No.3
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) 57 FCR 432; (1995) 130 ALR 367.
Date heard: 24 April 1996. Judgment reserved.
Brennan CJ; Gaudron, McHugh and Kirby JJ
CatchwordsCriminal law - offences against public order - possession of prohibited article in a public place - "lawful purpose" or "reasonable excuse" under s 545E(2) Crimes Act 1900 (NSW) - whether self defence when there is no reasonable apprehension of imminent attack constitutes such a purpose or excuse.
Appealed from NSW CCA.
Date heard: 12-15 February 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron, McHugh and Gummow JJ
CatchwordsConstitutional 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: 18 April 1996. Judgment reserved.
Brennan CJ; Dawson, Toohey, Gaudron and Gummow JJ
CatchwordsDefamation - electronic media - defence of "innocent dissemination" - whether available where a re-broadcast by a television station of program broadcast by another station - whether joint tortfeasors - effect of release of one joint tortfeasor - whether s 11 of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) abolished the common law rule that a release of one joint tortfeasor operates as a release of all.
Appealed from FCA FC. (1995) 54 FCR 513; (1994) 127 ALR 317.
Date heard: 23 April 1996. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsEquity - fiduciary relationship - solicitors and clients - mortgage in favour of solicitors - breach of fiduciary duty by non-disclosure by non-trustee fiduciaries - whether requirement of restitution to be imposed when setting aside transaction - nature and degree of causation required - application of common law principles
Appealed form VSC CA.
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) 57 FCR 309; (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: 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) 58 FCR 224; (1995) 128 ALR 657.
Date heard: 17 April 1996. Judgment reserved.
Dawson, Toohey, Gaudron, McHugh and Kirby JJ
CatchwordsIncome Tax Assessment Act 1936 (Cth), ss 20, 21, 25, 51, Part Div 3B - finance raised by regular issue at discount to face value of promissory notes in foreign currency - exchange rate fluctuation between issue and maturity dates affecting Australian equivalent of the foreign currency - notes paid at face value on maturity by payment in currency of issue, some of which supplied by issue of further notes in that currency - proper method of calculation for tax purposes of the cost of funds deductible (or assessable) - whether for purposes of ss 25(1) and 51(1) profit representing income or loss realised by the respondent on discharge as result of movement of exchange rate - whether any such profit or loss realised for purpose of Div 3B - if so, whether made "under" an "eligible contract" for purpose of Div 3B.
Appealed from FCA FC. (1994) 54 FCR 25; 126 ALR 161.
Date heard: 22 April 1996. Judgment reserved.
Brennan CJ; Gaudron, McHugh, Gummow and Kirby JJ
CatchwordsTrade Practices Act 1974 (Cth) ss 68, 68A, 74 - indemnity under cl.4 of ground handling advice note in respect of liability to third parties - whether rendered void by s 68
Appealed from NSW CA. (1995) 132 ALR 419.
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.
Date heard: 15 April 1996. Causes removed.
Directions hearing: 6 May 1996.
CatchwordsNative title - whether grant of certain pastoral leases extinguished native title - whether Land Act 1910 (Qld), Land Act 1962 (Qld) or the pastoral leases reveal clear and plan intention to do so - whether extinguishment possible to determine in the abstract - whether extinguishment only to extent of any actual inconsistency in exercise of respective rights of traditional occupants and pastoralists - if the pastoral leases extinguished native title: (a) effect of continued exercise of native title rights; (b) whether, if a fiduciary duty is owed by the Crown in relation to the land, it holds any reversion of the pastoral leases on trust for the traditional owners - claims for alleged procedural unfairness and breaches of fiduciary duty - whether maintainable despite Commonwealth Aluminium Corporation Pty Limited Agreement Act 1957 (Qld), Aurukun Associates Agreement Act 1975 (Qld).
Appealed from FCA. Removed from FCA FC. (1996) 134 ALR 637.
Date heard: 5 February 1996. Special leave granted.
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: 16 April 1996. Special leave granted.
CatchwordsCopyright - intellectual property - whether the provision of music to be heard by telephone users placed on "hold" constitutes an infringement of copyright - whether Telstra, as a general carrier of telecommunications, is to be taken to have caused that music to be transmitted to subscribers to a diffusion service - whether Telstra, by operating a telephone network including a mobile phone network, is to be taken as transmitting work heard by a caller in a telephone call "to the public" - Copyright Act 1968 (Cth) ss 10(1), 26, 31(1)(a)(iv) and (v).
Appealed from FCA FC. (1995) 131 ALR 141.
Date heard: 24 April 1996. Special leave granted.
CatchwordsCorporations law - practice and procedure - failure to obtain leave to apply to wind up a company - whether application brought without leave a nullity - whether a procedural irregularity - whether order can be made nunc pro tunc granting leave - Corporations Law s 459P(2).
Appealed from FCA FC.
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 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: 16 April 1996. Special leave granted.
CatchwordsCriminal law - appeal against conviction - whether inadmissible evidence led by Crown Prosecutor led to a miscarriage of justice - delay in making complaint of sexual misconduct - whether jury ought to have been directed on the use that may be made of that delay - whether s 61(1) Crimes Act 1958 (Vic) precludes the giving of such direction.
Appealed from Vic CCA.
Date heard: 24 April 1996. Special leave granted.
CatchwordsCriminal law - duplicity - obtaining payments and benefits by dishonest means - applicant convicted of offence under s 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA), namely, obtaining payments by dishonest means - extent and content of the rule against duplicity in context of charging in one count the dishonest obtaining of the total sum of a large number of separate benefit payments - whether such offence may be charged as a "continuing offence" - whether necessary to establish criminal intent for each separate obtaining of benefit - is Weinel v Fedchesen (18.8.95) SA SC, Jud No S 5216 good law?
Appealed from SASC FC.
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.
Date heard: 16 April 1996. Special leave granted.
CatchwordsGuarantee - respondents were guarantors of loan by applicant 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? - proper construction of s 82(8)(b) of the Act - Gye v McIntyre (1991) 171 CLR 609 expressly left construction issues open.
Appealed from VSC CA. (1996) 135 ALR 297.
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) 58 FCR 167; (1995) 130 ALR 193.
Date heard: 15 April 1996. Special leave granted.
CatchwordsNegligence - provision of sledge hammer by employer to employee with longer handle than employee used to - nature of obligation to institute and maintain safe system of work - circumstances under which Court of Appeal may overturn trial judge's findings of fact where (a) involve assessment of reliability of witness giving evidence in other than native tongue and (b) based expressly or impliedly on manner in which a witness of non-English speaking background also uses non-verbal means to communicate.
Appealed from NSW CA.
Date heard: 16 April 1996. Special leave granted.
CatchwordsTaxation - assessable income - whether the ex gratia payment by the Queensland Government of an employee's legal expenses in appearing at an inquiry relating to his suspension from employment by a Shire Council, which was an allowable deduction to the employee, constitutes assessable income of that employee - ss 25(1) and 51(1) of the Income Tax Assessment Act 1936 (Cth) - is there a general principle of law that an amount paid as compensation for, or reimbursement of, a deductible expense is income within ordinary concepts?
Appealed from FCA FC.
Date heard: 16 April 1996. Special leave granted.
CatchwordsIncome tax - tax avoidance - interest earned on deposit of funds in the Cook Islands - whether respondent obtained a "tax benefit" in connection with an avoidance "scheme" - whether dominant purpose of scheme was to obtain a tax benefit - relationship between commercial result of a transaction and the purpose of obtaining a tax benefit in producing that result - Income Tax Assessment Act 1936 (Cth) s 177D - Part IV A.
Appealed from FCA FC.
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.
Date heard: 15 April 1996. Special leave granted.
CatchwordsTort - negligent advice - damages - failure to diagnose pregnancy - loss of chance to have an abortion - is claim for pain and suffering and economic loss barred by illegality or public policy? - whether birth of a healthy child could ever be compensable harm - damages recoverable.
Appealed from NSW CA. (1995) 38 NSWLR 47.