Recent Cases

High Court of Australia

  • Catchwords: Criminal practice – Appeal – Miscarriage of justice – Application of proviso that no substantial miscarriage of justice actually occurred – Where appellant convicted of unlawfully and indecently dealing with child under age of 16 years and rape – Where evidence admitted by consent that both appellant and complainant tested positive for herpes simplex virus type 1 (“impugned evidence”) – Where impugned evidence irrelevant and inadmissible – Where Court of Appeal found miscarriage of justice because trial judge failed to direct jury to disregard impugned evidence in its entirety – Where Court of Appeal applied proviso because it concluded impugned evidence could not have impacted jury’s assessment of reliability or credibility of complainant – Whether no substantial miscarriage of justice had actually occurred. Words and phrases – “contested credibility”, “jury’s assessment of the reliability or credibility of the complainant”, “miscarriage of justice”, “natural limitations”, “nature and effect of the error”, “proviso”, “substantial miscarriage of justice”.

  • Catchwords: Criminal law – Defences – Honest and reasonable mistake of fact – Where appellant charged with supplying controlled drug to child contrary to s 14 of Misuse of Drugs Act 2001 (Tas) – Where appellant claimed he honestly and reasonably believed child was adult – Where appellant’s conduct, had his belief been true, would have constituted lesser offence of supplying controlled drug contrary to s 26 of Misuse of Drugs Act – Where common law principle of honest and reasonable mistake of fact operates to excuse conduct that, on believed state of facts, would be innocent – Meaning of “innocent” – Whether appellant entitled to rely on excuse of honest and reasonable mistake of fact. Words and phrases – “common law principle”, “criminal responsibility”, “excuse”, “ground of exculpation”, “honest and reasonable but mistaken belief in the existence of any state of facts”, “innocent”, “justification”, “mistake as to age”, “voluntary and intentional”.

  • Catchwords: Practice and procedure – Freezing orders – Power of Federal Court of Australia to make worldwide freezing order conferred by r 7.32 of Federal Court Rules 2011 (Cth) – Where appellant commenced proceedings against respondent in Federal Court – Where appellant applied to Federal Court for worldwide freezing order – Where assets located in People’s Republic of China and Hong Kong – Where presently no realistic possibility of enforcement of appellant’s judgment debt in each foreign jurisdiction where assets located – Where freezing order made – Whether worldwide freezing order within power of Federal Court where presently no realistic possibility of enforcement in each foreign jurisdiction. Words and phrases – “assets outside Australia”, “danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied”, “freezing order”, “frustration or inhibition of the Court’s process”, “realistic possibility of enforcement”, “worldwide freezing order”.

  • Catchwords: Immigration – Visas – Cancellation of visa – Revocation of cancellation – Where respondent’s temporary visa cancelled under s 501(3A) of Migration Act 1958 (Cth) – Where respondent made representations seeking revocation of cancellation decision under s 501CA(4) – Where representations included bare assertions about conditions in American Samoa – Where Minister decided there was not “another reason” to revoke cancellation decision under s 501CA(4)(b)(ii) – Where Minister made findings about conditions in American Samoa and Samoa – Where it was common ground no evidentiary material to support Minister’s findings – Whether Minister always obliged to make findings of fact in response to representations received – Whether Minister’s findings relating to hardship respondent’s family would face if visa cancellation decision not revoked were open – Whether Minister entitled to rely on personal or specialised knowledge, or commonly accepted knowledge, in making findings about conditions in American Samoa and Samoa – Whether as matter of procedural fairness Minister required to disclose personal or specialised knowledge and invite submissions from applicant about that knowledge before making findings. Words and phrases – “another reason”, “bare assertions”, “commonly accepted knowledge”, “conditions in American Samoa or Samoa”, “hardship”, “Minister’s personal or specialised knowledge”, “no evidence”, “personal knowledge”, “reasons for decision”, “removal to American Samoa”, “representations about revocation”, “specialised knowledge”, “visa cancellation”.

  • Catchwords: Damages – Torts – Negligence – Damage to chattels – Consequential loss – Physical inconvenience and loss of amenity of use – Where respondents owned prestige vehicles – Where prestige vehicles negligently damaged and unavailable during periods of repair – Where appellants liable for costs of repairing vehicles – Where respondents deprived of use of prestige vehicles including enjoyment of various functions – Where respondents incurred costs of hiring replacement vehicles of equivalent value to damaged vehicles – Whether costs of hiring replacement vehicles recoverable as damages – Whether respondents required to prove need for prestige replacement vehicles – Whether hiring replacement vehicles of equivalent value constitutes acts taken to mitigate loss – Whether hiring replacement vehicles of equivalent value unreasonable. Words and phrases – “act in mitigation”, “compensatory principle”, “concept of need”, “consequential loss”, “costs incurred in mitigation”, “costs of hire”, “equivalent replacement vehicle”, “equivalent value”, “heads of damage”, “loss of amenity of use “, “loss of pleasure or enjoyment”, “luxury vehicle”, “mitigation of loss”, “negligent damage to a chattel”, “physical inconvenience”, “prestige vehicle”, “proof of loss”, “reasonable hire costs”, “replacement vehicle”.

Full Federal Court

  • Catchwords: COSTS – question reserved for consideration of the Full Court over objection of the defendant – where outstanding defences raised by the defendant remain for determination – where defendant was unsuccessful on the special case – costs reserved

  • Catchwords: BANKRUPTCY AND INSOLVENCY – funds held in solicitor’s trust account when sequestration order was made by registrar – funds transferred to petitioning creditor after sequestration order made – transferred funds less than debt owed to creditor – creditor did not accept tender of payment of debt – whether judge conducted de novo hearing – whether judge put to one side the fact that there had been a sequestration order – whether judge erred in approaching review on basis that sequestration order meant that funds in solicitor’s trust account were not funds available to debtor for the purposes of the hearing de novo – consequence of payment not being accepted by creditor was that creditor’s petition should not have been dismissed

  • Catchwords: MIGRATION – judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the responsible Minister made under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of a Resolution of Status visa – whether legally unreasonable for Tribunal not to have inquired or adjourned hearing to enable material to be put before it regarding non-refoulement, or to not have considered doing so – whether Tribunal failed to give real and genuine consideration to a claim or relevant evidence regarding non-refoulement– whether the Tribunal erred in its interpretation or application of s 500(6H) of the Act – appeal dismissed

  • Catchwords: COSTS – indemnity costs – whether appeal was sufficiently meritless – whether costs unreasonably incurred – costs awarded on lump sum basis

  • Catchwords: TAXATION – appeal from decision of the Administrative Appeals Tribunal that bankrupt applicant had no standing to extend time to seek review of Commissioner’s objection decision because applicant not a person “dissatisfied” within the meaning of s 14ZZ(1) Taxation Administration Act 1953 (Cth) – where after bankruptcy, applicant charged with four criminal offences under State law related to the tax debt or administration of bankrupt estate – whether successful review of objection decision would have any relevance to charges or conduct of criminal trial so as to make the applicant a person “dissatisfied”, that is with an interest beyond the effect of bankruptcy – limited evidence to support that factual inquiry – no error in Tribunal’s reasoning or application of McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 – appeal dismissed. PRACTICE AND PROCEDURE – primacy of Full Court authority, including in original jurisdiction – no argument advanced that long standing Full Court authority in McCallum v Commissioner of Taxation [1997] FCA 533; 75 FCR 458 plainly wrong – court declined to reconsider. CONSTITUTIONAL LAW – whether s 14ZZ imposes incontestable tax liability.

NSW Court of appeal

  • Catchwords: HIGH RISK OFFENDERS – extended supervision orders – definition of eligible offender – advocating support for “terrorist act” or “violent extremism” – carrying out violent acts not sufficient – delivery of letters threatening member of State Parliament – threat visible to staff who received letters – transient delusional disorder not sufficient to negate intention – nature of double intention required – Terrorism (High Risk Offenders) Act 2017 (NSW), s 10(1)(c)(i) HIGH RISK OFFENDERS – extended supervision orders – assessing “unacceptable risk” of committing a “serious terrorism offence” – questioning of expert witness as to effect of delusions denied by offender – basis for rejection of opinion of court-appointed experts – reliance on failure of offender to give evidence – Terrorism (High Risk Offenders) Act 2017 (NSW), s 20(d)

  • Catchwords: COSTS – party/party – appeals – whether the respondent should pay its costs of the proceedings in the court below – whether there should be no order as to costs – where the primary judge’s conclusions in favour of the respondent on some issues was upheld

  • Catchwords: PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was an accessory to breaches of fiduciary obligations owed to the respondents – where the appellant caused the third respondent to fail to account to the second respondent for one half of the profits derived from the acquisition and subsequent sale of three contiguous parcels of land – where primary judge did not refer to two essential matters to establish accessorial liability under the second limb of Barnes v Addy – where the appellant knew of facts and circumstances which would indicate the fact of the breach on the part of a fiduciary to an honest and reasonable person PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – fiduciary relationship – obligations – whether the appellant was liable to the first respondent or the second respondent PARTNERSHIPS AND JOINT VENTURES – rights and duties between partners – interpretation of agreement – oral agreement – where there was an agreement to enter into a partnership to acquire and resell three contiguous parcels of land and share expenses and profits equally – whether the agreement was subject to a sunset condition – where the first respondent’s evidence of oral agreement accepted – where the third respondent was a vehicle entrusted to hold assets on behalf of the partnership

  • Catchwords: ADMINISTRATIVE LAW – particular administrative bodies – New South Wales Civil and Administrative Tribunal – Occupational Division – subject matter of power or decision – disciplinary decisions – legal practitioners – barristers – misconduct and discipline – professional misconduct – where respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – where the Tribunal found that the respondent had not engaged in professional misconduct – whether the Tribunal erred in failing to find that the respondent’s conduct would justify a determination that the respondent was not a fit and proper person to engage in legal practice – whether the Tribunal erred in its assessment of the seriousness of the respondent’s conduct by imposing only a formal reprimand OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – disciplinary proceedings – professional misconduct – where respondent is a practising barrister – respondent engaged in demeaning, humiliating and inexcusable conduct towards a female clerk at a dinner – New South Wales Civil and Administrative Tribunal found that the respondent had engaged in “unsatisfactory professional conduct” – respondent alleged to have said the words “suck my dick” to the female clerk – where immediate verbal complaint made by female clerk to a colleague – where the events of the dinner were recorded by closed circuit television cameras – where the Court was in as good a position as the Tribunal to determine questions of fact – whether the respondent said to H the words “suck my dick” OCCUPATIONS – legal practitioners – barristers – misconduct and discipline – professional misconduct – where professional misconduct is defined in s 297 of the Legal Profession Uniform Law (NSW) – where that definition is expressed to be “inclusive” of the traditional definition of “professional misconduct”’ at common law – where the Court has inherent jurisdiction to supervise members of

  • Catchwords: CRIME – appeal and review – appeal against sentence from Local Court to District Court – District Court dismissed appeal – where District Court judge decided not to order that full-time custodial sentence be served by way of intensive correction order – judicial review – limited to review for jurisdictional error by privative clause in s 176 of District Court Act 1973 (NSW) – where assessment contemplated by s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) not undertaken – whether failure to conduct assessment amounted to jurisdictional error JUDICIAL REVIEW – jurisdictional error – applicant pleaded guilty to various offences under Firearms Act 1996 (NSW) – applicant sentenced on basis of agreed facts – Local Court imposed full-time custodial sentence of three years – appeal to District Court pursuant to s 11(1) of Crimes (Appeal and Review) Act 2001 (NSW) – applicant raised submission that sentence of imprisonment should be served by way of intensive correction order – District Court dismissed appeal – whether District Court fell into jurisdictional error when rejecting submission seeking intensive correction order – where s 66(2) of Crimes (Sentencing Procedure) Act 1999 (NSW) required District Court judge to assess whether making an intensive correction order or ordering full-time detention was more likely to address applicant’s risk of reoffending – whether District Court judge conducted assessment as required by s 66(2) – where s 66(1) expresses that community safety is paramount consideration in deciding whether to make an intensive correction order – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error SENTENCING – penalties – intensive correction orders – proper approach to exercise of discretion – mandatory considerations – Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(2) – whether failure to conduct assessment contemplated by s 66(2) amounted to jurisdictional error – where community safety