No.6
Brennan CJ; Toohey, Gaudron, Gummow and Kirby JJ
CatchwordsAdmiralty - Admiralty Act 1988 (Cth) - statutory interpretation - respondent disponent owner of vessel - voyage charter with appellant for carriage of cargo from Bangkok to Mauritania - alleged breach of charter party agreement by appellant - right to proceed in rem against surrogate ship - whether appellant a "charterer or in possession or control" of the ship within the meaning of s 19 of the Act - effect of definition of "surrogate ship" in s 3(6) of the Act.
Date heard: 11 August 1997. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsBankruptcy - Bankruptcy Act 1966 (Cth) s 121(1) - Corporations Law s 565 - whether disposition with intent to defraud creditors - transfer of shares for full value - intention to prevent creditors obtaining in the future value they would never have obtained if the transaction had not occurred - whether purchaser can be not acting in good faith where full value given - meaning of "good faith" - meaning of "wilful blindness".
Appealed from FCA FC. (1996) 136 ALR 406; (1996) 65 FCR 453.
Date heard: 11 October 1996. Judgment reserved.
Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsBankruptcy - composition of creditors - respondents were guarantors of loan by appellant to a company (of which respondents were directors) - respondents entered into Part X composition with creditors - whether guarantors' compositions with creditors made before guaranteed loan fell due for repayment effected release of respondents' liability under guarantee - for purposes of s 240(1) of the Bankruptcy Act 1966 (Cth) does rule 84 of the Bankruptcy Rules modify s 82(1) of the Act in such a way that "provable debt" does not include a contingent liability?
Appealed from Vic CA. (1996) 135 ALR 297; [1996] 2 VR 352.
Date heard: 8-9 April 1997; 4 June 1997. Judgment reserved.
Brennan CJ; Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsConstitutional law - cross-vesting - validity of Commonwealth, State and Territory co-operative cross-vesting scheme - is there such a constitutional concept as "co-operative federalism"? - whether "co-operative federalism" permits the conferral of State judicial power and State matters on a federal Chapter court - whether a State legislature can validly invest a Chapter court with jurisdiction to entertain matters arising under State laws - whether Chapter exhaustively empowers the conferral of original jurisdiction on the federal courts - whether s 42(3) of the Corporations (NSW) Act 1990 or s 42(3) of the Corporations (Vic) Act 1990, and s 56(2) of the Corporations Act 1989 (Cth), operate to confer jurisdiction on the Federal Court of Australia to deal with matters arising under the State Acts - effect of s 107 of the Constitution - scope of s 51(xxxviii) of the Constitution - whether or not it is constitutionally compatible with Chapter of the Constitution for the power to hold examinations under s 596A or s 596B of the Corporations Law to be conferred upon a Chapter court - whether full or partial severance of ss 596A and 596B required.
Appealed from FCA FC. (1996) 62 FCR 451; (1996) 137 ALR 447 sub nomine BP Australia Ltd v Amann Aviation Pty Ltd.
Date heard: 8 August 1997. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsCosts - Land and Environment Court Act 1979 (NSW) s 69(2) - Environmental Planning and Assessment Act 1979 (NSW) s 123 - relevance to costs of fact proceedings under s 123 brought in public interest - whether taking into account fact that applicant acted in public interest conflicts with Latoudis v Casey (1990) 170 CLR 534?
Appealed from NSW CA. (1996) 39 NSWLR 622.
Brennan CJ; Toohey, Gaudron, McHugh and Kirby JJ
CatchwordsCriminal law - sexual assault - evidence - corroboration - witness gave evidence of sexual misconduct by the appellant with him - whether capable of amounting to corroboration of complainant's evidence - trial judge declined to give directions to the jury requested by counsel on corroboration - whether necessary for criminal trial judge to direct the jury (i) where conflicting submissions by counsel on a central question of law, (ii) as to the use properly to be made of disputed evidence admitted of sexual misconduct of the accused with a person other than the complainant.
Appealed from NSW CCA.
Date heard: 10 December 1996. Judgment reserved.
Brennan CJ; Toohey, McHugh, Gummow and Kirby JJ
CatchwordsCriminal law - murder - provocation - Crimes Act 1900 (NSW) s 23(2)(a) and (b) - evidence of appellant of sexual interference by deceased - family evidence of unusual sensitivity to sexual assault erroneously excluded and incorrectly directed upon by trial judge - Criminal Appeal Act 1912 (NSW) s 6 - application of proviso - whether defect in trial preventing defence counsel addressing jury on correct view of law on a critical aspect of the defence is a flaw so fundamental that application of proviso inappropriate - construction of "in the position of the accused" and nature of "intent" under s 23(2)(b).
Appealed from NSW CCA.
Date heard: 12 August 1997. Appeal allowed. Reasons to be published.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsCriminal law - adequacy of directions given to jury - complainant's evidence was only Crown evidence - direction given to scrutinise evidence "very, very carefully" - whether sufficient warning to jury of danger of relying on complainant's evidence - Longman v The Queen (1989) 168 CLR 79 - unsafe and unsatisfactory - whether it was open to the jury to be satisfied beyond reasonable doubt of applicant's guilt - whether verdict of guilty on two counts and not guilty on third count indicative of some error on the part of the jury - ability of appellate court in assessing whether a verdict is unsafe and unsatisfactory to take into account jury's assessment of witnesses - application of principles in M v The Queen (1994) 181 CLR 487.
Appealed from NSW CCA. Previously sub nomine VRJ v The Queen.
Date heard: 25 June 1997. Appeal allowed. Reasons to be published.
Brennan CJ; Toohey, Gaudron, Gummow and Kirby JJ
CatchwordsCriminal law - appeal against conviction for sexual offences - application of
s 668E(1A) of the Criminal Code (Qld) by Court of Appeal in dismissing the appeal on the basis that there was no substantial miscarriage of justice - no argument heard from appellant on application of s 668E(1A) - whether Court of Appeal can determine no miscarriage of justice and apply s 668E(1A) without hearing from party against whom the provision is to be applied.
Appealed from Qld CA.
Date heard: 13 August 1997. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsCriminal law - sentencing - drugs - heroin importation - Crimes Act 1914 (Cth) s 16G - whether applies to life sentences imposed under Commonwealth legislation - if so, whether a "nil" adjustment may be made in the proper exercise of sentencing discretion.
Appealed from NT CCA. (1996) 6 NTLR 14.
Date heard: 7 April 1997. Judment reserved.
Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsCriminal law - Listening Devices Act 1969 (Vic) s 4A - Supreme Court (Listening Devices) Rules 1987 (Vic) Order 77 Rule 73, Form 89C - listening devices installed pursuant to warrants issued by Supreme Court judges - no reference on their face to satisfaction of a condition for issue - whether warrant issued by judge of superior court must disclose jurisdiction on its face - whether such warrant must disclose on its face that issuing judge satisfied of each and every condition of issue - whether distinction between what must be disclosed in warrants issued by inferior and superior courts - whether presumption of regularity applies to warrants issued by judges of superior courts and, if so, whether rebutted where satisfaction of some but not all requisite matters is disclosed on face of warrant - whether warrants issued by superior court judges are amenable to collateral attack in criminal trials in inferior courts - discretion to exclude evidence if obtained pursuant to an invalid warrant - effect of denial of opportunity for court to consider exercise of such discretion.
Appealed from Vic CA.
Date heard: 29 May 1997. Judgment reserved.
Toohey, Gaudron, McHugh, Gummow and Kirby JJ
Catchwords
Criminal law - conspiracy to defraud the Commonwealth - appellant acted as solicitor in sham property transactions - dishonesty - whether subjective test or whether also has an objective component - whether test is as laid down in R v Ghosh [1982] 1 QB 1053 or R v Salvo [1980] VR 401 - whether element of dishonesty on a charge of conspiracy to defraud the Commonwealth the same as on a charge of theft.
Appealed from Vic CA. [1997] 1 VR 489.
Date heard: 24-25 June 1997. Judgment reserved.
Brennan CJ; Toohey, Gaudron, Gummow and Kirby JJ
CatchwordsCriminal law - respondent convicted of arson at trial - incriminating conversation tape recorded by undercover police operative admitted - trial judge's discretion to exclude evidence on basis of unfairness - role and basis of Judges' Rules in "unfairness discretion" - whether such discretion based upon notions of coercion in cases of infringement of Judges' Rules - whether a court of appeal can interfere with a discretionary judgment if of opinion trial judge gave insufficient weight to a factor.
Criminal law - murder - evidence - admissibility of secretly taped conversation between appellant and a close friend - close friend acted upon the suggestion of police - trial judge's discretion to exclude evidence which is unfair to the accused - meaning of "unfairness discretion" - whether such discretion includes concepts of voluntariness and public interest - role and basis of Judges' Rules - whether trial judge erred in failing to exclude evidence of conversation.
The Queen v Swaffield (B61/96) appealed from Qld CA.
Pavic v The Queen (M13/97) appealed from Vic CA.
Date heard: 6 August 1997. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsCustoms and excise - Commercial Tariff Concession Order (CTCO) - Customs Act 1901 (Cth) s 269C - whether interest should be ordered on customs duty paid to the Comptroller and subsequently refunded to the importer upon the making of a CTCO - whether s 51A of the Federal Court of Australia Act 1976 (Cth) authorises interest on duty paid prior to the making of a CTCO which is repaid immediately the CTCO is made - whether statutory entitlement gave rise to a cause of action - separate application of s 51A(i)(b) of the Federal Court of Australia Act - whether the law of restitution applies.
Appealed from FCA FC. (1996) 139 ALR 595.
Date heard: 26 May 1997. Judgment reserved.
Brennan CJ; Toohey, Gaudron, Gummow and Kirby JJ
CatchwordsEvidence - murder - whether conviction unsafe and unsatisfactory - need for application by Court of Appeal of a proper independent assessment of the evidence rather than a purported rationalisation of the jury verdict - exclusion as a rational competing hypothesis that the accused intended the victim some harm falling short of really serious injury.
Appealed from Vic CCA.
Date heard: 3-4 June 1997. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
Catchwords
Industrial law - airline pilot - claim that employment terminated by employer in contravention of s 170DF(1)(f) of the (then) Industrial Relations Act 1988 (Cth) - whether employment terminated by employer on sixtieth birthday or came to an end by effluxion of time - whether terms of collective agreement part of contract of employment - Byrne v Australian Airlines Ltd (1995) 131 ALR 422 - proper construction of s 170DF(2) of the Industrial Relations Act - whether "inherent requirements of a particular position" defined by or include contractual and operational characteristics of the position.
Appealed from IRCt FC. (1996) 138 ALR 19.
Date heard: 28 May 1997. Judgment reserved.
Brennan CJ; Toohey, Gaudron, McHugh and Gummow JJ
CatchwordsInsurance policy - local government - claim for indemnity - meaning and operation of s 40 of the Insurance Contracts Act 1984 (Cth) - whether s 40(1) of the Act explanatory or substantive.
Appealed from NSW CA. (1996) 134 ALR 605; (1996) 38 NSWLR 558.
Date heard: 5 August 1997. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsPatents - Patents Act 1990 (Cth) s 18(1)(a) - Patents Act 1952 (Cth) s 100(1)(d) - Statute of Monopolies s 6 - "invention" - "manner of new manufacture" - whether on such enquiry, permitted to identify an "inventive step" or "inventive merit" in light of a prior publication or mosaic of such publications not shown to have been known or part of the general common knowledge in the relevant industry - whether requires satisfaction of "inventive step" judged by reference to material not part of the common general knowledge or only by reference to what is a "proper subject matter of letters patent according to traditional principles".
Appealed from FCA FC. (1996) 66 FCR 151.
Date heard: 4-5 June 1997. Judgment reserved.
Brennan CJ; Toohey, Gaudron, McHugh and Gummow JJ
CatchwordsStamp duty on variation deed - whether a variation of entitlements under a trust instrument should be approached on the basis that it is an appointment or re-settlement of the trust fund or on the basis that it is an appointment or re-settlement only of the interests varied - whether the trustee's lien for its right of recoupment or indemnity is an encumbrance to be excluded in calculating the "unencumbered value" of the property conveyed - whether a trustee's right of indemnity out of the trust assets confers upon the trustee a beneficial interest in the assets or a lien upon them.
Appealed from NSW CA.
Date heard: 2-3 June 1997. Judgment reserved.
Brennan CJ; Toohey, McHugh, Gummow and Kirby JJ
CatchwordsTort - negligence - duty of care - municipality with statutory fire prevention functions - municipality aware of dangerous fireplace on private premises - fire spread to adjoining properties - concepts of general reliance and specific reliance - limitations - doctrine of proximity - whether applicable to the extent that neighbouring owners and occupiers are deemed to place general reliance on municipal councils to protect them against dangers - whether such general reliance extends to the occupier of premises subject to a latent danger of which the municipality is aware.
Appealed from Vic CA. [1997] 1 VR 218.
Date heard: 13 December 1996. Cause removed.
CatchwordsCriminal law - applicant sought permanent stay of charges brought pursuant to Customs Act 1901 (Cth) s 233B - trial judge ordered permanent stay in accordance with principles established in Ridgeway v R (1995) 184 CLR 19 - Cth DPP applied for vacation of order subsequent to coming into force of Crimes Amendment (Controlled Operations) Act 1996 (Cth) - whether such legislation (in particular s 15X of the Crimes Act 1914 (Cth) as inserted by the Crimes Amendment (Controlled Operations) Act) invalid - whether such legislation infringes the doctrine of separation of powers.
Removed from Vic County Court.
Date heard: 2 December 1996. Special leave granted.
CatchwordsAdministrative law - social security - proceedings for recovery of overpayment of pension - application to waive debt under s 1237 of the Social Security Act 1991 (Cth) - amending legislation - whether amendments to s 1237 applied to the proceedings before the Administrative Appeals Tribunal - Acts Interpretation Act 1901 (Cth) s 8(c) - whether respondent had an accrued right under s 8(c) to have proceedings dealt with under the Social Security Act as unamended - interpretation and correctness of Esber v The Commonwealth (1992) 174 CLR 430.
Appealed from FCA FC. (1996) 139 ALR 57; (1996) 68 FCR 491.
Date heard: 10 April 1997. Special leave granted.
CatchwordsAdmiralty - bill of lading - damage to cargo - breach of obligations under Article III Rules 1 and 2 of the Hague Rules - Article IV Rule 2(c) of the Hague Rules in the Schedule to the Sea-Carriage of Goods Act 1924 (Cth) exempts the carrier from liability where goods damaged by perils, dangers and accidents of the sea - meaning of "perils of the sea" - whether the test of "perils of the sea" in bill of lading cases is the same in Australia as in United States and Canadian law - whether anticipated and foreseen heavy weather is a "peril of the sea" - whether Shipping Corporation of India Limited v Gamlen Chemical Co (Australasia) Pty Limited (1980) 147 CLR 142 should be reconsidered.
Appealed from NSW CA. (1996) 39 NSWLR 683.
Date heard: 6 June 1997. Special leave granted.
CatchwordsConstitutional law - implied powers of Parliament - whether Legislative Council of New South Wales has power to require production of State papers - whether Legislative Council has power to suspend member and forcibly remove from precincts of Parliament following refusal to produce State papers.
Appealed from NSW CA. (1996) 40 NSWLR 650.
Date heard: 15 August 1997. Special leave granted.
CatchwordsCopyright - soundtrack of cinematograph film - proper construction of s 23(1) of the Copyright Act 1968 (Cth) which deems sounds embodied in soundtrack not to be sound recording - whether copyright in soundtrack has merged in film so that broadcast of film does not constitute broadcast of sound recording.
Appealed from FCA FC. (1997) 144 ALR 207 sub nomine EMI Music Australia Pty Ltd & Ors v Federation of Australian Commercial Television Stations.
Date heard: 23 December 1996. Special leave granted.
CatchwordsCorporations - mortgage granted by company in favour of bank - whether mortgage authorised the appointment of joint and several receivers and managers.
Appealed from WA FC.
Criminal Law
Date heard: 6 June 1997. Special leave granted.
CatchwordsCriminal law - sexual offences - applicant convicted on 9 counts - alleged offences all occurred on same day - cross-examination of accused on whether victim had motive to make false allegations - Court of Appeal held trial had not miscarried as a result of such cross-examination - whether Court of Appeal erred - whether unsafe and unsatisfactory verdict.
Appealed from Vic CA.
Date heard: 15 August 1997. Special leave granted.
CatchwordsCriminal law - applicant convicted of conspiracy to possess and attempt to possess methylamphetamine with intent to sell or supply contrary to Misuse of Drugs Act 1981 (WA) - whether trial judge incorrectly applied the deeming provision in s 11(1)(a) of the Act to prosecutions for conspiracy and attempt charges - application of the substantial miscarriage of justice proviso in s 689(1) of the Criminal Code of Western Australia if
s 11(1)(a) of the Act was incorrectly applied.
Appealed from WA CCA. (1996) 16 WAR 1.
Date heard: 15 August 1997. Special leave granted.
CatchwordsCriminal law - evidence - sexual assaults - complainant aged 8 at the time of first offence - no direct corroboration of complainant's evidence - admissibility of evidence of complaint made to school friends 7 months after last offence - whether verdict unsafe or unsatisfactory - whether substantial miscarriage of justice proviso in
s 689(1) of the Criminal Code of Western Australia properly applied by Court of Criminal Appeal - proper role of appellate court.
Appealed from WA CCA. (1996) 16 WAR 23.
Date heard: 30 May 1997. Special leave granted.
CatchwordsDamages - personal injuries - applicant deliberately injured by driver of car - applicant had poor scholastic record and motivation - whether damages awarded for economic loss manifestly inadequate - principles for assessing lost earning capacity for young plaintiff having deprived and disadvantaged background - whether trial judge and Full Court erred in refusing to award exemplary damages where driver already punished by criminal law.
Appealed from SASC FC.
Date heard: 14 August 1996. Special leave granted.
CatchwordsDefamation - two newspaper articles - whether a plaintiff in a defamation action is strictly bound by his or her pleadings, such that lesser imputations are not included in the greater - whether an imputation of suspicion amounts to an imputation of guilt - whether a defendant can rely upon the defence of fair and accurate report in respect of some imputations arising in an article while acknowledging that it cannot in others - implications for damages? - interpretation of s 7 of the Wrongs Act 1936 (SA).
Appealed from SASC FC. (1996) 65 SASR 527.
Date heard: 26 June 1997. Special leave granted.
CatchwordsDefamation - applicant a member of House of Representatives - applicant adopted out of Parliament (on radio and television) statements made in Parliament - whether evidence of statements made in Parliament may be lawfully tendered or received in defamation proceedings relating to adoption of statements out of Parliament - Parliamentary privilege - proper scope and operation of s 16(3) of the Parliamentary Privileges Act 1987 (Cth).
Appealed from Qld CA.
Date heard: 13 February 1997. Special leave granted.
CatchwordsEquity - mortgage and guarantee entered by wife in favour of respondent to support husband's indebtedness - unconscionability - application of the rule in Yerkey v Jones (1939) 63 CLR 649 - application where wife stands as volunteer surety for husband's debts - whether subsumed by the general unconscionability principle set out in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 - role of constructive notice (within Amadio).
Appealed from NSW CA. (1996) 39 NSWLR 577.
Date heard: 15 August 1997. Special leave granted.
CatchwordsFamily law - mother sought sole guardianship of child in Family Court alleging sexual abuse of child by father - documents subpoenaed from manager of the Child and Family Protective Services section of the Northern Territory Health Services - manager objected to producing the documents on basis of s 97(3) of the Community Welfare Act (NT) - whether Family Court's jurisdiction extends to area of child protection - whether in proceedings under the Family Law Act 1975 (Cth) in relation to guardianship, custody, or welfare of, or access to, a child, ss 43 and 64 (now ss 65E, 67L, 67V and 67ZC(2)) of the Family Law Act override all Commonwealth, State and Territory confidentiality or privilege provisions to the extent that they conflict with the operation of principle that child's welfare is paramount - whether in proceedings in federal courts the provisions of the Evidence Act 1995 (Cth) override all State and Territory confidentiality or privilege provisions not specifically preserved by Commonwealth legislation.
Appealed from FamCA FC.
Date heard: 14 February 1997. Leave granted.
CatchwordsRegistered organisations - amalgamation of registered organisation, the Construction Forestry Mining and Energy Union (CFMEU), with deregistered organisation, the Builders Labourers Federation (BLF) - Order-in-Council committing funds and property of BLF to custodian and rendering void at the Custodian's option any dealing with the funds or property unless consent of custodian is obtained - BLF assets merged with assets of CFMEU by agreement without prior consent of custodian - whether disposition of funds and property was void or voidable - whether IRCt erred in holding disposition voidable - whether disposition remains voidable after custodian defends proceedings instituted to validate disposition on the basis that disposition was void.
Appealed from IRCt FC.
Date heard: 30 May 1997. Special leave granted.
CatchwordsInsurance - construction of terms of insurance policy - insurance payable if applicant suffered permanent total loss of use of foot - applicant injured in accident which deprived him of practical use of his right foot - whether fact that applicant can achieve some use of injured foot with benefit of orthotic aids means he has not totally lost use of foot.
Appealed from WASC FC.
Date heard: 4 November 1996. Special leave granted.
CatchwordsInsurance - insurer defended claim by insured on grounds that included non-disclosure of claims history - claim against insurer compromised - insured claimed against insurance broker for breach of contractual and tortious duty in failing to disclose insured's claims history - whether insured in action against broker proves broker's negligence has caused loss merely by proving the difference between its claim under the policy and the amount it (acting reasonably) received in settlement with the insurer - whether insured fails to prove loss in absence of evidence in action against its broker demonstrating that it was probable the insurer would have been entitled to reduce its liability under s 28(3) of the Insurance Contracts Act 1984 (Cth).
Appealed from WASC FC.
Date heard: 6 June 1997. Special leave granted.
CatchwordsLegal practitioners - solicitor failed to warn applicant of risk of loss in entering mortgage contract - whether solicitor is only obliged to act within ambit of retainer or whether under positive duty to act when there is foreseeable risk of loss.
Appealed from NSW CA. (1996) 40 NSWLR 398.
Date heard: 11 April 1997. Special leave granted.
CatchwordsMedia law - Broadcasting Services Act 1992 (Cth) - Articles 4 and 5 of the Protocol on Trade in Services to the Australian New Zealand Closer Economic Relations Trade Agreement - Act empowers respondent to determine the standards to be observed by commercial and community broadcasters - standard determined relating to Australian content of programmes without inclusion of New Zealand programmes - whether standard is invalid in light of provisions of the Act and Articles 4 and 5 of the Protocol.
Appealed from FCA FC. (1996) 141 ALR 397.
Date heard: 5 August 1996. Special leave granted.
CatchwordsMines and minerals - interest held in petroleum exploration permit issued under the Petroleum (Submerged Lands) Act 1967 (Cth) in respect of certain "blocks"- as a result of the Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 (Cth), some "blocks" ceased to exist as such and the boundaries of others were changed - whether constituted an "acquisition of property" within the meaning of
s 51(xxxi) of the Constitution - whether relevant that rights are (i) statutory; (ii) extinguished - whether any such acquisition was "otherwise than on just terms" within s 51(xxxi) - whether the Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act is properly characterised as a law "with respect to ... the acquisition of property" so as to infringe s 51(xxxi) in the absence of s 24 of that Act.
Appealed from FCA FC. (1996) 136 ALR 353; (1996) 67 FCR 153.
Date heard: 14 August 1996. Special leave granted.
CatchwordsMortgages - contract - contract of loan secured by a registered mortgage - action for possession by mortgagee bank - whether fraud arising from deceit by bank employees which should affect rights under the contract and mortgage - whether defrauded party can resist action to enforce contract induced by fraud and retain any benefit derived - whether court will uphold rescission of such a contract but refuse to order restitution to the fraudulent party - relevance of absence of proof of damage - whether restitution available where contract unenforceable for fraud - relevance if to found claim requires reliance on the circumstances of the fraud or revealing evidence of the fraud - whether upon default by the mortgagor a court can, without impeaching a registered mortgage, deny its effect as a security - whether miscarriage of justice requiring intervention of the Court - Real Property Act 1988 (SA) ss 69I, 249.
Appealed from SASC FC. (1996) 66 SASR 77.
Date heard: 4 August 1997. Special leave granted.
CatchwordsNegligence - medical negligence - failure to warn of "material risk" - patient would have delayed operation if had been provided with proper advice - proper basis for cause of action in tort and contract - causation - sufficiency of causal nexus between failure to advise and damage suffered - whether risk would have been reduced by the respondent if proper warning had been given - loss of chance to undergo a later operation performed by a more experienced surgeon - value of lost chance.
Appealed from NSW CA.
Date heard: 30 May 1997. Special leave granted.
CatchwordsPractice and procedure - action for damages arising out of a motor vehicle accident - trial judge found that injuries more likely to have been caused by physical abuse than in a motor vehicle accident - dismissal of application for extension of time to enter an appeal - dismissal of appeal for want of prosecution - whether sufficient that appeal is arguable, or whether it must have a real prospect of success or real likelihood of success.
Appealed from WASC FC.
Date heard: 15 August 1997. Special leave granted.
CatchwordsPractice and procedure - application for stay of indictment for abuse of process - applicant indicted on two counts in respect of the same criminal conduct - whether applicant placed in double jeopardy - proper test for impermissible double jeopardy in Australia - whether rule against double jeopardy extends to the prevention of subsequent punishment for an act or omission for which punishment has previously been imposed - proper ambit or scope of discretion to stay an indictment for abuse of process based upon double jeopardy - whether court has power to stay an indictment which charges an offence the gist or gravamen of which is an act for which punishment has previously been imposed.
Appealed from NSW CCA.
Date heard: 13 December 1996. Special leave granted.
CatchwordsIncome tax - Income Tax Assessment Act 1936 (Cth) ss 25, 25A, 160A, 160M - taxpayer outlaid sum of money to procure a third party to pay a larger sum in the future in discharge of a debt of the taxpayer - whether profit or gain made and, if so, (i) whether profit from profit-making scheme within s 25A(1) or income within s 25(1); (ii) date income or profit derived - whether court entitled to have regard to "present" (rather than "nominal" or "face") value of the promise to pay by third party in determining for purposes of ss 25(1) and 25A(1) whether intention to make a profit or profit-making scheme - whether promise to pay is an asset within s 160A (as enacted at the relevant time) - whether payment by the third party is a disposal for capital gains purposes, being "discharge" or "satisfaction" within s 160M(3)(b).
Appealed from FCA FC. (1996) 138 ALR 705; (1996) 68 FCR 122.
Date heard: 4 April 1997. Special leave granted.
CatchwordsIncome tax - sale of taxi licence - capital gain - Income Tax Assessment Act 1936 (Cth) Part IIIA - the meaning of "goodwill" for the purposes of ss 160A(a) and 160ZZR of the Act - whether a separately transferable statutory licence conferring monopoly or oligopoly rights is "goodwill" or a discrete asset - whether disposal of licence is disposal of "goodwill".
Appealed from FCA FC. (1996) 68 FCR 156.
Date heard: 4 November 1996. Special leave granted.
CatchwordsTort - negligence - duty of care of public authority in nonfeasance case - proper principles - policy considerations - public authority statutorily charged with management and control of a reserve - applicant severely injured when fell from top of cliff in reserve - applicant affected by alcohol.
Appealed from NT CA. (1995) 123 FLR 84.
Date heard: 14 February 1997. Special leave granted.
CatchwordsTort - negligence - common law damages for personal injury - Law Reform (Miscellaneous Provisions) Act No.32 1965 (NSW) s 10 - contributory negligence - whether jury can find 100% contributory negligence - whether damages for personal injury can include an amount for medical expenses without any additional amount of general damages for pain and suffering.
Appealed from NSW CA.
Date heard: 11 April 1997. Special leave granted.
CatchwordsTrade practices - Crown immunity - home finance scheme conceived and promoted by NSW government - whether the Crown in right of NSW is bound by Parts IVA and V of the Trade Practices Act 1974 (Cth) by virtue of s 64 of the Judiciary Act 1903 (Cth) or s 5(2) of the Crown Proceedings Act 1989 (NSW) - if not bound, whether Crown immunity from Parts IVA and V of the Trade Practices Act extends to a body acting at the direction or request of the Crown or giving effect to a scheme devised by the Crown - whether s 47(1)(b) of the Legal Aid Commission Act 1979 (NSW) is inconsistent with s 43(1) of the Federal Court of Australia Act 1976 (Cth) and invalid to the extent of such inconsistency by virtue of s 109 of the Constitution.
Appealed from FCA CA. (1996) 139 ALR 127; (1996) 68 FCR 213.
Date heard: 10 April 1997. Special leave granted.
CatchwordsTrade practices - misleading conduct - finance facility - representation in promotional brochure that margin on finance facility fixed - Trade Practices Act 1974 (Cth), ss 52, 82, 87 - breach of s 52 - appropriate relief in respect of misrepresentation constituting a contravention of s 52 - action for loss or damage pursuant to s 82 or 87 - assessment of damages - whether appropriate measure for loss or damage is tort measure - whether damages are recoverable on promissory or loss of expectation basis - consideration of decision in Gates v City Mutual Life Assurance Society Limited (1986) 160 CLR 1.
Appealed from FCA FC.
CRIMINAL
CRIMINAL
end