Recent Cases

High Court of Australia

  • 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

  • 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 – 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: 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 … or removal of unlawful non-citizens” – Whether proceeding related to migration decision – Whether proceeding raised issue in connection with visas or removal of unlawful non-citizens. Words and phrases – “class actions”, “in relation to”, “migration decision”, “raises an issue in connection with”, “relates to”, “representative proceeding”.

  • 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”.

Full Federal Court

  • Catchwords: CONTRACTS – express obligations of confidence allegedly preventing voluntary communications with the solicitors for opposing party in litigation – primary judge followed AS v Minister for Immigration and Border Protection (Ruling No 6) [2016] VSC 774; 53 VR 631 in exercising a discretion to relieve persons owing otherwise enforceable obligations of confidence to facilitate the overarching purpose of civil litigation rather than considering whether the provisions were void at law because they had a tendency to interfere adversely with the administration of justice or were enforceable by way of injunction in equity – held that the approach in AS v Minister for Immigration and Border Protection (Ruling No 6) is contrary to principle leading to error in the making of the primary judge’s order CONFIDENTIAL INFORMATION – consideration of the sources of obligations of confidence PRACTICE AND PROCEDURE – consideration of orthodox approaches to enforcing obligations of confidence and obtaining information from potential witnesses in advance of trial

  • Catchwords: PATENTS – construction – whether the primary judge failed to construe the claim in the context of the specification as a whole – meaning of “formed from sheet material” – infringement – meaning of “sheet” – construction and infringement grounds of appeal dismissed PATENTS – award of additional damages – exercise of discretion under s 122(1A) of the Patents Act 1990 (Cth) – threshold for “flagrant” infringement – existence of a reasonably arguable defence to infringement – requirement to consider all other relevant matters contemplated by s 122(1A) – appeal allowed in part

  • Catchwords: COURT OF DISPUTED RETURNS – electoral petitions filed – s 329(1) of the Commonwealth Electoral Act 1918 (Cth) – whether corflutes used likely to mislead or deceive an elector in relation to the casting of a vote – s 362(3) of the Commonwealth Electoral Act 1918 (Cth) – whether Court satisfied that the result of the election was likely to be affected STATUTORY INTERPRETATION – meaning of “likely to mislead or deceive” – “an elector” – “in relation to the casting of a vote” – “cause, permit or authorize” – “the result of the election was likely to be affected”

  • Catchwords: COSTS – where six appeals involving common substratum of fact were heard together and later dismissed, save for partial success by one appellant – whether a lump sum costs order should be made in favour of certain respondents – whether and how liability for the lump sum amount should be apportioned between the appellants – consideration of the overarching purpose in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) – lump sum costs orders made and apportioned by way of percentage breakup with quantification of lump sum amount to be determined by a single judge

  • Catchwords: ADMINISTRATIVE LAW – appeal from decision of the Federal Circuit Court quashing decision of a delegate of the Secretary relating to the payment of child care benefits – where respondent was a provider of child care services – consideration of the provisions of the A New Tax System (Family Assistance) Act 1999 (Cth) and the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) – where delegate found that there was no genuine liability to pay as required under s 43(1)(c) of the Act – where delegate calculated a zero rate and nil amount in fee reduction – whether delegate was required to consider the actual arrangements made by the provider with the eligible individuals – whether primary judge erred in finding that the delegate failed to undertake the statutory task in failing to consider a mandatory relevant consideration – whether primary judge erred in finding that the delegate’s decision was unreasonable – where primary judge erred in undertaking the task entrusted to the delegate on review – appeal allowed

NSW Court of appeal

  • Catchwords: TORTS — negligence — liability — prison authority — where respondent victim of prison assault causing serious injury — where prison authority informed of threat — whether failure to segregate and arrange for transfer breach of duty of care — consideration of powers to order segregated custody under the Crimes (Administration of Sentences) Act 1999 (NSW)

  • Catchwords: LANDLORD AND TENANT – renewals and options – exercise of option – commercial premises – whether email exchange constituted exercise of option – relevance of subsequent conduct – whether absence of further guarantee required by lease precluded enforceable agreement

  • Catchwords: LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact.

  • Catchwords: WORKERS’ COMPENSATION – Entitlement to lump sum compensation – Causal relation between injury and incapacity – The extent to which the first respondent’s present permanent impairment is the result of the first injury as distinct from the second injury. ADMINISTRATIVE LAW – Jurisdictional error or error of law on the face of the record – Whether the Appeal Panel of the Workers Compensation Commission of NSW in certifying that the percentage whole person impairment of the first respondent as a result of the first injury was 6% committed jurisdictional error or an error of law on the face of the record.

  • Catchwords: COSTS – party/party – appeals – court’s discretion – where appellant filed a submitting appearance and did not cause or contribute to the first respondent’s costs in the proceedings below – where appellant did not cause the errors the subject of the proceedings below – where the proceedings below could not be resolved by consent – whether failure by primary judge to take into account considerations relevant to the costs discretion – order as to costs set aside COSTS – appeals – Suitors’ Fund – whether decision of claims assessor under the Motor Accidents Compensation Act 1999 (NSW) is a decision of a “court or tribunal” for the purposes of the Suitors’ Fund Act 1951 (NSW) – whether judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) constitutes “an appeal” for the purposes of s 6 of the Suitors’ Fund Act