Cases and authorities

Negligence - Causation - Appellant suffered injury in bicycle accident - Factual finding that appellant was injured as result of bicycle coming into contact with potholes following loss of concentration - Version of events not advanced by either party - Whether sufficient evidence for trier of fact to make that finding - Whether trier of fact can decline to accept the versions of events advanced by the parties - Whether trier of fact can adopt a version of events not advanced or tested by either party - Whether rejecting a plaintiff's version of events amounts to a finding of credibility - Whether trier of fact entitled to consider alternative case, in drawing inferences and reaching conclusions, where alternative case open on the pleadings and evidence - Whether consideration of alternative case amounts in the circumstances to procedural unfairness. Appeal - Powers of appellate court - Restrictions on disturbance of findings and conclusions of trier of fact dependent on impressions of the credibility of witnesses and consideration of the entirety of the evidence - Whether entitled to intervene in conclusion reached by trier of fact contrary to evidence of plaintiff - Whether trier of fact precluded from reaching her own conclusion as to probable facts different from that asserted by plaintiff based on other evidence - Relevant appellate principles. Supreme Court Act 1970 (NSW), s 75

King v The Queen Criminal law - Burglary - Offence of committing an offence in the place of another person when in that place without that other person's consent - Criminal Code (WA), s 401(2) - Onus of proof - Onus on prosecution to prove beyond reasonable doubt absence of consent under s 401(2) - Where offence alleged to be committed was breach of restraining order - Where restraining order prohibited entry onto premises - Statutory provision for defence to offence of breach of restraining order if defendant proves on balance of probabilities existence of consent to be on premises - Whether provision relevant - Whether Court of Appeal erred in dismissing appeal from trial judge's jury direction that onus was on prosecution throughout to negative consent. Criminal Code (WA), s 401(2). Restraining Orders Act 1997 (WA), ss 61, 62.

Constitutional law – Judicial power of the Commonwealth – Constitution, Ch III – Appellant crew member of boat carrying passengers with no lawful right to come to Australia – Appellant convicted of aggravated offence of smuggling group of at least five non-citizens reckless as to whether they had lawful right to enter Australia under s 233C(1) of Migration Act 1958 ("Act") – Section 236B of Act prescribed mandatory minimum sentence for offence under s 233C(1) of five years' imprisonment with minimum non-parole period of three years – Whether ss 233A(1) and 233C(1) coextensive – Whether prescription of mandatory minimum sentence for offence under s 233C(1) conferred judicial power to determine punishment on prosecuting authorities – Whether s 236B incompatible with institutional integrity of courts – Whether s 236B required court to impose arbitrary and non-judicial sentence. Words and phrases – "aggravated offence", "institutional integrity", "judicial power", "mandatory minimum penalty", "prosecutorial discretion". Constitution, Ch III. Migration Act 1958 (Cth), ss 233A(1), 233C(1), 236

Negligence - Damage - Respondent contracted Q fever while working in an abattoir - Whether respondent suffered chronic fatigue syndrome. Appeal - Issue not raised at trial - Case on which respondent succeeded on appeal was not argued by respondent at trial or on appeal - Whether respondent should succeed on the basis of a new case on appeal. Appeal - Powers of appellate court - Whether trial judge had properly considered the respondent's case - Whether there was objective evidence that respondent suffered chronic fatigue syndrome - Whether respondent's case depended entirely upon the credibility of her account of subjective symptoms. Evidence - Medical reports - Whether medical reports had independent evidentiary value - Whether evidentiary value of medical reports depended on the respondent's credibility - Whether trial judge erred in not considering medical reports as independent evidence that the respondent suffered from chronic fatigue syndrome. Workers Compensation Act 1987 (NSW), s 151G. Supreme Court Act 1970 (NSW), s 75A. GLEESON CJ, Mc

HIGH COURT OF AUSTRALIA GLEESON CJ, McHUGH, GUMMOW, KIRBY AND HAYNE JJ CHIEF EXECUTIVE OFFICER OF CUSTOMS APPELLANT AND LABRADOR LIQUOR WHOLESALE PTY LTD & ORS RESPONDENTS Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 5 September 2003 B46/2002 ORDER 1. Appeal allowed in part. 2. Set aside paragraphs 2 and 3 of the orders of the Court of Appeal of Queensland made on 20 July 2001 and, in lieu thereof, vary the order of Atkinson J made on 9 June 2000 by substituting the following: (a) What is the standard of proof required of the plaintiff in these customs prosecutions in order for him to obtain convictions for offences against ss 33 and 234(1)(a) and (d) of the Customs Act 1901 (Cth)? Answer: In order to obtain a conviction of a defendant for any of the offences specified, the elements of the offence must be established beyond reasonable doubt. (b) What is the standard of proof required of the plaintiff in these excise prosecutions in order for him to obtain convictions for offences against ss 61 and 120(1)(iv) of the Excise Act 1901 (Cth)? Answer: In order to obtain a conviction of a defendant for any of the offences specified, the elements of the offence must be established beyond reasonable doubt. (c) Are these customs prosecutions criminal proceedings for the purposes of the Evidence Act 1977 (Q)? Answer: Those provisions of the Evidence Act 1977 (Q) which would be applied by the Supreme Court of Queensland in civil cases (including, in particular, the provisions of s 92 of that Act) are to be applied in the trial of the present proceedings. (d) Are these excise prosecutions criminal proceedings for the purposes of the Evidence Act 1977 (Q)? Answer: Those provisions of the Evidence Act 1977 (Q) which would be applied by the Supreme Court of Queensland in civil cases (including, in particular, the provisions of s 92 of that Act) are to be applied in the trial of the present proceedings. On appeal from the Supreme Court of Queensland Representation: A Robertson SC with F W Redmond and G A Hill for the appellant (instructed by Australian Government Solicitor) T D O J North SC with J Brasch for the respondents (instructed by Forde Lawyers) Intervener: A Robertson SC with F W Redmond and G A Hill intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd Customs and excise - Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) - Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901 (Cth) and Excise Act 1901 (Cth). Practice and procedure - Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) - Whether standard of proof a matter of "practice and procedure" in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) - Whether standard of proof within contemplation of rules governing "commencing, prosecuting or proceeding with" a prosecution - Whether statutory averment provisions affect question of standard of proof. Federal jurisdiction - Supreme Court exercising federal jurisdiction in respect of "Customs prosecutions" and "Excise prosecutions" under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) - Whether s 79 Judiciary Act 1903 (Cth) "picks up" any State law prescribing standard of proof to be applied - Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles. Criminal law - Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) - Standard of proof - Common law requirements where conviction sought for offence against a law of the Commonwealth - Significance of orders sought in prosecution proceedings - Meaning of "conviction" - Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary. Words and phrases - "Customs prosecution", "Excise prosecution", "recovery of penalties", "usual practice and procedure", "commenced prosecuted and proceeded with", "conviction". Customs Act 1901 (Cth), ss 33, 234, 244, 247, 255. Excise Act 1901 (Cth), ss 61, 120, 133, 136, 144. Judiciary Act 1903 (Cth), ss 68, 79, 80. Crimes Act 1914 (Cth), ss 4(1), 21B. Evidence Act 1977 (Q), s 92. GLEESON CJ. I have had the benefit of reading in draft the judgment of Hayne J. I agree with the orders proposed by his Honour and with his reasons. As to the question of standard of proof, the statutory provisions invoked by the appellant in these proceedings refer to offences, guilt, conviction and punishment. To paraphrase what was said by McTiernan J in Mallan v Lee[1], the legislative description of the conduct alleged, and of the orders which the appellant seeks, should be accepted at face value. That being so, the common law requires that the appellant should establish the elements of the alleged offences beyond reasonable doubt. McHUGH J. I agree with the orders proposed by Hayne J and with his Honour's reasons.

PROCEDURE - where matter referred to referee for report on issues of liability and quantum - where defendants seek to adduce on reference evidence of “without prejudice” communications - where plaintiff seeks order excluding such evidence from the reference - whether Court should determine matters or leave it to referee. Held: Court should intervene. EVIDENCE - whether material protected by without prejudice privilege - whether exceptions in s 131(2) of the (NSW) Evidence Act 1995 apply - Held: overtly “open” offers were excluded from protection by s 131(2)(d) – other exceptions were not attracted – affidavit excluded from reference

Limitation of actions - Action in respect of motor vehicle accident where claimant lodged claim outside statutory time limit - Whether claimant had a full and satisfactory explanation for delay in making claim - Whether material difference between having and providing an explanation - Whether reasonable person in position of claimant would have been justified in experiencing the same delay - Onus of establishing full and satisfactory explanation - Relevance of prejudice to defendant caused by stay - Motor Accidents Act 1988 (NSW), ss 40(2), 43(2), 43A(2), 43A(6), 43A(7). Appeal - Where primary judge of District Court erred in law and fact in making discretionary judgment - Whether errors vitiated decision of primary judge - Whether Court of Appeal erred in its disposition of appeal - Whether relief futile. Motor Accidents Act 1988 (NSW), ss 40(2), 43(2), 43A(2), 43A(6), 43A(7).

PROCEDURE – Supreme Court procedure – New South Wales – Procedure under rules of court – Evidence – Subpoenas – Motion to set aside subpoena – Legitimate forensic purpose – Primary judge considered whether it was likely that the documents the subject of the subpoena would materially assist on an identified issue – Finding that purpose of subpoena was fishing – Correctness of test applied

PROCEDURE - costs- appeal abandoned- when indemnity costs granted. - MORTGAGES - mortgages and charges generally- the mortgage- quaere whether undertaking given to court to grant second mortgage in stay of proceedings creates an equitable charge over property the subject of the stay until second mortgage granted.

Criminal law - Victims compensation - Shock - When compensable - Eligibility for compensation only if victim suffers "symptoms and disability" - Whether "and" conjunctive or disjunctive. Statutes - Interpretation - "Symptoms and disability" - Whether "and" conjunctive or disjunctive. Words and phrases - "and". Victims Support and Rehabilitation Act 1996 (NSW), Sched 1, cl 5(a). McHUGH ACJ. I agree that the appeal should be allowed for the reasons given by Heydon J. I also agree with the orders that his Honour proposes. GUMMOW J. I agree with the reasons of Heydon J and the orders his Honour proposes. KIRBY J. I agree in the orders proposed by Heydon J and with his reasons. HAYNE J. I agree with Heydon

Industrial law (Q) - Award - Superannuation - Employer's liability to pay "superannuation guarantee charge" dependent on payment of superannuation contributions in accordance with Clerical Employees Award (State) (Q) - Award requirement to contribute "3% of the employee's ordinary time earnings" - Whether employer had complied with Award - Casual employees - Meaning of "ordinary time earnings". Appeal - Decision of appellate court - Whether disentitled to decide case on an interpretation of a contested instrument different from that contended by either party - Whether bound to decide case on arguments advanced by the parties - Whether entitled to adopt a view on the construction of an instrument different from that contended by either party. Words and phrases: "ordinary time earnings". Superannuation Guarantee Charge Act 1992 (Cth). Superannuation Guarantee (Administration) Act 1992 (Cth), s 23(2). Clerical Employees Award (State) (Q), cll 3.5, 4.2, 4.7.

[SECURITY FOR COSTS] - Application for security for costs where plaintiff is in liquidation - proceedings commenced by company and not liquidator - [EVIDENCE] - onus in relation to proof that defendant caused plaintiff's impecuniosity - whether mere reliance on pleading is permitted - [DELAY] - whether defendants' delay in bringing application was material - [DIRECTORS] - whether security should be ordered when it is alleged that director breached duties and caused damage and loss to company

PROCEDURE - civil - interlocutory issues - challenge to primary judge's decision not to partition hearing

GAMING AND WAGERING - Poker Machine Entitlements – Lease predates (NSW) Gaming Machines Act 2001 and does not refer to Poker Machine Entitlements - Where injunction sought to restrain transfer by lessee during lease of Poker Machine Entitlements - Whether, on proper construction of lease, covenant requiring lessee to keep current all requisite licences and permits for activities carried on at hotel obliges lessee to do so when it does not propose to carry on relevant activity – held, it does not – Where lease contains extended definition of “License” - Whether Poker Machine Entitlement is a licence – held, it is not - Whether authorisation under Gaming Machines Act, s 56, is a “License” within definition – held, it is - Whether transfer of Poker Machine Entitlement jeopardizes or imperils s 56 authorisation in contravention of terms of lease - held, it does - Whether transfer of Poker Machine Entitlement would be failure to maintain s 56 authorisation in contravention of terms of lease – held, it would - injunction granted

COSTS - indemnity costs - whether plaintiff guilty of "relevant delinquency".

PRACTICE & PROCEDURE – Court of Appeal – application for leave to appeal – security for costs – UCPR 51.50 – only for appeals – inherent jurisdiction – relevant factors

Limitation of actions- Motor Accidents Compensation Act 1999, s 109(3)- action not commenced within 3 years- necessary for leave to be obtained which may only be granted upon a full and satisfactory explanation for delay- motor vehicle accident with a forklift at work- claimant filled in forms for workers compensation and says he did not realise that more needed to be done for a motor vehicle claim- claimant of limited education and manual worker- held: that District Court correct in ruling that more details needed and hence not a full explanation of delay.

Leave to appeal - no question of principle

PRACTICE AND PROCEDURE - costs - security for costs under Corporations Act 2001 (C'th) s1335 - whether credible testimony that there is reason to believe appellant unable to pay respondents' costs if unsuccessful - on facts credible testimony found - consideration of amount of security - no reason to order security in a lower figure.

LEAVE TO APPEAL – No question of principle

PROCEDURE – civil – summary disposal – dismissal – whether reasonable cause of action – frivolous or vexatious claims – no issue of principle

APPEAL - civil - leave to appeal - insufficient prospects of success - small amount involved - leave refused.

PROCEDURE- dismissal for want of prosecution- policy as disclosed in Civil Procedure Act 2005, ss 56-60- relevance of pre-2005 authority- paramount necessity of paying careful attention to ss 56-60- individual justice requires the elimination of undue delay- District Court Judicial Registrar dismissing proceedings on basis of plaintiffs' late reformulation of case and late production of amended (but defective) pleadings- review of appeal sought on different grounds- Judicial Registrar entitled to reach the conclusions reached.

Practice and Procedure - Contempt of Court - Failure to comply with undertaking to the Court

TENANCY – commercial – premises leased to franchisor – licensed to franchisee for license fee which was same as rent – lease later assigned to franchisee – lessor re-entered due to default in payment of rent after demand – whether failure to pay in compliance with demand – depended on whether April rent (post assignment) paid twice – April rent paid by franchisee – franchisor took money including April licence fee – did not pay over to lessor – whether franchisor agent of lessor – on facts, no agency – no question of principle.

APPEAL – civil – judgment – whether applicant had shown arguable defence – whether primary judge erred in construction and application of ss 14 and 15 – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 14, 15, 32. - STATUTORY INTERPRETATION – principles – reading provision in context – purpose and object – meaning of “person who, under the construction contract concerned, is or may be liable to make payment” in s 13(1) – Building and Construction Industry Security of Payment Act 1999 (NSW) ss 3, 8, 13, 14, 15. - BUILDING AND ENGINEERING CONTRACTS – remuneration – statutory regulation of entitlement to and recovery of progress payments – payment claims.

Appeals- scope of appeal- notice of appeal not challenging agreed issues decided by the primary judge below- no allegation of error by primary judge- appeal fails.

SUCCESSION- family provision- appeal- whether provision excessive- large estate- respondent is a relatively wealthy stepson- factual errors insufficient to set aside discretionary judgment on quantum- no error in considering desire of respondent to provide for education of deceased's grandchildren- relevance of wills made without testamentary capacity.

CONTRACT - ambiguous conduct not a basis for implying contract for renewal of loan

PROCEDURE – civil – costs orders – stay pending appeal – no issue of principle

PROCEDURE – civil – interlocutory issues – case management – preparation for appeal hearing – preparation, filing and service of Black and Blue Books – no issue of principle - COSTS – indemnity costs – where appellant’s conduct of proceedings has caused unreasonable delay and expense – where respondent filed notices of motion to ensure compliance with rules as to preparation of appeal – where no explanation for failure to comply with rules

PROCEDURE – civil – costs order – stay pending appeal - PROCEDURE – civil – interlocutory issues – interrogatories – no issue of principle

APPEAL - civil - application for leave to appeal - appeal from a decision of an Assessor in the Small Claims Division of the Local Court to the District Court then to the NSW Court of Appeal - competency of appeal

DAMAGES - DUST DISEASES - Provisional damages and further damages under s.11A of the Dust Diseases Tribunal Act 1989 and rule 5 of the Dust Diseases Tribunal Rules - Whether exemplary damages may be sought as further damages.

PROCEDURE– summons seeking leave filed out of time – extension of time for leave to appeal – explanation for delay – whether applicant has fairly arguable case - PROCEDURE – dismissal of summons seeking leave – failure to comply with rules – dictates of justice – Civil Procedure Act 2005 (NSW)

PROCEDURE - stay of proceedings pending appeal - no issue of principle

TORTS- negligence- duty of care- rental premises- injury to tenant's wife- whether landlord liable for fall in bathroom- plaintiff informed landlord of problem in showering as a result of her knee replacements- landlord said it would fix the matter- before this happened plaintiff fell- Held landlord did not owe a duty merely because suitable premises had become unsuitable by reason of the deteriorating physical condition of an occupant- further, pleadings did not rely on special duty of a public housing authority to the spouse of its tenant.

PRACTICE - leave to appeal refused - no question of principle involved

PROCEDURE – civil – judgment and orders – application for leave to appeal – adjournment granted to applicant on condition that applicant pay $22,000 within seven days – monies not paid – unable to pay – inability to pay known to applicant’s representatives when adjournment granted – whether leave to appeal should be granted – limited basis for an arguable case – failure to comply with condition – inability to comply with condition – no substantial injustice if leave not granted – application for leave to appeal dismissed.

CONTRACT - construction of guarantee - whether advances by one of the appellant's "related entities" rather than by the appellant himself gave rise to guaranteed debt - whether guaranteed debt reduced by expenses paid to US attorney and merchant bankers

Application for leave to appeal – no point of principle

ENVIRONMENT AND PLANNING – development assessment – consent – interpretation – Port Stephens LEP 2000 – definition of “height” – Port Stephens Development Control Plan 2007 – whether requirement that development not to exceed two storeys was mandatory

PROCEDURE - leave to appeal to Court of Appeal - small amount of money involved, no issue of principle or general public importance and no obvious injustice - leave refused

; Ex parte Palme Immigration - Refugees - Minister - Decision to cancel visa - Whether decision affected by jurisdictional error - Whether prosecutor denied procedural fairness - Whether constructive failure to exercise jurisdiction - Whether decision affected by "Wednesbury unreasonableness" - Whether alleged failure by Minister to notify prosecutor in writing of reasons for decision infected decision with jurisdictional error - Migration Act 1958 (Cth), s 501G. Constitution, s 75(v). Migration Act 1958 (Cth), ss 69, 501, 501

Tanwar Enterprises Pty Limited v Cauchi Vendor and purchaser - Contracts for sale of land - Default by purchaser - Notice of termination - Supplemental deed requiring completion by stipulated date - Time of essence - Default by purchaser - Notice of termination - Purchase price available following day - Specific performance - Whether unconscientious for vendors to exercise right of termination - Whether relief on the ground of "accident" available in face of essential time stipulation. Equity - Relief against forfeiture - Contracts for sale of land - Default by purchaser - Whether unconscientious for vendors to exercise right of termination - Whether default occasioned by "accident" - Whether relief on the ground of "accident" available in face of essential time stipulation. GLEESON CJ, Mc

PROCEDURE – application for stay pending special leave application – principles to be applied

FAMILY LAW AND CHILD WELFARE – de facto relationships – adjustment of property interests – close personal relationship – whether different approach to evaluation of contributions in close personal relationship.