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Catchwords: Defamation – Publication – Where appellants were media companies – Where each appellant created, operated and maintained public Facebook page – Where each appellant created posts on Facebook page hyperlinking to news stories referring to respondent – Where third-party Facebook users left "comments" on appellants' posts – Where comments alleged to be defamatory of respondent – Whether appellants "publishers" of comments – Whether intention to communicate defamatory matter necessary for appellants to be publishers. Words and phrases – "communication of defamatory matter to a third party", "defamation", "digital newspaper or broadcast", "encouraged and facilitated", "Facebook comments", "Facebook page", "innocent dissemination", "intention to publish defamatory matter", "internet platform providers", "participation", "participation in the process", "publication", "publisher", "rebuttable presumption of publication", "strict liability", "third party". ...

Catchwords: CATCHWORDS Director of Public Prosecutions Reference No 1 of 2019 Criminal law – Recklessness – Where s 17 of Crimes Act 1958 (Vic) provides that person who, without lawful excuse, recklessly causes serious injury is guilty of indictable offence – Where Court of Appeal of Supreme Court of Victoria in R v Campbell [1997] 2 VR 585 held that recklessness means person foresaw that serious injury probably will result from act or omission – Where Crimes Act amended following Campbell with significant, substantive and direct effect on s 17 – Where High Court cast doubt on correctness of Campbell in Aubrey v The Queen (2017) 260 CLR 305 – Where accused charged with recklessly causing serious injury under s 17 of Crimes Act – Where trial judge directed jury in relation to recklessness consistently with Campbell – Where accused acquitted – Where Director of Public Prosecutions (Vic) referred correctness of Campbell as point of law to Court of Appeal – Whether Parliament left meaning of recklessness in s 17 of Crimes Act to courts – Whether recklessness in s 17 of Crimes Act has meaning stated in Campbell. Words and phrases – "culpability and criminality", "elements of the existing offences", "expert review of the law", "extensive consultation with key stakeholders", "foresight of possibility", "foresight of probability", "gross violence offences", "injury", "maximum penalty", "offences against the person other than murder", "recklessness", "re-enactment presumption", "serious injury", "specialised and politically sensitive fields", "temporal proximity". ...

Catchwords: Constitutional law (Cth) – Powers of Commonwealth Parliament – Naturalisation and aliens – Deportation – Where appellant entered Australia before commencement of Nationality and Citizenship Act 1948 (Cth) – Where appellant born in Malta and entered Australia as British subject – Where appellant became citizen of United Kingdom and Colonies in 1949 and citizen of Malta in 1964 – Where appellant had not applied to become Australian citizen by registration under Nationality and Citizenship Act – Where appellant's visa cancelled following conviction – Whether appellant entered Australia as alien – Whether within power of Parliament to treat appellant as alien within meaning of s 51(xix) of Constitution. Words and phrases – "alien", "alienage", "aliens power", "allegiance", "Australian independence", "British subject", "citizen", "citizenship", "Crown in right of Australia", "non-citizen", "treat as an alien". ...

Catchwords: Administrative law – Migration – Application for Safe Haven Enterprise Visa ("visa") – Where first delegate of Minister held delegation to make decision under s 65 but not s 501 of Migration Act 1958 (Cth) to consider plaintiff's application for visa – Where referral process required first delegate to refer plaintiff's application to "Visa Applicant Character Consideration Unit" for character checks – Where second delegate of Minister refused to grant visa on character grounds pursuant to s 501 – Where Administrative Appeals Tribunal set aside decision of second delegate and decided that discretion under s 501 should not be exercised to preclude plaintiff's application for visa – Where Minister made personal decision under s 501A(2)(a) to set aside Tribunal's decision and substitute decision to refuse to grant visa – Whether internal departmental processes and policies unlawful – Whether referral process unlawful – Whether public interest criterion 4001 in Migration Regulations 1994 (Cth) invalid – Whether Minister came under duty under s 65 to grant visa – Whether second delegate had power to make decision under s 501 – Whether Administrative Appeals Tribunal had power to set aside decision by second delegate – Whether Minister had power to make decision under s 501A(2)(a). High Court – Original jurisdiction – Practice and procedure – Application for constitutional and other writs, injunctions, declarations, and other relief – Where plaintiff brought parallel proceedings concerning same underlying subject matter in original jurisdiction of High Court and by special leave from Federal Court – Where special leave application dismissed – Where plaintiff could have raised many of grounds in special leave application – Where grounds would have been dismissed – Whether plaintiff's rights of appeal have been exhausted – Whether abuse of process – Anshun estoppel – Insufficient submissions to determine question – Application for extension of time to make further amendments – Last‑minute application – Inefficiency – Delay. Words and phrases – "amendment application", "binary decision", "character test", "criteria for the grant of a SHEV", "duty under s 65", "extension of time", "last‑minute amendment application", "lengthy delay", "original decision", "policy", "public interest criterion 4001", "referral process", "refusal on character grounds", "satisfaction", "single decision", "unlawful detention", "validly prescribed criterion". ...

Catchwords: Evidence – Privilege against self-incrimination – Where appellant obtained ex parte orders freezing worldwide assets of respondent – Where disclosure orders made in connection with freezing orders required disclosure of worldwide assets – Where respondent objected to disclosure of certain information on basis that it may tend to self-incriminate – Where respondent prepared privilege affidavit under s 128A(2) of Evidence Act 1995 (Cth) – Whether information in privilege affidavit could be disclosed to parties under s 128A(6) – Whether interests of justice required disclosure of information in privilege affidavit. Words and phrases – "certificate", "commission of a foreign offence", "disclosure order", "freezing order", "interests of justice", "may tend to prove", "onus of proof", "privilege affidavit", "privilege against self-incrimination", "reasonable grounds for an objection". ...

Catchwords: Industrial law (Cth) – Contract of employment – Nature of casual employment – Where first respondent employed by appellant labour-hire company under series of six employment contracts or "assignments" – Where first respondent treated as casual employee – Where first respondent not paid entitlements owed by employers to non‑casual employees – Where first respondent claimed to have been other than a casual employee – Where first respondent's work pattern followed established shift structure fixed long in advance by roster – Where employment contract provided that employment was on "assignment-by-assignment basis" – Where employment contract provided that appellant under no obligation to offer first respondent further assignments – Whether there existed firm advance commitment as to duration of first respondent's employment or days (or hours) first respondent will work – Whether first respondent employed as casual employee. Words and phrases – "annual leave", "assignment-by-assignment basis", "binding contractual terms", "casual employee", "compassionate leave", "employment contract wholly in writing", "enterprise agreement", "firm advance commitment", "label", "mere expectation of continuing employment", "National Employment Standards", "nature of the employment relationship", "payment for public holidays", "personal/carer's leave", "post-contractual conduct", "regular and systematic basis", "roster". ...

Catchwords: Constitutional law (Cth) – Immigration – Tort – False imprisonment – Where respondent "unlawful non-citizen" detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) – Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of "unlawful non-citizen" from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa – Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution – Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support. Words and phrases – "aliens", "deportation", "duty to remove", "exclusive vesting of the judicial power of the Commonwealth", "executive detention", "executive power", "executive purpose", "false imprisonment", "habeas corpus", "hedging duty", "judicial power", "lawful non-citizen", "legitimate non-punitive purposes", "Lim principle", "mandamus", "non-refoulement", "Parliamentary supremacy", "reading down", "removal", "remove as soon as reasonably practicable", "separation of powers", "statutory duty", "statutory purposes", "terminating events", "unlawful non-citizen", "visa". ...

Catchwords: Limitation of actions – Exclusion by agreement – Where mortgages over land secured loan – Where mortgagors failed to repay loan – Where mortgagees brought proceedings to recover monies owing and possession of land secured by mortgages – Where mortgagors contended mortgagees statute-barred from enforcing rights under mortgages as a result of expiry of relevant time period under Limitation of Actions Act 1974 (Qld) ("Act") – Where mortgagors contended mortgagees' title under mortgages extinguished by operation of s 24 of Act – Where mortgagees contended that mortgagors agreed not to plead any defence under Act by virtue of cl 24 of mortgages – Whether cl 24 effective to prevent mortgagors from pleading any defence under Act – Whether agreement not to plead any defence under Act unenforceable as contrary to public policy – Whether s 24 of Act operated automatically to extinguish mortgagees' title at expiry of relevant time period – Whether mortgagees' remedy confined to damages for mortgagors' breach of cl 24 of mortgages. Words and phrases – "action", "agreement", "agreement not to plead", "benefit", "breach of contract", "contracting out", "defeated", "defence", "defence of limitation", "expiry", "extinguishment of title", "finality of litigation", "jurisdiction of the court", "limitation period", "limitations defence", "plea", "public interest", "public policy", "reasonable business person", "remedy", "shall not be brought", "statute-barred", "statute of limitations", "statutory bar", "statutory right", "waiver". ...

Catchwords: Constitutional law (Cth) – Implied freedom of communication about governmental or political matters ("implied freedom") – Where Foreign Influence Transparency Scheme Act 2018 (Cth) ("Act") included registration requirement for persons undertaking communications activity on behalf of foreign principal for purpose of political or governmental influence – Where foreign principal defined to include foreign political organisation – Where plaintiff undertook registrable activities on behalf of foreign political organisation in holding annual Conservative Political Action Conference events which constituted communications activity – Whether Act to extent it imposes registration obligations with respect to communications activity undertaken on behalf of foreign principal effectively burdens implied freedom ­– Whether provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance. Words and phrases – "adequate in its balance", "burden", "communications activity", "compelling justification", "disclosure", "foreign influence", "foreign interference", "foreign political organisation", "foreign principal", "legitimate purpose", "narrowly tailored", "necessary", "political or governmental influence", "prior restraint", "register", "registration", "scheme information", "structured proportionality", "suitable", "transparency", "undisclosed influence". ...

Catchwords: Immigration – Visas – Application for special category visa – Where respondent's special category visa purportedly cancelled and respondent required to depart Australia in 2018 – Where purported cancellation decision subsequently quashed – Where respondent returned to Australia and refused a special category visa on the basis she was a "behaviour concern non-citizen" as defined in s 5(1) of Migration Act 1958 (Cth) ("Act") due to her removal in 2018 – Where s 5(1) of Act defined "behaviour concern non-citizen" in para (d) as a non-citizen who "has been removed or deported from Australia or removed or deported from another country" – Whether respondent was a "behaviour concern non-citizen" within meaning of para (d) – Whether "removed ...

Catchwords: Immigration – Refugees – Application for protection visa – Where appellant applied to Refugee Review Tribunal ("Tribunal") for review of first respondent's decision to refuse protection visa under Migration Act 1958 (Cth) ("Act") – Where s 438 notification issued under Act in relation to material including appellant's criminal record – Where Tribunal did not disclose existence of s 438 notification to appellant – Where first respondent conceded failure to disclose amounted to breach of procedural fairness – Where information covered by s 438 notification not referred to in reasons for decision – Whether breach material – Whether Tribunal in fact took s 438 notification information into account in making decision – Whether Federal Court erred by erecting presumption that Tribunal did not take s 438 notification information into account – Whether disclosure to appellant of fact of s 438 notification could realistically have led to different decision – Whether appellant or first respondent bore onus of proof of materiality – Whether Federal Court erred by confining materiality consideration to offence of dishonesty to exclusion of other offences. Words and phrases – "counterfactual inquiry", "credit", "discharging the burden of proof", "failure to disclose", "judicial review", "jurisdictional error", "lost opportunity to present legal and factual argument", "materiality", "onus of proof", "opportunity to be heard", "practical injustice", "presumption", "procedural fairness", "realistic possibility", "reasonable conjecture", "statutory interpretation", "subconscious impact", "threshold of materiality". ...

Catchwords: Police – Search warrants – Validity of warrants – Validity of orders – Where officers of Australian Federal Police ("AFP") searched premises in reliance on warrants – Where officers of AFP seized material they believed relevant to offences against s 92.3(1) and (2) of Criminal Code (Cth) – Where officers examined and copied data from electronic devices at searched premises – Where plaintiff compelled to provide passcodes to devices pursuant to orders under s 3LA of Crimes Act 1914 (Cth) – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Whether warrants identified the substance of offences against s 92.3(1) of Criminal Code with sufficient precision. Constitutional law (Cth) – Implied freedom of communication about government or political matters – Where warrants purported to authorise search and seizure of material relevant to offences against s 92.3(1) and (2) of Criminal Code – Where plaintiff accepted warrants severable – Where plaintiff accepted various sub-paragraphs of s 92.3(1)(b), (c) and (d) capable of severance under s 15A of Acts Interpretation Act 1901 (Cth) – Whether appropriate to proceed to determine constitutional validity of s 92.3(1) of Criminal Code or construction of "covert". Words and phrases – "covert", "foreign government principal", "foreign influence", "foreign interference", "foreign principal", "implied freedom of political communication", "necessary to decide", "premature interpretation of statutes", "prudential considerations", "read down", "search warrants", "severable", "severance", "substance of the offences", "sufficient precision", "unnecessary and inappropriate to answer". ...

Catchwords: Tort – Unlawful means conspiracy – Loss or damage – Loss of chance – Loss of value of rights or chose in action – Damages – Where conspiracy by unlawful means undertaken to deprive first to fifth respondents ("Respondents") of value of chose in action arising from judgment in their favour – Where conspiracy involved agreements by which valuable properties in Czech Republic were transferred to impede recovery by Respondents of anticipated judgment debt ("Donation Agreement") – Where Respondents commenced proceedings in Czech Republic against two conspirators to set aside Donation Agreement ("Donation Agreement Proceedings") – Where Respondents had 20% prospect of successfully recovering through Donation Agreement Proceedings – Whether loss or damage proved such that unlawful means conspiracy was actionable – Whether damages for unlawful means conspiracy should be discounted to reflect 20% prospect of separate recovery through Donation Agreement Proceedings. Words and phrases – "actionable", "chance of recovery", "chose in action", "contingent", "damages", "diminution in value", "judgment debt", "loss of chance", "loss of opportunity", "loss or damage", "prospect of recovery", "quantification of damages", "unlawful means conspiracy", "value of a plaintiff's rights". ...

Catchwords: Immigration – Refugees – Application for protection visa – Where plaintiff claimed protection on basis of feared persecution in Pakistan on account of homosexuality – Where delegate of defendant refused protection visa – Where delegate found evidence, including "open source social media", did not support view plaintiff was known homosexual in Pakistan – Where open source social media was "relevant information" within meaning of s 57(1) of Migration Act 1958 (Cth) – Where s 57(2) required defendant to give particulars of "relevant information" to plaintiff to ensure, as far as reasonably practicable, plaintiff understood why it was relevant, and invite plaintiff to comment – Whether defendant failed to comply with s 57(2) by failing to disclose open source social media or provide particulars to enable plaintiff to understand why information was relevant to protection visa application. Words and phrases – "active group of friends and family", "depends on the facts and circumstances of the case", "disclosure of the substance of the relevant information", "fabricated his claim to be a homosexual", "give particulars", "homosexuality", "open source social media", "opportunity to meaningfully respond", "relevant information", "sexual identity", "sufficient clarity or specificity". ...

Catchwords: Criminal law (Cth) – Conspiracy – Where s 11.5(1) of Criminal Code (Cth) established offence of conspiracy – Where appellant charged with conspiring to do acts in preparation for terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code – Whether s 11.5 applies to spouses who agree between themselves, and no other person, to commit offence against Commonwealth law – Whether interpretation of s 11.5 of Criminal Code affected by any common law rule that spouses alone cannot conspire – Whether references in s 11.5 of Criminal Code to "person" and "another person" include two spouses – Whether meaning of "conspires" and "conspiracy" in s 11.5 of Criminal Code incorporates any common law rule that spouses alone cannot conspire. Words and phrases – "another person", "common law rule", "conspiracy", "conspires", "doctrine of unity", "person", "single legal personality of spouses". ...

Catchwords: Immigration – Refugees – Application for protection visa – Where appellants each applied for protection visas – Where each appellant interviewed by delegate of Minister – Where each appellant assisted by interpreter in interview – Where interviews affected by translation errors in questions asked and responses given – Where Immigration Assessment Authority ("Authority") conducted review under Pt 7AA of Migration Act 1958 (Cth) – Where in case of DVO16, Authority not aware of translation errors – Where in case of BNB17, Authority aware of three translation errors – Where in each case Authority did not exercise powers to get new information under Pt 7AA – Where in each case Authority affirmed delegate's decision to refuse visa – Whether Authority's exercise of powers unreasonable – Whether Authority failed to comply with statutory duty to "review" decision under Pt 7AA. Words and phrases – "automatic merits review", "claims to protection in fact made", "de novo assessment of the merits", "failing to consider substance of claim", "fast track reviewable decision", "Immigration Assessment Authority", "interpretation", "interpretation error", "interpreter", "jurisdictional error", "mistranslation", "new information", "overriding duty", "reasonableness condition", "translation", "translation error". ...

Catchwords: Courts – Abuse of process – Where Fair Work Commission approved enterprise agreement – Where approval of enterprise agreement supported by union – Where first respondent was longstanding member of union – Where first respondent brought proceedings seeking to quash approval of enterprise agreement – Where appellant sought summary dismissal of proceedings on basis they were abuse of process – Where proceedings funded by union – Where union unwilling to bring proceedings in own name because of risk of discretionary refusal of relief – Whether deployment of first respondent as "front man" for union amounted to abuse of process by bringing administration of justice into disrepute – Whether choice of first respondent as plaintiff prevented scrutiny of union's acquiescence in approval of enterprise agreement – Whether power to stay or summarily dismiss proceedings informed by considerations of deterrence or punishment. Words and phrases – "abuse of process", "administration of justice", "bring the administration of justice into disrepute", "deterrence", "discretionary grounds for the refusal of relief", "enterprise agreement", "forensic or juridical advantage", "front man", "illegitimate or improper purpose", "integrity of the court's own processes", "lack of candour", "motive", "punishment", "stay of proceedings", "summary dismissal", "trade union", "true moving party". ...

Catchwords: Immigration – Visas – Application for protection visa – Where s 36(2) of Migration Act 1958 (Cth) provides two criteria for grant of protection visa – Where s 36(2)(a) provides refugee criterion – Where s 36(2)(aa) provides complementary protection criterion – Where Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("Appellant S395") held asylum seeker cannot be expected to hide or change behaviour manifesting protected characteristic under Refugees Convention for purposes of assessing claim under s 36(2)(a) – Where s 36(2)(aa) requires assessment of whether "significant harm" a "necessary and foreseeable consequence" of applicant's return to receiving country - Where first appellant applied for protection visa under both ss 36(2)(a) and 36(2)(aa) – Where Immigration Assessment Authority found first appellant would modify behaviour on return to Iraq - Whether failure to consider principle in Appellant S395 under s 36(2)(aa) constituted jurisdictional error. Words and phrases – "absolute and non-derogable", "complementary protection", "Convention Against Torture", "cruel, inhuman or degrading treatment or punishment", "innate or immutable characteristics", "International Covenant on Civil and Political Rights", "manifestation of a Convention characteristic", "membership of a particular social group", "modification of behaviour", "necessary and foreseeable consequence", "non-refoulement obligations", "real chance", "real risk", "refugee", "Refugees Convention", "sale of alcohol", "significant harm", "well-founded fear of persecution". ...

Catchwords: Practice and procedure – Representative action – Stay – Where five open class representative actions commenced against same defendant in relation to same controversy – Where considerable overlap between claims made in proceedings – Where representative plaintiff in four proceedings filed notice of motion in Supreme Court of New South Wales seeking orders that each other proceeding be permanently stayed – Whether Supreme Court's power to grant stay is confined by rule or presumption that representative proceeding issued first in time is to be preferred – Whether litigation funding arrangements can be relevant consideration under s 67 of Civil Procedure Act 2005 (NSW) – Whether Supreme Court erred in considering litigation funding arrangements. Words and phrases – "abuse of process", "auction process", "certification and carriage motion procedures", "class actions", "competing funding proposals, costs estimates and net hypothetical return to members", "competing representative proceedings", "conflicts of interest", "contradictor", "duplicative proceedings", "equitable principles concerning test actions", "first-in-time rule or presumption", "funding model", "litigation funding arrangements", "multifactorial approach", "multiplicity", "one size fits all", "power to grant a stay", "prima facie vexatious and oppressive", "representative proceedings", "special referee". ...

Catchwords: Taxation – Administration – Goods and services tax – Taxable supply – Running Balance Accounts ("RBA") – Commissioner's obligation to pay interest – Where Commissioner lacked statutory authority to amend taxpayer's GST return – Where net amount in GST return calculated in error – Where Commissioner purported to amend taxpayer's GST return and credited taxpayer's RBA – Whether mistaken balance in an RBA is efficacious in law to constitute an RBA surplus within meaning of Pt IIB of Taxation Administration Act 1953 (Cth) – Whether Commissioner obliged to pay interest under Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth). Words and phrases – "administration", "allocation", "amounts due to the Commonwealth under taxation laws", "erroneous balances", "goods and services tax", "interest", "RBA", "RBA deficit debt", "RBA surplus", "refund", "running balance account", "taxation administration". ...

Catchwords: Immigration – Cancellation of protection visa – Notice of cancellation – Where delegate of Minister cancelled respondent's visa under s 501(3A) of Migration Act 1958 (Cth) – Where pursuant to duties in s 501CA(3) letter from delegate and enclosures sent explaining decision to cancel respondent's visa and opportunity to make representations about revoking decision – Where letter and enclosures given to respondent by corrective services officer – Where letter incorrectly stated date on which respondent taken to have received notice – Whether Minister complied with duty to "give" written notice and particulars and "invite" representations under s 501CA(3) – Whether capacity of respondent to understand written notice, particulars, and invitation relevant to whether duties in s 501CA(3) were performed – Whether Minister or delegate required personally to perform duties in s 501CA(3) – Whether Minister failed to invite representations as letter did not specify period within which to make representations in accordance with Migration Regulations 1994 (Cth). Words and phrases – "capacity to understand", "deliver", "give", "in the way that the Minister considers appropriate in the circumstances", "incapacity", "invite", "method of delivery", "notice", "ordinary meaning", "personally to perform", "requesting formally", "service", "substantive content", "within the period and in the manner ascertained in accordance with the regulations". ...

Catchwords: Immigration – Visas – Application for protection visa – Procedural fairness – Where delegate of Minister rejected first respondent's application for protection visa – Where Administrative Appeals Tribunal affirmed delegate's decision – Where first respondent sought judicial review of that decision in Federal Circuit Court – Where first respondent unrepresented before Circuit Court and obtained assistance of interpreter – Where Circuit Court dismissed application for judicial review and delivered ex tempore judgment – Where Circuit Court orders were translated to first respondent but ex tempore reasons were not – Where written reasons delivered by Circuit Court after first respondent filed notice of appeal in Federal Court of Australia – Where Federal Court held that failure of Circuit Court to have ex tempore reasons for judgment translated resulted in denial of procedural fairness – Whether Federal Court erred in holding that Circuit Court denied first respondent procedural fairness – Whether Federal Court erred in holding that setting aside Circuit Court's judgment necessary to provide first respondent with practical justice. Words and phrases – "assistance of an interpreter", "ex tempore reasons", "failure to translate", "judicial function", "operative reasons", "oral reasons", "practical injustice", "practical unfairness", "procedural fairness", "written reasons". ...

Catchwords: Constitutional law (Cth) – Freedom of interstate trade, commerce, and intercourse – Where s 56 of Emergency Management Act 2005 (WA) ("EM Act") empowered Minister to declare state of emergency – Where s 67 empowered authorised officer to direct or prohibit movement of persons into emergency area – Where Minister for Emergency Services declared state of emergency in Western Australia in respect of COVID-19 pandemic – Where State Emergency Coordinator issued Quarantine (Closing the Border) Directions (WA) ("Directions") – Where paras 4 and 5 of Directions prohibited persons from entering Western Australia unless exempt traveller – Whether EM Act or Directions impermissibly infringed constitutional limitation in s 92 of Constitution – Whether infringement determined by reference to authorising provisions of EM Act – Whether provisions of EM Act imposed impermissible burden on interstate trade, commerce or intercourse – Whether exercise of power to make Directions raised constitutional question. Words and phrases – "burden", "COVID-19", "differential", "discrimination", "emergency", "emergency management", "freedom of interstate trade, commerce, and intercourse", "hazard", "intercourse", "interstate movement", "plague or epidemic", “protectionist”, "reasonable necessity", "state of emergency", "structured proportionality", "trade and commerce". ...

Catchwords: Constitutional law (Cth) – Judicial power of Commonwealth – Jurisdiction vested in State courts – Where Div 105A of Criminal Code (Cth) empowered Supreme Court of State or Territory, on application of Minister for Home Affairs, to order that person convicted of terrorist offence be detained in prison for further period after expiration of sentence of imprisonment pursuant to continuing detention order ("CDO") – Whether all or any part of Div 105A of Criminal Code invalid because power to make CDO not within judicial power of Commonwealth having been conferred, inter alia, on Supreme Court of Victoria contrary to Ch III of Constitution – Whether scheme for preventative detention of terrorist offender capable of falling within exception to principle articulated in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 that involuntary detention of citizen in custody by the State is penal or punitive in character and exists only as incident of exclusively judicial function of adjudging and punishing criminal guilt – Whether Div 105A of Criminal Code directed to ensuring safety and protection of community from risk of harm posed by threat of terrorism. Words and phrases – "analogy", "apprehended conduct", "Ch III court", "continuing detention order", "exception to the Lim principle", "involuntary detention", "judicial function of adjudging and punishing criminal guilt", "judicial power of the Commonwealth", "less restrictive measure", "non-punitive purpose", "orthodox judicial process", "preventative detention", "protection of the community from harm", "protective punishment", "protective purpose", "punitive purpose", "restriction on liberty", "separation of powers", "serious Part 5.3 offence", "Supreme Court of a State or Territory", "terrorism", "terrorist act", "terrorist offence", "terrorist organisation", "unacceptable risk". ...

Catchwords: Corporations – Financial services – Where appellants had contacted members of superannuation funds of which they are trustees, advising each to accept offer to roll over their external superannuation accounts into their account with appellants – Where s 766B(3)(b) of Corporations Act 2001 (Cth) defines "personal advice" to include "financial product advice" given or directed to person in circumstances where a reasonable person might expect provider to have considered one or more of that person's objectives, financial situation and needs – Whether financial product advice given by appellants to members personal advice within meaning of s 766B(3)(b). Words and phrases – "consideration", "considered", "financial adviser", "financial product advice", "general advice", "one or more of the person's objectives, financial situation and needs", "personal advice", "social proofing", "superannuation", "superannuation fund". ...

Catchwords: Immigration – Visas – Visa cancellation – Character test – Substantial criminal record – Where delegate of Minister for Immigration and Border Protection ("Minister") cancelled respondent's visa on character grounds under s 501(2) of Migration Act 1958 (Cth) – Where Administrative Appeals Tribunal ("AAT") made decision under s 43(1)(c)(i) of Administrative Appeals Tribunal Act 1975 (Cth) to set aside delegate's decision and substitute a decision not to cancel visa – Where Minister purported to re‑exercise discretion to cancel visa – Whether Minister can re-exercise discretion on same factual basis in circumstances where AAT earlier decided not to cancel visa. Words and phrases – "Administrative Appeals Tribunal", "character test", "different factual basis", "finality to the administrative decision-making process", "from time to time as occasion requires", "general power", "ministerial override", "nature of merits review", "powers of AAT", "reasonable suspicion", "re-exercise of a power", "special power", "substantial criminal record", "visa cancellation". ...

Catchwords: Administrative law – Apprehended bias – Relief – Jurisdiction of inferior courts – Where first respondent applied for additional mining leases and amendment to existing environmental authority ("applications") – Where appellant and others lodged objections to applications – Where first decision of Land Court of Queensland ("Land Court") recommended that both applications be rejected – Where Supreme Court of Queensland rejected arguments by first respondent that recommendations made by Land Court affected by apprehended bias, but held recommendations involved errors of law and remitted certain matters to Land Court for reconsideration – Where second decision of Land Court constituted by different Member recommended applications be approved subject to conditions – Where amendment to environmental authority granted by delegate of second respondent – Where Court of Appeal allowed cross-appeal by first respondent and held that recommendations in Land Court's first decision affected by apprehended bias – Whether open to Court of Appeal, after finding that recommendations in Land Court's first decision affected by apprehended bias, not to refer matters to which recommendations related back to Land Court for full reconsideration, and instead to make consequential orders limited to declaration that procedural fairness not observed – Whether matters to which recommendations related should not be referred back to Land Court on basis of discretion to refuse relief. Words and phrases – "administrative decision", "administrative function", "apprehended bias", "binding", "declaration", "discretion to refuse relief", "environmental authority", "error of law", "inferior court", "jurisdictional error", "lacking in legal force", "Land Court", "mining lease", "nullity", "procedural fairness", "qualified order for referral back", "setting aside", "spent", "statutory precondition", "valid". ...

Catchwords: Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where applicants engaged registered migration agent to provide submissions to Authority – Where agent fraudulently provided pro forma submissions – Where fraudulent submissions contained personal information relevant to a different person – Where Authority unaware of fraud but aware that submissions erroneously related to another individual – Where Authority disregarded information relating to another individual – Whether agent's fraud stultified Authority's review – Whether Authority's decision was vitiated by agent's fraud – Whether agent's fraud contributed in adverse way to exercise of any duty, function, or power by Authority – Whether Authority's failure to seek corrected submissions containing potentially new information legally unreasonable. Words and phrases – "agent", "fraud", "fraudulent submissions", "legal unreasonableness", "new information", "personal circumstances", "personal information", "practice direction", "statutory review function", "stultified", "submissions", "vitiate". ...

Catchwords: Evidence – Admissibility – Trespass – Where appellant charged with breach of Domestic Violence Order ("DVO") – Where DVO included condition that appellant not remain in her partner's presence while intoxicated – Where police attended unit occupied by appellant and her partner for purpose of DVO check – Where police engaged in wider proactive policing operation – Where police knocked on front door and asked appellant to come to door for DVO check – Where police observed signs of intoxication and requested appellant submit to breath test – Where breath test positive for alcohol – Whether evidence of breath test lawfully obtained – Whether police trespassed – Whether common law implied licence permitted police to approach unit and knock – Whether lawful purpose to attend unit. Words and phrases – "breath test", "coercive powers", "common law implied licence", "Domestic Violence Order", "implied licence to enter private property", "interference with an occupier's possession", "lawful communication with an occupier", "lawful purpose", "police", "proactive policing", "trespass". ...

Catchwords: Constitutional law (Cth) – Implications from Constitution – Where directions made under s 200(1)(b) and (d) of Public Health and Wellbeing Act 2008 (Vic) restricted movement of persons within Victoria – Where plaintiffs sought declarations that directions and s 200(1)(b) and (d) of Public Health and Wellbeing Act were invalid as an infringement of a freedom to move wherever one wishes for whatever reason ("freedom of movement") said to be implicit in Constitution – Where defendant demurred on ground that Constitution did not imply freedom of movement – Whether freedom of movement implicit in federal structure of Constitution – Whether freedom of movement protected by implied freedom of political communication – Whether freedom of movement implicit in s 92 of Constitution. Words and phrases – "constitutional implication", "constitutional interpretation", "COVID-19", "federal structure", "federation", "freedom of movement", "implied freedom of movement", "implied freedom of political communication", "interstate intercourse", "intrastate intercourse", "political communication", "quarantine", "terms and structure", "text and structure". ...

Catchwords: Criminal law – Defences – Provocation – Where appellant killed his wife in circumstances that left it open to find he was angered by belief she had been unfaithful and planned to leave him – Where appellant pleaded not guilty to murder on basis that killing resulted from loss of self-control caused by provocation by deceased – Where appellant contended at trial that state of loss of self-control excited by deceased's conduct in grabbing knife, threatening him with it and cutting his right palm – Where s 304(3) of Criminal Code (Qld) excluded defence of provocation (save in circumstances of most extreme and exceptional character) in case of unlawful killing of accused's domestic partner where sudden provocation "based on" anything done, or believed to have been done, by deceased to end or change nature of relationship or indicate in any way that relationship may, should or will end or change ("to change relationship") – Whether exclusion of defence in s 304(3) confined (save in circumstances of most extreme and exceptional character) to cases where conduct of deceased relied upon as causative of accused's loss of self‑control consists of thing done, or believed to have been done, by deceased to change relationship – Whether operation of s 304(3) to exclude defence question of law. Words and phrases – "based on", "causation simpliciter", "causative potency", "caused by", "domestic killing", "domestic relationship", "elements of the defence", "loss of self-control", "nominated conduct", "partial defence", "provocation", "provocative conduct", "question of law", "sudden provocation", "to change the nature of the relationship", "true defence", "wider connection". ...

Catchwords: Immigration – Regional processing – Statutory bar on legal proceedings – Where s 494AB(1) of Migration Act 1958 (Cth) provided that certain "proceedings against the Commonwealth may not be instituted or continued in any court" – Where those proceedings, listed in s 494AB(1)(a)-(d), were all "proceedings relating to" a particular subject matter – Where proceedings in s 494AB(1)(b) further defined by reference to time period – Where s 494AB(3) provided that nothing in section intended to affect jurisdiction of High Court under s 75(v) of Constitution – Where respondents, while in regional processing country, instituted proceedings in Federal Court of Australia alleging Commonwealth breached duty of care to provide adequate medical treatment on Nauru – Where Commonwealth alleged Federal Court did not have jurisdiction by reason of s 494AB(1)(a), (ca) or (d) – Whether s 494AB(1) limited jurisdiction or barred remedy – Whether respondents' proceedings in Federal Court engaged s 494AB(1). Words and phrases – "bars the remedy", "duty of care", "instituted or continued", "jurisdiction", "medical treatment", "model litigant", "model litigant obligations", "Nauru", "negligence", "plead as a defence", "proceedings against the Commonwealth", "proceedings relating to", "regional processing", "removal", "transitory person", "under". ...

Catchwords: Family law – Foreign divorce – Property settlements – Spousal maintenance – Res judicata – Where appellant wife and respondent husband married in Dubai in 2007 and lived partly in Australia and partly in United Arab Emirates – Where wife and husband separated in 2013 with wife and child remaining in Australia – Where wife commenced proceedings in Family Court of Australia seeking parenting orders under Family Law Act 1975 (Cth) ("Act") – Where proceedings later amended to also seek orders for spousal maintenance and property settlement under ss 74 and 79 of Act – Where husband commenced divorce proceedings in Personal Status Court of Dubai ("Dubai Court") – Where ruling of Dubai Court granted husband "irrevocable fault-based divorce" and ordered wife to repay amount of advanced dowry and costs – Where husband sought permanent stay of property settlement and spousal maintenance proceedings on basis of res judicata, cause of action estoppel and/or principle in Henderson v Henderson (also known as "Anshun estoppel") – Where primary judge dismissed application for stay – Where Full Court of Family Court permanently stayed property settlement and spousal maintenance proceedings – Whether ruling of Dubai Court had effect of precluding wife from pursuing property settlement and spousal maintenance proceedings against husband in Family Court by reason of res judicata, cause of action estoppel and/or Anshun estoppel. Words and phrases – "advanced dowry", "alimony", "Anshun estoppel", "cause of action", "cause of action estoppel", "claim", "claim estoppel", "divorce", "estoppel", "Henderson extension", "irrevocable fault-based divorce", "issue estoppel", "merger", "permanent stay", "Personal Status Court of Dubai", "Personal Status Law", "preclusion", "property settlement", "res judicata", "spousal maintenance". ...

Catchwords: Constitutional law (Cth) – Powers of Commonwealth Parliament – Naturalisation and aliens – Deportation – Where plaintiff entered Australia in 1948, before commencement of Nationality and Citizenship Act 1948 (Cth) – Where plaintiff born in Malta and entered Australia as a British subject – Where plaintiff became citizen of United Kingdom and Colonies in 1949 and then Malta in 1964 – Whether within power of Parliament to treat plaintiff as an alien within meaning of s 51(xix) of Constitution – Whether plaintiff entered Australia as an alien. Words and phrases – "alien", "alienage", "aliens power", "allegiance", "Australian independence", "British subject", "citizen", "citizenship", "Crown in right of Australia", "foreign power", "independent sovereign nation", "non‑citizen resident British subject", "permanent allegiance", "permanent protection", "Queen of Australia", "sovereign power", "treat as an alien". ...

Catchwords: Patents – Infringement – Where printer ink cartridges embodied inventions claimed in two patents – Where used cartridges acquired by third party and modified for re-use – Where modified cartridges imported into Australia for sale to public – Where patentee alleged infringement of patent rights – Where s 13(1) of Patents Act 1990 (Cth) provides patentee has exclusive rights to exploit invention – Where "exploit" includes make, hire, sell or otherwise dispose of product and to use it – Whether modifications to cartridges constituted impermissible "making" of new product – Whether doctrine that patentee's exclusive rights with respect to product are exhausted on first sale ("exhaustion doctrine") should be accepted – Whether doctrine that implied licence arises on sale of patented goods to purchaser ("implied licence doctrine") should continue to be applied. Words and phrases – "conditions as to use", "embodying the claimed invention", "essential features", "exclusive statutory rights", "exhaustion doctrine", "exhaustion of rights", "exploit", "implied licence", "implied licence doctrine", "infringement", "invention", "make, hire, sell or otherwise dispose of", "make, use, exercise, and vend", "making", "manufacture", "modifications", "monopoly", "monopoly rights", "patent", "patent rights", "personal property", "product", "repair", "re-use", "single use", "use". ...

Catchwords: Real property – Torrens system – Where appellants registered proprietors of land – Where appellants obtained planning approval to subdivide land and build two townhouses – Where present certificate of title for land referred to memorandum of encumbrance which prohibited erection of any buildings other than "a dwellinghouse" and prohibited "multiple dwellings" – Where back‑cover sheet of memorandum of encumbrance had typed statement indicating that encumbrance formed part of common building scheme – Where neither memorandum of encumbrance nor present certificate of title identified other lots benefited by restrictive covenants in memorandum of encumbrance – Where s 69 of Real Property Act 1886 (SA) provided title to land indefeasible subject to encumbrances and interests "notified" on original certificate of title of such land – Whether appellants were notified of restrictive covenants in memorandum of encumbrance in accordance with s 69. Words and phrases – "cancelled certificate of title", "certificate of title", "common building scheme", "encumbrance", "memorandum of encumbrance", "notice", "notified", "notified on the certificate of title", "prudent conveyancer", "purpose of the Torrens system", "Register Book", "restrictive covenants", "search and inspection", "searches of the Register", "sufficiently notified", "title", "title by registration", "title of the registered proprietor", "Torrens system". ...

Catchwords: Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant's evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly. Words and phrases – "absence of evidence", "contradictory instruction", "directions of law", "exercise of the right to silence", "false process of reasoning", "irregularity", "judicial observation on the facts", "miscarriage of justice", "onus of proof", "presumption of innocence", "proviso", "real chance of acquittal", "reason to guilt by an impermissible path", "redirection", "standard of proof", "sworn evidence". ...

Catchwords: High Court – Appellate jurisdiction – Application for special leave to appeal – Abuse of process – Where applicant applied for special leave to appeal – Where applicant previously made application for special leave to appeal – Where previous application for special leave refused – Where substance of subsequent application for special leave substantially identical to substance of previous application for special leave – Where no exceptional circumstances identified in subsequent application explaining failure to raise novel issues in previous application – Whether subsequent application for special leave an abuse of process. Words and phrases – "abuse of process", "application for special leave to appeal", "compelling explanation or circumstance", "exceptional circumstance", "interlocutory application", "res judicata", "same subject matter", "special leave". ...

Catchwords: Family law – Property settlements – Where respondent husband made gift to appellant wife of ten per cent interest in residential dwelling ("the property") – Where respondent subsequently signed transfer of land giving appellant further 40 per cent interest in the property – Where parties registered as joint tenants then executed deed of gift providing for payment to appellant's siblings if appellant predeceased respondent while they remained joint tenants – Where parties subsequently married then separated after 23 days – Where each party sought orders under s 79(1) of Family Law Act 1975 (Cth) altering interests in property of marriage ("property settlement orders") – Where appellant did not appear at trial so matter proceeded as undefended hearing – Whether primary judge failed to take existing legal and equitable interests of parties into account for purposes of s 79(1) of Family Law Act – Whether primary judge's approach to deed of gift amounted to failure to take material consideration into account – Whether open to primary judge to determine that making of property settlement orders was just and equitable – Whether open to primary judge to assess that appellant made ten per cent financial contribution to acquisition of the property – Whether Full Court of the Family Court of Australia erred in refusing to exercise discretion conferred by s 93A(2) of Family Law Act to receive further evidence on appeal. Words and phrases – "affirmation", "deed of gift", "demands of justice", "duress", "finality", "financial contribution", "further evidence on appeal", "joint tenants", "just and equitable", "malpractice", "pressure", "property settlement order", "ratification", "unconscionable conduct", "undue influence", "voidable". ...

Catchwords: Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant. Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re‑sentencing exercise", "residual discretion". ...

Catchwords: Tort – Battery – Statutory authorisation – Where CS gas (form of tear gas) used by prison officer in youth detention centre – Where prison officer called to assist at youth detention centre – Where detainees exposed to CS gas claimed damages for battery – Where device used to deploy CS gas prohibited weapon under Weapons Control Act (NT) – Whether deployment of CS gas by prison officer in youth detention centre lawful – Whether prison officer acting in course of duties as prison officer such that exemption for prescribed persons in s 12(2) of Weapons Control Act applied – Whether authorised by delegation of powers of superintendent of youth detention centre under s 157(2) of Youth Justice Act (NT) – Whether authorised by prison officer having powers of police officer under s 9 of Prisons (Correctional Services) Act (NT). Words and phrases – "acting in the course of his or her duties", "battery", "bodily integrity", "breach of the peace", "bystander", "collateral damage", "detainees", "emergency situation", "ensure the safe custody and protection", "maintain discipline", "maintain order", "necessary or convenient", "police officer", "positive authority", "prescribed person", "prison officer", "prisoner", "prohibited weapon", "superintendent", "tortious liability", "use of force that is reasonably necessary", "youth detention centre". ...

Catchwords: Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant. Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re‑sentencing exercise", "residual discretion". ...

Catchwords: Criminal law – Parties to offences – Where group of eight males assaulted victim – Where group included appellants and a youth aged 11 years ("PM") – Where one member of group stabbed victim causing death – Where appellants charged with murder under Criminal Code (WA) – Where Crown alleged seven males who did not stab victim deemed to have taken part in committing offence under s 7(b), s 7(c) or s 8 of Criminal Code – Where ss 7(b), 7(c) and 8 of Criminal Code operated when "an offence is committed" – Where reasonably possible that PM inflicted fatal stab wound – Where PM could not be criminally responsible for acts unless he had capacity to know he ought not to do act under s 29 of Criminal Code – Where prosecution adduced no evidence to establish capacity – Where trial judge declined to direct jury that they could not convict appellants of murder unless satisfied beyond reasonable doubt PM did not cause death – Where appellants convicted of murder – Whether trial judge erred in declining to direct jury that they could not convict appellants of murder unless satisfied that PM did not cause death – Whether "offence" committed for purposes of ss 7(b), 7(c) and 8 where failure to prove criminal responsibility of person who may have done act constituting offence. Words and phrases – "accessorial criminal liability", "an offence is committed", "authorised or justified or excused by law", "commission of an offence", "common law antecedents", "construction of the Code", "criminally responsible", "enabler or aider", "excuse", "justification", "liable to punishment", "offence", "participants in the offence", "parties to the offence", "party to an unlawful common purpose", "principal offender", "unlawful killing". ...

Catchwords: Administrative law (Cth) – Judicial review – Archives – Access to records – Where Governor‑General engaged in correspondence with Her Majesty the Queen – Where correspondence described as personal and confidential – Where Official Secretary to Governor‑General kept correspondence and made arrangement to deposit correspondence with predecessor organisation to National Archives of Australia ("Archives") – Where correspondence deposited by Official Secretary on instructions of former Governor-General after his retirement – Where Archives Act 1983 (Cth) subsequently enacted – Where s 31 of Archives Act provides that Commonwealth records within care of Archives must be made available for public access when within "open access period" – Where s 3(1) defines "Commonwealth record" as including "record that is the property of the Commonwealth or of a Commonwealth institution" – Where "Commonwealth institution" defined as including "the official establishment of the Governor‑General" – Whether correspondence property of Commonwealth or of official establishment of Governor‑General – Whether "property" within context of Archives Act connoted relationship involving holding of rights corresponding to ownership or possession at common law or connoted existence of legally endorsed concentration of power to control custody of record. Words and phrases – "administration", "archival resources of the Commonwealth", "Archives", "body politic", "care and management", "Commonwealth institution", "Commonwealth record", "comprehensive expression", "convention", "correspondence", "created or received officially and kept institutionally", "Crown in right of the Commonwealth", "custody", "functional unit of government", "Governor-General", "kept by reason of", "lawful power of control", "legally endorsed concentration of power", "management", "official establishment of the Governor‑General", "Official Secretary", "ownership", "personal and confidential", "personal records", "possession", "private and confidential", "property", "property of the Commonwealth or of a Commonwealth institution", "public access", "record", "right to exclude others", "the Commonwealth". ...

Catchwords: Damages – Consumer guarantees – Personal injury – Where appellant booked holiday cruise tour supplied by respondent – Where holiday cruise tour severely disrupted by adverse weather conditions – Where respondent breached consumer guarantees in ss 60 and 61 of Australian Consumer Law ("ACL") – Where appellant claimed damages for disappointment and distress – Where s 275 of ACL provided that where failure to comply with consumer guarantee that applies to supply of services and State law proper law of contract, that law applies to limit or preclude liability for failure and recovery of liability as it would for breach of contract – Where New South Wales proper law of contract – Where s 16(1) of Civil Liability Act 2002 (NSW) ("CLA") precluded damages for non-economic loss in relation to personal injury cases unless non-economic loss at least 15% of most extreme case – Where threshold in s 16(1) not reached – Whether s 275 of ACL picked up and applied s 16 of CLA as surrogate federal law – Whether s 16 of CLA applied to preclude damages for disappointment and distress not consequential upon physical or psychiatric injury. Words and phrases – "breach of contract", "damages", "disappointment and distress", "enjoyment", "head of loss", "holiday cases", "impairment of a person's physical or mental condition", "loss of amenities of life", "non‑economic loss", "pain and suffering", "peace of mind", "personal injury", "quantification of damages", "recovery", "recovery of that liability", "recreation", "surrogate federal law". ...

Catchwords: High Court – Original jurisdiction – Applications for constitutional or other writ – Determination without hearing – Abuse of process – Where plaintiff seeks orders inter alia to quash orders of superior court of record dismissing appeal from judgment dismissing application for judicial review of decision of administrative tribunal affirming decision by delegate of defendant Minister – Where plaintiff has not applied for special leave to appeal or provided explanation for departure from ordinary appellate process – Whether application is an abuse of process. Migration – Visas – Skilled visas – Criteria for grant – Proof of skills – Where primary criteria to be satisfied for grant of visa include that application be accompanied by evidence that applicant had applied for assessment of skills for nominated skilled occupation by relevant assessing authority – Where visa applicant had failed skills assessment and not applied for subsequent skills assessment at time of submitting application – Whether evidence provided to defendant Minister after that time relevant to satisfaction of criterion. Words and phrases – "abuse of process", "accompanied by", "constitutional writs", "determination without oral hearing", "discretion to refuse relief", "extraordinary relief", "less convenient, beneficial and effective", "ordinary appellate process", "original jurisdiction", "skills assessment", "unnecessary recourse". ...

Catchwords: Criminal law – Arson and attempted fraud – Appeal against conviction – Where prosecution case based on circumstantial evidence – Where appellant's house destroyed by explosion and resulting fire – Where appellant present at and seen running away from scene – Where appellant gave version of events to police consistent with innocence – Where appellant made insurance claim on house and contents in connection with fire – Where no apparent financial motive to commit offences – Where expert evidence that explosion caused by build-up of gaseous vapours – Where petrol residues found on appellant's clothes – Where no evidence of petrol residues in house – Whether open to jury to be satisfied of appellant's guilt beyond reasonable doubt – Whether prosecution excluded reasonable possibility that explosion caused by build-up of gas ignited by electrical fire. Words and phrases – "absence of apparent financial motive", "arson", "attempted fraud", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt", "inference consistent with innocence", "lack of motive", "reasonable possibility", "scientific evidence". ...

Catchwords: Criminal practice – Accusatorial system of criminal justice – Companion rule – Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death – Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety – Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party – Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case. High Court – Appellate jurisdiction – Practice – Extension of time – Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law – Where criminal proceedings concluded and first respondent acquitted of offences – Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court. Words and phrases – "accusatorial system of criminal justice", "admissions made with authority", "attribution", "companion rule", "compulsory investigative powers", "compulsory pre-trial examination", "contempt of court", "coronial inquest", "extension of time", "hypothetical circumstances", "practical reality", "real risk of improper interference with criminal proceedings". ...

Catchwords: Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision. Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds. Words and phrases – "adequacy of damages", "auxiliary jurisdiction", "basis for injunction", "certiorari", "computer or data storage device", "constitutional injunction", "constitutional remedies", "constitutional writs", "description of the offence", "discretionary considerations", "entry, search and seizure", "equity", "evidential material", "injunction", "injunctive relief", "juridical basis", "legal right or interest", "mandatory injunction", "misstatement", "mobile phone", "nature of the offence", "official secrets", "privacy", "relief", "remedy", "right to privacy", "search warrants", "statement of offence", "substance of the offence", "sufficient interest", "sufficient particularity", "sufficient precision", "trespass". ...

Catchwords: High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established. Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty". ...

Catchwords: Criminal law ? Sexual offences against children ? Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to whole of evidence ? Where prosecution case wholly dependent upon acceptance of truthfulness and reliability of complainant's account ? Where jury assessed complainant's evidence as credible and reliable ? Where witnesses gave unchallenged evidence of specific recollections, practices and routines inconsistent with acceptance of complainant's account ("unchallenged inconsistent evidence") ? Where Court of Appeal required to take into account forensic disadvantage experienced by applicant ? Whether prosecution negatived reasonable possibility that applicant did not commit offences ? Whether Court of Appeal required applicant to establish offending impossible to raise reasonable doubt ? Whether unchallenged inconsistent evidence required jury, acting rationally, to have entertained doubt as to applicant's guilt. Criminal practice ? Appeal ? Video evidence ? Where evidence of complainant and other witnesses recorded ? Where Court of Appeal viewed recorded witness testimony ? Whether proper discharge of appellate court's function necessitated review of recorded witness testimony. Words and phrases ? "beyond reasonable doubt", "compounding improbabilities", "credibility and reliability", "function of the appellate court", "function of the jury", "impossibility", "improbability of events", "invariable practice", "jury's advantage in seeing and hearing the witnesses", "negatived the reasonable possibility", "opportunity witnesses", "realistic opportunity for the offending to have occurred", "religious ritual", "routines and practices", "significant forensic disadvantage", "significant possibility that an innocent person has been convicted", "solid obstacles to conviction", "standard and burden of proof", "unchallenged evidence", "uncorroborated", "video-recordings of the witnesses at trial". ...

Catchwords: Criminal law – Sentence – Manslaughter – Where appellant pleaded guilty to manslaughter – Where hearing held to determine factual basis upon which appellant to be sentenced – Where acts comprising offence disputed – Where appellant failed to give evidence at sentencing hearing – Whether sentencing judge applied R v Miller [2004] 1 Qd R 548 – Whether sentencing judge drew adverse inferences from appellant's silence in making factual findings – Whether R v Miller [2004] 1 Qd R 548 wrongly decided – Whether sentencing judge permitted to more readily draw inferences adverse to appellant. Words and phrases – "absence of contradictory evidence", "accusatorial proceeding", "adverse inference", "balance of probabilities", "beyond reasonable doubt", "burden of proof", "civil standard", "contested facts", "contradictory out of court statements", "criminal standard", "fact‑finding", "failure to give evidence", "Jones v Dunkel inference", "plea of guilty", "presumption of innocence", "rare and exceptional circumstances", "right to silence", "sentencing hearing", "standard of proof". ...

Catchwords: Criminal law – Murder – Causation – Where appellant's assault caused serious injury to victim – Where victim suffered severe deterioration in quality of life as a consequence of assault – Where victim later suffered fractured femur requiring surgery – Where decision made not to undergo possible life-saving surgery – Whether sufficient evidence for it to be open to jury to convict on basis that low quality of life resulting from assault caused decision not to undergo surgery – Whether appellant's conduct a "substantial or significant cause of death" – Whether appellant legally responsible for death. Words and phrases – "but for", "causation", "legal responsibility", "murder", "substantial or significant", "sufficiently substantial". ...

Catchwords: Stamp duties – Declaration of trust – Partnership – Dissolution – Partnership assets – Nature of partners' rights in relation to partnership assets – Where freehold titles to land held by two partners as joint tenants – Where other partners not registered title holders – Where partnerships dissolved but not wound up upon death of one partner holding titles – Where surviving partner declared trusts over freehold titles for benefit of other partners in proportion to partnership interests – Where Commissioner assessed declaration of trust as "dutiable transaction" within meaning of Duties Act 2008 (WA), s 11(1) – Whether partner holding freehold titles trustee for other partners – Whether declaration of trust by surviving partner holding freehold titles created new interests in land – Whether declaration of trust dutiable transaction. Words and phrases – "beneficial interest", "conveyance", "declaration of trust", "dissolution", "dutiable transaction", "equitable interest", "non-specific interest", "partners' interest", "partnership property", "right to account and distribution", "transfer", "trust for partnership", "winding up". ...

Catchwords: Criminal law – Sentence – Irrelevant consideration – Where respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – Where primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Where Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Where respondent's mental condition at time of offending called for application of principles stated in R v Verdins (2007) 16 VR 269 – Where element of offence of infanticide included disturbance of balance of mind – Where infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Whether Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide. Words and phrases – "acceptance of a plea", "attempted murder", "disturbance of mind", "impaired mental functioning", "infanticide", "irrelevant consideration", "manifestly excessive", "mental condition", "mitigating factors", "moral culpability", "murder", "sentencing", "sentencing considerations", "specific error", "Verdins considerations". ...

Catchwords: Aboriginals – Native title to land and waters – Determinations of – Native title rights and interests – Where s 212(2) of Native Title Act 1993 (Cth) provided that Commonwealth, State or Territory may by legislation confirm existing public access to and enjoyment of beaches and other categories of lands or waters – Where Parliament of Western Australia enacted legislation confirming public access and enjoyment pursuant to s 212(2) – Where s 225(c) of Native Title Act required that determination of native title rights and interests include nature and extent of "any other interests" in relation to determination area – Where s 253 of Native Title Act defined "interest" as including any other right or privilege over or in connection with land or waters – Whether s 225(c) required determination of native title to include reference to confirmation – Whether access and enjoyment capable of confirmation limited to legally enforceable rights and privileges – Whether act of confirmation through legislation enacted in reliance on s 212(2) gave rise to "right" or "privilege" amounting to "other interest" in relation to determination area. Words and phrases – "confirmation", "confirmed access and enjoyment", "determination area", "determination of native title", "general expectation of public access", "interest", "lack of legal prohibition", "land or waters", "liberty", "native title", "nature and extent of any other interests", "ordinary meaning", "other interest", "principle of public access", "privilege", "public access and enjoyment", "right", "unallocated Crown land". ...

Catchwords: Corporations – Officers – Meaning of "officer" of corporation – Where para (b)(ii) of definition in s 9 of Corporations Act 2001 (Cth) defined "officer" of corporation as person who had capacity to affect significantly corporation's financial standing – Where MFS Investment Management Pty Ltd ("MFSIM") responsible entity of registered managed investment scheme, Premium Income Fund ("PIF") – Where MFSIM entered into loan facility to be used solely for purposes of PIF – Where MFSIM drew down on loan facility to pay debts of other related companies in MFS Group – Where MFSIM secured no promise of repayment of funds to PIF – Where first respondent was Chief Executive Officer of parent company of MFS Group – Where first respondent acted as "overall boss" of MFS Group and assumed "overall responsibility" for MFSIM – Where first respondent approved and authorised disbursement of funds from loan facility knowing no benefit or consideration would pass to PIF – Where first respondent not director of MFSIM at relevant time – Where Australian Securities and Investments Commission alleged first respondent breached duties as officer of MFSIM in contravention of Corporations Act – Whether para (b)(ii) of definition of "officer" in Corporations Act requires person to have acted in recognised position within corporation with rights and duties attached to it – Whether first respondent "officer" of MFSIM. Words and phrases – "capacity to affect significantly the corporation's financial standing", "chief executive officer", "corporate group", "de facto director", "financial standing", "managed investment scheme", "management of corporation", "misuse of funds", "named office", "office", "officer", "officer of a corporation", "recognised position". ...

Catchwords: Income tax (Cth) – Assessable income – Controlled foreign companies – Where Pt X of Income Tax Assessment Act 1936 (Cth) ("Act") attributes income of controlled foreign company ("CFC") to Australian resident taxpayer who has sufficiently substantial interest in it – Where BHP Billiton Marketing AG ("BMAG") CFC of BHP Billiton Ltd ("Ltd") – Where income of BMAG derived from sale of commodities purchased by BMAG from BHP Billiton Plc's ("Plc") Australian entities – Where that income included in assessable income of Ltd if Plc's Australian entities "associates" of BMAG – Where company "associate" of entity under s 318(2) of Act if "sufficiently influenced" by entity – Where s 318(6)(b) provides that company "sufficiently influenced" by entity if accustomed or under obligation or might reasonably be expected to act in accordance with directions, instructions or wishes of entity – Where Ltd and Plc part of dual‑listed company arrangement and operated as if "single unified economic entity" – Whether Plc's Australian entities "associates" of BMAG – Whether Ltd "sufficiently influenced" by Plc – Whether Plc "sufficiently influenced" by Ltd – Whether BMAG "sufficiently influenced" by Plc and Ltd. Words and phrases – "assessable income", "associate", "attribute", "combined businesses", "controlled foreign company", "dual-listed", "effective control", "in accordance with the directions, instructions or wishes", "single unified economic entity", "sufficiently influenced", "tainted sales income". ...

Catchwords: Constitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of "aliens" – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs' visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co‑terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) can be "alien" within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test. Words and phrases – "Aboriginal Australian", "alienage", "aliens", "allegiance", "body politic", "citizen", "connection to country", "essential meaning", "foreign citizen", "indicia of alienage", "nationality", "non‑alien", "non-alienage", "non-citizen", "obligation of protection", "political community", "polity", "sovereignty", "spiritual connection", "subject", "territory", "traditional laws and customs", "tripartite test", "unlawful non-citizen". ...

Catchwords: Evidence – Admissibility – Evidence obtained improperly or in contravention of Australian law – Evidence Act 1995 (NSW), s 138 – Where appellants jointly charged on indictment with acts of serious animal cruelty – Where prosecution proposes to tender video-recordings obtained in contravention of Australian law – Where prosecution proposes to tender search warrant evidence and alleged admissions obtained in consequence of contravention of Australian law – Whether difficulty of lawfully obtaining evidence weighs in favour of admission – Whether weighing of competing public interests under s 138 different for evidence obtained in contravention of law as compared to evidence obtained in consequence of contravention of law – Whether each item of evidence admissible. Words and phrases – "balancing test", "Bunning v Cross discretion", "causal link", "competing public interests", "deliberate contravention of the law", "desirability of admitting evidence", "difficulty of lawfully obtaining evidence", "ease of compliance", "evidence that was obtained improperly or in contravention of an Australian law", "false statement", "illegality", "improperly or illegally obtained", "impropriety", "in consequence of", "misconduct", "probative value", "public interest", "undesirability of admitting evidence", "vigilantism", "way in which the evidence was obtained". ...

Catchwords: Customs and excise – Customs tariff – Tariff classification – Where no duty owed if goods classifiable as medicaments under heading 3004 of Sch 3 to Customs Tariff Act 1995 (Cth) – Where Administrative Appeals Tribunal found vitamin preparations and garcinia preparations classifiable under heading 3004 – Where Comptroller-General of Customs contended vitamin preparations and garcinia preparations classifiable under heading 1704 ("sugar confectionery") or heading 2106 ("food preparations") so that duty owed – Whether vitamin preparations and garcinia preparations excluded from heading 3004 by Note 1(a) to Ch 30 of Sch 3 to Customs Tariff Act – Whether Administrative Appeals Tribunal erred in classifying vitamin preparations and garcinia preparations under heading 3004. Words and phrases – "duties of customs", "error of law", "essential character", "food preparations", "food supplements", "foods", "French language", "Harmonized System", "Harmonized System Convention", "medicament", "most akin", "ordinary meaning", "products for therapeutic or prophylactic uses", "tariff classification", "Vienna Convention", "vitamin". ...

Catchwords: Bankruptcy – Bankrupt estate – Where "the property of the bankrupt" vested in trustee in bankruptcy pursuant to s 58 of Bankruptcy Act 1966 (Cth) – Where bankrupt held estate in land under Torrens system on trust – Whether property held by bankrupt on trust capable of vesting in trustee in bankruptcy – Whether bankrupt had a valid beneficial interest – Whether estate vested in trustee in bankruptcy in equity. Real property – Torrens system – Caveats – Where trustee in bankruptcy lodged caveat claiming "Legal Interest pursuant to the Bankruptcy Act 1966" and refused or failed to withdraw caveat after request – Whether caveator liable to pay compensation under s 74P(1) of Real Property Act 1900 (NSW) for lodging and maintaining caveat "without reasonable cause" – Whether existence of caveatable interest or honest belief on reasonable grounds in such interest sufficient for "reasonable cause" – Whether claimant established that caveator had neither caveatable interest in property nor honest belief on reasonable grounds in having such interest – Whether possibility of trust being set aside under s 120 or s 121 of Bankruptcy Act conferred caveatable interest – Whether caveat adequately described equitable estate in fee simple – Whether deficiency in statement of interest demonstrated absence of "reasonable cause". Trusts – Trustees – Right of indemnity – Where trustee incurred significant expenses in his capacity as trustee ordinarily entitling him to be indemnified out of trust property – Where trustee asserted "mutually beneficial arrangement" with "the trust" – Whether asserted arrangement prejudiced trustee's right of indemnity wholly or in part – Whether value of benefits to trustee under asserted arrangement equal to or exceeded total of trust expenses incurred. Words and phrases – "beneficial interest", "caveatable interest", "caveat against dealings", "circuity of action", "contingent beneficial interest", "determination of non-dispositive issues in appeals", "honest belief on reasonable grounds", "judicial economy", "most remote possibility of interest", "property held by the bankrupt in trust for another person", "right of indemnity", "subject to the equities", "the property divisible among the bankrupt's creditors", "the property of the bankrupt", "without reasonable cause". ...

Catchwords: Immigration – Refugees ­– Application for protection visa ­– Where Pt 7AA of Migration Act 1958 (Cth) requires Immigration Assessment Authority ("IAA") to review certain decisions to refuse applications for protection visas – Where s 473CB(1)(a), (b) and (d) requires Secretary of Department to give certain material to IAA to conduct review ­­– Where s 473CB(1)(c) requires Secretary to give to IAA any other material Secretary considers relevant to review – Where s 473DB requires IAA to review decision by considering material given by Secretary – Where Secretary gave material to IAA pursuant to s 473CB(1)(c) ­– Where material irrelevant to task of IAA – Where material prejudicial to applicant ­– Where applicant unaware of material ­– Whether jurisdictional error by Secretary –­ Whether jurisdictional error invalidated decision of IAA – Whether apprehended bias. Administrative law – Judicial review –­­ Procedural fairness – Where s 473FA requires IAA to operate free of bias – Whether apprehended bias. Words and phrases – "apprehended bias", "bias", "fair-minded lay observer", "fast track reviewable decision", "Immigration Assessment Authority", "impartial", "irrelevant", "irrelevant and prejudicial material", "jurisdictional error", "material", "materiality", "prejudicial", "prejudicial but inadmissible", "procedural fairness", "professional decision maker", "reasonable apprehension of bias", "relevant", "relevant to the review", "required to consider", "review material", "rule against bias", "subconscious bias". ...

Catchwords: Criminal practice – Trial – Directions to jury – Liberato v The Queen (1985) 159 CLR 507 ("Liberato") – Where appellant convicted by jury of rape – Where appellant did not give sworn evidence at trial – Where appellant made exculpatory statements in recorded police interview – Where record of interview admitted into evidence – Where appellant did not seek Liberato direction at trial – Where trial judge did not give Liberato direction – Whether Liberato direction required where accused does not give sworn evidence – Whether Liberato direction required where record of interview containing exculpatory statements admitted into evidence. Words and phrases – "beyond reasonable doubt", "choice between witnesses", "conflicting version of events", "criminal standard", "evidence on oath", "exculpatory answers", "interview with the police", "jury directions", "Liberato direction", "onus and standard of proof", "out-of-court statement", "recorded interview", "summing-up as a whole", "sworn evidence", "who do you believe", "word-on-word". ...

Catchwords: Immigration – Representative proceedings – Where plaintiff brought representative proceeding in High Court for damages for false imprisonment – Where claimed that Group Members purportedly detained under ss 189 and 196 of Migration Act 1958 (Cth) – Where claimed that detention for purpose of receiving, investigating or determining application for visa, or determining whether to permit valid application for visa to be made, or of removing relevant Group Member from Australia to regional processing country – Where claimed that detention lawful only for period during which purposes pursued and carried into effect as soon as reasonably practicable and capable of fulfilment – Where claimed that detention unlawful because purposes not carried into effect as soon as reasonably practicable or because detention continued at times during which purposes not capable of fulfilment – Where plaintiff applied for order remitting proceeding to Federal Court of Australia pursuant to s 44(2A) of Judiciary Act 1903 (Cth) – Where s 476B(1) of Migration Act provided that High Court must not remit matter "that relates to a migration decision" to court other than Federal Circuit Court – Where s 468B(1) and (2) provided that representative proceeding not permitted where proceeding would "raise an issue in connection with visas ...

Catchwords: Practice and procedure – Representative action – Orders – Where s 33ZF of Federal Court of Australia Act 1976 (Cth) and s 183 of Civil Procedure Act 2005 (NSW) provide that in representative proceeding court may make any order court thinks appropriate or necessary to ensure justice is done in proceeding – Where representative proceedings commenced in Federal Court of Australia and Supreme Court of New South Wales – Where proceedings funded by litigation funders – Where litigation funders entered into litigation funding agreements with small number of group members – Where representative parties in each proceeding applied for common fund order – Whether s 33ZF of Federal Court of Australia Act and s 183 of Civil Procedure Act empower Federal Court of Australia and Supreme Court of New South Wales to make common fund order. Words and phrases – "access to justice", "appropriate or necessary to ensure that justice is done in the proceeding", "award of damages", "book building", "common fund", "common fund order", "distribution of moneys recovered", "equitable sharing of costs", "fair and reasonable to all group members", "free riding", "funding commission", "funding equalisation order", "interests of justice", "litigation funding", "representative proceeding", "risk", "unfunded group members". ...

Catchwords: Police – Arrest without warrant – Where s 99(1) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) provides that police officer may, without warrant, arrest person if police officer suspects on reasonable grounds that person is committing or has committed offence and police officer is satisfied that arrest is reasonably necessary for one or more specified reasons – Where s 99(3) provides that police officer who arrests person under s 99 must, as soon as is reasonably practicable, take person before authorised officer to be dealt with according to law – Where police officer had not formed intention to charge arrested person with offence at time of arrest – Where police officer had not formed intention to bring arrested person before authorised officer to be dealt with according to law at time of arrest – Where arrested person brought claim for damages for wrongful arrest and false imprisonment – Whether arrest unlawful. Words and phrases – "answer a charge for an offence", "arrest", "arrest without a warrant", "as soon as is reasonably practicable", "authorised officer", "dealt with according to law", "false imprisonment", "improper purpose", "intention to charge", "investigation period", "police officer", "power to arrest", "purpose of arrest", "suspects on reasonable grounds". ...

Catchwords: Income tax (Cth) – Appeal against objection decision – Where Commissioner of Taxation ("Commissioner") issued amended assessments of taxable income following commencement of audit – Where taxpayer objected to amended assessments – Where objection decision made in respect of taxpayer's objection ("Objection Decision") – Where further amended assessments made consequent upon Objection Decision – Where taxpayer appealed against Objection Decision under Pt IVC of Taxation Administration Act 1953 (Cth) ("Act") but not against further amended assessments – Where Commissioner conceded certain amounts incorrectly assessed as income ("Conceded Amounts") – Whether appeal under Pt IVC of Act was against Objection Decision or against further amendment assessments – Whether Commissioner's assessment excessive to extent of Conceded Amounts. Administrative law – Judicial review – Jurisdictional error – Where primary judge determined appeal against Objection Decision under Pt IVC of Act – Where Full Court of Federal Court of Australia determined appeal against decision of primary judge – Where taxpayer sought writs of certiorari in respect of decisions of primary judge and Full Court – Whether primary judge and Full Court each misconstrued jurisdiction – Whether primary judge and Full Court committed jurisdictional error – Whether taxpayer's application for judicial review, after expiration of time in which to seek special leave to appeal, sufficient basis to dismiss application. Words and phrases – "amended assessment", "disallowance of objection", "excessive assessment", "falsa demonstratio non nocet", "grounds of objection", "jurisdictional error", "misconceive jurisdiction", "non-jurisdictional error", "objection decision", "objection to assessment", "refusal of relief", "taxable income", "taxation decision", "taxation objection", "taxpayer's burden of proof", "wide survey and exact scrutiny". ...

Catchwords: Criminal practice – Appeal – Crown appeal against sentence – Procedural fairness – Where appellant provided assistance to law enforcement authorities – Where court required by statute to take assistance into account in sentencing – Where evidence of assistance kept confidential from appellant and appellant's legal representatives in sentencing proceedings – Where evidence contained highly sensitive criminal intelligence – Where appellant sought access to confidential evidence on appeal – Where Court of Criminal Appeal denied appellant access to confidential evidence on basis of public interest immunity – Where Court of Criminal Appeal exercised discretion under s 5D(1) of Criminal Appeal Act 1912 (NSW) to re-sentence – Whether appellant denied procedural fairness – Whether Court of Criminal Appeal had power to deny appellant access to the confidential evidence – Whether Court of Criminal Appeal should have declined to exercise discretion to re‑sentence. Words and phrases – "access to evidence", "assistance to law enforcement authorities", "confidential information", "Crown appeal against sentence", "discount in sentence", "evidence of assistance", "mitigating factor", "non‑disclosure", "open justice", "procedural fairness", "public interest immunity", "residual discretion", "tailored order". ...

Catchwords: Criminal practice – Forfeiture of tainted property – Where appellants remitted money to Australia using money remitters or money changers in foreign country – Where large number of cash deposits, usually each less than $10,000, made into appellants' bank accounts in Australia in process known as "cuckoo smurfing" – Where deposits proceeds or instrument of structuring offence under s 142 of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Where Commissioner of Australian Federal Police successfully applied for restraining orders over appellants' bank accounts under s 19 of Proceeds of Crime Act 2002 (Cth) ("POCA") – Where appellants applied under ss 29 and 31 of POCA to have property excluded from orders – Whether property "ceased" to be proceeds or instrument of offence under s 330(4) of POCA – Whether property acquired by third party for sufficient consideration without third party knowing, and in circumstances that would not arouse reasonable suspicion, that property proceeds or instrument under s 330(4)(a) of POCA. Words and phrases – "acquisition of property", "cuckoo smurfing", "for sufficient consideration", "in circumstances that would not have aroused a reasonable suspicion", "instrument of a serious offence", "money changers", "money laundering", "money remitters", "proceeds of an indictable offence", "proceeds of crime", "reporting threshold", "structuring offence", "third party", "volunteer". ...

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

Catchwords: Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court's role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court. Words and phrases – "appropriate", "balancing", "facilitates or is likely to facilitate", "future risk", "institutional integrity", "judicial power", "Kable v Director of Public Prosecutions (NSW)", "open-textured", "preventing, restricting or disrupting", "preventive orders", "real or significant risk", "reasonable grounds to believe", "risk assessment", "serious crime related activities", "serious criminal offence". ...

Catchwords: Income tax (Cth) – Allowable deductions – Where taxpayer had received percentage of income derived from 18 gaming machines operated by authorised gaming operator under Gambling Regulation Act 2003 (Vic) at its hotel premises – Where Gambling Regulation Act amended to provide for gaming machine entitlements ("GMEs") to be allocated directly to gaming venue operators – Where taxpayer bid for and was allocated 18 GMEs permitting it to operate gaming machines at its premises for ten years – Where taxpayer paid purchase price by instalments – Whether purchase price was outgoing on revenue account deductible under s 8-1 of Income Tax Assessment Act 1997 (Cth) ("1997 Act") – Whether purchase price was expenditure incurred to preserve (but not enhance) value of goodwill in relation to legal or equitable right with value to taxpayer solely attributable to effect on goodwill deductible under s 40-880 of 1997 Act. Words and phrases – "asset of enduring value", "barrier to entry", "blackhole expenditure", "capital account", "capital asset", "CGT asset", "CGT cost base", "CGT event", "gaming machine entitlements", "goodwill", "motive", "objective purpose", "once-and-for-all outgoing", "practical and business point of view", "purchase price funded out of revenue", "revenue account", "statutory rights", "structural solution". ...

Catchwords: Statutes – Construction – Where s 45(1)(a) of Crimes Act 1900 (NSW) provides that a person who "excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person" is liable to imprisonment – Where two respondents charged with having "mutilated the clitoris" of each of complainants – Where other respondent charged with assisting those respondents following commission of those offences – Where defence case that procedure performed on complainants merely ritualistic – Where trial judge directed jury that word "mutilate" in context of female genital mutilation means "to injure to any extent" – Where trial judge directed jury that "clitoris" includes "clitoral hood or prepuce" – Whether "otherwise mutilates" should be given ordinary meaning or take account of context of female genital mutilation – Whether "clitoris" includes clitoral hood or prepuce – Whether trial judge misdirected jury as to meaning of "mutilate" and "clitoris". Appeals – Where s 6(2) of Criminal Appeal Act 1912 (NSW) provides that if appeal against conviction allowed, subject to special provisions of Act, Court of Criminal Appeal "shall ...

Catchwords: Restitution – Unjust enrichment – Work and labour done – Where land owners and builder entered into contract to which Domestic Building Contracts Act 1995 (Vic) applied – Where contract provided for progress payments at completion of stages – Where owners requested, and builder carried out, variations to plans and specifications in contract without giving written notice as required by s 38 of Act – Where owners repudiated contract after builder raised invoice claiming for variations – Where contract terminated by builder's acceptance of owners' repudiation – Whether s 38 of Act applied to limit amount recoverable by builder for variations – Whether builder entitled to recover in restitution as alternative to claim in damages for breach of contract – Whether contract price operated as ceiling on amount recoverable by way of restitution. Words and phrases – "accrued rights", "alternative restitutionary remedy", "common counts", "completed stage", "contract price ceiling", "contractual incentives", "domestic building contract", "failure of basis", "failure of consideration", "limit on recovery", "measure of restitution", "notice", "primary and secondary obligations", "principle of legality", "protective provisions", "qualifying or vitiating factor", "quantum meruit", "quasi-contractual obligation", "repudiation", "restitution", "subjective devaluation", "unjust enrichment", "variations", "work and labour done". ...

Catchwords: Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where decision by delegate of Minister for Immigration and Border Protection to refuse protection visa referred to Authority for review – Where Secretary of Department of Immigration and Border Protection gave Authority documents and information – Where Secretary notified Authority that s 473GB applied to documents and information – Where s 473GB(3) conferred discretions on Authority, upon notification, to have regard to matter in document or to information and to disclose matter in document or information to referred applicant – Where documents and information not disclosed to referred applicant during review – Where fact of notification not disclosed to referred applicant during review – Whether procedural fairness required Authority to disclose fact of notification to referred applicant. Administrative law – Judicial review – Jurisdictional error – Procedural fairness – Where Div 3 of Pt 7AA, s 473GA and s 473GB provided exhaustive statement of natural justice hearing rule in relation to reviews by Authority – Whether implied obligation of procedural fairness precluded. Words and phrases – "disclosure", "document or information", "exclusion of procedural fairness", "exhaustive statement", "fact of notification", "natural justice hearing rule", "notification". ...

Catchwords: Companies – Shares – Implied prohibition against financial assistance by company to acquire shares in company – Meaning of "financial assistance" – Where s 260A(1) of Corporations Act 2001 (Cth) provides that company may financially assist a person to acquire shares in the company only if giving the assistance does not materially prejudice the interests of the company or its shareholders, or the company's ability to pay its creditors – Where appellant companies' constitutions contained pre-emption clause which provided that, before a shareholder could transfer shares of a particular class, those shares must first be offered to existing shareholders of that class in proportion to the number of shares of that class already held by that shareholder – Where sole shareholder of one shareholder company entered into agreements for sale of shares – Where appellant companies claimed that agreements breached pre-emptive rights provisions – Where injunction sought under s 1324 of Corporations Act to restrain appellant companies from prosecuting proceedings in relation to pre‑emptive rights on basis that proceedings contravened the prohibition against financial assistance in s 260A(1) – Whether funding by company of legal proceedings directed at compelling one shareholder to offer shares to other shareholders is financial assistance – Whether the companies should be enjoined from continuing legal proceedings at their expense to vindicate alleged breach of pre-emptive rights. Words and phrases – "acquisition of shares", "creditors", "financial assistance", "implied prohibition against financial assistance", "injunction", "material prejudice", "power to enforce company constitution", "pre-emptive rights", "shareholders". ...

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

Catchwords: Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff's non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened. Words and phrases – "additional or separate punishment", "judicial power", "legislative punishment", "legislatively resentenced", "life imprisonment", "minimum term", "more punitive or burdensome to liberty", "non-parole period", "opportunity to be considered for release on parole", "parole", "severity of the punishment", "substantive operation and practical effect". ...

Catchwords: Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant gave evidence father driving vehicle at time of collision – Where appellant alleged injuries caused by negligence of father – Where appellant’s blood located on driver's airbag – Where expert evidence relating to possible source of blood – Where expert evidence relating to seatbelt and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether trial judge's findings glaringly improbable or contrary to compelling inferences. Appeal – Rehearing – Where trial judge drew inferences and made findings of fact based on lay and expert evidence – Where Court of Appeal found inferences wrong in material respects – Whether Court of Appeal erred in failing to conclude trial judge misused advantage as trial judge – Whether Court of Appeal failed to conduct "real review" of evidence given and trial judge's reasons for judgment. Words and phrases – "contrary to compelling inferences", "glaringly improbable", "real review", "trial judge's advantage". ...

Catchwords: Limitation of actions – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d). Words and phrases – "Barnes v Glenton", "claim in rem", "limitation of actions", "overlap between limitation periods", "personal claim", "real claim", "sums secured by mortgage or charge", "what claims are within limitation statutes". ...

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

Catchwords: Privilege – Legal professional privilege – Where documents identified by plaintiffs as having been created by law practice for sole or dominant purpose of provision of legal advice to plaintiffs – Where privileged documents stolen from electronic file management system of law practice and disseminated – Where documents obtained by defendants – Where defendants refused to return documents to plaintiffs and provide undertaking not to refer to or rely upon documents – Where plaintiffs sought injunctive relief in equity's auxiliary jurisdiction solely on basis of legal professional privilege – Where plaintiffs did not seek injunctive relief on basis of confidentiality or other area of law – Where defendants demurred on basis that no cause of action disclosed – Whether legal professional privilege operates only as immunity or is also actionable legal right – Whether policy considerations justify creation of new actionable right in respect of documents subject to legal professional privilege. Words and phrases – "actionable legal right", "basis for relief", "breach of confidence", "cause of action", "common law right", "confidentiality", "development of the law", "immunity", "injunction", "legal professional privilege", "policy of the law", "public interest", "remedy". ...

Catchwords: Statutes – Construction – Statutory powers – Mutual recognition – Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State – Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State – Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State "may" grant registration on that ground – Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation – Where respondent registered as waterproofer in first State – Where respondent refused registration in second State for non-compliance with "good character" requirement in local Act – Whether local registration authority has discretion to refuse registration – Whether "good character" requirement is law based on "qualification" relating to fitness to carry on occupation. Words and phrases – "character requirement", "disciplinary action", "discretionary power", "entitlement to registration", "fitness to carry on an occupation", "good character", "local registration authority", "may", "mutual recognition principle", "mutual recognition scheme", "qualification or experience", "registration for an occupation", "residual discretion", "sufficient ground of entitlement to registration". ...

Catchwords: Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance. Words and phrases – "adequate in its balance", "anonymous", "apolitical", "APS Code of Conduct", "effective burden", "impartial", "implied freedom of political communication", "integrity", "legitimate purpose", "necessary", "public servants", "public service", "reasonably appropriate and adapted", "suitable", "system of representative and responsible government", "tweets", "unjustified burden". ...

Catchwords: Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction. Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s 60H – Whether s 60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor". Words and phrases – "artificial conception procedure", "complete upon its face", "federal courts", "federal jurisdiction", "implicit negative proposition", "inconsistency", "irrebuttable presumption", "jurisdiction", "matter", "ordinary meaning", "otherwise provided", "parent", "parentage", "parenting orders", "picked up and applied", "power", "presumptions", "regulates the exercise of jurisdiction", "sperm donor", "State jurisdiction", "State legislative power", "status". ...

Catchwords: Practice and procedure – High Court – Suppression and non-publication orders – Power to make – Where expert evidence and gender restricted evidence of senior males of Ngaliwurru and Nungali Peoples admitted in support of compensation claims in native title proceedings – Whether suppression or non-publication orders in respect of such evidence necessary to prevent prejudice to the proper administration of justice. Words and phrases – "administration of justice", "gender restricted knowledge", "suppression order". ...

Catchwords: Corporations – External administration – Receivers and other controllers of property – Priority debts – Where corporation carrying on business solely as trustee created circulating security interest over trust assets in favour of bank – Where receivers and managers appointed by bank realised trust assets and satisfied obligations to bank – Whether surplus proceeds required to be paid in accordance with Corporations Act 2001 (Cth), s 433 – Whether corporation's right of indemnity is property of the company "comprised in or subject to a circulating security interest" within meaning of s 433 – Whether trust assets themselves are such "property of the company" – Whether statutory order of priorities for payment of debts applicable to distribution of surplus proceeds from trust assets among trust creditors – Whether proceeds from exercise of insolvent corporate trustee's right of exoneration to be applied only in satisfaction of trust liabilities to which it relates. Trusts – Trustees – Right of indemnity – Whether trustee's right of indemnity confers beneficial interest in trust assets – Whether such interest is "property" within meaning of Corporations Act, s 9. Words and phrases – "beneficial interest", "circulating asset", "circulating security interest", "floating charge", "insolvent corporate trustee", "payment of creditors out of property", "power of exoneration", "PPSA security interest", "priority payments", "property", "property comprised in or subject to a circulating security interest", "property held by the bankrupt on trust", "property of the company", "right of exoneration", "right of indemnity", "taking possession or assuming control of property", "trust asset", "trust liabilities". ...

Catchwords: Trade practices – Consumer protection – Unconscionable conduct – Where s 12CB(1) of Australian Securities and Investments Commission Act 2001 (Cth) relevantly prohibited "unconscionable" conduct in trade or commerce in connection with supply or possible supply of financial services – Where respondent provided "book-up" credit to Anangu customers of general store – Where book-up credit allowed deferral of whole or part of payment for goods subject to respondent retaining customer's debit card and personal identification number – Where respondent used debit card to withdraw whole or nearly whole of wages or Centrelink payments shortly after credited to prevent customers having practical opportunity to access monies – Where respondent applied part of withdrawn funds to reduce customer's indebtedness and made remainder available for provision of future goods and services – Where respondent's record-keeping inadequate and often illegible – Where customers vulnerable due to remoteness, limitations on education, impoverishment and low levels of financial literacy – Where book-up system "tied" Anangu customers to general store – Where customers had understanding of basic elements of book-up system – Where withdrawals authorised by customers – Where customers generally supportive of book-up and respondent's business – Where book-up protected customers from cultural practices requiring sharing of resources with certain categories of kin – Where book-up ameliorated effects of "boom and bust" cycle of expenditure and allowed purchase of food between pay days – Whether respondent's conduct unconscionable within meaning of s 12CB(1) of Act. Words and phrases – "agency", "book-up", "credit", "cultural practices", "demand sharing", "dishonesty", "exploitation", "financial literacy", "humbugging", "inequality of bargaining power", "legitimate interests", "moral obloquy", "passive acceptance", "power imbalance", "special disadvantage", "standard of conscience", "system or pattern of conduct", "transparency or accountability", "unconscientious conduct", "unconscionable conduct", "undue influence", "unfair", "unjust", "unwritten law", "victimisation", "voluntary", "vulnerability". ...

Catchwords: Immigration – Unlawful non-citizens – Detention pending removal from Australia – Where s 189 of Migration Act 1958 (Cth) requires unlawful non‑citizen be detained – Where s 196 requires unlawful non-citizen detained under s 189 be kept in immigration detention – Where plaintiff an unlawful non‑citizen – Where plaintiff arrived in migration zone using false passport and personal details – Where plaintiff kept in immigration detention since arrival in migration zone – Where plaintiff previously used false personal details – Where plaintiff's identity and nationality not known – Whether ss 189 and 196 authorise plaintiff's detention – Whether ss 189 and 196 constitutionally valid in application to plaintiff. High Court – Original jurisdiction – Practice – Special case – Drawing of inferences – Where factual basis of questions of law depends on drawing inferences under r 27.08.5 of High Court Rules 2004 (Cth) – Where inferences concern likelihood of plaintiff's future removal from Australia – Where prospects of plaintiff's future removal depend on information provided by plaintiff and cooperation by plaintiff – Where plaintiff made false statements and failed to assist and cooperate – Where plaintiff gave inconsistent accounts of personal and family background – Where plaintiff seeks to take advantage of falsehoods and non-cooperation – Whether inferences can be drawn. Words and phrases – "habeas corpus", "identity", "immigration detention", "inferences", "onus of proof", "prospects of removal", "real prospect", "reasonably foreseeable", "special case", "unlawful non-citizen". ...

Catchwords: Administrative law (Cth) – Administrative Appeals Tribunal – Nature and scope of review – Where appellant's convictions spent under Pt VIIC of Crimes Act 1914 (Cth) – Where Div 3 of Pt VIIC of Crimes Act prohibited Australian Securities and Investments Commission ("ASIC") from taking into consideration spent convictions in deciding to make banning order – Where review of decision of ASIC by Administrative Appeals Tribunal – Where s 85ZZH(c) of Crimes Act provided that Div 3 of Pt VIIC does not apply to Commonwealth tribunal – Whether Administrative Appeals Tribunal entitled to take into consideration on review spent convictions which ASIC was prohibited from taking into consideration. Words and phrases – "banning order", "fit and proper person", "function of the original decision-maker", "review", "spent conviction", "stand in the shoes of the decision-maker". ...

Catchwords: Contract – Construction – Dispute resolution clause – Arbitration – Where arbitral clause in deeds provided for confidential arbitration in event of any dispute "under this deed" – Where deeds came into existence against background of claims and threats of litigation made publicly by one party to deeds against others – Where deeds contained releases, acknowledgments and covenants not to sue, and promises not to make further claims – Where deeds contained assurances they were entered into without undue influence or duress – Where appellants brought proceedings alleging breaches of equitable and contractual duties against other parties to deeds – Where appellants asserted they were not bound by deeds because their assent procured by misconduct of other parties to deeds ("validity claims") – Where respondents sought orders that matter be referred to arbitration and proceedings be dismissed or permanently stayed – Whether validity claims subject to arbitral clause. Arbitration – Parties – Where s 8(1) of Commercial Arbitration Act 2010 (NSW) ("NSW Act") provided that court before which action is brought in matter which is subject of arbitration agreement must in certain circumstances refer parties to arbitration – Where s 2(1) of NSW Act defined "party" to include any person claiming "through or under" party to arbitration agreement – Where trustees and beneficiaries party to arbitration agreement – Where beneficiaries alleged breaches of trust against trustees and knowing receipt against third party companies as assignees of trust property – Where third party companies asserted beneficial entitlement of trustees to property as essential element of defence – Where third party companies sought order that claims against them be referred to arbitration pursuant to s 8(1) of NSW Act – Whether third party companies claiming "through or under" party to arbitration agreement. Words and phrases – "arbitral clause", "arbitration agreement", "claiming through or under a party", "confidential processes of dispute resolution", "context and purpose of deed", "dispute under this deed", "party", "privity of contract". ...

Catchwords: Constitutional law (Cth) – Powers of Commonwealth Parliament – Federal elections – Severance – Where s 51(xxxvi) in application to ss 10 and 31 of Constitution conferred legislative power on Commonwealth Parliament with respect to federal elections – Where Commonwealth Parliament enacted s 302CA within Div 3A of Pt XX of Commonwealth Electoral Act 1918 (Cth) – Where s 302CA relevantly conferred authority on person to make, and on "political entity" to receive and retain, gift not prohibited by Div 3A provided that gift or part of it was "required to be, or may be" used for certain purposes relating to federal elections – Where s 302CA provided for displacement of such authority in circumstances including where State or Territory electoral law required gift or part of it to be kept or identified separately to be used only for purpose of State, Territory or local government election – Whether Commonwealth legislative power with respect to federal elections exclusive or concurrent – Whether s 302CA within scope of Commonwealth legislative power with respect to federal elections – Whether possible to sever s 302CA to preserve part of its operation within scope of Commonwealth legislative power. Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Gifts to political parties – Where Queensland Parliament passed amendments to Electoral Act 1992 (Qld) and Local Government Electoral Act 2011 (Qld) prohibiting property developers from making gifts to political parties that endorse and promote candidates for election to Legislative Assembly and local government councils – Whether Queensland amendments inconsistent with s 302CA or framework of Pt XX of Commonwealth Electoral Act – Whether s 302CA invalid for infringing principle in University of Wollongong v Metwally (1984) 158 CLR 447; [1984] HCA 74. Constitutional law (Cth) – Implied freedom of communication about governmental and political matters – Where amendments to Electoral Act 1992 (Qld) substantially replicated provisions in Election Funding, Expenditure and Disclosures Act 1981 (NSW) upheld in McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34 – Whether amendments invalid for infringing implied freedom. Constitutional law (Cth) – Relationship between Commonwealth and States – Doctrine of inter-governmental immunities – Whether implication expounded in Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; [1947] HCA 26 operates reciprocally to protect States and Commonwealth from impermissible interference by law of one polity with operations of government in another – Whether s 302CA invalid for contravening Melbourne Corporation principle – Whether Queensland amendments invalid for contravening Melbourne Corporation principle. Words and phrases – "bare attempt to limit or exclude State power", "concurrent power", "electoral expenditure", "electoral matter", "exclusive power", "federal elections", "federalism", "immunity from State laws", "incidental", "inconsistency", "inter-governmental immunities", "political entity", "political party", "required to be, or may be, used for the purposes of incurring electoral expenditure, or creating or communicating electoral matter", "severance", "State elections", "structural implication", "sufficient connection". ...

Catchwords: Aviation – Carriage of passengers by air – Accident – Carrier's liability – Where respondent engaged by appellant to carry out survey using helicopter – Where passenger aboard helicopter killed in crash – Where Pt IV of Civil Aviation (Carriers' Liability) Act 1959 (Cth) applied – Where s 28 provided that carrier liable for damage sustained by reason of death of passenger – Where s 35(2) substituted liability under s 28 for any civil liability of carrier under any other law in respect of death of passenger – Where s 34 imposes time limit on availability of right of action created by s 28 – Where widow, daughter and son of passenger brought claims in tort against appellant and respondent for damages for negligently inflicted psychiatric harm resulting from death of passenger – Where claims brought outside time limit prescribed by s 34 – Whether claims precluded by Act. Words and phrases – "any civil liability of the carrier under any other law", "by reason of the death of the passenger", "claim", "damage sustained", "Hague Protocol", "in respect of the death of the passenger", "Montreal Protocol No 4", "negligently inflicted psychiatric harm", "tort", "Warsaw Convention". ...

Catchwords: Aboriginals – Native title rights – Extinguishment of rights – Where s 47B of Native Title Act 1993 (Cth) provides that any historic extinguishment of native title rights and interests is to be "disregarded" for purposes of claim for determination of native title rights and interests over vacant Crown land – Where s 47B(1)(b)(i) provides that provision does not apply if relevant area is covered by "lease" – Where s 242(2) relevantly provides that "[i]n the case only of references to a mining lease, the expression lease also includes a licence ...

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