Recent Cases

High Court of Australia

  • 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 quest

  • 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”.

Full Federal Court

  • Catchwords: TRADE MARKS – infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) – whether primary judge erred in concluding that the respondents did not infringe the appellant’s BOTOX mark by using PROTOX as a trade mark – whether primary judge erred in concluding that PROTOX was not deceptively similar to BOTOX – held that PROTOX is deceptively similar to BOTOX mark – infringement established TRADE MARKS – infringement claim pursuant to s 120 of the Act – whether the respondents used the composite phrase “instant Botox® alternative” as a trade mark – whether “instant BOTOX® alternative” deceptively similar to appellant’s BOTOX marks – phrase was used as a trade mark – phrase was deceptively similar to BOTOX mark – whether comparative advertising “defence” under s 122(1)(d) of the Act available and established – meaning of “comparative advertising – whether “defences” under s 122(1)(b) and (c) and (e) of the Act available and established – discussion of the nature of s 122 “defences” – defences not made out – infringement established CONSUMER LAW – misleading or deceptive conduct – performance characteristics, uses or benefits – representations as to period of time effect of treatment would last – whether the use by the respondents of the phrase “instant Botox® alternative”, assessed in context, conveyed a representation that the respondents’ Inhibox product would provide results which would, after treatment has ceased, last about as long as treatment with Botox – contraventions of s 18, s 29(1)(a) and s 29(1)(g) Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) established

  • Catchwords: TRADE MARKS – infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) – whether primary judge erred in concluding that the respondents did not infringe the appellant’s BOTOX mark by using PROTOX as a trade mark – whether primary judge erred in concluding that PROTOX was not deceptively similar to BOTOX – held that PROTOX is deceptively similar to BOTOX mark – infringement established TRADE MARKS – infringement claim pursuant to s 120 of the Act – whether the respondents used the composite phrase “instant Botox® alternative” as a trade mark – whether “instant BOTOX® alternative” deceptively similar to appellant’s BOTOX marks – phrase was used as a trade mark – phrase was deceptively similar to BOTOX mark – whether comparative advertising “defence” under s 122(1)(d) of the Act available and established – meaning of “comparative advertising – whether “defences” under s 122(1)(b) and (c) and (e) of the Act available and established – discussion of the nature of s 122 “defences” – defences not made out – infringement established CONSUMER LAW – misleading or deceptive conduct – performance characteristics, uses or benefits – representations as to period of time effect of treatment would last – whether the use by the respondents of the phrase “instant Botox® alternative”, assessed in context, conveyed a representation that the respondents’ Inhibox product would provide results which would, after treatment has ceased, last about as long as treatment with Botox – contraventions of s 18, s 29(1)(a) and s 29(1)(g) Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth) established

  • Catchwords: CORPORATIONS – continuous disclosure obligations under s 674 of Corporations Act 2001 (Cth) – application of ASX listing rules 3.1 and 3.1A – non-disclosure of material information – shareholders’ claims for damages under s 1317HA of Corporations Act – debts or claims provable in winding up – rejection of proofs of debt – appeals to the primary judge from rejection of proofs of debt – whether trial judge erred in making findings of non-contravention of s 674 – whether contraventions, if made, would have caused share price inflation – applicability of market based causation – no proof of contraventions – no proof of loss – appeals dismissed

  • Catchwords: EQUITY – presumption of advancement – purchase of property by husband and wife – title registered in wife’s name only – whether presumption of advancement is qualified by statements in Trustees of Property of Cummins (a bankrupt) v Cummins (2006) 227 CLR 278 – whether presumption of advancement is rebutted – where property intended as matrimonial home – where both spouses contributed equally to purchase through joint loan accounts – where husband assumed significant liability under mortgage over the property – inference husband acquired 50% beneficial interest raised on the facts – inference supported by subsequent conduct – held: presumption of advancement rebutted

  • Catchwords: MIGRATION – appeal from decision of primary judge dismissing application made under s 476A of the Migration Act 1958 (Cth) (the Act) for judicial review of a migration decision – where Minister used his discretion under s 501BA of the Act to set aside a decision of the Administrative Appeals Tribunal (AAT) made under s 501CA of the Act – whether the Minister’s refusal to afford the appellant natural justice in the process of, or leading up to, the exercise of his power in s 501BA(2) was unreasonable – whether Federal Court has jurisdiction to review the process leading up to exercise of such power – whether the Minister’s disagreement with a comment by the AAT that the appellant is not a ‘threat to all women’ is a finding that is ‘illogical, irrational or unreasonable’ – whether the Minister failed to apply any ‘active intellectual process’ to certain matters affecting his decision – whether Minister failed to take into account materials before the AAT that were mandatory relevant considerations

NSW Court of appeal