No. 12
Date heard: 12 - 13 November 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Administrative law - immigration - whether s 420 of the Migration Act 1958 (Cth) prescribes procedures to be observed - whether a breach of s 420 may be a ground of review - whether the failure by the Refugee Review Tribunal to make findings of primary facts could constitute an error of law for the purposes of s 476(1)(e) - ambit of the exclusions specified in s 476(2) - whether there was a constructive failure to exercise jurisdiction.Appealed from FCA FC. (1997) 145 ALR 621.
Date heard: 8 December 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Constitutional law - judicial power - review by Superannuation Complaints Tribunal of decision of trustee of superannuation fund - whether s 37 of Superannuation (Resolution of Complaints) Act 1993 (Cth) confers Commonwealth judicial power on the tribunal contrary to Chapter III of the Constitution - ambit of power of tribunal.
Date heard: 26-27 May 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Constitutional law - s 109 Constitution - inconsistency - whether provisions of Mining Act 1978 (WA) relating to mining exploration licences are inconsistent with s 124 of the Lands Acquisition Act 1989 (Cth) - whether Mining Act 1978 (WA) inconsistent with Defence Force Regulations 49 to 53 insofar as the Act purports to confer rights of access to, in, and over land gazetted as a defence practice area - whether Mining Act 1978 (WA) binds the Crown in right of the Commonwealth - whether Defence Force Regulations constitute an acquisition of property under s 51(xxxi) of the Commonwealth Constitution.Demurrer
Date heard: 11-12 November 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Constitutional law - judicial power of the Commonwealth - s 476 of the Migration Act 1958 (Cth) - whether s 476(2), (3), and s 485 beyond legislative competence of the Commonwealth Parliament - whether sections impermissibly interfere with integrity and impartiality of Federal Court - whether those sections are contrary to Chapter III of the Constitution.Immigration - refugees - proceeding for prerogative writ - plaintiff refused protection visa - possible errors of law by Refugee Review Tribunal - consideration of irrelevant considerations - failure to consider relevant considerations - Wednesbury unreasonableness - review of errors of law not within Federal Court jurisdiction.
Order Nisi Application / Case Stated.
Date heard: 4 December 1998. Judgment reserved.
Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ
Catchwords
Criminal law - applicant convicted of murder - applicant intoxicated - whether s 162(1)(a) of the Criminal Code (NT) requires, by reason of s 31 of the Code, proof that death was foreseen as a possible consequence of the accused's conduct - whether specific mental element in code provision can be supplemented by requisite mental element under general provisions.
Green v The Queen (P27/1998)
Date heard: 19-20 October 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow and Callinan JJ
Catchwords
Criminal law - appeal - appellant convicted of conspiracy to murder - trial judge failed to direct jury in relation to evidence of an accomplice - s 689(1) Criminal Code (WA) - circumstances in which proviso may be applied - whether offence of conspiracy to commit most serious crime is sufficient to place that offence in the worst category for sentencing purposes.
Appealed from WA CCA.
Date heard: 8 September 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
Catchwords
Criminal law - sexual assault - whether evidence of sexual assault is evidence of prior sexual activity or experience - admissibility of expert evidence - whether inadmissible on grounds not affecting the reliability of the opinion - effect of s 409B(3) of the Crimes Act 1900 (NSW) on evidence in cases of sexual abuse - whether inadmissible evidence at trial can be considered by appellate court to determine whether verdict safe and satisfactory.Appealed from NSW CCA.
Date heard: 10 December 1998. Judgment reserved.
McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Criminal law - evidence - applicant convicted of murder - evidence of good character - conflicting expert witness testimony - directions concerning character evidence to jury - whether evidence of good character may be used to support credibility of out-of-court assertions by accused relied upon by expert witness as foundation of his/her opinion - whether direction mandatory or discretionary - whether direction adequate - whether substantial miscarriage of justice.
Appealed from NT CCA.
Date heard: 12-13 August 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ
Catchwords
Criminal law - obtaining by deception property belonging to another - s 81(1) Crimes Act 1958 (Vic) - whether cheque dishonestly obtained by payee capable of being "property belonging to another" within s 81(1) - whether a cheque "chose in action" or valuable security - whether Court of Appeal erred in not following reasoning in R v Preddy & Ors [1996] AC 815.
Appealed from Vic CA. [1998] 2 VR 478.
Date heard: 30 September 1998. Judgment reserved.
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
Catchwords
Damages - breach of duty - misleading and deceptive conduct - measure of damages - mortgage insurer providing insurance relying on negligent and misleading valuation of property - default by mortgagor - shortfall after sale of property - valuers found liable to insurers in tort and for breach of s 52 of the Trade Practices Act 1974 (Cth) - whether loss attributable to market fall recoverable if fall in market value is reasonable - whether error in not following Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191 - principles governing assessment of damages for breach of duty - principles governing assessment of damages for breach of s 52 of the Trade Practices Act 1974 (Cth) - whether inducement to enter into a contract under an incorrect valuation is sufficient causation to sheet home loss suffered if value of land falls because of market volatility.
Appealed from FCA FC. (1997) 77 FCR 307.
Giumelli & Anor v Giumelli (P55/1997)
Date heard: 20-21 October 1998. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Catchwords
Equity - constructive trust - unconscionable conduct - applicant parents and respondent son carried on business as partners on applicants' land - applicants verbally promised portion of land to respondent if respondent forwent alternative employment - whether can impose constructive trust creating proprietary interest in land whenever conduct of owners makes it equitable to do so - whether reliance detriment or expectation detriment appropriate measure of equitable relief.Appealed from WA FC. (1996) 17 WAR 159.
Date heard: 9-10 September 1998. Judgment reserved.
Gaudron, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Evidence - recovery of overpayments made to contractors - whether overpayment by mistake was proved - whether machine hours for which payment was made were not done - whether sufficient emphasis placed on key evidence - findings by trial judge based on credibility of witnesses - appropriate test to reject evidence as a whole - standard of proof - inferences which can be drawn from a failure to contradict adverse allegations - reliability of appellant's evidence in context of whole case.
Appealed from NSW CA.
Date heard: 18 - 19 November 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Family law - custody and guardianship of ex-nuptial child - application by non-custodial father (appellant) for joint guardianship - application by custodial mother (respondent) for permission to remove child from Western Australia to Northern Territory - refusal to grant joint guardianship - s 35 order restricting movement of respondent and child - best interests of child served by remaining in WA - whether Family Court justified in demanding relocating parent have good reasons - whether this infringes rights of custodial and residential parents to choose residence - whether this discriminates against those in position of applicant - whether s 35 Family Court Act 1975 (WA) invalid by virtue of s 92 of the Constitution - scope of judicial power under s 35 Family Court Act 1975 (WA).
Date heard: 29 April 1998, 4-5 August 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Family law - mother sought sole guardianship of child in Family Court alleging sexual abuse of child by father - ex-nuptial child in Territory - investigation by Child and Family Protective Services section of the Northern Territory Health Services into complaints of sexual abuse - father subpoenaed documents from manager of the Child and Family Protective Services section of the Northern Territory Health Services - manager objected to producing documents on basis of s 97(3) of the Community Welfare Act (NT) - whether in issuing and proceeding on the subpoena the Family Court was exercising Federal and Territory jurisdiction - whether s 77 of the Judiciary Act applies - whether s 97(3) of the Community Welfare Act operates as surrogate Commonwealth law under s 79 - 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. (1996) 20 Fam LR 651 sub nomine Re Z.
Date heard: 17 November 1998. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ
Catchwords
Jurisdiction - action in rem - jurisdictional fact - whether jurisdiction should be determined before liability - whether the owner satisfied requirements of s 19(a) of the Admiralty Act 1988 (Cth) - onus of proof - application for release of vessel on ground of want of jurisdiction - whether onus upon the shipowner to show that it should be released from arrest - factors determining jurisdiction.Appealed from FCA FC. (1997) 75 FCR 78.
Date heard: 1-2 December 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Jurisdiction - Federal Court of Australia - State jurisdiction conferred on Federal Court by State corporations legislation as part of the national cross-vesting scheme - Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 4(1) - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 9(2) - whether the relevant provisions that purport to invest federal courts with State jurisdiction are valid - whether Chapter III precludes the investment of State jurisdiction in the Federal Court - challenge to Gould v Brown (1998) 72 ALJR 375 - precedential value of Gould v Brown - Commissioner of Taxation v St Helen's Farm (ACT) Pty Ltd (1980) 146 CLR 336.
Jurisdiction - cross-vesting - judicial power - s 76(ii) - territories power - s 122 - Corporations Act 1989 (Cth) s 51(1) - whether s 51(1) validly confers jurisdiction on the Federal Court of Australia with respect to civil matters arising under the Corporations Law of the Australian Capital Territory - whether the provisions purport to confer non-judicial power on the Federal Court.
Appealed from FC FCA (S140/1998);
Order Nisi Application (S74, S107, S118/1998).
Date heard: 1-2 October 1998. Judgment reserved.
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
Catchwords
Mortgages - Mortgagor in possession - mortgagor's predecessor in title granted lease - default under mortgage - mortgagor left in possession - subsequent deed of variation of lease executed by mortgagor and tenant providing for nominal rent in lieu of rent reserved and outgoings - whether mortgagor has ability to vary lease - whether a mortgagor can give a good release before notice by mortgagee of default.
Appealed from Vic CA. [1998] 2 VR 90.
Date heard: 10-11 August 1998. Judgment reserved.
Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ
Catchwords
Negligence - solicitor negligently failed to advise trustee of personal liability for failed trust venture - whether respondent guilty of contributory negligence under s 27A(3) of the Wrongs Act 1936 (SA) - application of s 27A to breach of contractual duty where concurrent liability in contract and tort.
Date heard: 16 November 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ
Catchwords
Negligence - duty of care - appellant received blow to the back of head with school bag - diagnosis of and treatment for haemorrhage by second respondent - appellant discharged and later suffers from burst aneurysm - left physically and intellectually disabled - whether misdiagnosis deprived appellant of treatment or possibility of necessary treatment - whether second respondent negligent for failure to consider aneurysm as possible diagnosis - "no case" submission by respondents at close of trial - whether trial judge erred in finding insufficient evidence to justify leaving the question of breach of duty to the jury.
Date heard: 7-8 October 1998. Judgment reserved.
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
Catchwords
Practice and procedure - Mareva injunction - power of Federal Court to grant Mareva injunction to prevent abuse or frustration of Court's process - whether Mareva relief available against third parties - whether respondent to application for Mareva injunction must hold specific proprietary interest in third party's assets - whether Mareva injunction can enjoin party against whom no pre-existing cause of action exists in respect of which the party is subject to Court's jurisdiction - whether evidence necessary that third party likely to dispose of property in circumstances that might constitute abuse of process.
BT Australasia Pty Ltd & Anor v New South Wales (S111/1998);
BT Australasia Pty Ltd & Anor v Telstra Corporation Ltd (S112/1998)
Date heard: 3 December 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, and Callinan JJ
Catchwords
Practice and procedure - legal professional privilege - waiver of privilege - applicability of s 118 and 122(1) of the Evidence Act 1995 (Cth) to matters ancillary to evidence adduced - operation of fairness principle - issue waiver - consent to waiver.
Appealed from FCA FC. (1998) 156 ALR 634.
Date heard: 8 October 1998; 10 November 1998. Judgment reserved
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
Catchwords
Practice and procedure - Mareva injunction - whether District Court had power to grant Mareva injunction - extent to which District Court has inherent powers of Supreme Court - extent to which Mareva injunction can be granted after judgment is delivered - whether Mareva injunction appropriate in the circumstances - District Court Act 1973 (NSW) s 46 - Supreme Court Act 1970 (NSW) s 23.Contempt of court - District Court - breach of Mareva injunction - appellant sentenced to six months imprisonment for contempt - whether penalty imposed was manifestly excessive - whether sentence runs whilst appellant on bail.
Appealed from NSW CCA.
Date heard: 21-22 October 1998. Judgment reserved.
Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ
Catchwords
Taxation - applicant purchased land with intention of developing it - development plans failed - applicant earned agistment income - whether entire interest payments on money borrowed were deductible under s 51(1) of the Income Tax Assessment Act 1936 (Cth) - whether interest payments should be apportioned according to predominant purpose of loan - whether Fletcher v FCT (1991) 173 CLR 1 is distinguishable.Appealed from FCA FC. (1997) 73 FCR 330.
Date heard: 6 October 1998. Judgment reserved.
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
Catchwords
Tort - appellant and respondent concurrent tortfeasors - consent judgment against appellant and in favour of respondent - whether claim for contribution can be maintained against concurrent tortfeasor when that tortfeasor has final judgment in its favour where such judgment obtained by consent with plaintiff - effect and operation of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(c).Appealed from NSW CA.
Date heard: 2-3 September 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Trade 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 the terms of the Act properly construed or by 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 extent of such inconsistency by virtue of s 109 of the Constitution.Appealed from FCA CA. (1996) 139 ALR 127; (1996) 68 FCR 213.
Telstra Corporation Limited v Worthing & Anor (S68/1998);
Attorney-General for the Commonwealth v Telstra Corporation Limited & Anor (S69/1998)
Date heard: 9 December 1998. Judgment reserved.
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ
Catchwords
Workers' compensation - Jurisdiction - Telstra employee suffered work-related injuries - whether NSW Compensation Court has jurisdiction to entertain claim for workers compensation for Telstra employees - whether Telstra an "employer" under Workers Compensation Act 1987 (NSW) - Constitution s 109 - inconsistency between Workers Compensation Act 1987 (NSW) and Safety Rehabilitation and Compensation Act 1988 (Cth) or the Telecommunications Act 1975 (Cth) - whether Federal legislation an exclusive code regarding workers compensation - scope and nature of Commonwealth Act - whether plaintiff has choice of forum under Acts because of nexus with jurisdiction - whether state jurisdiction covers Telstra employees as employees of the "Australian Telecommunications Commission".
Appealed from NSW CA. (1997) 42 NSWLR 655.
Yanner v Eaton (B6/1998)
Date heard: 20 November 1998. Special leave granted.
Catchwords
Aborigines - whether native title rights recognised in s 223(1)(c) of the Native Title Act 1993 (Cth) include rights taken away by statute prior to enactment of legislation - criminal offence - taking fauna without a licence - whether provisions of Fauna Conservation Act 1974 (Q) extinguished common law native title rights and interests to hunt fauna - whether s 211(2) of Native Title Act 1993 (Cth) applies where common law native title right extinguished prior to commencement of Act.
Appealed from Qld CA.
Date heard: 9 October 1998. Special leave granted.
Catchwords
Administrative law - judicial review - procedural fairness - indictable offence under Corporations Law - whether Ministerial consent is required to charge an indictable offence - whether accused has a right to be heard in the granting of consent - expiration of time limit for instituting prosecution without Ministerial consent - whether Minister must notify accused prior to granting consent.Appealed from FCA FC. (1998) 156 ALR 1.
Airservices Australia v Canadian Airlines International Ltd (C1/1998);
Airservices Australia v Monarch Airlines Ltd (C2/1998);
Airservices Australia v Polaris Holding Co (C3/1998)
Date heard: 20 November 1998. Special leave granted.
Catchwords
Aviation - charges for air traffic services - whether statutory levy amounts to taxation and therefore not authorised by s 67 of the Civil Aviation Act 1988 (Cth) - whether there must be a discernible relationship between the amount of a fee for a service and the value of that service in determining whether it is a fee for a service or taxation - whether the inclusion of an element of profit in the charge amounts to taxation.Appealed from FCA FC.
Date heard: 9 October 1998. Special leave granted.
Catchwords
Constitutional law - inconsistency - jurisdiction - Corporations Law - appeal to South Australian Court of Criminal Appeal by Commonwealth Director of Public Prosecutions - whether offences covered by Commonwealth or State legislation - whether a Commonwealth officer can appeal against a sentence from State law in a State superior court - constitutional validity of s 45 Corporations Act 1989 (Cth) - whether s 29(1) Corporations (South Australia) Act 1990 (SA) is within State legislative competence - proper construction of ss 29, 31 and 91 Corporations (South Australia) Act 1990 (SA) - proper construction of s 45 Corporations Act 1989 (Cth) - whether s 80 Constitution applies to deemed Commonwealth offences.Appealed from SA CCA.
Re Director of Public Prosecutions of the Australian Capital Territory; Ex parte Eastman (S178/1998)
Date heard: 7 December 1998. Referred to Full Court.Catchwords
Constitutional law - habeas corpus - conviction for murder - presiding judge appointed as acting Judge of Supreme Court of ACT - Supreme Court of ACT created by Parliament within meaning of s 72 Constitution - whether appointment of a Judge for a term other than one expiring upon attaining maximum age contravenes s 72 of Constitution - whether appointment of Judge validly made - whether Judge had authority to preside over trial and record conviction and impose sentence - whether imprisonment unlawful.
Prerogative writ
Re Pacific Coal Pty Ltd; Ex parte Construction Forestry Mining and Energy Union & Anor (S137/1998)
Date heard: 6 November 1998. Referred to Full Court.
Catchwords
Constitutional law - industrial law - award simplification process - Workplace Relations and Other Legislation Amendment Act 1996 (Cth) - transitional provisions - Schedule 5 Part 2 - item 50 - deeming that an award ceases to have effect to the extent that it provides for matters other than allowable award matters - whether item 50 invalid as beyond power provided in s 51(xxxv) Constitution - whether has the effect of acquiring property other than on just terms contrary to s 51(xxxi) Constitution - whether Commonwealth has power to legislate directly as to wages and conditions of employment - whether Commonwealth has power to legislate directly to remove conditions contained in awards made pursuant to conciliation and arbitration power.Prerogative writ.
Date heard: 12 December 1997. Special leave granted.
Catchwords
Copyright - computer programs - whether reproduction of one or more commands unique to computer program constitutes reproduction or adaptation of substantial part of program - whether commands either individually or taken together constitute a "computer program" within the meaning of s 10 of the Copyright Act 1968 (Cth) - whether meaning of "adaptation" extends to version of program which is not a translation of original program but which contains all or most instructions found in original program.Appealed from FCA FC. (1997) 75 FCR 108.
Date heard: 7 August 1998. Special leave granted.
Catchwords
Corporations - deed of arrangement - validity - due execution of the deed - 21 day time limit for execution of deed - Corporations Law ss 445G(3) and 447A - substantial compliance - power of Court to declare deed valid - comparison of practical effects with the requirements of the legislation - whether s 445G(3) applies where no deed has been executed.Appealed from NSW CA.
Date heard: 9 October 1998. Special leave granted.
Catchwords
Criminal law - sentencing - multiple sexual offences - mitigation of sentence by virtue of cooperation - whether voluntary confession and assistance ought reduce sentence - whether sentence manifestly excessive - whether severity of crime can result in same sentence as for a more serious crime - effect of lack of differential between sentences for different crimes.
Re Colina & Anor; Ex parte Torney (M85/1998)
Date heard: 23 November 1998. Referred to Full Court.
Catchwords
Criminal law - contempt of court - application for contempt by Marshal of Family Court against prosecutor in Family Court - whether application constituted indictment - whether s 80 Constitution applies - whether provision should be made for trial by jury - whether second respondent should be prohibited from hearing application.
Prerogative writ.
Date heard: 14 August 1998. Special leave granted.
Catchwords
Criminal law - murder - sentencing - victim had sexually abused applicant and sister -applicant pleaded guilty - mandatory life sentence - non-parole period of 20 years - applicant was 23 - Court of Criminal Appeal held non-parole period not excessive - whether CCA erred in so holding - whether CCA erred in holding that applicant's youth counted against him in determining appropriate non-parole period - consideration of proportionality of life in custody.Appealed from SA CCA.
Katsuno v The Queen (M7/1998)
Date heard: 11 September 1998. Special leave granted.
Catchwords
Criminal law - juries - peremptory challenge - Crown provided with list of unsuitable jurors - whether provision of such a list, or sole use of list by Crown, contrary to Ch III and s 80 Commonwealth Constitution - whether contrary to Juries Act 1967 (Vic).Appealed from Vic CA.
Date heard: 22 October 1998. Special leave granted.
Catchwords
Criminal law - sentencing - appellant guilty of sexual assaults - sentenced to seven years with parole after 5 years - DPP appeal successful for an indefinite prison sentence - whether sufficient material for parole eligibility - whether lack of possible rehabilitation constitutes continuing danger to society - whether justification for indefinite sentence.
Date Heard: 11 September 1998. Special leave granted.
Catchwords
Criminal law - sentencing - whether principle of restraint governing Crown appeals against sentence applies to re-sentencing of accused upon retrial - accused re-sentenced for an offence in relation to which he had been convicted and sentenced and conviction subsequently quashed.
Appealed from WA CCA. (1996) 16 WAR 354.
Marotta v The Queen (P5/1998);
Bull v The Queen (P9/1998);
King v the Queen (P8/1998)
Date Heard: 20 November 1998. Special leave granted.
Catchwords
Criminal law - evidence - admissibility of evidence - whether previous conversations between complainant and one of appellants was evidence of sexual disposition - Evidence Act 1906 (WA), ss 36B, 36BA, 36BC.Appealed from WA CCA.
Papakosmas v The Queen (S8/1998)
Date heard: 11 September 1998. Special leave granted.
Catchwords
Criminal law - evidence - admissibility of complaint in sexual assault cases - Evidence Act 1995 (NSW), ss 66 and 108(3)(b) - whether evidence of complaint admitted under ss 60 and 66 is admissible as evidence of the facts complained of - whether evidence of complaint can be corroborative of complainant's evidence.
Appealed from NSW CCA.
R v Olbrich (S96/1998)
Date heard: 20 November 1998. Special leave granted.
Catchwords
Criminal law - sentence - burden of proof - whether for sentencing purposes, circumstances of aggravation must be proved beyond reasonable doubt and circumstances of mitigation must be proved on the balance of probabilities - respondent pleaded guilty to importation of trafficable quantity of heroin - claimed to be courier rather than importer - whether for purposes of sentencing Crown must prove beyond reasonable doubt particular role of the accused in the scheme whereby imported drugs were to be supplied to users - whether, if the Crown does not prove such particular role, accused is entitled to be sentenced on the most favourable basis.Appealed from NSW CCA.
Catchwords
Criminal law - evidence - appellant convicted of unlawful anal intercourse - whether corroboration warning required in relation to complainant's evidence - whether open to jury to find that penetration had occurred.Appealed from Qld CA.
RPS v The Queen (S102/1998)
Date heard: 7 August 1998. Special leave granted.
Catchwords
Criminal law - sexual assault - practice and procedure - jury direction - whether specific denial of one charge justifies a direction by judge of tacit admission of other charges - whether interjections of opinion by trial judge about counsel constitutes inappropriate judicial interference - determining judicial bias - reasonable person test - whether comments of trial judge ought to be considered.
Appealed from NSW CCA.
Date heard: 14 November 1997. Special leave granted.
Catchwords
Criminal law - motor traffic offence - prescribed concentration of alcohol - breath sample furnished within 3 hours after driving exceeded prescribed limit - later blood sample showing concentration of alcohol within prescribed limit - whether offence committed - proper interpretation of s 49(1)(f) of the Road Safety Act 1986 (Vic) - whether Mills v Meeking (1990) 169 CLR 214 should be reconsidered.Appealed from Vic CA. [1998] 2 VR 274.
Date heard: 22 October 1998. Special leave granted.
Catchwords
Damages - past and future economic loss - applicant injured at work - whether damages awarded for injury should be increased for loss of future superannuation benefits - effect of Superannuation Guarantee (Administration) Act 1992 (Cth) - whether when evidence suggests no retained earning capacity a court should award damages for loss of total earning capacity - whether court provided adequate reasons.
Appealed from WA CA.
X v Commonwealth of Australia and Anor (B5/1998)
Date heard: 20 November 1998. Special leave granted.
Catchwords
Discrimination law - applicant discharged from army on basis of HIV status - whether discharge constituted unlawful discrimination - whether Disability Discrimination Act 1992 (Cth), s 15(4)(a) applied allowing army to discharge applicant on the basis of "inherent requirements of the particular employment" - whether ability to be injured without posing risk of infection to others can be inherent requirement of an occupation where neither injury nor bleeding form part of performance of that employment.Appealed from FCA FC.
Minister for Immigration and Multicultural Affairs v Thiyagarajah (S31/1998)
Date heard: 11 December 1998. Special leave granted.
Catchwords
Immigration - refugees - Convention Relating to the Status of Refugees 1951 - definition of `refugee' - asylum seeker recognised as refugee in France and accorded rights and obligations as refugee under the Convention in France - applicability of Article 1E of the Convention - whether rights and obligations accorded to a refugee in France same as those of a national - whether asylum seeker is a person to whom Australia has protection obligations under the Convention - whether risk of refoulement contrary to Article 33 if asylum seeker returned to France - whether `well-founded fear of being persecuted' test applies to Article 33 - whether Refugee Review Tribunal found as a fact that asylum seeker did not have well founded fear of persecution if returned to France - whether Australia obliged to assess substantive merits of asylum seeker's claim to be refugee - whether deportation of asylum seeker would be inconsistent with Australia's Convention obligations.Appealed from FCA FC.
Canon Australia Pty Ltd v Instant Colour Pty Ltd & Ors (P17/1997)
Date heard: 11 September 1998. Special leave granted.
Catchwords
Judgments and orders - whether Full Bench of Federal Court found for the respondent on a basis not propounded by the respondent but by the court - whether such a finding involved a serious procedural irregularity to the detriment of the appellant - whether costs order should be granted against the appellant in the absence of submissions and where appeal succeeds on a different basis from that at trial and on appeal - whether appeal court adopted proper basis for award of damages.
Appealed from FCA FC.
Walsh v Law Society of New South Wales (S4/1998)
Date heard: 11 September 1998. Special leave granted.
Catchwords
Legal practitioners - misconduct and discipline - whether in an appeal from Legal Services Tribunal the Court of Appeal is limited to the allegations of misconduct relied on by the Law Society before the Tribunal - whether appellate court can make findings of fact different from those of the Tribunal where no further evidence is given and where the Tribunal's findings related to credit - whether Court of Appeal erred in its various findings.
Appealed from NSW CA.
Date heard: 13 August 1998. Special leave granted.
Catchwords
Local government - town planning - Development Act 1993 (SA) - process to determine whether development is "special industry" - "special industry" meaning under Development Regulations 1993 (SA) - considerations in defining liquid waste treatment plant - challenge as to jurisdiction - determination by superior court of facts - whether superior court should hear evidence as to the existence of tribunal jurisdiction - whether applicant need show dereliction of duty by tribunal before impugning a jurisdictional fact - degree of deference to fact finding of specialist tribunals.Appealed from SA FC. (1997) 69 SASR 99.
Catchwords
Negligence - duty of care - whether Australian Stevedoring Industry Authority whose statutory purpose was to regulate stevedoring operations owed duty of care to worker who contracted malignant mesothelioma through exposure to asbestos -whether applicant was `waterside worker' under repealed Stevedoring Industry Act 1956 (Cth), s 7 between 1961 and 1965 - whether respondent as statutory successor to Australian Stevedoring Industry Authority under the Stevedoring Industry Acts (Termination) Acts 1977 (Cth) liable to applicant pursuant to s 14(b) of that Act.Appealed from Vic CA.
Perre & Ors v Apand Pty Ltd (A64/1997)
Date heard: 19 June 1998. Special leave granted.
Catchwords
Negligence - duty of care - proximity - claims for pure economic loss - applicant's export market for potatoes closed by outbreak of bacterial wilt on property of neighbour supplied with infected seed potatoes by respondent - whether possibility or threat of physical damage caused by negligence to be treated the same as actual physical damage - whether duty of care owed to applicants by respondent.Appealed from FCA FC. (1997) 80 FCR 19.
Date heard: 11 September 1998. Special leave granted.
Catchwords
Negligence - liability of statutory authority - interpretation of statutory immunity pursuant to Water Administration Act 1986 (NSW), s 19(1) - whether failure to warn of possible danger to applicant's crops from water actionable - whether failure to warn attracts immunity provisions.
Appealed from NSW CA. (1997) 42 NSWLR 676.
Date heard: 12 December 1997. Special leave granted.
Catchwords
Practice and procedure - respondent sued applicant under the Trade Practices Act 1974 (Cth), and for deceit and other relief based on a number of alleged representations - trial judge dismissed claims - Full Court ordered re-trial on basis that trial judge misdirected himself - whether trial judge misdirected himself in relation to representations - whether Full Court erred in ordering new trial - proper scope of appellate court intervention - whether undisturbed factual findings rendered new trial futile.
Appealed from FCA FC.
Date heard: 14 August 1998. Special leave granted.
Catchwords
Stamp duty - unit trust - redemption of units - whether redemption liable to stamp duty - whether redemption is surrender by unit holder of its beneficial interest in assets of unit trust - whether redemption is "transfer" - s 71 Stamp Duties Act 1923 (SA) - whether payment of trust at beneficiaries request constitutes a surrender of interest - passing of beneficial ownership.
Appealed from SA FC.
Commissioner of Taxation v Montgomery (M16/1998)
Date heard: 11 September 1998. Special leave granted.
Catchwords
Taxation - assessable income - whether lease incentive to firm of solicitors to pay higher rent has the character of income or capital - whether periodic lease incentive payments are analogous to a lease premium and therefore to be treated as capital.
Appealed from FCA FC.Commissioner of Taxation v Ryan (M32/1998)
Date heard: 11 November 1998. Special leave granted.
Catchwords
Taxation - income tax - assessment - whether former s 170(3) of Income Tax Assessment Act 1936 (Cth) limits Commissioner's ability to make assessment of taxpayer in respect of a year of income if Commissioner has not previously assessed a positive amount of tax in respect of that year and no tax has ever been `due and payable' in respect of that year - whether `nil' assessment amounts to assessment under the Act.Appealed from FCA FC.
Catchwords
Workers' compensation - meaning of `hurt on duty' - whether appellant entitled to compensation for absences from duties from exacerbation of anxiety disorder if exacerbation occurred in course of employment - whether compensation only payable if injury received whilst carrying out lawful task connected to duties of police officer.
Appealed from NSW CA.
Macquarie Infrastructure Investment Management Limited v Truth About Motorways Pty Ltd (S92/1998)
Date heard: 20 November 1998. Referred to Full Court.
Catchwords
Constitutional law - standing - Chapter III of Commonwealth Constitution - validity of ss 80 and 163A of Trade Practices Act 1974 (Cth) - whether contrary to Chapter III in that they purport to confer standing on person who has no special or personal interest in subject of proceedings - whether invalidity of those provisions precludes person from bringing proceedings in Federal Court for relief under Fair Trading Act 1987 (NSW), Federal Court of Australia Act 1976 (Cth) or Trade Practices Act 1974 (Cth) - validity of cross-vesting scheme - whether Jurisdiction of Court (Cross-Vesting) Act 1987 (Cth) and Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) invalid in conferring jurisdiction on Federal Court in matter arising under s 65 of Fair Trading Act.
Section 40 removal.
Malubel Pty Limited & Anor v Elders & Ors (S158/1998)
Special leave refused. Appealed from FCA FC.
WGE Pty Ltd v Ross (S106/1998)
Special leave refused. Appealed from NSW CA.
Caratti v The Queen (P39/1998)
Special leave refused. Appealed from NSW CCA.
Cooper v The Queen (S94/1997)
Special leave refused. Appealed from WA CCA.
Lowrie v The Queen (B2/1998)
Special leave refused. Appealed from Qld CA.
AB v National Crime Authority (M56/1998)
Special leave refused. Appealed from FCA FC.
Barry & Anor v Smith (M23/1998)
Special leave refused. Appealed from Vic CA.
Brown & Anor v Medew (M21/1998)
Special leave refused. Appealed from Vic CA.
Brown & Ors v The Members of the Classification Review Board of the Office of Film and Literature Classification (M28/1998)
Special leave refused. Appealed from Vic CA.
Hodgson v Lowe & Anor (M19/1998)
Special leave refused. Appealed from Vic CA.
Orr & Anor v Rietmeyer (M20/1998)
Special leave refused. Appealed from Vic CA.
Transport Accident Commission v Sullivan (M22/1998)
Special leave refused. Appealed from Vic CA.
Weston v Bannister & Anor (M46/1998)
Special leave refused. Appealed from HCA (Single Justice).
Weston v Connor (M17/1998)
Special leave refused. Appealed from Vic CA.
Weston v Indigo Shire Council & Anor (M29/1997; M46/1998; M47/1998; M48/1998; M49/1998; M60/1998)
Special leave refused. Appealed from Vic CA.
Weston v McCarthy & Anor (M94/1997)
Special leave refused. Appealed from Vic CA.
Weston v McGrane & Anor (M95/1997)
Special leave refused. Appealed from Vic CA.
CRIMINAL
Carbone v The Queen (A20/1998)
Special leave refused. Appealed from SA CCA.
Gardiner v The Queen (A15/1998)
Special leave refused. Appealed from SA CCA.
Gehling v The Queen (A16/1998)
Special leave refused. Appealed from SA CCA.
The First Named Acquitted Accused Person v Director or Public Prosecutions (M89/1997)
Special leave refused. Appealed from Vic CA.
The Second Named Acquitted Accused Person v Director or Public Prosecutions (M90/1997)
Special leave refused. Appealed from Vic CA.
Twohill v The Queen (A14/1998)
Special leave refused. Appealed from SA CCA.