Recent Cases

High Court of Australia

  • 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: 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”.

Full Federal Court

  • Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216

  • Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216

  • Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216

  • Catchwords: MIGRATION ? consideration of whether the Immigration Assessment Authority (the ?IAA?) in reaching its decision in the exercise of its statutory review function relied upon reports and information which were contradicted by, and inconsistent with, other cited reports on material issues relating to safety in the receiving country and in a place of relocation within the receiving country ? consideration of the process of reasoning of the IAA ? consideration of whether the IAA acted upon ?unreliable information? ? consideration of whether the IAA reached a decision affected by legal unreasonableness ? consideration, in that context, of CRI026 v Republic of Nauru (2018) 355 ALR 216

  • Catchwords: INTELLECTUAL PROPERTY – application for leave to appeal – where primary judge dismissed an appeal from a decision of the delegate of the Commissioner of Patents revoking an innovation patent – where alleged invention was a method by which an organisation engages with an innovation service provider to innovate – whether alleged invention is a “manner of manufacture” within the meaning of Statute of Monopolies 1623 (UK) s 6 PRACTICE AND PROCEDURE – application to adduce fresh evidence – application refused

NSW Court of appeal

  • Catchwords: APPEAL – further evidence – special grounds – whether further evidence relevant to appeal confined to question of law – whether further evidence not obtainable with reasonable diligence – Supreme Court Act 1970 (NSW), s 75A(8) WORKERS COMPENSATION – appeal from Workers Compensation Commission constituted by President – appeal confined to question of law – whether President erred in disregarding evidence of psychiatrist – distinction between identifying meaning of expert report and evaluating evidence – whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment – definition of injury in (former) s 4(b)(ii) of Workers Compensation Act 1987 (NSW), considered

  • Catchwords: CIVIL PROCEDURE ? Court of Appeal ? Leave to appeal ? whether appeal incompetent ? notice of appeal ? application filed out of time ? where no application has been made for an extension of time or explanation given ? no evidence appeal involves matter at issue of value of $100,000 or more DEFAMATION ? whether denial of procedural fairness ? whether conclusions open to be drawn by primary judge in absence of cross-examination ? whether appellant had adequate opportunity to explain his position ? where trial judge did not notify the appellant of her doubts concerning his evidence DEFAMATION ? Defences ? honest opinion ? whether defamatory matter was statement of fact or opinion/comment ? where matters of opinion intermingled with statements of fact ? whether defamatory matter or defamatory meaning as found focus of inquiry DEFAMATION ? Defences ? honest opinion ? whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter ? whether comment or opinion based on proper material DEFAMATION ? Defences ? fair report ? whether defamatory matter a fair report where it is a substantially accurate report in fact ? where not a substantially accurate report of the meaning conveyed by the report DEFAMATION ? Defences ? statutory qualified privilege ? whether failure to seek comment from the appellant was not reasonable ? where Royal Commission proceedings were a matter of public interest ? where evidence of the appellant was ongoing ? where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter

  • Catchwords: STATUTORY INTERPRETATION – whether reference to “compensation” in s 134AB(1) of the Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether or not awarded under the Act or the Act of some other state or territory – expressio unius reasoning inappropriate where dealing with interpretation of a “patchwork” statute. WORKERS COMPENSATION – whether worker who was injured in Victoria but was not entitled to compensation under Victorian workers compensation legislation was nevertheless required to pass through statutory gateways under Victorian legislation when seeking common law damages – where worker had received compensation under NSW workers compensation scheme – whether reference to “compensation” in s 134AB(1) of Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether awarded under that Act or the Act of some other state or territory.

  • Catchwords: WORKERS COMPENSATION ­– determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4 and 9A

  • Catchwords: APPEAL – Leave to appeal – winding up order – no substantial injustice. CORPORATIONS – Winding up on just and equitable ground – where directors planned to place company into liquidation in any event.