Recent Cases - 13wentworthselbornechambers
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Recent Cases

High Court of Australia

  • Catchwords: Criminal practice – Appeal – Crown appeal against sentence – Procedural fairness – Where appellant provided assistance to law enforcement authorities – Where court required by statute to take assistance into account in sentencing – Where evidence of assistance kept confidential from appellant and appellant’s legal representatives in sentencing proceedings – Where evidence contained highly sensitive criminal intelligence – Where appellant sought access to confidential evidence on appeal – Where Court of Criminal Appeal denied appellant access to confidential evidence on basis of public interest immunity – Where Court of Criminal Appeal exercised discretion under s 5D(1) of Criminal Appeal Act 1912 (NSW) to re-sentence – Whether appellant denied procedural fairness – Whether Court of Criminal Appeal had power to deny appellant access to the confidential evidence – Whether Court of Criminal Appeal should have declined to exercise discretion to re‑sentence. Words and phrases – “access to evidence”, “assistance to law enforcement authorities”, “confidential information”, “Crown appeal against sentence”, “discount in sentence”, “evidence of assistance”, “mitigating factor”, “non‑disclosure”, “open justice”, “procedural fairness”, “public interest immunity”, “residual discretion”, “tailored order”.

  • Catchwords: Criminal practice – Forfeiture of tainted property – Where appellants remitted money to Australia using money remitters or money changers in foreign country – Where large number of cash deposits, usually each less than $10,000, made into appellants’ bank accounts in Australia in process known as “cuckoo smurfing” – Where deposits proceeds or instrument of structuring offence under s 142 of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Where Commissioner of Australian Federal Police successfully applied for restraining orders over appellants’ bank accounts under s 19 of Proceeds of Crime Act 2002 (Cth) (“POCA”) – Where appellants applied under ss 29 and 31 of POCA to have property excluded from orders – Whether property “ceased” to be proceeds or instrument of offence under s 330(4) of POCA – Whether property acquired by third party for sufficient consideration without third party knowing, and in circumstances that would not arouse reasonable suspicion, that property proceeds or instrument under s 330(4)(a) of POCA. Words and phrases – “acquisition of property”, “cuckoo smurfing”, “for sufficient consideration”, “in circumstances that would not have aroused a reasonable suspicion”, “instrument of a serious offence”, “money changers”, “money laundering”, “money remitters”, “proceeds of an indictable offence”, “proceeds of crime”, “reporting threshold”, “structuring offence”, “third party”, “volunteer”.

  • Catchwords: Criminal law – Murder – Appeal – Appeal against conviction – Where appellant convicted by jury ­– Where Crown case based entirely on circumstantial evidence – Where circumstantial evidence related to opportunity and motive and miscellany of other inculpatory matters – Where evidence of opportunity and motive extremely weak – Where evidence connecting accused to alleged murder weapon based on glaringly improbable identification evidence – Whether verdict unreasonable or cannot be supported having regard to evidence. Words and phrases – “basis for an inference”, “circumstantial case”, “contamination of recollection”, “credibility and reliability”, “glaringly improbable”, “identification evidence”, “identification of object”, “motive”, “murder weapon”, “opportunity”, “unreasonable verdict”.

  • Catchwords: Constitutional law (Cth) – Judicial power – Constitution – Ch III – State Parliament – Institutional integrity of State courts – Where s 5(1) of Crimes (Serious Crime Prevention Orders) Act 2016 (NSW) provides that State court may make order if satisfied that specified person has been convicted of serious criminal offence or involved in serious crime related activity and satisfied that reasonable grounds to believe that making of order would protect public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where s 6(1) of Act provides that order against that specified person may contain such prohibitions, restrictions, requirements and other provisions as court considers appropriate for purpose of protecting public by preventing, restricting or disrupting involvement by that person in serious crime related activities – Where proceedings under Act are civil proceedings – Whether making order exercise of judicial power – Whether powers conferred by Act incompatible with State court’s role as repository of federal judicial power – Whether powers conferred by Act substantially impair institutional integrity of State court. Words and phrases – “appropriate”, “balancing”, “facilitates or is likely to facilitate”, “future risk”, “institutional integrity”, “judicial power”, “Kable v Director of Public Prosecutions (NSW)”, “open-textured”, “preventing, restricting or disrupting”, “preventive orders”, “real or significant risk”, “reasonable grounds to believe”, “risk assessment”, “serious crime related activities”, “serious criminal offence”.

  • Catchwords: Income tax (Cth) – Allowable deductions – Where taxpayer had received percentage of income derived from 18 gaming machines operated by authorised gaming operator under Gambling Regulation Act 2003 (Vic) at its hotel premises – Where Gambling Regulation Act amended to provide for gaming machine entitlements (“GMEs”) to be allocated directly to gaming venue operators – Where taxpayer bid for and was allocated 18 GMEs permitting it to operate gaming machines at its premises for ten years – Where taxpayer paid purchase price by instalments – Whether purchase price was outgoing on revenue account deductible under s 8-1 of Income Tax Assessment Act 1997 (Cth) (“1997 Act”) – Whether purchase price was expenditure incurred to preserve (but not enhance) value of goodwill in relation to legal or equitable right with value to taxpayer solely attributable to effect on goodwill deductible under s 40-880 of 1997 Act. Words and phrases – “asset of enduring value”, “barrier to entry”, “blackhole expenditure”, “capital account”, “capital asset”, “CGT asset”, “CGT cost base”, “CGT event”, “gaming machine entitlements”, “goodwill”, “motive”, “objective purpose”, “once-and-for-all outgoing”, “practical and business point of view”, “purchase price funded out of revenue”, “revenue account”, “statutory rights”, “structural solution”.

Full Federal Court

  • Catchwords: MIGRATION – visa cancelled on character grounds under s 501(2) of the Migration Act 1958 (Cth) – whether the Tribunal erred in its treatment of the best interests of the minor children and minor grandchildren – whether the Tribunal took into account a consideration which was not relevant – whether the Tribunal failed to take into account cl 9.2(4)(d) of Direction 65 in failing to consider the impact of separation on minor children in Australia – appeal allowed

  • Catchwords: PRACTICE AND PROCEDURE – application of “slip rule” (r 16.05(2)(h) of Federal Circuit Court Rules 2001 (Cth)) to extend life of creditor’s petitions – where 12 month period had expired and creditor’s petitions had lapsed – whether slip rule available to retrospectively extend life of creditor’s petitions – whether invocation of slip rule precluded where independent discretion required by s 52(5) Bankruptcy Act 1966 (Cth) not in fact exercised – whether there was a relevant accidental slip or omission – whether discretion could only be exercised one way PRACTICE AND PROCEDURE – whether Supreme Court had jurisdiction to hear and determine claims on which judgment debt in creditor’s petitions based – whether pleaded causes of action in statement of claim exceeded metes and bounds of indorsements in originating application – whether equitable jurisdiction of Supreme Court invoked – whether equitable claims liable to be struck out BANKRUPTCY – whether primary judge failed to consider separate ground on which sequestration order ought not to have been made – whether finding that payments illegal and void precluded liability under second limb of Barnes v Addy – whether there was in reality a debt owing to the Commonwealth Held: Appeal allowed – creditor’s petitions lapsed

  • Catchwords: MIGRATION – judicial review of decision of the Administrative Appeals Tribunal – where visa cancelled on character grounds – where a delegate of the Minister decided to refuse to revoke the cancellation decision – where the Tribunal affirmed the non-revocation decision – whether the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts – application dismissed by primary judge – appeal dismissed

  • Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – protection visa refused under s 501 of the Migration Act (Cth) – whether jurisdictional error by Tribunal in failing to take into account appellant’s ethnicity and religion when considering impediments appellant may face if removed to Myanmar – whether argument advanced, or, if advanced, abandoned before the Tribunal – argument was advanced and not abandoned – result might have been different – appeal allowed MIGRATION – leave sought to present new ground of appeal – whether sufficient prospects of success – leave refused

  • Catchwords: ADMINISTRATIVE LAW – Appeal from Federal Court decision dismissing appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against Administrative Appeals Tribunal (AAT) decision – where no further hearing held after reconstituting the AAT – where AAT affirmed Tax Practitioners Board decision terminating the appellant’s registration as a tax agent under ss 40-5(1)(b), Tax Agent Services Act 2009 (Cth), on the ground it was not satisfied he was a fit and proper person – whether AAT breached procedural fairness including by reason of delay or the failure by the reconstituted Tribunal to hold a further hearing – whether AAT erred in having regard to certain evidence of conduct in court and other tribunal proceedings – whether AAT erred in having regard to a witness statement where the witness was not called – whether AAT had jurisdiction to determine the validity of the Board’s decision – where only a court may authoritatively determine whether an administrative body has acted within jurisdiction – where AAT’s decision effectively overtook any jurisdictional error in the Board’s decision – appeal dismissed

NSW Court of appeal

  • Catchwords: APPEALS – actual or apprehended bias – unfavourable comments at pre-trial hearing – whether primary judge dissuadable from alleged fixed opinion – criticism of legal representatives – whether justified – whether indicative of bias SUCCESSION – family provision – claim by adult son – where deceased remarried – where deceased left entire estate to family from second marriage – deceased’s moral obligation to widow – discussion of role of freedom of testamentary disposition in family provision claims

  • Catchwords: APPEALS – time for appeal – notice of intention to appeal filed and served – successful defendant sought orders limiting time within which appeal could be commenced – whether Court of Appeal had jurisdiction and power to make such an order – whether such an order should be made – application refused

  • Catchwords: REAL PROPERTY – Conveyancing Act 1919 s 88K – Easements – “Reasonably necessary” – where terms imposed on and limiting re use said to be uncertain in their practical operation – where terms in effect required use of alternative means of access in circumstances that were not readily capable of being assessed – where terms in substance required an alternative access route to be used in particular circumstances but where that alternative route would involve traversing property in breach of Crown Land Management Act 2016

  • Catchwords: APPEAL – interlocutory relief – relief sought pending delivery of reserved judgment of Court of Appeal – applicant claimed equitable interest in land – claim dismissed at first instance, with orders that caveats be removed – no application for a stay – appeal heard expeditiously – in meantime, respondent sought to sell the land – contract for sale of land entered into – purchaser aware of applicant’s claimed equitable interest in the land – application for leave to lodge further caveat, and for injunction against purchaser, refused

  • Catchwords: DEFAMATION – defences – common law qualified privilege – where privileged occasion not identified – relevance of privileged occasion – malice not established – necessary factual findings not supported by evidence