both international and non-international carriage. As the authors of Air Law note[26], the Warsaw Convention regime does not apply to carriage that falls outside the definition of "international carriage". In addition, the regime does not provide a comprehensive set of rules to govern all aspects of international carriage. Accordingly, in order to extend the area covered by uniform rules, the airlines that were members of the International Air Traffic Association agreed to introduce General Conditions of Carriage and uniform documents of carriage. The first set of agreed conditions and forms was adopted in 1931. Since 1945, IATA has continued this work. IATA members are obliged to use the standard form air waybill[27]. The IATA waybill is also used by non-members who participate in carriage involving IATA members or who merely wish to adopt the international standards set by IATA[28]. The Master Air Waybill in the present case named Singapore Airlines as the carrier, Schenker Germany as the shipper and Schenker Australia as the consignee. The airport of departure was given as "Frankfurt" and the airport of destination "Melbourne Tullamarine". The Master Air Waybill noted that the cargo was "consolidation cargo" and that it was "bond delivery approved", a reference to Schenker Australia having permission to transport the cargo to a bonded warehouse prior to customs clearance. The air waybill The second waybill, the air waybill issued by Schenker Germany, was in the FIATA standard form. The FIATA standard form air waybill is modelled on the IATA standard form air waybill. Like the IATA air waybill, the FIATA air waybill contains a set of "Conditions of Contract" on the reverse side of the document. These conditions adopt the same wording as the IATA form, although the FIATA waybill contains an additional note at the foot of the reverse side. Freight forwarders use the FIATA standard form air waybill when they act as a consolidator and assume the capacity of contracting carrier, or when they act as an agent of a named actual carrier. The air waybill named Schenker Germany as carrier, Siemens Germany as shipper and Siemens as consignee. The conditions shown on the reverse of the air waybill included the following: "1. As used in this contract 'carrier' means all air carriers that carry or undertake to carry the goods hereunder or perform any other services incidental to such air carriage ... 2.1 Carriage hereunder is subject to the rules relating to liability established by the Warsaw Convention unless such carriage is not 'international carriage' as defined by that Convention. 2.2 To the extent not in conflict with the foregoing, carriage hereunder and other services performed by each carrier are subject to: ... 4. Except as otherwise provided in carrier's tariffs or conditions of carriage, in carriage to which the Warsaw Convention does not apply carriers' liability shall not exceed USD 20.00 or the equivalent per kilogram of goods lost, damaged or delayed, unless a higher value is declared by the shipper and a supplementary charge paid. ... 7. Any exclusion or limitation of liability applicable to carrier shall apply to and be for the benefit of carrier's agents, servants and representatives and any person whose aircraft is used by carrier for carriage and its agent[s], servants and representatives. For purpose [sic] of this provision carrier acts herein as agent for all such persons. 8.1 Carrier undertakes to complete the carriage hereunder with reasonable dispatch. Carrier may use alternate carriers or aircraft and may without notice and with due regard to the interests of the shipper use other means of transportation. ... 11. Notice of arrival of goods will be given promptly to the consignee or to the person indicated on the face hereof as the person to be notified. On arrival of the goods at the place of destination, subject to the acceptance of other instructions from the shipper prior to arrival of the goods at the place of destination, delivery will be made to, or in accordance with the instructions of the consignee." The additional note at the foot of the reverse side of the document reads: "WHEN USED AS AN AIR WAYBILL ISSUED BY A FORWARDER IN A CAPACITY AS CONTRACTING CARRIER FOR AIR TRANSPORTATION IT SHALL BE AGREED, THAT TRANSPORTATION TO THE AIRPORT OF DEPARTURE (AS SHOWN ON THE FACE HEREOF) DOES NOT CONSTITUTE PART OF THIS CONTRACT OF AIR CARRIAGE. AS FAR AS THE ISSUER OF THIS AIR WAYBILL TAKES OVER THE ARRANGEMENT OR PERFORMANCE OF SUCH SERVICES, THIS IS DONE UNDER A SEPARATE CONTRACT WHICH IS SUBJECT TO THE CONDITIONS OF NATIONAL FORWARDERS ASSOCIATIONS ONLY. WHERE SUCH CONDITIONS DO NOT EXIST, COMPANY'S CONDITIONS AND THE RESPECTIVE NATIONAL AIR TRANSPORT LEGISLATION APPLY." Schenker Germany as "carrier" under the air waybill is able to rely on the limitation clause. The trial judge found that Schenker Australia, in performing its part of the carriage, was performing a function as an agent, servant or representative of Schenker Germany[29]. This formed the basis of a finding by Sheller JA that Schenker Australia was entitled to the benefit of cl 4 by virtue of cl 7 of the waybill[30]. 1. Application of cl 4 of the air waybill In this case, the carriage in question was "international carriage" as defined by the Amended Convention. However, Barrett J found that the damage to the equipment did not occur "in an aerodrome" for the purposes of the Amended Convention[31]. Accordingly, the Convention's liability regime did not apply. After referring to the effect of cll 2.1 and 4 of the air waybill, his Honour said[32]: "The clear assumption in each of these provisions is that the carriage as a whole will or will not be within the [Amended] Convention's definition of 'international carriage' and that the carriage as a whole will or will not be carriage to which the Convention applies. No half measures are contemplated. The carriage is not regarded as consisting of segments, with some being 'international carriage' for the purposes of the Convention and others not, or with the Convention applying to some but not to others. It is all or nothing." (original emphasis) Accordingly, his Honour held that cl 4 of the air waybill did not apply unless the whole of the carriage was "carriage to which the Warsaw Convention does not apply". He concluded that, as the Amended Convention applied to the carriage in this case - although its liability regime extended only up to the point where the cargo crossed the boundary of the airport - cl 4 did not apply[33]. The Court of Appeal rejected Barrett J's reasoning concerning the operation of cl 2.1. Meagher JA said[34]: "His Honour read into these words an intention that the airway bill [sic] did not apply unless no part of the carriage was governed by the Warsaw Convention; if the Warsaw Convention did not apply to any part of the carriage, the airway bill [sic] did. I confess to being quite unable to understand this reasoning. In truth, the Schenker companies were transferring the cargo under two régimes: one covering the route from Berlin airport to Melbourne airport, one covering the route from [Siemens'] Berlin factory to [Schenker Australia's] Melbourne bondstore. If the latter, contractual, régime [the Richtungsverkehr] is different from the former, statutory, one, it still operates to the extent it can. It thus covers the short trip from Melbourne airport to the bondhouse." Sheller JA said that cl 2.1 was consistent with that part of the carriage to be performed under the air waybill being subject to the rules relating to liability established by the Amended Convention and part of it not being so subject because it was carriage outside an aerodrome[35]. His Honour[36] referred to a dictum of Lord Denning MR in Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd[37], where his Lordship said that cl 2.1 was "just another way of saying that the carriage is subject to the rules so far as the same are applicable." Siemens contends that, as Barrett J held, cl 4 has no application to carriage by air where the carriage is governed by the Amended Convention. It contends that the circumstances in which cl 4 operates are not predicated on a failure to limit liability pursuant to the provisions of the Amended Convention. Accordingly, in this case, as the Amended Convention did apply, cl 4 was inapplicable. The Schenker companies contend that the rules of the Amended Convention applied for the whole of the carriage contemplated but that the rules concerning liability only applied during the period of "carriage by air" as defined in Art 18. Because this period ceased when the goods were taken beyond the boundary of Melbourne Airport, the rules relating to liability had no application. They contend therefore that cl 4 of the air waybill operates to limit the liability of Schenker Germany. In my opinion, Barrett J correctly construed cll 2.1 and 4 of the air waybill. A combined reading of those clauses indicates that the liability regimes in the Amended Convention and the air waybill operate exclusively of each other. If the Amended Convention does not apply, cl 4 provides the relevant liability regime. Which liability regime applies is determined by reference to whether or not the carriage in question was "international carriage". It is erroneous to determine the applicability of the Amended Convention by reference to whether or not its liability provisions apply to the particular loss in question. The effect of cll 2.1 and 4 is as follows. Carriage under the air waybill is subject to the rules relating to liability in the Amended Convention unless such carriage is not "international carriage" as defined in the Amended Convention. "[C]arriage to which the [Amended] Convention does not apply" in cl 4 is, therefore, carriage which is not "international carriage". The reference to "international carriage" in cl 2.1 confirms that whether or not the carriage is "carriage to which the [Amended] Convention does not apply" in cl 4 is determined by reference to the criteria in Art 1 of the Amended Convention. Clause 4 does not refer to carriage to which "the liability provisions in" the Amended Convention do not apply. None of the cases relied on to support the reasoning of the Court of Appeal assists the Schenker companies. In one of them - Read-Rite Corporation v Burlington Air Express Ltd[38] - the Court of Appeals for the Ninth Circuit held that, where the loss to the goods occurs outside the airport, the Warsaw Convention does not apply. However, Read-Rite Corporation concerned the application of federal common law, not the construction of an air waybill. The Court did not consider the effect of clauses similar to cll 2.1 and 4. In another - Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd[39] - the issue was whether the limitation of liability provision in the IATA air waybill complied with requirements of Art 8(q)[40] of the Warsaw Convention. In that case, Lord Denning MR said that Art 8(q) is satisfied "if the statement says that the carriage is subject to the rules so far as the same are applicable to the carriage."[41] (original emphasis) His Lordship was referring to the fact that the carriage under the air waybill "cannot be subject to all the rules relating to liability established by the Convention: for some relate to goods, others to passengers, others to luggage."[42] (original emphasis) Danckwerts and Salmon LJJ both agreed with his Lordship. Samuel Montagu is not authority for the proposition put forward by the Court of Appeal in this case. Accordingly, the Court of Appeal erred in finding that cl 2.1 is consistent with part of the carriage to be performed under the air waybill being subject to the rules relating to liability established by the Amended Convention. As I have indicated, the carriage in this case was "international carriage" within the meaning of Art 1 of the Amended Convention. Accordingly, the provisions of that Convention apply. As the carriage was not "carriage to which the Warsaw Convention does not apply", cl 4 of the air waybill is inapplicable. The fact that the Amended Convention's liability provisions do not apply to the particular loss in question is beside the point. In these circumstances, it is strictly unnecessary to consider the remaining issues. Nevertheless, as they raise important points, and as the Court of Appeal has dealt with them - erroneously, as I think - it is proper to discuss them. 2. Meaning of "carriage" Barrett J held that by its terms the air waybill was confined to air carriage and did not purport to cover any land element, except where land transportation became a substitute for air carriage under cl 8[43]. His Honour said that in cl 8 "other means of transportation" stands in contrast to "alternate carriers or aircraft", thus indicating that "the principal and expected means is transportation by air."[44] His Honour found that the reference to "other services incidental to such air carriage" in the definition of "carrier" in cl 1 was confined to land elements such as loading, unloading, transhipment or other aspects directly related to transportation by air[45]. Barrett J also held that the fact that either the Amended Convention or the air waybill applies exclusively to the carriage indicates that the concept of "carriage" adopted by the air waybill is intended to correspond with that under the Amended Convention[46]. On appeal, Sheller JA noted that cl 4 refers to "carriage" - not "air carriage"[47] - and that the air waybill was not limited in its operation to carriage by air[48]. His Honour said[49]: "With due respect, it would seem to me that the definition of air carrier which includes one who undertakes to perform other services incidental to such air carriage suggests that air carriage includes the performance of services such as warehousing." The Court of Appeal held that the removal of the cargo from the airport to the bonded warehouse where delivery could be effected was a service "incidental to such air carriage"[50]. It also held that "carriage hereunder" could be read as applying to the carriage of goods by air and/or by other means[51]. Siemens contends that the Court of Appeal erred in construing "carriage" in cl 4 as having a meaning other than "carriage by air" as used in the Amended Convention. It contends that in cl 1 "air carriage" is differentiated from other services performed that are "incidental to such air carriage". Siemens submits that the reference to "carriage hereunder" in cl 2.1 is to carriage under the air waybill. It is more restricted than the carriage under the Richtungsverkehr. Siemens also contends that the transport of the goods to the bonded warehouse was not a service "incidental to such air carriage", as it was provided under the Richtungsverkehr, not the air waybill. It contends that services incidental to air carriage would include tasks such as loading and unloading the cargo at the airport, loading the cargo into and unloading the cargo from the aircraft and moving the cargo by truck around the aerodrome. The transportation of the equipment to the warehouse did not fall within such incidental service. The Schenker companies, in contrast, contend that cl 4 is concerned with "carriage" not "air carriage". They submit that the definition of "carrier" in cl 1 indicates that it at least extends to the performance of services that are incidental to the air carriage contracted for. This includes carriage by land performed outside an aerodrome in performance of the contract for carriage by air for the purpose of delivery. The Schenker companies contend that this interpretation is also supported by cl 8, under which the carrier may use "other means of transportation" to complete the carriage under the air waybill. Accordingly, they contend that "carriage hereunder" refers to the activities of carriage identified under the contract evidenced by the air waybill. "Carriage" is not defined in the air waybill. However, cl 1 defines "carrier" to mean "all air carriers that carry or undertake to carry the goods hereunder or perform any other services incidental to such air carriage". The references to "air carrier" and "such air carriage" in that clause indicate that the air waybill is intended to apply to air carriage. In cl 1 "air carriage" is differentiated from other services performed that are "incidental to such air carriage". Similar distinctions are made in cll 2.2 and 8.1 of the air waybill. Clause 7 provides that the limitation provisions in the air waybill also apply in relation to "any person whose aircraft is used by carrier for carriage". As an aircraft is not used for any carriage but air carriage, "carriage" in cl 7 must refer to air carriage. Taken as a whole, the various provisions of the air waybill indicate that "carriage" in cl 4 is confined to "air carriage". In that respect, the provisions of cl 2.1 of the air waybill are compelling. Clause 2.1 provides that "carriage hereunder" is subject to the liability provisions in the Amended Convention. However, a conflict arises if "carriage hereunder" means any carriage, including that which comprises both air and road segments. In such a case, cl 2.1 would render such carriage (including the road segment) "subject to the rules relating to liability established by [that] Convention". This would contradict Art 31 of the Amended Convention, which provides that the provisions of the Convention apply only to air carriage. The FIATA standard form air waybill is intended to supplement, not contradict, the Amended Convention. Accordingly, for the liability provisions in the air waybill to apply, the "carriage hereunder" must be air carriage. In my opinion, Barrett J correctly held that "services incidental to such air carriage" are confined to land elements such as loading, unloading, transhipment or other aspects closely related to transportation by air. This conclusion reflects the terms of Arts 18.2 and 18.3 of the Amended Convention. In HIH Marine Insurance Services Inc v Gateway Freight Services, however, in determining whether the holding of goods by the air carrier's agent at the destination (outside the boundary of the airport) for delivery to the consignee was a service "incidental" to air carriage, the Californian Court of Appeal (First District) said[52]: "It is beyond question that a contract for air carriage embraces the responsibility to hold the goods at the destination for delivery to the consignee. The proper delivery of the goods is as essential as the transportation itself." However, HIH Marine Insurance Services is not a persuasive precedent in the present case. While the delivery of cargo outside an airport may constitute a service incidental to the air carriage in some contexts - as the Californian court found in HIH Marine Insurance Services - such a delivery cannot be subject to the limitations in cl 4 because delivery outside the airport is not "air carriage" within the terms of cl 1. In this case, as Siemens contends, the delivery was not incidental to the air carriage because it arose under the Richtungsverkehr, not the air waybill. The Court of Appeal relied upon three authorities - Read-Rite Corporation v Burlington Air Express Ltd[53], Aerofloral Inc v Rodricargo Express Corporation[54] and Quantum Corporation Ltd v Plane Trucking Ltd[55] - in support of its holding that delivery outside the airport was carriage for the purpose of cl 4. But these authorities are of little assistance in determining the issues in this case. In Read-Rite Corporation v Burlington Air Express Ltd[56] the damage to the goods occurred at a freight facility outside Heathrow Airport, prior to the goods being transported by air from Luxembourg to San Francisco. The limitation clause in the master air waybill was in the same form as the present air waybill. Although the Court of Appeals held that the air waybill did apply in such circumstances, the Court did not consider the construction issues that arise in the present appeal. As noted above, the issue before the Court was the enforceability of the air waybill under United States federal common law, rather than the waybill's applicability to the circumstances of the case. In Aerofloral Inc v Rodricargo Express Corporation[57], cargo was lost at a warehouse located almost a mile from Miami International Airport before the air carriage commenced. The air waybill used by the parties contained a limitation of liability provision in the same terms as the present air waybill. The majority of the District Court of Appeal of Florida, Third District, Goderich and Ramirez JJ, indicated that the warehousing of goods for carriage was a service "incidental to such carriage" as contemplated by the definition of "carrier" in the air waybill[58]. They remitted the case to the trial court to consider whether the warehousing fell within the word "carriage". Green J, dissenting, said that it was not disputed that the cargo was not "in carriage" at the time it was lost[59]. Accordingly, the limitation provision did not apply. On the remitter, the trial judge held that the cargo was not in carriage at the time it was lost because the carton had been opened by United States Customs for inspection and was no longer ready for transport. This decision was affirmed on appeal[60]. In Quantum Corporation Ltd v Plane Trucking Ltd[61] the issue was whether a contract for the carriage of goods from Singapore to Dublin, under which goods were flown from Singapore to Paris and then trucked from Paris to Dublin, could be characterised as a contract for the carriage of goods by road to which the Convention on the Contract for the International Carriage of Goods by Road[62] applied. The relevant air waybill expressly provided that the transportation of the cargo from Paris to Dublin was to be by road. In the present case, the air waybill simply refers to the airport as the place of destination. The relevant limitation provision in Quantum Corporation Ltd was contained in the air carrier's conditions of contract. Accordingly, Tomlinson J did not consider whether the limitation provision in the air waybill would have been applicable. 3. The air waybill's contractual force following delivery of the cargo to Melbourne Airport At first instance, Barrett J held that the parties' intention as objectively manifested determined the point at which the carriage referred to in the air waybill concluded[63]. His Honour said that, in discovering that intention, it must be borne in mind that the air waybill was used in the context of the wider Richtungsverkehr[64]. He held that what he termed the "umbrella contract" provided for a continuum of services, with individual contractual relationships arising between different parties in relation to different aspects of the transportation of any individual consignment[65]. His Honour concluded that the air waybill did not extend to the part of the journey consisting of the transportation from Melbourne Airport to Schenker Australia's warehouse, even though it was included in the Richtungsverkehr[66]. In the Court of Appeal, Meagher JA said that under the air waybill the place of destination was Melbourne and delivery was to be made to Siemens at Schenker Australia's warehouse. His Honour said that under cl 4 the carrier remained liable for the goods during the period they were in its charge or the charge of its agent[67]. Meagher JA concluded[68]: "In these circumstances, I fail to see how the airway bill [sic] was not either a contract or evidence of a contract whereby the Schenker companies came to take the goods to its bondhouse for delivery to [Siemens]. In particular, I cannot see how the contract could be construed as one which involved [Schenker Australia] in no duties at all once the goods arrived at Tullamarine airport." Sheller JA acknowledged that delivery to the warehouse was not expressed in the air waybill but said that "the parties had agreed that the goods would be available for collection and the carrier or its agent would deliver them at the under bond warehouse"[69]. His Honour said that the parties had no choice in the matter as the cargo was consolidation cargo and therefore was required to be moved by Schenker Australia from the freight terminal to the warehouse before it could be delivered[70]. Siemens conceded that it was not possible for the parties to agree for the goods to be collected from the carrier at any earlier or different point in the transportation. Sheller JA said[71]: "To effect delivery in accordance with the [air waybill] and the instructions of the shipper, the carrier was bound to arrange for the goods to be carried to the under bond warehouse and therefore bound within the meaning of cl 1 to perform a service incidental to the air carriage. That was part of the contract evidenced by the [air waybill]. With due respect there is no sound basis for treating the [air waybill] as evidencing a contract which terminated before delivery to the consignee at the point where the goods crossed the boundary at Melbourne airport." Siemens contends that nothing in the evidence suggests that the parties intended that the provisions of the air waybill would apply beyond the nominated "Airport of Destination" stated on the front of the waybill. Rather, the air waybill shows that the parties intended for it to conclude at Melbourne Airport. Siemens contends that the instruction to deliver the goods, upon arrival at Melbourne Airport, into the possession of a land carrier for conveyance to another location and preparation for collection was given as part of the Richtungsverkehr before the air waybill was issued. It submits that the Court of Appeal wrongly assumed that such instructions could extend the operation of the air waybill beyond the nominated destination. The Schenker companies submit that the air waybill did not cease to have contractual effect when the consignment passed beyond the boundary of the airport. They argue that the parties contemplated and agreed that delivery would take place at the bonded warehouse, not the airport. It was to be effected following deconsolidation of the cargo and the obtaining of customs approval for the release of the goods to Siemens' customs agent. This was in accordance with a longstanding course of dealing and was at least in part dictated by practical constraints upon dealings with consolidated cargo. In my opinion, the contention of Siemens is correct. As noted above, cl 11 of the air waybill provides that: "[o]n arrival of the goods at the place of destination, subject to the acceptance of other instructions from the shipper prior to arrival of the goods at the place of destination, delivery will be made to, or in accordance with the instructions of the consignee." Clause 11 does not identify "the place of destination". It is clearly the "Airport of Destination" given on the front of the air waybill. The word "to" in the phrase "delivery will be made to" indicates that the issue is how and to whom delivery is to be made at the place of destination, not where the delivery is to be made. Clause 11 gives effect in practical terms to the provisions of Arts 12 and 13 of the Amended Convention[72]. Those Articles refer to the delivery of the cargo to "the place of destination". This indicates that cl 11 also contemplates delivery to the place of destination indicated on the face of the air waybill - in this case, Melbourne Airport. Moreover, the instructions concerning delivery to the bonded warehouse were given under the Richtungsverkehr not the air waybill. If the parties had intended that the terms of the air waybill were to extend to the delivery to the warehouse, clear words would surely have been used in the air waybill, as occurred in Jaycees Patou Inc v Pier Air International Ltd[73]. In that case, the air waybill provided for door to door delivery from France to the plaintiff in the United States. It included separate lines and fees for air shipment and land transportation. The air waybill was therefore evidence of the entire contract for transportation. In the present case the parties could have indicated on the air waybill that there was to be delivery to the bonded warehouse for deconsolidation and customs clearance. A stamp to this effect, such as the "bond delivery approved" stamp on the face of the Master Air Waybill, may have been sufficient. However, they did not take this step, and the air waybill must be construed according to its terms. The Schenker companies made much of the fact that the cargo could only be delivered from the warehouse following deconsolidation and customs clearance. But this does not mean that under the air waybill Siemens impliedly gave instructions for the delivery of the goods to the warehouse. Clause 2.2.1 of the air waybill provides that carriage thereunder and other services performed by each air carrier are subject to "applicable laws ..., government regulations, orders and requirements". This does not mean that the permission granted under the Customs Act 1901 (Cth) (and the restrictions on the release of goods prior to clearance by the Australian Customs Service) so operated as to include the delivery to the bonded warehouse within the ambit of the air waybill. Clause 2.2 is prefaced by the words "[t]o the extent not in conflict with the foregoing". If cl 2.2 is interpreted to mean that delivery to the bonded warehouse was within the ambit of the air waybill, it would conflict with the preceding provisions of the waybill - including cl 2.1 - concerning the applicability of the liability provisions of the Amended Convention. As I have indicated, land transportation does not fall within the meaning of "air carriage" and therefore the Amended Convention would not apply. Order In my opinion, the appeal should be allowed.

CRIMINAL LAW – Crown appeal – inadequacy of sentence – defrauding the Commonwealth – crimes committed over 30 year period – suspended sentences imposed – whether a full time custodial sentence was appropriate – respondent now 84 years old

CRIMINAL LAW – Jurisdiction, practice and procedure – Juries – attendance of court on the wrong day – irregularity invalidates the verdict

Cush v Dillon Boland v Dillon Defamation – Defence of qualified privilege – Where occasion of qualified privilege existed to communicate existence of rumour – Where defendant published rumour as "common knowledge" – Whether matter published on occasion attracting defence of qualified privilege – Whether distinction between publication of rumour and publication of fact of rumour. Defamation – Defence of qualified privilege – Rebuttal by express malice – Where defendant did not believe truth of publication – Whether lack of belief in truth of publication sufficient to establish malice. Words and phrases – "express malice", "qualified privilege". Defamation Act 1974 (NSW), s 7

Castle v The Queen Bucca v The Queen Criminal law – Appeal against conviction – Application of proviso – Where appellants convicted of murder arising out of joint criminal enterprise – Where evidence of exculpatory statement by one appellant wrongly left to jury as evidence of admission – Where remaining evidence circumstantial – Whether no substantial miscarriage of justice occurred. Criminal law – Summing-up – Where one appellant gave evidence – Where trial judge referred jury to aspects of appellant's evidence but did not summarise it – Whether appellant's case fairly left to jury. Criminal law – Admissibility of evidence – Where evidence that one appellant possessed handguns months prior to shooting – Whether evidence "discreditable conduct evidence" within meaning of s 34P(1) of Evidence Act 1929 (SA) – Whether open to conclude probative value of evidence substantially outweighed prejudicial effect. Words and phrases – "admissibility", "discreditable conduct evidence", "exculpatory assertion", "proviso", "substantial miscarriage of justice", "summing-up". Criminal Law Consolidation Act 1935 (SA), s 353(1). Evidence Act 1929 (SA), s 34

SENTENCING - Crown appeal for manifest inadequacy - Supply of commercial quantity of prohibited drugs - SENTENCING - Circumstances in which moral culpability of offender involved in actual offence is greater than accessory.

CRIMINAL LAW AND PROCEDURE - TRIAL - "IN-COURT" IDENTIFICATION - EVIDENCE NOT OBJECTED TO - ABSENCE OF TRUE IDENTIFICATION ISSUE - ALTERNATIVE COUNTS DO NOT PLACE ACCUSED IN "DOUBLE JEOPARDY" - SILENCE OF ACCUSED AT TRIAL - SUFFICIENCY OF WARNING TO JURY - ADEQUATE TO CIRCUMSTANCES - RITUAL INCANTATION OF ALL DESIRABLE WARNINGS IN AZZOPARDI v THE QUEEN NOT NECESSARY

Contract – Construction of terms – Performance bonds – Where unconditional undertakings by financial institution to pay on demand ("Undertakings") required as security under construction contract – Where Undertakings and underlying finance applications erroneously referred to non-existent entity as payee because incorrect information provided by applicant for security – Principle of autonomy – Principle of strict compliance – Whether possible to construe references to non-existent entity in Undertakings and applications as references to counterparty to construction contract. Contract – Rectification – Actual or true common intention of parties – Where references to non-existent entity in Undertakings and applications result of common mistake – Whether rectification available to correct references to non-existent entity. Words and phrases – "actual or true common intention", "bank guarantee", "common mistake", "letter of credit", "performance bond", "principle of autonomy", "principle of strict compliance", "rectification", "subjective intention of the parties".

Criminal law – Sentencing – Intentionally causing serious injury – Where respondent and victim in domestic relationship – Where victim 12 weeks pregnant with respondent's child – Where respondent caused serious injury to victim by dousing her with petrol and setting her alight – Where instant offence at upper end of range of seriousness for offence of intentionally causing serious injury – Whether Court of Appeal erred in use of expression "worst category" of offence – Whether Court of Appeal erred in consideration of current sentencing practices – Whether sentence imposed by sentencing judge manifestly excessive. Words and phrases – "comparable case", "current sentencing practices", "maximum prescribed penalty", "spectrum of seriousness", "upper end of the range of seriousness", "worst category", "yardstick". Crimes Act 1958 (Vic), s 16. Sentencing Act 1991 (Vic), ss 1(a), 5(2)(b).

CRIMINAL LAW - SENTENCE APPEAL - Whether a sentencing judge must take into account the period of pre-sentence custody via backdating or deduction. - CRIMINAL LAW - SENTENCE APPEAL - Whether protective custody justifies difference in magnitude of co-offenders’ sentences.

PRACTICE AND PROCEDURE– Application for leave to appeal against interlocutory decision rejecting an application for permanent stay or adjournment. - PRACTICE AND PROCEDURE – Whether pre-trial publicity about the failure of jury in previous trial to agree was of exceptional character that would undermine a fair trial. - PRACTICE AND PROCEDURE – Whether a direction to the jury panel will be sufficient to remove risk of prejudice from adverse publicity in the minds of prospective jurors. - PRACTICE AND PROCEDURE – Whether a direction to the jury not to conduct their own research will be sufficient to remove risk of prejudice from adverse publicity.

CRIMINAL LAW AND PROCEDURE - FRAUDULENTLY OMIT TO ACCOUNT - SENTENCE FOLLOWING CONVICTION AT TRIAL - CROWN APPEAL - BANK MANAGER TRUSTED BY ELDERLY CUSTOMER TO INVEST PROCEEDS OF CHEQUE - FACTS FOUND BY SENTENCING JUDGE APPROPRIATELY IDENTIFIED CULPABILITY - NO ERROR IN DECLINING TO INCREASE SENTENCE IN CIRCUMSTANCES BY REASON OF CROWN REFERENCE TO s 21A(2)(k) OF CRIMES (SENTENCING PROCEDURE) ACT 1999 - IMPOSITION WELL WITHIN SOUND DISCRETIONARY RANGE

CRIMINAL LAW AND PROCEDURE - SENTENCE - ERROR IN SETTING NON PAROLE PERIOD INDEPENDENTLY OF BALANCE TERM - IMPERMISSIBLE FACTORS TAKEN INTO ACCOUNT IN ASSESSING OBJECTIVE SERIOUSNESS - RESENTENCE REQUIRED - ASSESSMENT OF SENTENCE AND NEW SENTENCE IMPOSED

Criminal Law - Trial by judge alone - whether should have directed himself on lies - sentence appeal - whether judge failed to take into account mental disability of appellant and whether judge should have found special circumstances.

CRIMINAL LAW AND PROCEDURE - SENTENCE - ARMED ROBBERY CAUSING GRIEVOUS BODILY HARM WITH OFFENSIVE WEAPON - FINDING INJURY CAUSED EMOTIONALLY AND PHYSICALLY SUBSTANTIAL - NO BREACH OF RESTRICTION IN TREATING ELEMENT OF CRIME AS AGGRAVATING FACTOR - SENTENCING JUDGE ELABORATING UPON THE EXTENT OF HARM - OFFENDER ON PAROLE - OBJECTIVE SERIOUSNESS HIGH - SEVERE SENTENCE WARRANTED - NO ERROR IN ASSESSMENT

CRIMINAL LAW – SENTENCE APPEAL– Application for leave to appeal against severity of sentence. - CRIMINAL LAW – SENTENCE APPEAL– Subjective circumstances - Belief by those committing fraud or misappropriation that they will rectify the situation before being caught is common and not entitled to substantial weight in the sentencing exercise. - CRIMINAL LAW – SENTENCE APPEAL– Whether trial judge gave sufficient reasons regarding the factors in s16A(2)(a) of Crimes Act 1914 (Cth). - CRIMINAL LAW – SENTENCE APPEAL– Whether sentence manifestly excessive. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – Considerable weight to be accorded to general deterrence in white-collar crimes involving breach of trust.

Sentence appeal - cultivation of cannabis - no question of principle - appeal dismissed.

CRIMINAL LAW AND PROCEDURE - SENTENCE - TRIAL SOME YEARS AFTER OFFENCES - JUVENILE STATUS OF OFFENDER THEN - NOT ADVERTED TO IN SENTENCE HEARING - CONSENT BY CROWN TO REMISSION TO DISTRICT COURT FOR COMPLIANCE WITH CHILDREN (CRIMINAL PROCEEDINGS) ACT 1987

Pinkstone v The Queen Criminal law - Supply of prohibited drug - Where appellant sent prohibited drug by air courier from Sydney to Perth - Where package intercepted by police in Perth - Where police agent handed package to intended recipient - Whether supply under Misuse of Drugs Act 1981 (WA). Criminal law - Innocent agency - Whether acts of courier attributable to appellant - Whether acts of police agent attributable to appellant - Whether actual receipt by intended recipient necessary for "supply" under Misuse of Drugs Act 1981 (WA). Constitutional law - State Supreme Court exercising federal jurisdiction - Offence committed in Commonwealth place - Trial in Western Australia - "Trial on indictment of any offence against any law of the Commonwealth ... shall be held in the State where the offence was committed" - Whether offence committed in Western Australia for the purposes of s 80 of the Constitution. Constitution, s 80. Commonwealth Places (Application of Laws) Act 1970 (Cth). Criminal Code (WA), s 12. Misuse of Drugs Act 1981 (WA), ss 3(1), 6(1)(c).

Insurance - Motor vehicles - Third party liability insurance - Prime mover and low loader - Where plaintiff injured while making repairs to vehicle - Directly caused by, or by the driving of, motor vehicle. Insurance - Motor vehicles - Third party liability insurance - Construction of term of insurance contract in light of legislative policy. Statutes - Construction - Purposive construction - Use of extrinsic materials to aid statutory construction. Words and phrases - "Directly caused by, or by the driving of, [a] motor vehicle", "caused by [a] motor vehicle if a consequence of the driving of that vehicle or of the vehicle running out of control", "a consequence of", "driving". Motor Vehicle (Third Party Insurance) Act 1943 (WA), ss 3(1), 3(7), 4(1), 6(1), Schedule. Mc

CRIMINAL LAW AND PROCEDURE - SPECIALLY AGGRAVATED ENTRY INTO HOUSE WITH INTENT TO COMMIT INDICTABLE OFFENCE - FAILURE TO CONTROL ANGER ARISING OUT OF PARTNER'S CONDUCT WITH FORMER ASSOCIATE - SENTENCE - SUSPENSION - MANIFEST INADEQUACY - CROWN APPEAL - CHANGE SINCE SENTENCE - DISCRETION OF COURT TO DISMISS CROWN APPEAL EXERCISED

Criminal Law - Criminal Appeal - Commonwealth Offences - Social Security Fraud - Whether sentencing Judge erred in determining non - parole period - Whether ratio of non - parole period to aggregate head sentence excessive - Departure from usual range.

Practice and procedure – High Court – Application for interlocutory injunctions – Where injunctions in force since August 2013 – Where application for special leave to appeal pending – Where extension of injunctions sought until determination of application for special leave to appeal and any appeal should special leave be granted – Whether injunctive relief be granted. Words and phrases – "injunction", "stay", "substantial prospect that special leave to appeal will be granted".

Silbermann v CGU Insurance Limited Insurance - Professional indemnity insurance - Directors and officers liability insurance policy - Exclusion for losses arising from dishonest, fraudulent or malicious conduct - Exclusion engaged only where conduct established to have occurred following final adjudication adverse to the insured - Proceedings instituted against appellants involving questions of breach of duty as company directors - Appellants claimed for advance payment of defence costs under policy - Respondent insurer purported to deny liability relying on exclusion under the policy - Respondent also argued that it had avoided the policy under the Insurance Contracts Act 1984 (Cth), s 28 - Whether respondent can rely on exclusion absent an existing judgment or other final adjudication adverse to appellants. Practice and procedure - Appeal - Separated questions for determination - Appeal in respect only of one answered question and not in respect of other two - Whether any utility in considering the correctness of the answer appealed from in light of other two undisturbed answers - Avoidance of circuity of action. High Court - Special leave to appeal - Special leave granted - Whether special leave to appeal should be revoked. GLEESON CJ, Mc

Criminal law – Murder – Practice and procedure – Directions to jury – Available alternative charge – Whether position of appellant and co-accused sufficiently distinguishable to affect adequacy of directions to jury – Whether reasonably open to jury to return alternative verdict of manslaughter – Whether failure to leave alternative verdict to jury constituted wrong decision on question of law – Whether substantial miscarriage of justice occurred. Words and phrases – "alternative verdict of manslaughter", "substantial miscarriage of justice".

Native title – Native title rights in relation to waters – Determination made in relation to waters in Torres Strait – Determination included native title right to access and take for any purpose resources in native title areas – Successive Commonwealth and Queensland legislative regimes prohibited taking fish and other aquatic life for commercial purposes without licence – Whether legislative regimes inconsistent with continued existence of native title right – Whether right to access and take resources in native title areas partially extinguished where resources taken for commercial purposes. Native title – Native title rights in relation to waters – Certain reciprocal access and use rights recognised in Islander society – Reciprocal rights arose out of personal relationships – Whether reciprocal rights "native title rights and interests" within meaning of s 223(1) of Native Title Act 1993 (Cth). Words and phrases – "extinguishment", "inconsistent with the continued existence of a native title right", "native title rights and interests", "reciprocal rights". Native Title Act 1993 (Cth), ss 10, 11, 211, 223, 225-227, 238.

Air Link Pty Limited v Paterson Aviation - Carriage by air - Liability of carrier - Liability under Pt IV of the Civil Aviation (Carriers' Liability) Act 1959 (Cth) ("Carriers Act") for damage sustained by reason of personal injury to a passenger resulting from an accident which took place on board an aircraft in the course of commercial transport operations or in the course of embarking or disembarking - Passenger sustained personal injury whilst disembarking from aircraft - Action brought by passenger - Whether action in exercise of right to damages brought within two years of the date of aircraft's arrival at destination - Whether right to damages extinguished. Aviation - Carriage by air - Liability of carrier - Statutory right to damages - Extinguishment - Whether extinguishment of right to damages by effluxion of time involves determination of a condition which is of the essence of the right to damages or merely bars enforcement of the right. Aviation - Carriage by air - Liability of carrier - Carriage within New South Wales and between Queensland and New South Wales conducted by different carriers - Whether that part of carriage conducted within New South Wales is deemed to be carriage between a place in a State and a place in another State - Whether carriage was in successive stages, was regarded by the parties as a single operation and was carriage to which Carriers Act, Pt IV would apply were the whole of the carriage to be performed by a single carrier. Pleading - Statement of claim - Whether sufficient facts pleaded to raise a claim under Carriers Act, Pt IV - Whether explicit invocation of Carriers Act, Pt IV is necessary to raise such a claim - Relevance of rules of court of a State court where claim arises under federal law. Pleading - Amendment - Amendment to pleadings to place beyond doubt reliance upon Carriers Act - Whether such amendment permissible after date on which right to damages would be extinguished - Relevance of State limitation of actions legislation. Pleading - Amendment - Provision in Pt 17 r 4 of the District Court Rules 1973 (NSW) for amendment to statement of claim after expiry of relevant limitation period - Whether Pt 17 r 4 is beyond the rule-making power in s 161 of the District Court Act 1973 (NSW) - Relevance of substantive nature of limitation provisions. Words and phrases - "is extinguished", "action ... brought". Civil Aviation (Carriers' Liability) Act 1959 (Cth), Pt IV. Judiciary Act 1903 (Cth), ss 79, 80. District Court Act 1973 (NSW). District Court Rules 1973 (NSW). Convention for the Unification of Certain Rules Relating to International Carriage by Air ("Warsaw Convention"), opened for signature at Warsaw, 12 October 1929, [1963] ATS No 18. GLEESON CJ, Mc

; Ex parte Applicants S134/2002 Immigration - Refugees - Temporary protection visas - Refugee Review Tribunal ("the Tribunal") affirmed decision of delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant protection visas - Minister not bound to consider whether to exercise power - Minister decided not to exercise power under s 417 of the Migration Act 1958 (Cth) ("the Act") to substitute for the decision of the Tribunal a decision more favourable to the prosecutors - Whether decisions of the Tribunal and the Minister "privative clause decisions" under s 474 of the Act. Immigration - Refugees - Applications for temporary protection visas by mother and children - First prosecutor's application asserted that she was a person to whom Australia had protection obligations under the Refugees Convention - Application not made on basis of membership of a family unit, to one of whom protection obligations were owed - Documents before the Tribunal indicated that the first prosecutor's husband held a temporary protection visa and had applied for a permanent protection visa - First prosecutor did not know of her husband's whereabouts or immigration status - Tribunal did not notice documents or appreciate their significance - Tribunal did not consider whether prosecutors entitled to protection visas on basis of membership of a family unit of which one person was owed protection obligations and had been granted a protection visa - Whether constructive failure to exercise jurisdiction - Whether denial of procedural fairness. Immigration - Refugees - Whether jurisdictional error in decision by Minister to refuse to substitute for the decision of the Tribunal a decision more favourable to the prosecutors - Utility of relief. Migration Act 1958 (Cth), ss 36, 65, 414, 417, 474. Migration Regulations 1994 (Cth), Sched 2, pars 785.21, 785.22. GLEESON CJ, Mc

Appeal - Rehearing - Causation - Conflict of expert evidence - Review of trial judge's finding of fact - Where plaintiff fell and suffered physical injuries as a result of tortfeasor's negligence - Plaintiff suffering from persistent psychologically disturbed condition - Whether psychological condition caused by fall. Negligence - Damage - Causation of - Evidentiary foundation for proof of - Existence of multiple causes of damage - Obligation of plaintiff at trial to prove damage - Sufficiency of proof that the alleged tortfeasor's conduct was a cause of the plaintiff's damage - Alleged disproportion between the tortfeasor's conduct and subsequent symptoms - Whether plaintiff malingering - Obligation of tortfeasor to take plaintiff as it finds him or her. Evidence - Evidentiary presumptions - Multiple causes of damage allegedly occasioned by tortfeasor's negligence - Evidentiary onus of tortfeasor to exclude the operation of its wrong as a cause of continuing damage - Relevance of factual findings made at trial - Whether alleged tortfeasor has displaced the causative effect of its injury. GLEESON CJ, Mc

Repatriation pension - Whether injury arose out of or was attributable to defence service - Whether attendance at Mess function compulsory - Whether attendance at Mess function constituted defence service - Applicant injured as a result of falling from window due to intoxication. Administrative law - Tribunal of the Commonwealth - Whether Administrative Appeals Tribunal gave reasons which conformed to law - Sufficiency of reasons - Whether perverse findings of fact constitute an error of law - Jurisdiction of Federal Court to disturb perverse findings of fact - Whether returning matter to the Administrative Appeals Tribunal would be futile - Whether High Court should substitute a finding on the facts. Statutes - Construction - Interpretation of beneficial provisions. Words and phrases - "defence-caused", "defence service", "attributable to", "arose out of". Administrative Appeals Tribunal Act 1975 (Cth) ss 29, 43, 44, 57A. Federal Court Act 1976 (Cth) ss 19, 20. Veterans' Entitlement Act 1986 (Cth) ss 44(1), 70(1), 70(5), 70(7), 70(9), 120(4), 120B(3), 180A(3). Mc

Intellectual property - Designs - Infringement of a registered design - Fraudulent imitation of a registered design - Where alleged infringing design sufficiently different not to be an obvious imitation - Whether fraudulent imitation requires that differences between alleged infringing design and registered design be attributable to dishonest disguise of the latter - Whether the application of a fraudulent imitation requires that alleged infringer applied design with knowledge of the existence of the registration and of absence of consent to its use, or with reason to suspect those matters. Words and phrases: "fraudulent". Designs Act 1906 (Cth), s 30(1)(a). Mc

Polyaire Pty Ltd v K-Aire Pty Ltd & Ors [No 2] Intellectual property - Designs - Infringement of a registered design - Fraudulent imitation of a registered design - Where alleged infringing design was devised by modifying an initial design after allegation that initial design constituted infringement of registered design - Whether alleged infringing design a fraudulent imitation of a registered design. Designs Act 1906 (Cth), s 30(1)(a). Mc

Courts - High Court of Australia - Objection to competency - Whether High Court competent to hear and determine appeals from the Supreme Court of Nauru. Constitutional law (Cth) - Federal judicial power - Original jurisdiction of the High Court - Conferral of jurisdiction on the High Court to hear and determine appeals from the Supreme Court of Nauru - Nauru (High Court Appeals) Act 1976 (Cth) ("the Act") enacted to implement Agreement between Australia and Nauru relating to such appeals - Whether law conferring original jurisdiction on the High Court - Relevance of use of appellate nomenclature in the Act - Relevance of source and identity of rights and obligations to be adjudicated under the Act - Relevance of simultaneous creation and enforcement of rights in the Act - Whether proceedings brought in a matter arising under any law made by Parliament where rights and obligations defined by reference to law of another polity. Constitutional law (Cth) - Federal judicial power - Appellate jurisdiction of the High Court - Conferral of jurisdiction on the High Court to hear and determine appeals from the Supreme Court of Nauru - Whether the Act confers appellate jurisdiction on the High Court to hear such appeals - Whether such appeals heard by the High Court pursuant to s 73 of the Constitution - Whether s 73 of the Constitution exhaustively defines the appellate jurisdiction of the High Court. Constitutional law (Cth) - "External affairs" power - Relations of the Commonwealth with the islands of the Pacific - Whether Act validly confers appellate jurisdiction on the High Court in the exercise of legislative power with respect to external affairs or relations of the Commonwealth with the islands of the Pacific. Practice and procedure - Costs - Motion for indemnity costs - Commonwealth funding respondent's competency objection by way of indemnity arrangement - Commonwealth did not appear in proceedings concerning validity of Commonwealth legislation -Whether Commonwealth liable for costs on an indemnity basis. Practice and procedure - Motion for joinder - Whether Commonwealth or Republic of Nauru should be joined as a party - Whether High Court may order costs against non-party - Whether High Court should so order in circumstances of the case. Words and phrases - "appeals", "appellate jurisdiction", "original jurisdiction", "competency". Constitution, ss 51(xxix), 51(xxx), 73, 75(i), 76(ii). Judiciary Act 1903 (Cth), s 26. Migration Act 1958 (Cth), s 36. Nauru (High Court Appeals) Act 1976 (Cth), ss 4, 5. Nauru Independence Act 1967 (Cth), s 4.

Ruhani v Director of Police [No 2] Appeal from the Supreme Court of Nauru - Construction of legislation - Immigration Act 1999 (Nauru) ("the Act"), Immigration Regulations 2000 (Nauru) ("the Regulations"). Immigration - Refugees - Application for habeas corpus - Appellant brought to Nauru by Australian sea transport and granted a special purpose visa for entry and stay in Nauru on humanitarian grounds - Special purpose visa subject to conditions restricting residence in, and movement within, Nauru to sites designated by the Government of Nauru - Whether conditions beyond the power conferred upon the Principal Immigration Officer ("the PIO") of Nauru by the Regulations to attach such conditions as it thinks fit to special purpose visas - Whether the power to impose such conditions consistent with the power conferred by the Act upon the PIO to grant visa for entry into Nauru - Whether conditions may be severed from visa. Immigration - Refugees - Application for habeas corpus - Where application for visa required under the Regulations to be made in writing and extension of a special purpose visa conditioned upon application by holder - Whether issue of appellant's special purpose visa invalid because appellant had not applied for it - Whether appellant's present special purpose visa a fresh visa or an extended visa - Whether, if an extended visa, extension was invalid because appellant had not applied for it. Appeal - Mootness of issues raised by matter - Appellant in detention in Nauru granted Australian visa after lodging appeal to the High Court of Australia - Whether determination of appeal rendered moot as a result of grant of visa and removal of appellant to Australia - Order for habeas corpus can no longer be made - Whether proceedings present viable issue for the Court to determine. Statutory construction - Nauruan legislation - Relevance of international law as an aid to interpretation - Right to liberty as fundamental principle of human rights - Relevance to determination of issues in appeal - Whether Nauruan laws providing for detention of immigrants to be subject to strict construction - Whether such laws applicable to appellant in circumstances of his detention under intergovernmental agreement between Nauru and Australia. Immigration Act 1999 (Nauru), ss 8, 9, 13 and 19. Interpretation Act 1971 (Nauru), s 69. Immigration Regulations 2000 (Nauru), Regs 12(4), 13(1) and 18. Constitution of Nauru, Arts 5(1)(h), 5(4).

Constitutional law (Cth) - Legal profession - Advertising of legal services - Validity of the Legal Profession Regulation 2002 (NSW), Pt 14 ("the Regulations") which prohibits advertising of legal services relating to claims in respect of personal injuries. Legal profession - Barristers and solicitors - Whether the Regulations are designed to restrict advertising which promotes the use of a particular barrister or solicitor or any barrister or solicitor. Constitutional law (NSW) - Extra-territorial power of the State of New South Wales - Whether Regulations aimed at the advertising of legal services in New South Wales which also apply to advertising that takes place outside New South Wales are valid. Constitutional law (Cth) - Implied freedom of communication on government or political matters - Whether the restriction on advertising legal services relating to claims in respect of personal injuries effectively burdens the implied freedom of communication on government or political matters - Whether the implied freedom extends to prevent burdens by State law on communications related to the operation of the courts provided for in Chapter III of the Constitution. Constitutional law (Cth) - Chapter III - Rule of law - Whether Chapter III of the Constitution implicitly prohibits any law of the Commonwealth or of a State or Territory which effectively burdens the capacity of litigants or potential litigants to receive information and assistance as may be necessary for them to assert their legal rights and approach courts exercising federal jurisdiction - Whether the Constitution supports a freedom to receive advice or information about the possible exercise of judicial power. Constitutional law (Cth) - s 92 - Freedom of interstate trade and commerce, and interstate intercourse - Distinction between interstate trade and commerce, and interstate intercourse - Whether, where a law burdens interstate intercourse that occurs in or in relation to interstate trade and commerce, it is the trade and commerce limb of s 92 which applies - Whether the restriction on advertising by the Regulations imposes a discriminatory burden of a protectionist kind on interstate trade and commerce - Whether any impediment to interstate intercourse imposed by the Regulations is greater than reasonably required to achieve the object of the Regulations. Constitutional law (Cth) - s 109 - Inconsistency between certain Commonwealth Acts and the Regulations - Whether the Regulations impair or detract from a Commonwealth scheme of legislation and the rights, remedies and jurisdiction contained in such legislation. Constitution, Ch III, ss 92, 109. Legal Profession Act 1987 (NSW), ss 38J, 216. Legal Profession Amendment (Personal Injury Advertising) Regulation 2003 (NSW). Legal Profession Regulation 2002 (NSW), Pt 14.

Mortgages - Equitable mortgage by deposit of a certificate of title - Third party security - Contract provided for sale of business by respondents to third party guaranteed by appellant's son - Sale contract provided for deposit by guarantor with vendors' solicitors of instrument of mortgage of certain land owned by appellant together with duplicate certificate of title - Guarantor obtained appellant's authority to release duplicate certificate of title as security for purchase - Guarantor deposited duplicate certificate of title with vendors' solicitors four days prior to settlement - No insistence by vendors upon provision of instrument of mortgage - Whether equitable mortgage created by deposit of duplicate certificate of title - Whether duplicate certificate of title held by vendors' solicitors on account of purchaser or on account of vendor - Whether Land Title Act 1994 (Q), s 75 precludes creation of third party securities by way of deposit of a certificate of title - Whether deposit of a certificate of title must be made contemporaneously with the advance to be secured. Land Title Act 1994 (Q), s 75. Property Law Act 1974 (Q), ss 5, 11, 59. GLEESON CJ, Mc

Nuisance - Local government - Drainage - Nuisance in exercise of statutory powers - Indemnity under Local Government Act 1993 (NSW), s 733 for acts or omissions done in good faith relating to the likelihood of land being flooded or the nature or extent of such flooding - Council constructed and operated drainage system whilst involved in the process of urbanisation - Drainage system caused flooding of adjacent land owned by respondent - Whether Council thereby incurred "liability in respect of" its conduct in constructing and operating drainage system - Whether Council acted "in good faith". Statutes - Construction - Council's statutory indemnity for conduct done in good faith relating to the likelihood or nature or extent of flooding - Whether indemnity precludes the grant of injunctive relief in addition to precluding award of damages for nuisance - Relevance of the objective of s 733 in protecting local government bodies - Relevance of the respective consequences of grant of damages and grant of injunctive relief - Relevance of discretionary nature of injunctive relief - Whether s 733 applies only to liability in respect of past events - Whether liability to injunctive relief is liability in respect of past events. Statutes - Construction - Council's statutory indemnity for conduct done in good faith relating to the likelihood or nature or extent of flooding - Where Council deferred the taking of immediate action respecting nuisance complained of by respondent - Whether "good faith" requires dishonesty or similar state of mind - Whether something more than negligence is required - Relevance of pending litigation to the character of the Council's conduct in deferring action. Injunctions - Mandatory injunctive relief - Relationship with grant of damages under Supreme Court Act 1970 (NSW), s 68 - Relevance to whether Council would have incurred any liability in respect of its conduct. Lord Cairns' Act - Availability of damages in lieu of injunction - Whether such damages readily calculable in money - Relevance to whether Council would have incurred any liability in respect of its conduct - Relevance to character of such liability. Words and phrases - "liability", "liability in respect of", "not incur any liability", "good faith". Local Government Act 1993 (NSW), ss 59A, 733. Supreme Court Act 1970 (NSW), s 68.

Administrative law - Injunction and declaration sought to prevent magistrate from conducting an inquiry under s 475 Crimes Act 1900 (ACT) - Whether Supreme Court judge had power to instigate such an inquiry in the circumstances - Whether a doubt as to an accused person's fitness to plead is a doubt as to the "guilt" of that person - Whether "guilt" means "guilt as established by the conviction" or only the occurrence of the acts or omissions that constitute the offence - Whether a doubt as to the fitness to plead of an accused person is relevant to such an inquiry. Criminal law - Inquiry after conviction - Inquiry under s 475 Crimes Act 1900 (ACT) instituted - Whether Supreme Court judge had power to instigate such an inquiry in the circumstances - Whether a doubt as to an accused person's fitness to plead is a doubt as to the "guilt" of that person - Whether "guilt" means "guilt as established by the conviction" or only the occurrence of the acts or omissions that constitute the offence - Whether a doubt as to the fitness to plead of an accused person is relevant to such an inquiry. Statutes - Interpretation - Provision for inquiry into a suggested doubt or question as to the guilt of a person convicted of a criminal offence - Construction of words of legislation so that all integers operate congruously and harmoniously - Construction by reference to words included and omitted - Construction by reference to legal history of Australian and English progenitors to the subject provision - Construction to give effect to a beneficial, remedial provision - Adoption of a purposive approach to statutory construction. Words and phrases - "guilt", "doubt or question". Crimes Act 1900 (ACT), s 475. Administrative Decisions (Judicial Review) Act 1989 (ACT). GLEESON CJ. I have had the benefit of reading in draft the judgment of Heydon J. I agree with the orders proposed by his Honour, and with his reasons. Mc

Damages - Measure of damages in actions for tort - Appellant suffered brain damage as a result of respondent's negligence - Application for approval of terms of compromise - Appellant unable to manage financial affairs - Administrator appointed to manage appellant's financial affairs - Where determination necessary to calculate "sum by way of damages in respect of reasonable management fees of the administrator" - Where requirement for management of funds arose as a direct result of respondent's negligence - Whether only certain kinds of costs of managing funds should be allowed in assessing damages - Whether damages to be assessed according to the position of an appellant not awarded a lump sum of damages, or according to the position of an appellant with a lump sum to invest but no disabling injury. Words and phrases - "damages", "compromise order", "reasonable management fees", "trustee". Trustee Companies Act 1968 (Q), ss 41, 45. Trusts Act 1973 (Q), ss 21, 24. Public Trustee Act 1978 (Q), s 59(1). Guardianship and Administration Act 2000 (Q), ss 47, 48(1), (2), 245, Sch 4. GLEESON CJ, Mc

Criminal law – Appeal – Prosecution appeal against sentence – Where appellant pleaded guilty to manslaughter of de facto spouse – Where appellate court resentenced appellant on ground that original sentence manifestly inadequate – Whether appellate court failed to correctly apply principles attending disposition of prosecution appeal against sentence on ground of manifest inadequacy – Whether finding of manifest inadequacy open if similar sentences imposed for comparable offences – Whether appellate court erred in failing to exercise residual discretion. Criminal law – Sentence – Principles – Relevance of deprived background of Aboriginal offender – Whether appellate court gave appropriate regard to appellant's antecedents and personal circumstances. Words and phrases – "aggravating factors", "antecedents and personal circumstances", "manifestly inadequate", "mitigating factors", "residual discretion", "social disadvantage". Criminal Appeals Act 2004 (WA), ss 24(1), 31, 41(4). Sentencing Act 1995 (WA), ss 6, 8(1).

Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged. Words and phrases – "accusatorial system of criminal justice", "derivative use immunity", "direct use immunity", "examination", "fair trial", "principle of legality", "privilege against self-incrimination", "real risk of interference with the administration of justice", "right to silence", "serious crime related activity". Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.

Statutes - Acts of Parliament - Statutory powers and duties - Power to detain - Respondent's permanent transitional visa twice cancelled unlawfully - Respondent twice detained in immigration detention - Whether detention lawful under s 189(1) of the Migration Act 1958 (Cth) ("the Act") - Whether officers of the Commonwealth knew or reasonably suspected that the respondent was an unlawful non-citizen - Whether a reasonable suspicion may rest upon a mistake of law - Whether s 189(1) of the Act confers protection against mistakes concerning reach of Commonwealth power. False imprisonment - Unlawful cancellation of respondent's visa - Whether respondent's subsequent detention unlawful - Whether s 189(1) of the Act provides a defence to a claim for wrongful imprisonment. Words and phrases - "knows", "reasonable suspicion", "mistake of law", "unlawful detention", "false imprisonment". Migration Act 1958 (Cth), ss 189, 196, 501.

Stanton v The Queen Criminal Law - Wilful murder - Alternative verdicts of murder and manslaughter available - Directions of trial judge - Whether trial judge reversed onus of proof - Whether trial judge erred in informing the jury about the circumstances in which they could consider alternative verdicts. The Criminal Code (WA), ss 277, 278, 279, 280, 595, 689(1). Juries Act 1957 (WA), s 41. GLEESON CJ, Mc

; Ex parte Applicant S20/2002 Appellant S106/2002 v Minister for Immigration and Multicultural Affairs Immigration - Refugees - Temporary protection visas - Application for certiorari, prohibition and mandamus under s 75(v) of the Constitution - Where Refugee Review Tribunal found that applicant was an unreliable witness and discounted evidence said to be corroborative - Whether Tribunal's decision was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds" - Whether Tribunal's decision was affected by actual bias or by a reasonable apprehension of bias - Whether Tribunal's decision was vitiated by jurisdictional error - Distinction between discretionary decisions and decisions involving the finding of facts essential to the exercise of jurisdiction - Whether Tribunal's decision evidenced an erroneous approach to the finding of jurisdictional facts. Constitutional law - Section 75(v) of the Constitution - Review of administrative decisions - Jurisdictional error - Bias - Extent to which the content of the constitutional writs is affected by common law developments in administrative law - Availability of constitutional writs in proceedings that include an appeal concerning related issues. Administrative law - Judicial Review - Whether Tribunal's decision was "irrational, illogical and not based upon findings or inferences of fact supported by logical grounds" - Unavailability of review of factual or evidentiary merits - Whether relief available under Migration Act 1958 (Cth) ("the Act") or under the Constitution, s 75(v) - Whether Tribunal had no jurisdiction to make the decision - Whether the decision was not authorised by the Act - Whether the decision was marred by error of law - Whether the decision was so unreasonable that no reasonable tribunal would have made it. Words and Phrases - "jurisdictional error", "jurisdictional fact", "apprehended bias", "actual bias", "Wednesbury unreasonableness". Constitution, s 75(v). Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5. Migration Act 1958 (Cth), ss 36(2), 65, 414, 415, 430, 476(1)(b), (c), (f), 476(2)(b), 476(3), 496. Migration Legislation Amendment Act (No 1) 2001 (Cth). Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

Mule v The Queen Criminal law - Evidence - Directions to jury - Appellant convicted of having in his possession a prohibited drug with intent to sell or supply it to another - Videotape of police interview with appellant admitted in evidence in which certain admissions were made - Trial judge directed that exculpatory statements were not supported by evidence on oath and did not have the same weight as admissions - Whether the trial judge's direction to the jury as to the weight to be accorded to the statements was correct. Criminal law and procedure - Right to silence - Appellant did not give evidence at trial - Whether summing-up of the trial judge undermined the appellant's right to remain silent at trial. Words and phrases - "admissions", "right to silence". The Criminal Code (WA), Pt VIII, s 638. GLEESON CJ, Mc