No.2
Date heard: 7 March 1996. Judgment reserved.
Brennan CJ; Toohey, McHugh, Gummow and Kirby JJ
CatchwordsAdministrative law - Migration Act 1958 (Cth) - Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees - refugee status - "well founded fear of persecution" - whether a "real chance" of the respondents being persecuted if returned to China - standard of proof to be applied by Minister's delegate - weight to be accorded certain matters - whether a matter for decision-maker - relevance of speculation.
Appealed from FCA FC. (1995) 130 ALR 367; (1995) 57 FCR 432
Date heard: 12-15 February 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh and Gummow JJ
Catchwords
Constitutional law - invalidity of Aboriginals Ordinance 1918-1953 (NT) - Ordinance gave Chief Protector power to take into his custody an aboriginal child - whether this was beyond the legislative power conferred under the Constitution and in particular s.122 - whether conferral of judicial power contrary to Constitution - whether contrary to implied constitutional rights and freedoms - from removal and detention without due process - to legal equality - of movement and association - from any law or executive act having the effect of the destruction in whole or in part of a racial or ethnic group, subjecting the children of a racial or ethnic group to removal and detention, or constituting or authorising genocide - purpose of the Ordinance - relevance of standards and perceptions at time of enactment or operation - whether the Aboriginals Ordinance was a law for the government of the Northern Territory - whether a law prohibiting free exercise of a religion contrary to s.116 of the Constitution - whether right of action sounding in damages flowing from breach of implied freedoms - whether statute barred or barred by implied constitutional time limitation - whether declaratory relief and/or damages barred by laches or analogous equitable principles - whether claim for damages for wrongful imprisonment and deprivation of liberty statute barred.
Date heard: 8 March 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsConstitutional law - Financial Transaction Reports Act 1988 (Cth) s.31(1) - whether valid law of Commonwealth Parliament - Constitution - whether supported by the currency power (s.51(xii)) - whether incidental to the taxation power (s.51(ii)) - reference to the purpose of the provision - proportionality - whether requirement of mens rea.
Date heard: 19-20 March 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsConstitutional law - whether Stamps Act 1958 (Vic) is a valid State law in so far as it purports to make stamp duty exigible upon a lease leased by the Federal Airports Corporation of parts of the Melbourne Tullamarine Airport, the land being owned by the Commonwealth - whether the land a place acquired by the Commonwealth for public purposes - Commonwealth Constitution s.52(i) - power under s.52(i) to make laws with respect to taxation - whether Stamps Act a law with respect to a "Commonwealth place" - whether s.109 inconsistency - Federal Airport Corporation Act 1986 (Cth) - relevance of Customs Act 1901 (Cth) and Regulations.
Appealed from VIC SC. (1995) 129 ALR 678 (Cause removed)
Date heard: 6 March 1996. Judgment reserved.
Brennan CJ; Dawson, McHugh, Gummow and Kirby JJ
CatchwordsImmigration and aliens - Migration Act 1958 (Cth) - Convention Relating to the Status of Refugees, as amended by the Protocol Relating to the Status of Refugees - refugee status - fear of forcible sterilization flowing from China's "one child policy" - whether appellants have well-founded fear of persecution as members of a "particular social group".
Appealed from FCA FC. (1995) 130 ALR 48
Date heard: 13-14 March 1996. A. Remitter - reasons to be published;
B. Application for writs of certiorari and mandamus - judgment reserved.
A. Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
B. Brennan CJ; Gaudron and Kirby JJ
CatchwordsIndustrial law - remitter - can High Court remit to the Full Court of the Industrial Relations Court, proceedings commenced in its original jurisdiction under s.75(v) of the Constitution - meaning of Judiciary Act 1903 (Cth) s.44 and Industrial Relations Act 1988 (Cth) s.412 - court decided not to exercise power to remit, if any, that it may have.
Industrial law - application for writs of certiorari and mandamus - union elections - alleged irregularities - alleged that people had solicited from members of union their blank ballot papers and had used them to cast votes in the election - interlocutory orders then made - offices in respect of which order can be made - Industrial Relations Act 1988 (Cth) s.221(1)(c).
Date heard: 21 March 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsJudicial power - Family Court of Australia - admission of evidence - property settlement - Family Law Rules Order 24 conference - dispute as to agreement reached between parties - Family Law Rules Order 24 rule 1(8) - whether valid exercise of rule making power - whether subject to exceptions relating to law of privilege at common law - effect of Evidence Act 1995 (Cth) s.131 - whether rule prevents court from exercising proper judicial control over officers of the court - Family Law Act 1975 (Cth) s.37A (9) and Family Law Rules Order 36A rule 5(2) - whether time limit valid.
Appealed from Family Ct Aus FC.
Date heard: 11 March 1996. Judgment reserved.
Dawson, Toohey, Gaudron, McHugh and Gummow JJ
CatchwordsPrivate international law - contract of insurance - indemnity - whether respondent liable to indemnify appellant - governing law - choice of forum clause - choice of law clause - Insurance Contracts Act 1984 (Cth) - sections 8, 43, 52 and 54 - applicability to policy of insurance.
Appealed from NSW CA.
Date heard: 12 March 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsPrivilege - legal professional privilege - documents seized under search warrant - whether legal professional privilege can attach to a copy of a document when the original document is not privileged - whether sufficient that copy brought into existence for sole purpose of obtaining legal advice - privilege claimed for documents alleged to have been made in furtherance of an illegal or improper purpose - whether hearsay material can be relied upon to displace privilege.
Appealed from FCA FC. (1995) 128 ALR 657
Date heard: 11 October 1995, 5 March 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsWorkers compensation - Workers Compensation Act 1987 (NSW) s.4 - statutory interpretation - definition of "injury" - "personal injury" - "disease" - relationship between s.4(a) and (b) - rupture of aneurysm - whether Hockey v. Yelland (1984) 157 CLR 124 should be overruled.
Appealed from NSW CA. (1994) 34 NSWLR 617
CatchwordsAdministrative law - grant of licence to operate casino - Casino Control Act 1992 (NSW) ss.12, 13, 141, 155 - construction of s.155 - privative provision - exclusion of judicial review - jurisdictional error - errors of law - application of privative provision in respect of Minister - summary jurisdiction.
Appealed from NSW CA.
Date heard: 4 March 1996. Special leave granted.
CatchwordsConstitutional law - Constitution s.51(xxxi) - limitation of actions - Safety Rehabilitation and Compensation Act 1988 (Cth) s.44 - whether application of s.44 to statute barred cause of action constitutes acquisition of property - effect of provision for extension of limitation period - distinction between limitation provision barring remedy and limitation provision extinguishing claim.
Appealed from FCA FC.
Date heard: 5 February 1996. Special leave granted.
CatchwordsContracts - illegal and void - statutory illegality - contract to drill bores - drilling without statutory permits - whether contract rendered illegal by statute imposing penalties - whether a contract which is not forbidden by statute should be enforceable at the suit of a party that performs it illegally - whether such a contract contrary to public policy.
Appealed from NT CA.
Date heard: 15 March 1996. Special leave granted.
CatchwordsCriminal law - Crimes Act 1900 (NSW) ss.327, 328 - verdict of not guilty on charge of perjury with intent to procure - whether consistent with verdict of not guilty on charge of perjury without specific intention, when no other intent put to jury - whether warning should be given in perjury cases about need for caution before inferring false evidence knowingly false, where no direct evidence that evidence knowingly false - whether confidence and dogmatism consistent with honest mistake and should not be used to infer dishonesty.
Appealed from NSW CCA.
Date heard: 15 March 1996. Special leave granted.
CatchwordsCriminal law - sentencing - appeal - offender gave evidence against co-offenders - relationship between principles of totality of sentence and parity of sentence - application of principle of totality when concurrent sentences imposed.
Appealed from NSW CCA.
Date heard: 15 March 1996. Special leave granted.
CatchwordsCriminal law - application by Crown - alleged conspiracy - whether offence of conspiracy where the object of the agreement is to commit an unlawful act, which unknown to the parties is physically impossible to commit - whether principles in relation to the effect of physical impossibility on crime of attempt apply to crime of conspiracy - whether DPP v. Knock [1978] AC 979 should be followed in Australia.
Appealed from NSW CCA. (1995) 37 NSWLR 256.
Date heard: 4 March 1996. Special leave granted.
CatchwordsEnvironment protection - development application - Environmental Planning and Assessment Act 1979 (NSW) s.77(1)(b) - proposed development included use of two rights of carriageway across adjoining land - statutory construction - "land to which the development application relates" - whether consent in writing of owners of adjoining land required.
Appealed from NSW CA.
CatchwordsEquity - fiduciary relationship - solicitors and clients - mortgage in favour of solicitors - breach of fiduciary duty by non-trustee fiduciary - causation - restitution - setting aside transaction on terms.
Appealed from VSC CA.
Date heard: 5 February 1996. Leave granted.
CatchwordsIndustrial law - jurisdiction - application for prerogative relief against AIRC - dispute finding based on non-compliance with log of claims - amended finding after second log of claims - whether claims made in logs were `plainly fanciful' so as to be incapable of giving rise to industrial dispute - authorisation of log of claims - whether service of second log terminated dispute arising out of non-compliance with first log - whether claim for career path capable of creating industrial dispute.
Appealed from IRCt.
Date heard: 15 March 1996. Special leave granted.
CatchwordsLimitation of actions - Limitation of Actions Act 1975 (Qld) s.31(2) - discretion to extend limitation period where stated conditions satisfied - onus of proof of matters justifying refusal - improbability of fair trial as ground to refuse to exercise discretion to grant extension.
Appeal from Qld CA.
Date heard: 5 February 1996. Special leave granted.
CatchwordsMines and minerals - mining leases and licences - Northern Territory - Northern Territory (Self-Government) Act 1978 ss.6, 50, 57, 69 and 70 - Mining Ordinance 1939 (NT) - acquisition of land by Commonwealth for Kakadu National Park - mining leases - right of renewal - limit of authority of Territory legislature under self-government - powers of Territory Administration - construction of s.70 of Northern Territory (Self-Government) Act - acquisition of property on just terms.
Appealed from FCA FC. (1995) 130 ALR 193.
Date heard: 15 March 1996. Special leave granted.
CatchwordsTort - negligence - breach of statutory duty - whether at common law or by statute a landlord has a non-delegable duty to a third party in respect of the safety of demised residential premises - Property Law Act 1974 (Qld) s.106(1)(a) - whether statutory duty conferring on particular class of persons private right of action for damages.
Appealed from Qld CA.
Date heard: 15 March 1996. Special leave granted.
CatchwordsTort - damages - personal injuries - whether award should include damages in respect of future gratuitous services which will, on balance of probabilities, be provided by defendant tortfeasor - relevance of indemnity of defendant tortfeasor by insurer - Van Gervan v. Fenton (1992) 175 CLR 327.
Appealed from Qld CA.