Recent Cases

High Court of Australia

  • 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”.

Full Federal Court

  • Catchwords: PRACTICE AND PROCEDURE – application for leave to adduce further evidence – whether the Court should in its discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) admit further evidence in the appeal – leave granted NATIVE TITLE – whether the certification function conferred on the Northern Land Council by s 203BE(1)(b) of the Native Title Act 1993 (Cth) was duly delegated by that representative body to the CEO under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – appeal allowed

  • Catchwords: COSTS – application for indemnity costs ­– where meritless appeal found to have been pursued for ulterior purpose of harassing the Respondent – whether costs order should be reduced by any amount recovered from Appellant’s lawyers PRACTICE AND PROCEDURE – where Appellant had given undertaking not to encumber or otherwise deal with property – whether the Court has power to extend undertaking

  • Catchwords: TRADE MARKS – appeal – deceptive similarity – whether primary judge erred in finding DOWN-N-OUT deceptively similar to IN-N-OUT BURGER – appeal dismissed TRADE MARKS – cross-appeal from finding that directors not liable as joint tortfeasors with company for trade mark infringement – cross-appeal allowed CONSUMER LAW – misleading or deceptive conduct – appeal from findings that appellants’ conduct amounted to representation of an association with respondent – appeal dismissed TORTS – passing off – appeal from finding that appellants’ conduct amounted to passing off – whether necessary for respondent to have a reputation in the form of business and customers in Australia to support claim – appeal dismissed TORTS – passing off – cross-appeal from finding that directors not liable as joint tortfeasors with company for passing off – cross-appeal allowed

  • Catchwords: INDUSTRIAL LAW – appeal against quantum of pecuniary penalties for contraventions of ss 230(1)(b) and (c) and 233(2) of the Fair Work (Registered Organisations) Act 2009 (Cth) – whether primary judge erred in not ascribing a particular penalty to each contravention – whether primary judge misunderstood totality principle – whether primary judge erred in concluding that specific deterrence was relevant – whether primary judge erred in concluding certain contraventions were not part of single course of conduct – whether penalties manifestly excessive – where primary judge erred in assessing a single penalty for multiple contraventions – consideration of appropriate penalty in circumstances

  • Orders: 1. The name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 2. The Notice of Objection to Competency filed on 20 August 2020 is upheld. 3. The proceeding is dismissed. 4. The application for orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) made at the hearing is refused. 5. The Applicant is to pay the costs of the First Respondent, either as taxed or agreed. Note: Entry of orders is dealt with in Rule…

NSW Court of appeal

  • Catchwords: PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents

  • Catchwords: APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests

  • Catchwords: ANIMALS — prevention of cruelty to animals — private prosecution under Prevention of Cruelty to Animals Act — guilty verdict — charges subsequently dismissed under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff

  • Catchwords: BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed

  • Catchwords: ANIMALS – Cruelty to animals – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act 1900 (NSW) – defences to offence of serious cruelty to animals under s 530(2) of the Crimes Act 1900 (NSW) – meaning of “pest animals” – meaning of “in the course of or for the purposes of extermination of pest animals” – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” – statutory context – context includes other legislation addressing cruelty to animals CRIMINAL LAW – cruelty to animals – offence of serious cruelty to animals – elements of offence – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act – statutory defence – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” STATUTORY INTERPRETATION – where provision in question one of a number of provisions in various statutes concerned with prevention of cruelty to animals – other statutes forming part of the statutory context – consideration of the use of dictionaries in statutory interpretation WORDS AND PHRASES – “pest animal” – “extermination” – “in the course of or for the purposes of extermination of pest animals”