JADE Recent Australian High Court Cases (HCA)

Love v Commonwealth of Australia; Thoms v Commonwealth of Australia

[2020] HCA 3 (11 February 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)

Available in JADE Professional Layout.

CitationLove v Commonwealth of Australia [2020] HCA 3
CatchwordsConstitutional law (Cth) – Powers of Commonwealth Parliament – Power to make laws with respect to naturalisation and aliens – Meaning of “aliens” – Where plaintiffs foreign citizens, born outside Australia, who did not acquire Australian citizenship – Where plaintiffs biological descendants of indigenous peoples – Where plaintiffs’ visas cancelled under s 501(3A) of Migration Act 1958 (Cth) – Whether statutory citizenship and constitutional alienage co‑terminous – Whether an Aboriginal Australian (defined according to tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1) can be “alien” within meaning of s 51(xix) of Constitution – Whether s 51(xix) supports application of ss 14, 189 and 198 of Migration Act to plaintiffs – Whether plaintiffs satisfy tripartite test.

Words and phrases – “Aboriginal Australian”, “alienage”, “aliens”, “allegiance”, “body politic”, “citizen”, “connection to country”, “essential meaning”, “foreign citizen”, “indicia of alienage”, “nationality”, “non‑alien”, “non-alienage”, “non-citizen”, “obligation of protection”, “political community”, “polity”, “sovereignty”, “spiritual connection”, “subject”, “territory”, “traditional laws and customs”, “tripartite test”, “unlawful non-citizen”.
JudgeKIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
OrdersMatter No B43/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1. Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?
Answer: The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.
2. Who should pay the costs of this special case?
Answer: The defendant.
Matter No B64/2018
The questions stated in the special case for the opinion of the Full Court are answered as follows:
1. Is the plaintiff an “alien” within the meaning of s 51(xix) of the Constitution?
Answer: Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The plaintiff is an Aboriginal Australian and, therefore, the answer is “No”.
2. Who should pay the costs of this special case?
Answer: The defendant.
Decision Date11 February 2020
Legislation CitedConstitution, s 51(xix), (xxvii).
Australian Citizenship Act 2007 (Cth), ss 12, 13, 14, 15, 16.
Migration Act 1958 (Cth), ss 5, 14, 189, 196, 198, 200, 501.
FilenumberB43/2018 & B64/2018
PartiesDANIEL ALEXANDER LOVE PLAINTIFF
COMMONWEALTH OF AUSTRALIA DEFENDANT

BRENDAN CRAIG THOMS PLAINTIFF
COMMONWEALTH OF AUSTRALIA DEFENDANT
RepresentationS J Keim SC with K E Slack and A J Hartnett for the plaintiff in each matter (instructed by Maurice Blackburn Lawyers)
S P Donaghue QC, Solicitor-General of the Commonwealth, with N M Wood and J D Watson for the defendant in both matters (instructed by Australian Government Solicitor)
P G Willis SC with T B Goodwin for the Attorney-General for the State of Victoria, intervening in both matters (instructed by Victorian Government Solicitor) at the hearing on 5 December 2019
Retrieved onTuesday, 11.02.2020 at 10:16 AM
BJS Number708192

Recent Victorian Reports (VR)

The latest from the team

Victorian Reports – Recently published (as at December 2019)

Administrative law
Garde J – 08 Feb 2019 – 11 pages

Administrative law – Judicial review – Domestic bodies – Registered Housing Association – Decision to give notice to vacate for no reason – Decision to restrict tenant’s contact with landlord’s staff – Whether decisions amenable to judicial review – Application of Datafin principle – Housing Act 1983 (Vic) – Residential Tenancies Act 1997 (Vic).

Maxwell P, McLeish JA and Almond AJA – 18 Dec 2018 – 15 pages

Administrative law – Sex offenders registration – Possession of child pornography – Possession by applicant as child continued as adult – Whether registrable offender – Particulars of charge included date of possession as adult – Whether guilty plea an admission to date in particulars – Whether offence durative – Sex Offenders Registration Act 2004 (Vic) s 6(3)(a).

Maxwell P, Beach and Niall JJA – 29 Aug 2018 – 26 pages

Administrative law – Procedural fairness – Practical content of fairness – Unrepresented litigant in person – Respondent charged on summons with road traffic offences – Respondent filed written objections to jurisdiction of Magistrates’ Court – Magistrate dismissed jurisdictional objection without hearing oral submissions from respondent – Whether respondent denied procedural fairness – Magistrates’ Court Act 1989 (Vic) s 1 – Magistrates’ Court Criminal Procedure Rules 2009 (Vic) r 5 – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24(1).

Ierodiaconou AsJ – 20 Dec 2018 – 19 pages

Administrative law – Judicial review – Domestic body – Professional association created by Royal Charter – Refusal of readmission to membership – Whether decision amenable to judicial review – Whether Datafin principle applicable in Victoria – Civil Procedure Act 2010 (Vic) ss 62, 63, 64.

Arbitration
Croft J – 10 May 2018 – 19 pages

Arbitration – Jurisdiction – Competence – Review of arbitrator’s ruling on jurisdiction – Whether rehearing de novo or judicial review of arbitrator’s ruling – Commercial Arbitration Act 2011 (Vic) ss 16(9), 16(11).

Associations and clubs
Ierodiaconou AsJ – 20 Dec 2018 – 19 pages

Associations and clubs – Membership – Professional association of accountants created by Royal Charter – Refusal of readmission application – Whether decision amenable to judicial review.

Banks and banking
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Banks and banking – Bank and customer – Loan secured by mortgage – Preservation of mortgaged property – Costs and expenses – Bank paid customer’s unpaid owners corporation fees owing on mortgaged property – Bank debited customer’s loan account in those amounts – Customer ceased to make loan repayments – Whether bank required to make demand for payment before debiting account – Whether debit caused customer’s failure to make loan repayments.

Building contracts

Building contracts – Major domestic building contract – ‘No fault’ termination by owner – Builder’s entitlement to reasonable value of work performed – Liquidated damages – Owner’s claim for liquidated damages in respect of delay – Application by builder for extension of time in respect of delay – Whether owner could recover liquidated damages for delay where building contract terminated under ‘no fault’ regime – Whether liquidated damages claim defeated by builder’s extension application – Domestic Building Contracts Act 1995 (Vic) ss 41(5), 41(6).

Croft J – 10 May 2018 – 19 pages

Building contracts – Contract for plastering work – Dispute resolution – Whether arbitration prohibited – Whether domestic building work – Domestic Building Contracts Act 1995 (Vic), ss 3, 5, 6(2), 14, 54(1)(b) – Domestic Building Contracts Regulations 2017 (Vic), regs 7(e), (g).

Carriers and carriage of goods
Keogh J – 24 Aug 2018 – 12 pages

Carriers and carriage of goods – Aviation – Carriage of passengers – Federal jurisdiction – Personal injury claim under Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – Operation of s 79 of the Judiciary Act 1903 (Cth) – Whether pt VBA of the Wrongs Act 1958 (Vic) applied – Whether Commonwealth law ‘otherwise provided’ – Wrongs Act 1958 (Vic) ss 28LB, 28LC, 28LE – Judiciary Act 1903 (Cth) s 79 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 9B, 9E, sch 1A, arts 17(1), 21, 29.

Companies

Companies – Winding-up – Liquidator’s power of sale of company property – Company’s claim of misleading or deceptive conduct – Whether liquidator empowered to sell non-assignable cause of action – Corporations Act 2001 (Cth), s 477(2)(c).

Whelan, McLeish and Hargrave JJA – 20 Mar 2019 – 11 pages

Companies – Liquidation – Costs of appeal by liquidators – Liquidators’ right of indemnity against company – Whether costs properly incurred – Risk of exhausting assets of company through appeals – Onus on liquidators to establish costs of appeal honestly and reasonably incurred.

Sloss J – 16 Nov 2018 – 61 pages

Companies – Winding up – Liquidators – Control of liquidators – Court’s statutory jurisdiction to inquire into conduct of liquidators – Application by creditor for inquiry into conduct of liquidators – Corporations Act 2001 (Cth) s 541(1)(b).

Costs
Tate, Whelan and Niall JJA – 17 Dec 2018 – 6 pages

Costs – Costs of appeal – Group proceeding – Appeal by group member – First respondent representative plaintiff in group proceeding – Where appellant achieved substantial success – Whether first respondent was proper party to appeal – Whether appellant’s costs should be paid out of settlement sum – Supreme Court Act 1986 (Vic) s 33ZC.

Costs – Self-represented litigant – Barrister representing self – Member of the Victorian Bar – Whether entitled to costs for work as counsel – Whether entitled to reasonable disbursements – Supreme Court Act 1986 (Vic) ss 3(1), 24(1).

Macaulay J – 21 Nov 2018 – 13 pages

Costs – Wasted costs – Application for personal costs orders against plaintiff’s legal advisers and expert accounting witnesses – Plaintiff awarded only nominal damages at trial – Jurisdiction to award personal costs orders – Allegations of serious impropriety – Notice requirement.

Whelan, McLeish and Hargrave JJA – 20 Mar 2019 – 11 pages

Costs – Liquidation – Liquidators’ application for directions and approval of compromise – Application refused – Appeal dismissed – Whether costs ordered against liquidator personally or from assets of company – Different position regarding costs at first instance and on appeal.

Courts
Maxwell P, McLeish JA and Almond AJA – 18 Dec 2018 – 15 pages

Courts – Anonymisation – Applicant sought to have name anonymised in published reasons – Pseudonym used in trial reasons – Legislative policy to restrict disclosure of register – Risk of chilling effect on review of registration – Sex Offenders Registration Act 2004 (Vic) s 63.

Criminal law
Kyrou and Weinberg JJA – 22 Feb 2019 – 14 pages

Criminal law – Sentencing – Delay – Lengthy interval between offending and sentence – Relevance of delay.

Maxwell ACJ, Priest and Kyrou JJA – 07 Jun 2018 – 49 pages

Criminal law – Charge – Sufficiency of particulars – Joint commission – Preparatory offences – Foreign incursion – Offence of engaging in conduct preparatory to entering foreign country with intention of engaging in hostile activity – Whether particulars provided reasonable information as to the nature of the charge – Criminal Procedure Act 2009 (Vic) s 159(3)(c), sch 1 – Criminal Code (Cth) ss 11.2A, 117.1(1), 119.1(1), 119.4(1).

Maxwell P and Taylor AJA – 07 Feb 2019 – 5 pages

Criminal law – Interlocutory appeal – Evidence – Tendency evidence – Admissibility – Function of certification for interlocutory appeal – Criminal Procedure Act 2009 (Vic) ss 295 and 296.

Weinberg JA – 07 Dec 2018 – 5 pages

Criminal law – Bail – Exceptional circumstances – Applicant subject to adjourned undertaking to be of good behavior – Whether undertaking to be of good behavior constituted ‘otherwise serving a sentence’ – Bail Act 1977 (Vic)s 4AA(2)(c)(v) – Sentencing Act 1991 (Vic) s 75.

Equity
Kyrou, McLeish and Hargrave JJA – 27 Nov 2018 – 38 pages

Equity – Estoppel – Equitable estoppel – Deed of release – Representations that all claims against respondents were compromised – Effect of release – Whether applicant’s lack of full knowledge of circumstances of breach of trust rendered release of equitable claims unenforceable – Clean hands.

Equity – Fiduciary duties – Partnership – Duty to avoid conflict of interest – Duty to avoid deriving unauthorised profits – Duty to disclose and offer commercial opportunity to fellow partners – Whether breach of duties – Accessorial liability – Whether knowing inducement or procurement of breach – Whether receipt of property derived from another person’s breach – Application of terms of partnership deed – Partnership Act 1958 (Vic) ss 32, 33(1).

Evidence
Priest JA – 20 Dec 2018 – 8 pages

Evidence – Admissibility – Hearsay – Witness deceased – Protected witness – Prosecution seeking to rely on statements and video-recorded re-enactments by deceased protected witness as exceptions to hearsay in criminal trials – Disclosure of information regarding protected witness – Considerations informing order for disclosure – Witness Protection Act 1991 (Vic) ss 1, 3AAA, 3AA, 10(1)(c) – Evidence Act 2008 (Vic), s 65(2).

Priest, Beach and Niall JJA – 23 Feb 2018 – 30 pages

Evidence – Admissibility – Reasons of medical panel – Members of medical panel not compellable as witnesses – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 272 – Evidence Act 2008 (Vic) ss 55, 79.

Human rights
Taylor J – 02 Nov 2018 – 25 pages

Human rights – Right to freedom of movement – Limitations – Loitering without reasonable excuse – Whether constructional choice as to meaning – Whether limitation reasonable and demonstrably justifiable – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7, 12, 25(1), 32(1).

Interest
Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Interest – Land compensation claim – Agreed quantum of debt on some heads of claim, with contested issues determined by Court after trial – Whether interest claimable on agreed quantum – Whether interest ‘on any sum for which judgment is entered or given by consent’ – Supreme Court Act 1986 (Vic) s 60(2)(d).

Legal practitioners
Keogh J – 23 Jan 2019 – 19 pages

Legal practitioners – Fees – Costs disclosure – Contract for legal services – Variation of engagement – Counsel retained by solicitor – Client to be responsible for counsel’s fee – Whether oral variation of engangement permitted – Whether costs disclosure made – Legal Profession Uniform Law cls 174, 175, 178, 180, 184, 185.

Tate, Kaye and Emerton JJA – 13 Feb 2019 – 52 pages

Legal practitioners – Unsatisfactory professional conduct – Dealings between practitioners – Requirement to take all reasonable care to maintain integrity and reputation of legal profession – Ensuring courteous communications – Avoidance of offensive or provocative language or conduct – Exception for communication made for legitimate pursuit of client interests and on reasonable basis – Whether exception applied – Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15(2) – Legal Profession Act 2004 (Vic) s 4.4.4(a) – Professional Conduct and Practice Rules 2005 (Vic) r 21.

Negligence
John Dixon J – 06 Feb 2019 – 62 pages

Negligence – Duty of care – Statutory duties – Common law duty – Nuisance – Power supply company – Bushfire ignited after tree fell onto power conductor – Alleged statutory duty to maintain supply network to minimise risk to persons and property and to minimise risk of bushfire – Alleged common law duty to operate powerlines safely – Whether duties required clearance of non-hazardous vegetation outside of defined minimum clearance space – Electrical Safety Act 1998 (Vic) ss 84, 85, 86, 89, 98, 151 – Electricity Safety (Electric Line Clearance) Regulations 2015 (Vic) – Code of Practice for Electric Line Clearance cls 2, 3, 7, 8, 10 – Civil Procedure Act 2010 (Vic) ss 62, 63, 64 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01.

Partnership and partners

Partnership and partners – Formation – Partnership deed – Person signing partnership deed in capacity of director of corporate partner – Whether director personally bound – Whether director of partner a partner of partnership.

Police
Daly AsJ – 26 Nov 2018 – 42 pages

Police – Motor vehicles – Offence – Failure of driver to give information to police officer acting in the execution of duty – Proper construction of ‘execution of duty’ – Whether power of a police officer to request information restricted to circumstances where officer was investigating possible offences under the Act – Road Safety Act 1986 (Vic) s 60(1).

Practice and procedure
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Practice and procedure – Leave to appeal – Points in proposed grounds of appeal not raised before trial judge – Where success on proposed grounds would not impugn orders made by trial judge.

Tate, Whelan and Niall JJA – 01 Nov 2018 – 80 pages

Practice and procedure – Group proceeding – Settlement – Approval – Appeal by group member against approval of settlement – Separate proceeding brought by special purpose receivers – Settlement of two proceedings – Single sum to be paid in settlement of both proceedings – Whether settlement sum fair and reasonable – Group proceeding funded by litigation funder – Proposed distributions from settlement sum for litigation funder’s commission and legal costs – Overlap between issues raised in two proceedings – Whether judge had adequate regard to contribution of special purpose receivers’ proceeding in approving commission to funder of group proceeding – Whether judge erred in ordering confidentiality over expert costs report, affidavits and legal advices and submissions – Whether judge erred in failing to appoint contradictor – Whether open to Court to approve settlement but not approve proposed distributions for commission and legal costs – Supreme Court Act 1986 (Vic) ss 33V, 33ZC(5), 33ZF.

Macaulay J – 21 Nov 2018 – 13 pages

Practice and procedure – Overarching obligations – Legal professionals – Expert witnesses – Whether plaintiff’s legal advisers and expert accounting witnesses contravened overarching obligations by continuing to act once it became reasonably clear that subject property development would return a substantial loss – Civil Procedure Act 2010 (Vic) ss 17, 19, 21(b), 22, 23, 24 and 29.

Practice and procedure – Parties – Substitution of party – Assignment of cause of action – Claim of misleading or deceptive conduct – Whether assignable – Whether valid assignment made – Whether determination of valid assignment a necessary pre-condition to substitution of party – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 9.09(2)(a).

McMillan J – 26 Mar 2019 – 22 pages

Practice and procedure – Interest – Interest on sum recovered in proceeding – ‘Debt or sum certain’ – Sum paid into Court by way of compromise – Order recording compromise – Whether sum ‘recovered’ – Whether judgment for the sum required – Good cause why interest should not be allowed – Supreme Court Act 1986 (Vic), s 58(1).

Derham AsJ – 13 Feb 2019 – 34 pages

Practice and procedure – Freezing order – Undertaking as to damages – Whether Director of Consumer Affairs required to give undertaking as to damages – Circumstances in which the Crown or a statutory authority may be required to give an undertaking as to damages.

Stamp duty
Croft J – 29 Nov 2018 – 21 pages

Stamp duty – Exemptions – Charitable purpose – Other purposes beneficial to community – Service club – Whether purpose of raising ethical standards in business and the professions is charitable – Whether purpose of club directed to members or the community generally – Duties Act 2000 (Vic), s 45.

Summary offences
Taylor J – 02 Nov 2018 – 25 pages

Summary offences – Loitering without reasonable excuse – Elements of offence – Whether ‘loitering’ required proof of lack of purpose or unlawful purpose – Crimes Act 1958 (Vic) s 60B(2) – Criminal Procedure Act 2009 (Vic), s 272(1).

Tort
Maxwell P, Hargrave and Ashley JJA – 20 Dec 2018 – 27 pages

Tort – Conversion – Bailment – Unauthorised pledge of chattels by bailee – Chattels returned by pledgee to bailee – Whether pledgee liable in conversion – Elements of cause of action – Whether dealing with or exercise of acts of ownership over chattels required – Whether unauthorised possession sufficient – Whether conversion a strict or absolute liability tort – Possible need for law reform.

Town planning
Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Town planning – Valuation and compensation – Land reserved for public purpose – Compensation under pt 5 of Planning and Environment Act 1987 (Vic) – Claim for loss on sale, expenses and intangible non-financial disadvantage referred to Court – Interest on compensation – Quantum of compensation for loss on sale and expenses agreed before trial – Whether statute barred award of interest on agreed loss on sale and expenses – Planning and Environment Act 1987 (Vic), ss 98, 99, 100, 101, 105 and 106 – Land Acquisition and Compensation Act 1986 (Vic), pts 10 and 11 and s 37 – Supreme Court Act 1986 (Vic), s 60(2)(d).

Trusts
McMillan J – 26 Mar 2019 – 22 pages

Trusts – Discretionary trust – Resolutions recording allocation of income to beneficiary – Accounts of trust – Whether acknowledgement of debt – Whether beneficiary a creditor of the trustee.

Trusts and trustees
Kyrou, McLeish and Hargrave JJA – 27 Nov 2018 – 38 pages

Trusts and trustees – Trustee’s duties – Breach of trust – Unit trust established for property development – Discounted units issued to some investors in breach of trust – Deed of release – Effect of release – Whether applicant’s lack of full knowledge of circumstances of breach of trust rendered release of equitable claims unenforceable.

Unconscionable conduct
McLeish, Niall and Ashley JJA – 05 Sep 2018 – 25 pages

Unconscionable conduct – Bank and customer – Bank paid unpaid owners corporation fees due on mortgaged property and debited customer without notice to customer – Whether breach of Code of Banking Practice 2013 – Whether bank acted unfairly in proceedings for debt and possession – Australian Securities and Investments Commission Act 2001 (Cth) s 12CB.

Words and phrases
John Dixon J – 06 Feb 2019 – 62 pages

Words and phrases – ‘Maintain’ – ‘Hazard’.

Keogh J – 24 Aug 2018 – 12 pages

Words and phrases – ‘claim’ – ‘claimant’.

Tate and Emerton JJA and Almond AJA – 13 Feb 2019 – 25 pages

Words and phrases – ‘sum’.

Workers compensation
Priest, Beach and Niall JJA – 23 Feb 2018 – 30 pages

Workers compensation – Serious injury application – Economic loss – ‘Pecuniary loss damages’ – Whether worker suffered a permanent loss of earning capacity of 40% or more – Relevance and admissibility of medical panel reasons – Accident Compensation Act 1985 (Vic) ss 135AB(37), 135AB(38)(e).



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Legal Citation management in JADE

Introducing the JADE Kitten™

In the last decade, the legal research team has grown at JADE. We’ve been putting the finishing touches on our new legal research range finder. As our astute readers know, we only use quality analogue computing devices in our legal machine learning research. This helps us to understand computational complexity in a way that digital systems often miss.

The down-side is that the ML team has needed to learn the finer points about welding, sanding, and molten solder.

Our latest project is the JADE Kitten™ — a light-weight K-means Intelligent Topographic Tensor Enhanced Network (KITTEN). The Kitten’s code name is Voronoi.

In early tests, we have been able to classify an entire set of legal decisions from 2000-2019 into n-dimensional space to produce an entirely useless hyperplane with no discernment. Undeterred, we still hope to extract meaning and context with some additional welding and larger pipes.

Reginald J Law painting the florets
ML Lead coder, Dr Reginald J Law, is putting the finishing touches to the Kitten™ ClusterHoops project (January 2019). (Each of these hoops are the colours of the rainbow).

Back in the JADE control centre, Mr Martique Thyme, records important measurements in his BarNet JADE adapted Moleskine Laboratory Books issued to all of the team.

The wires in the box are part of a design competition to model chaos. As a practical joke, one of the team wheeled Martique’s reference desk closer to the chaos machine. Martique will be working during 2020 on a complexity reduction analysis project.

The next photo shows the hydraulic brains of the research kitten. The shear computational force of the central piston ensures that Tensors are tensed and edges aligned. Drs Marigold Suters and Rosamund Ratcliffe have briefly moved out of the photo due to the intense vibrations generated with every edge alignment.

One of our few visualisation systems is the oceanic spline. Here is a detail from the conjunction of text, context, and purpose.



Until next time, see you at the JADE Network.

JADE Cases of Interest 03

JADE Australia cases of Interest for Legal Professionals

Administrative law

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Migration law – discretion to seek further evidence – legal unreasonableness 

Federal Court of Australia. Full Court. Collier, Middleton and Rangiah JJ. 7 December 2018. 86 paragraphs.

Circumstances where exercise of discretionary power is legally unreasonable: jurisdictional error in the decision making process (whether it is justified and intelligible), or in the outcome of this process (whether the decision falls within a range of acceptable outcomes). Illogicality and irrationality not established where reasonable minds differ in respect of a decision.

Minister for Immigration and Border Protection v Singh[2014] FCAFC 1; 231 FCR 437 at [44]; Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; 240 CLR 611 at [130]-[131], applied.

Contract law

Carbone v Metricon Homes Pty Ltd [2018] NSWCA 296

Construction of contractual terms – rescission and consideration – parties’ intention

Supreme Court of New South Wales. Court of Appeal. Meagher, Payne and White JJA. 7 December 2018. 56 paragraphs.

Proper construction of contractual terms ‘rescind’ and ‘consideration’. Contractual right of rescission may entail a right to terminate (a discharge of executory obligations), or rescission ab initio. In the conveyancing context, ‘rescind’ usually indicates the latter. Terms are to be construed in light of parties’ actual or implied intentions and objective matters known to the parties. For the purposes of determining a right to recover, relevant consideration is the performance of the promise (and not the promise itself).

Johnson v Agnew[1980] AC 367 at 392–393; Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd[1936] HCA 6; 54 CLR 361 at 379; Codelfa Construction Pty Ltd v State Rail Authority of NSW[1982] HCA 24; 149 CLR 337 at 352; Baltic Shipping Co v Dillon[1993] HCA 4; 176 CLR 344 at 350-351, 389, applied.

Corporations law

Australian Securities & Investments Commission v Lewski (& others) [2018] HCA 63

Corporations Act– officers’ duties – registered scheme – care and diligence, loyalty, improper use and compliance duties – statutory construction 

High Court of Australia. Kiefel CJ, Bell, Gageler, Keane and Edelman JJ. 13 December 2018. 93 paragraphs.

Content of officers’ duties over registered schemes, including the obligation to act with care and diligence, to refrain from improper use of position, and the duties of loyalty and compliance. While each duty attracts its own test, an element of objectivity informs each duty, holding officers to the standard of a reasonable person in that position. Duties often not satisfied by honest belief alone. Court also considered true meaning of ‘members’ rights’ in the context of constitutional amendments.

Shafron v ASIC[2012] HCA 18; 247 CLR 465 at 482 [34]-[35]; Hutton v West Cork Railway Co(1883) 23 Ch D 654 at 671; R v Byrnes[1995] HCA 1; 183 CLR 501 at 514-515; Angas Law Services Pty Ltd (In liq) v Carabelas[2005] HCA 23; 226 CLR 507 at 531 [65]; Craig v Federal Commissioner of Taxation[1945] HCA 1; 70 CLR 441 at 446, 457, applied.

Criminal law

AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58

Evidence – police informants – duty of disclosure – public interest immunity

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. Special leave application. 5 November 2018 (reasons published 3 December 2018). 13 paragraphs.

Whether the public interest in preserving a police informer’s anonymity is outweighed by the importance of maintaining public confidence in the judicial system. Ordinarily, assurances of anonymity given to informers are protected by public interest immunity. However, in circumstances where ‘the agency of police informer has been so abused as to corrupt the criminal justice system’, the public interest in preserving anonymity is subordinated to the integrity of the justice system.

Property law

Laming v Jennings [2018] VSCA 335

Easements – easement by prescription – acquiescence – right of possession

Supreme Court of Victoria. Court of Appeal. Kyrou, McLeish and Niall JJA. 7 December 2018. 199 paragraphs.

Elements of a prescriptive easement, and where an easement amounts to a right of possession. Claimant’s acts establishing the easement must not be transient and sporadic, and the nature of easement must be identified with sufficient certainty. Agents’ constructive knowledge regarding putative easement will not be automatically imputed to the owner; owner’s acquiescence will depend on the circumstances of the case. A right of possession only established where exclusive or joint possession or control of the land conferred on the claimant. 

Mills v The Mayor, Alderman, and Burgesses of Colchester(1867) LR 2 CP 476 at 486; Diment v NH Foot Ltd[1974] 1 WLR 1427 at 1434-5; Copeland v Greenhalf[1952] Ch 488 at 498, Moncrieff v Jamieson[2007] 1 WLR 2620 at 2640-2641 [54]-[55], applied.

Re Ellenborough Park[1956] Ch 131 at 168-169, distinguished.

JADE Cases of Interest 02

Contract law

Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282

Contracts – formation of contract – requirements for effective novation

Supreme Court of New South Wales. Court of Appeal. Barrett AJA, Macfarlan and Gleeson JJA. 23 November 2018. 45 paragraphs.

Whether novation of contract established (as distinct from a right of nomination). Court reiterated that ‘the crux of novation is intention’ – the parties’ conduct, in light of the total circumstances of the contract, must reveal a ‘tripartite agreement’ evidencing an intention to replace the original rights and obligations under the contract with new ones.

Meehan v Jones[1982] HCA 52; 149 CLR 571 at 594; Olsson v Dyson[1969] HCA 3; 120 CLR 365 at [9], cited.

Vickery v Woods[1952] HCA 7; 85 CLR 336 at 345; ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue[2012] HCA 6; 245 CLR 338 at [12], applied.

Criminal law

R v Ross [2018] SASCFC 120

Criminal sentencing – Crown appeal – where manifestly inadequate 

Supreme Court of South Australia. Court of Criminal Appeal. Kourakis CJ, Blue and Lovell JJ. 21 November 2018. 77 paragraphs.

Crown appeals against criminal sentences will be allowed, but such circumstances are ‘rare and exceptional’. Notwithstanding that this threshold is vigorously applied, leave granted where an appellate court forms the view that either some specific error has occurred in the primary judge’s reasoning, or where the sentence otherwise appears manifestly excessive or unjust. 

Everett v The Queen[1994] HCA 49; 181 CLR 295 at 299; AB v R[1999] HCA 49; 198 CLR 111 at 159-160 [129]-[130], applied.

Equity

Bullhead Pty Ltd v Brickmakers Place Pty Ltd (in liq) [2018] VSCA 316

Equity – breach of trust – release – equitable remedies – clean hands

Supreme Court of Victoria. Court of Appeal. Kyrou, McLeish and Hargrave JJA. 27 November 2018. 137 paragraphs.

When can a trustee rely on a beneficiary’s release of a breach of trust? Trustee bears the onus of showing the release was given ‘deliberately and advisedly’; whether beneficiary possessed requisite knowledge depends on the circumstances of the case.

Farrant v Blanchford(1863) 1 De G J & S 107 at 119–20; 46 ER 42 at 46–7; Re Pauling’s Settlement Trust [1961] 3 All ER 713 at 730, applied.

Secondly, trustee will be precluded from claiming equitable relief (such as estoppel) where it bears ‘unclean hands’. This requires the unconscionable conduct to have ‘immediate and necessary relation to the equity sued for’, as well as ‘depravity in a legal as well as in a moral sense’.

Dering v Earl of Winchelsea(1787) 1 Cox 318 at 319-20; 29 ER 1184 at 1185, applied.

Intellectual property

Australian Meat Group Pty Ltd v JBS Australia Pty Limited [2018] FCAFC 207

Intellectual property – trade marks – deceptively similar – brand reputation

Federal Court of Australia. Full Court. Allsop CJ, Besanko and Yates JJ. 27 November 2018. 91 paragraphs.

What is the correct approach in determining whether particular trade marks are deceptively similar (for the purposes of s 120(1) Trade Marks Act 1995 (Cth))? Determination will be erroneous when brand reputation is taken into account. All that is required is the direct comparison between the mark of the owner with that of the alleged infringer; a wider inquiry (such as that employed in an action for passing off) is not appropriate.

Registrar of Trade Marks v Woolworths[1999] FCA 1020; 93 FCR 365 at [61]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd[2018] FCAFC 93; 358 ALR 683 at 686–689 [4]–[10], 696–697 [52]–[53] and 724 [169], cited.

CA Henschke & Co v Rosemount Estates Pty Ltd[2000] FCA 1539; 52 IPR 42 at [44]-[45], applied.

JADE Cases of Interest 01

JADE Australasian cases of Interest for Legal Professionals

Welcome to our first instalment of Australasian cases of interest for legal professionals. These eclectic decisions have been selected by our editorial team because we think that they contain interesting or important applications of principle. They are available on JADE.

The summaries have been written by the most recent member of our JADE Editorial Team, Ms Katya Pesce BA LLB (Hons). We’d love to have your feedback about this selection. If you think that we should include a particular decision, please let us know. Simply send us an email to editors@jade.io or call us on +61 2 8815 9081.

This publication is one of many benefits offered to JADE Professional Subscribers. To become a JADE Professional Subscriber, please visit: https://jade.io/professional.

Administrative law

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276

Administrative functions – obligation to act in good faith

Supreme Court of New South Wales. Court of Appeal. Basten, Leeming and White JJA. 20 November 2018. 56 paragraphs.

Content of decision-makers’ obligation to act in good faith. Failure to form a view on all matters does not automatically establish lack of good faith. Bad faith not comprehensively defined, but here required ‘wilful blindness’ or ‘conscious maladministration’.

Minister for Immigration and Citizenship v SZJSS[2010] HCA 48; 243 CLR 164 at [30]; Minister for Immigration and Multicultural and Indigenous Affairs v SBAN[2002] FCAFC 431 at [8], applied.

Constitutional law

Banerjee v Commissioner of Police [2018] NSWCA 283

Constitutional law – inconsistency of Commonwealth and state laws – validity of state law

Supreme Court of New South Wales. Court of Appeal. Bathurst CJ, Beazley P, Basten JA. 22 November 2018. 47 paragraphs.

Circumstances in which inconsistency between state and Commonwealth laws is established, resulting in invalidity of state legislation. For the purposes of s 109 of the Constitution, inconsistency arises where state legislation qualifies, alters or impairs the operation of Commonwealth immunity from a class of state laws.

Ansett Transport Industries (Operations) Pty Ltd v Wardley[1980] HCA 8; 142 CLR 237 at 259-260; Bell Group NV (In liq) v State of Western Australia[2016] HCA 21; 260 CLR 500 at [50]-[51], applied.

Contract law

Sentinel Robina Office Pty Ltd v Clarence Property Corporation Ltd [2018] QCA 314

Contractual principles – interpretation of contracts – contractual obligations

Supreme Court of Queensland. Court of Appeal. Sofronoff P, Philippides JA and Davis J. 13 November 2018. 27 paragraphs.

Construction of contracts and deeds, and the obligation to act in good faith. The usual content of such an obligation entails a degree of co-operation, but does not require individual interests to be subordinated to those of the other. The duty solely concerns the parties’ contractual objectives.

Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service[2010] NSWCA 268; 5 BPR 28,563 at [12]-[16], applied.

Criminal law

Tony Strickland (a pseudonym) v DPP (Cth) [2018] HCA 53

Criminal practice – abuse of process – illegally obtained evidence – compulsory examinations

High Court of Australia. Kiefel CJ, Bell, Nettle, Gageler, Keane, Gordon and Edelman JJ. 8 November 2018. 297 paragraphs.

Whether compulsory examinations amounted to a violation of common law right to silence, constituting an abuse of process. Where examinations are conducted for some extraneous purpose, they may be characterised as unlawful. As such, they alter the ‘accusatorial judicial process’.

X7 (No I)[2013] HCA 29; 248 CLR 92 at 136-137 [102]-[105], 142-143 [124]; Lee v The Queen[2014] HCA 20; 253 CLR 455 at 466-467 [31]-[34], applied.

Chaarani v DPP (Cth); Mohamed v DPP (Cth) [2018] VSCA 299

Criminal trial – open justice – prejudicial publicity – suppression orders

Supreme Court of Victoria. Court of Appeal. Maxwell P, Beach and Hargrave JJA. 14 November 2018. 51 paragraphs.

Whether suppression of jury verdict necessary to prevent prejudice to future trial. Progress of proceedings widely reported in the media. Guiding principle that the administration of justice must take place in an open court. Suppression orders should be avoided where other measures will sufficiently ameliorate risk of prejudice.

Dupas v The Queen[2010] HCA 20; 241 CLR 237 at 251 [38], applied.

Statutory interpretation

Comptroller General of Customs v Zappia [2018] HCA 54

Statutory construction – context and purpose

High Court of Australia. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ. 14 November 2018. 46 paragraphs.

High Court reiterated that the correct approach to statutory construction remains consideration of a text’s context and purpose. Where terms do not have fixed legal meaning, their application in a given context may be one of degree.

Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd [1979] HCA 67; 143 CLR 499 at 519-520,cited.
Queensland v Congoo[2015] HCA 17; 256 CLR 239 at 255 [11], 301-302 [161], applied.

Katya Pesce
on behalf of the JADE Editorial Team
editors@jade.io
23 November 2018.

Victorian Reports (Volumes 50, 51, 52)

Here’s our table of contents for the Victorian Reports, with Links to the Cases:

 

Accident compensation

Ashley, Osborn and Kaye JJA – 17 Jun 2016 – 42 pages

Accident compensation – ‘No current work capacity’ – ‘Current work capacity’ – ‘Suitable employment’ – Accident Compensation Act 1985 (Vic) ss 5, 93C.

Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247

Priest and Beach JJA and Cameron AJA – 29 Mar 2017 – 20 pages

Accident compensation – Serious injury application – Whether injury occurred in compensable circumstances – Payment of statutory benefits by insurer – Whether admission against interest by employer – Nature and significance of admission – Worker’s credibility in issue – Accident Compensation Act 1985 (Vic) s 134AB.

Administration and probate

Kyrou and McLeish JJA – 30 Jun 2017 – 24 pages

Administration and probate – Partial intestacy – Assets in Victoria and China – Whether intestacy provisions of Victorian law or Chinese law apply – Effect of order of Supreme Court of Victoria granting letters of administration for a will disposing of only part of deceased’s personal estate in Victoria.

Administrative law

Warren CJ, Beach and Ferguson JJA – 09 Dec 2016 – 27 pages

Administrative law – Ombudsman – Jurisdiction – Investigatory powers – Investigation of matter referred by Legislative Council – Absent referral, matter not within Ombudsman’s jurisdiction – Whether matter referred by Legislative Council in Ombudsman’s jurisdiction – Ombudsman Act 1973 (Vic) s 16.

John Dixon J – 10 Apr 2017 – 167 pages

Administrative law – Judicial review – Habeas corpus – Jurisdictional error – Validity of Orders in Council – Jurisdictional fact – Power to establish centres for detention of young persons – Children, Youth and Families Act 2005 (Vic), ss 1, 3, 8, 9, 10, 11, 478, 482, 484, 487, 488.

Administrative law – Judicial review – Habeas corpus – Certiorari – Validity of Orders in Council – Improper or extraneous purpose – Failure to take into account relevant considerations – Power to establish centres for detention of young persons – Use of power to establish remand centre and youth justice centre within adult jail for the purpose of ‘emergency accommodation’ – Children, Youth and Families Act 2005 (Vic) ss 478, 482, 484.

Santamaria, Ferguson and McLeish JJA – 29 May 2015 – 23 pages

Administrative law – Coercive powers order for examination under Major Crime (Investigative Powers) Act 2004 – Non-publication direction made by delegate – Direction later rescinded – Instrument of delegation ‘in respect of’ coercive powers order – Whether delegation extended to revocation of non-publication direction – Interpretation of Legislation Act 1984 (Vic) s 41A – Major Crime (Investigative Powers) Act 2004 (Vic) ss 4, 43, 65(4).

Warren CJ, Maxwell P and Weinberg JA – 29 Dec 2016 – 27 pages

Administrative law – Judicial review – Jurisdictional error – Power to establish centres for detention of young persons – Failure to take into account relevant considerations – Whether power exercised for improper purpose – Children, Youth and Families Act 2005 (Vic) ss 362, 478, 482.1.

Ashley, Osborn and Kaye JJA – 17 Jun 2016 – 42 pages

Administrative law – Judicial review – Reasons – Adequacy – Statutory obligation – Path of reasoning – Medical panel opinion – Accident Compensation Act 1985 (Vic) s 68.

Appeal
Santamaria, Ferguson and McLeish JJA – 29 May 2015 – 23 pages

Appeal – Judicial review – Application for extension of time to commence – Special circumstances – Factors – Strength of merits – Assessment by associate judge – Supreme Court (General Civil Procedure) Rules 2005 (Vic)ch I, r 56.02(3).

Tate, Whelan and Ferguson JJA – 20 May 2015 – 30 pages

Appeal – Leave to appeal – `Real prospect of success’ – Supreme Court Act 1986 (Vic) ss 14A, 14C.

Derham AsJ – 11 Dec 2015 – 36 pages

Appeal – Appeal from Victorian Civil and Administrative Tribunal – Application for leave to appeal on a question of law – Summary dismissal power – Whether summary dismissal available at conclusion of applicant’s case – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 148.

Zammit J – 14 Apr 2016 – 11 pages

Appeal – Appeal from order of an Associate Judge refusing leave to appeal from Victorian Civil and Administrative Tribunal – Supreme Court Act 1986 (Vic) s 17(3).

Arbitration

Arbitration – Subpoena – Domestic arbitration – Application for subpoena to non-party to attend for examination before an arbitral tribunal – Whether reasonable grounds required for the issue of subpoena – Commercial Arbitration Act 2011 (Vic), ss 27, 27A.

Arbitration – Arbitration award – Award failing to determine all issues – Whether a final award – Whether arbitrator’s mandate terminated – Whether award may be set aside – Commercial Arbitration Act 2011 (Vic) ss 32, 34(2)(a)(iii).

Associations and clubs
Maxwell ACJ, Hansen and Osborn JJA – 21 Sep 2016 – 11 pages

Associations and clubs – Horse racing – Rules of racing – Interpretation of rules – Licensed horse trainer bound by rules by agreement – Prohibitions on performance enhancing substances – Substance prohibited unless present at or below specified concentration – Limit expressed to one decimal place – Accredited laboratory reported substance present at above specified concentration – Reading ‘rounded up’ to nearest single decimal place – Rounding up in accordance with scientific conventions – Readings previously rounded down to take account of possibility of error – Change in scientific opinion as to whether rounding down necessary for that purpose.

Bankruptcy and insolvency
John Dixon J – 10 Feb 2016 – 26 pages

Bankruptcy and insolvency – Property of bankrupt – Claims for malicious prosecution and misfeasance in public office – Plaintiff bankrupt when initiating proceedings – Whether claims statutorily assigned to the Official Trustee – Whether claims in relation to ‘personal injury or wrong’ – Bankruptcy Act 1966 (Cth) ss 5, 58, 60(4), 116(1), (2)(c) , (2)(g).

Companies
Randall AsJ – 02 Jun 2016 – 39 pages

Companies – Winding up – Cross-border insolvency – Registered foreign company – Application for recognition of foreign external administration proceeding – Application seeking court to act in aid of or auxiliary to foreign proceeding – Centre of main interests – Foreign company managed in Australia – No establishment in foreign jurisdiction – UNCITRAL Model Law on Cross-Border Insolvency – Corporations Act 2001 (Cth) ss 471A, 481, 581, 583 – Cross-Border Insolvency Act 2008 (Cth).

Whelan, Beach and Ferguson JJA – 30 Jun 2016 – 15 pages

Companies – Winding up – Cross-border insolvency – Registered foreign company – Concurrent external administration proceeding in foreign country – Application for recognition of foreign external administration proceeding – Application seeking court to act in aid of or auxiliary to foreign proceeding – Differences between United States ch 11 proceeding and winding up – Whether winding up order precluded – Whether winding up order should be made – Corporations Act 2001 (Cth) ss 471A, 481, 581, 583 – Cross-Border Insolvency Act 2008 (Cth).

Maxwell P, Whelan and Santamaria JJA – 12 Dec 2016 – 34 pages

Companies – Winding up – Liquidator – Costs and expenses of ‘care, preservation and realisation’ of assets – Equitable lien – Whether lien dependent on realisation of assets or creation of fund.

Cameron J – 24 Mar 2016 – 71 pages

Companies – Voluntary administration – Administrators seeking directions from the Court in relation to disposing of property of the company and dealing with sale proceeds.

Randall AsJ – 04 Apr 2017 – 21 pages

Companies – Winding up – Creditor’s statutory demand – Application to set aside demand – When demand served – Service by post – Address unattended during holidays – Corporations Act 2001 (Cth) ss 109X, 459G – Evidence Act 1995 (Cth) s 195.

Constitutional law
John Dixon J – 21 Sep 2016 – 20 pages

Constitutional law – State Parliament – Casual vacancy in Legislative Council – Legislative Assembly declined proposal of Legislative Council for joint sitting to fill vacancy – Application for mandamus to compel Premier to advise Governor to convene joint sitting – Internal proceedings of Parliament – Whether justiciable – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.

Cavanough J – 08 Feb 2017 – 63 pages

Constitutional law – Commonwealth Constitution – Inconsistency between Commonwealth and State legislation – Detention provisions in Commonwealth migration legislation – Child protection provisions in State legislation – Whether ‘covering the field inconsistency’ or ‘direct inconsistency’ – Whether ‘operational inconsistency’ – Commonwealth Constitution s 109 – Migration Act 1958 (Cth) ss 4AA, 13, 14, 189, 196, 197AA, 197AB, 197AC, 197AD, 197AE, 197AF, 197AG – Children, Youth and Families Act 2005 (Vic) ss 1, 4, 5, 240, 241, 243, 262, 263, 264, 266, 267, 268, 274, 275, 280, 281, 282, 533.

Contempt
Warren CJ, Weinberg and Kaye JJA – 23 Jun 2017 – 7 pages

Contempt – Sub judice rule – Comments by Commonwealth Ministers regarding proceedings pending before Court of Appeal – Whether Ministers and those involved in publication of comments ought to be referred for prosecution for contempt – Role of newspaper – Whether contempts purged by apologies.

Contract
Cameron J – 24 Mar 2016 – 71 pages

Contract – Competing contracts – Conditions as to formation and performance.

Croft J – 09 Nov 2016 – 54 pages

Contract – Formation – Offer and acceptance – Whether agreement to give personal guarantee.

Contribution between tortfeasors
John Dixon J – 10 Mar 2016 – 89 pages

Contribution between tortfeasors – Test to be applied – Wrongs Act 1958 (Vic) ss 24AF, 24AH, 24AI.

Corporations
Tate, Whelan and Ferguson JJA – 20 May 2015 – 30 pages

Corporations – Directors and officers – Company officer indemnified for legal costs and expenses – Whether indemnity arises before verdict or only at conclusion of proceedings – Effect of obligation to refund if officer found guilty – Whether indemnity for costs and expenses of criminal proceedings breaches statutory prohibition – Corporations Act 2001 (Cth) s 199A(3).

Corporations law
Sifris J – 07 Jun 2016 – 24 pages

Corporations law – Derivative action by shareholder – Application for leave to bring proceeding in Japan on behalf of company – Criteria to be proved – Whether plaintiff acting in good faith – Whether in best interests of company for plaintiff to be granted leave to bring proceeding – Whether proceeding involves serious question to be tried – Corporations Act 2001 (Cth), s 237(1), (2).

Randall AsJ – 25 May 2016 – 11 pages

Corporations law – Statutory demand – Application to set aside demand – Registry of Supreme Court of Victoria closed on Tuesday after Easter – Easter Tuesday not a public holiday – Application filed on next day – Whether filed one day late – Whether Acts Interpretation Act 1901 (Cth) extended time for making application to set aside a statutory demand – Corporations Act 2001 (Cth) s 259G – Acts Interpretation Act 1901 (Cth) ss 36(2), 36(3).

Corporations law – Winding up – Voluntary winding up – Appointment of special purpose liquidator – Circumstances justifying appointment – Whether special purpose liquidators within definition of ‘auditor’ and precluded from appointment – Corporations Act 2011 (Cth) s 472.

Costs

Costs – Jurisdiction – Foreign state immunity – Claim under Fair Work Act 2009 (Cth) – Whether immune foreign State a ‘party’ to Fair Work proceedings – Supreme Court Act 1986 (Vic) ss 3, 24 – Fair Work Act 2009 (Cth) s 570 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 11.04(1).

Elliott J – 14 Nov 2014 – 4 pages

Costs – Discretion – Defendant represented by senior counsel appearing alone – Application for order certifying senior counsel’s appearance fees at above scale rate.

McDonald J – 03 May 2016 – 12 pages

Costs – Third party payer – Information sought from solicitors for purposes of determining whether to apply for costs review – Solicitors providing invoices redacting items subject to claims for client professional privilege – Whether `sufficient information’ provided to enable third party payer to decide whether to apply for costs review – Jurisdiction to grant declaratory relief – Legal Profession Practice Act 2004 (Vic), ss 3.4.2A(1), 3.4.38(7), 3.4.45 – Supreme Court Act 1986 (Vic) s 36.

Criminal law
Redlich, Priest and Beach JJA – 20 Apr 2016 – 30 pages

Criminal law – Sentencing – Crown appeal – Commonwealth and State offences – Child pornography offences – Accessing child pornography – Knowingly possessing child pornography – Manifest inadequacy of sentence – Gravity of child pornography offences – Classification of child pornography material – Whether community correction order manifestly inadequate – Cumulation between federal and State offences – Residual discretion not to interfere – Criminal Code 1995 (Cth) s 474.19(1) – Crimes Act 1958 (Vic) s 70(1).

Warren CJ, Weinberg and Kaye JJA – 07 Jul 2017 – 19 pages

Criminal law – Sentencing – Terrorism offences – Doing acts in preparation for, or planning, a terrorist act – Re-sentencing following successful Crown appeal – Protection of the community – Whether potential application of continuing detention order regime relevant upon re-sentencing – Criminal Code (Cth) div 105A.

Warren CJ, Weinberg and Kaye JJA – 23 Jun 2017 – 24 pages

Criminal law – Sentencing – Crown appeal against sentence – Terrorism offences – Doing acts in preparation for, or planning, a terrorist act – Young offender – Gravity of terrorism offences – Relevance of nature and extent of contemplated act – General deterrence – Protection of the community and incapacitation of offender – Mitigating factors of personal nature – Prospects of rehabilitation – Whether less than standard weight to be allowed to mitigating factors than in other forms of offending – Criminal Code (Cth) s 101.6.

Maxwell ACJ, Redlich and Whelan JJA – 01 Jul 2016 – 40 pages

Criminal law – Sentencing – Statutory murder – Killing in the course or furtherance of a crime of violence – Whether statutory murder inherently less serious than common law murder – Whether sentencing court entitled or obliged to consider whether act causing death done with intent to cause death or really serious injury – Current sentencing practices for statutory murder – Need for sentencing standards to change to reflect gravity of offence – Whether sentencing judge entitled to depart from agreed facts – Crimes Act 1958 (Vic) s 3A.

Bell J – 28 Feb 2017 – 61 pages

Criminal law – Judicial review – Applications before County Court for orders reinstating struck out appeals from sentences of Magistrates’ Court of Victoria – Self-represented litigants – Whether Judge ensured fair trial – Criminal Procedure Act 2009 (Vic), s 267(3).

Weinberg and Priest JJA – 11 Jul 2016 – 5 pages

Criminal law – Sentencing – Obtaining financial advantage by deception – `Course of conduct’ charge involving more than one incident of the offence – Whether orthodox sentencing principles applicable to sentencing on course of conduct charge – Relevance of maximum penalty for the offence – Criminal Procedure Act 2009 (Vic) sch 1 cl 4A – Sentencing Act 1991 (Vic) s 5(2F).

Jane Dixon J – 17 Feb 2017 – 4 pages

Criminal law – Bail – Whether applicant required to show cause – Contravention of family violence intervention order – No physical force or threats or menaces – ‘Violence’ – Bail Act 1977 (Vic) s 4(4)(ba).

Tate and Ferguson JJA and Cavanough AJA – 18 Nov 2016 – 17 pages

Criminal law – Search warrants – Execution of warrant – Seized items – Seizure during execution of items not named or described in warrant – Power of Magistrates’ Court to order return of items – Common law extension of search and seizure under a search warrant – Whether items were seized ‘under a search warrant’ – Crimes Act 1958 (Vic) s 465 – Magistrates’ Court Act 1989 (Vic) ss 75, 76, 78.

Redlich, Santamaria, Beach JJA – 30 May 2016 – 12 pages

Criminal law – Sentencing – Dangerous driving causing death – Offender’s culpability and degree of responsibility for the offence – Whether offender’s moral culpability was ‘very high’ – Sentencing Act 1991 (Vic) s 5(2)(d).

Redlich and McLeish JJA and Beale AJA – 18 Dec 2015 – 52 pages

Criminal law – Practice and procedure – Jury – Empanelment – Peremptory challenge – Infringement of right – Accused entitled to have adequate time to view prospective juror’s face – Waiver of objection to procedure – Juries Act 2000 (Vic) ss 36, 39.

Crown immunity
Keogh J – 23 Jan 2017 – 15 pages

Crown immunity – Tort – Whether Crown personally liable in tort – Whether Crown only vicariously liable for servants, agents or independent contractors of Crown – Crown Proceedings Act 1958 (Vic) ss 23(1)(b), 25.

Discrimination
Maxwell P, Neave and Redlich JJA – 16 Apr 2014 – 153 pages

Discrimination – Services – Accommodation – Refusal – Attribute – Sexual orientation – Camping facility – Proposed use by same sex attracted young persons – Religious opposition to homosexual sexual activity – Corporation – Conduct on behalf of corporation – Liability – Direct – Vicarious – Equal Opportunity Act 1995 (Vic) ss 49(a), 102.

Equity
Vickery J – 07 Jun 2016 – 27 pages

Equity – Confidential information – Customer list – Whether information in public domain – Disaggregation of categories of information.

Maxwell P, Whelan and Santamaria JJA – 12 Dec 2016 – 34 pages

Equity – Equitable lien – Liquidator – Costs and expenses of care, preservation and realisation of assets – Whether lien dependent on realisation of assets or creation of fund.

Hargrave J – 15 Mar 2017 – 121 pages

Equity – Constructive trust – Volunteer receiving stolen money – Black v S Freedman & Co trust – Knowledge of circumstances indicating the theft to an honest and reasonable person.

Evidence
McDonald J – 02 Mar 2017 – 20 pages

Evidence – Admissibility – Vexatious litigant – General litigation restraint order – Application for restraint – Whether judgments and orders in earlier proceedings admissible – Whether a finding as to the nature of a proceeding is a ‘finding of fact’ – Evidence Act 2008 (Vic) s 91(1) – Vexatious Proceedings Act 2014 (Vic) ss 3, 29.

Elliott J – 28 Aug 2017 – 9 pages

Evidence – Privilege – Self-incrimination – Whether witness may claim privilege in respect of evidence in chief – Whether plaintiff ’objects’ – Evidence Act 2008 (Vic) s 128(1).

John Dixon J – 08 Jun 2016 – 50 pages

Evidence – Public interest immunity – Cross-examination of deponent of affidavit in support of public interest immunity claim – Whether permissible.

Macaulay J – 01 Aug 2016 – 46 pages

Evidence – Public interest immunity – Class claim – Cross-examination of deponent of affidavit in support of public interest immunity claim.

Macaulay J – 19 Aug 2016 – 71 pages

Evidence – Public interest immunity – Foreign relations documents – International organisations – Whether ‘real risk’ or a ‘probability’ of harm to the national interest required.

Riordan J – 17 Mar 2016 – 7 pages

Evidence – Admissibility – Hearsay – Chinese company search – Whether `public document’ – Whether `business record’ – Admissibility as to truth of contents – Discretion to exclude from evidence – Evidence Act 2008 (Vic)ss 48(1)(f), 69, 136, 156.

Lansdowne AsJ – 08 Sep 2016 – 16 pages

Evidence – Privilege – Settlement negotiation privilege – Party in later unprivileged letter repeats communications occurring at without prejudice meeting – Whether that party had thereby waived its privilege – Whether that party had thereby consented to disclosure of communications at meeting – Whether other parties could later consent thereby allowing evidence of the meeting to be given – Discussion of the difference between ‘disclosure’ and ‘adducing evidence’ – Evidence Act 2008 (Vic) s 131.

Gaming
Hargrave J – 15 Mar 2017 – 121 pages

Gaming – Receipt of stolen or embezzled funds – Strict liability – Territorial scope of application – Whether bets placed in or governed by the laws of Victoria – Gambling Regulation Act 2003 (Vic) s 2.6.3.

Guarantees
Croft J – 09 Nov 2016 – 54 pages

Guarantees – Gross misconduct or fraud of the mortgagee – Impairment of security – Absolute discharge of guarantor – Discharge not prevented by terms of guarantee.

Human rights
John Dixon J – 10 Apr 2017 – 167 pages

Human rights – Charter of Human Rights and Responsibilities – Children – Protection of child in their best interests – Humane treatment when deprived of liberty – Public authorities – Obligation to act compatibly with human rights – Obligation to give proper consideration to human rights – Effect of failure to act compatibly with human rights or give proper consideration to human rights – Declarations – Injunctions – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 10(b), 17(1), 17(2), 22(1), 38(1), 39(1).

Human rights – Charter of Human Rights and Responsibilities – Children – Protection from cruel, inhuman or degrading treatment – Protection of child in their best interests – Humane treatment when deprived of liberty – Public authorities – Obligation to give proper consideration to human rights – Effect of failure to give proper consideration – Declarations – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 10(b), 17(1), (2), 22(1), 38(1).

Maxwell P, Neave and Redlich JJA – 16 Apr 2014 – 153 pages

Human rights – Statutory interpretation – Religious freedom – Discrimination – Services – Accommodation – Refusal – Sexual orientation – Whether special rule of interpretation applicable – International human rights jurisprudence – Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32.

Bell J – 28 Feb 2017 – 61 pages

Human rights – Charter of Human Rights and Responsibilities – Right to equality – Right to fair hearing – Self-represented litigants – Procedural requirements of right to equality – ‘Equality of arms’ – Charter of Human Rights and Responsibilities.

Ierodiaconou AsJ – 05 Aug 2016 – 14 pages

Human rights – Right to privacy – Unlawful or arbitrary interference – Evidence (Miscellaneous Provisions) Act 1958 (Vic) s 28(2) – Health Records Act 2001 (Vic) ss 3(1), 7, 21(1), sch 1 Health Privacy Principle 2.1, 2.2 – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6, 7, 13, 32.

Land tax
Warren CJ, Tate and Whelan JJA – 02 May 2016 – 53 pages

Land tax – Assessment – Owner – Possession – Purchaser in possession – Whether purchaser under a contract of sale of land is in possession of the land for the purposes of assessing land tax – Meaning of ‘possession’ – Land Tax Act 2005 (Vic) s 15.

Landlord and tenant
Croft J – 10 Jun 2016 – 32 pages

Landlord and tenant – Prohibition of sub-letting without landlord’s consent – Entire apartment listed on Airbnb – Whether lease or licence – Terms of advertisement – Whether guests had exclusive possession during stay – Whether characterization of apartment as tenant’s principal place of residence relevant – Whether tenant’s ability to make guest who overstays leave the apartment relevant – Residential Tenancies Act 1997 (Vic) s 253(1).

Legal practice
McMillan J – 30 Nov 2016 – 12 pages

Legal practice – Trust accounts – Manager appointed to legal practice – Shortfall in funds held in legal practice’s trust accounts – Directions – Distribution of remaining funds to clients – Appropriate method of distributing trust funds.

Mortgages
Croft J – 09 Nov 2016 – 54 pages

Mortgages – Mortgagee’s duties on sale – Advertising and marketing of sale – Obtaining contemporaneous valuation – Covert sale to a co-surety.

Negligence
John Dixon J – 10 Mar 2016 – 89 pages

Negligence – Duty of care – Loss – Factual causation – Solicitor – Failure to advise company and directors on effect of statutory demand lapsing – Failure to attend at hearing of winding up application – Whether solicitor’s conduct caused plaintiff’s loss – Multiple causes of loss – Wrongs Act 1958 (Vic) ss 51(1)(a), (2).

J Forrest J – 28 Jun 2016 – 20 pages

Negligence – Duty of care – Psychiatric injury – Whether deceased negligent driver owed duty of care to mother to avoid psychiatric injury to her – Duty to avoid injury to oneself.

Personal property
Cameron J – 24 Mar 2016 – 71 pages

Personal property – Securities – Defendants registered their interests on the Personal Property Securities Register – Whether security interests perfected by registration – Whether registrations in time – Personal Property Securities Act 2009 (Cth) s 267.

Practice and procedure
McDonald J – 02 Mar 2017 – 20 pages

Practice and procedure – Vexatious litigant – General litigation restraint order – Defendant persistently and without reasonable grounds commenced and conducted ‘vexatious proceedings’ – Whether defendant’s bankruptcy a discretionary factor weighing against the making of a general litigation restraint order – Vexatious Proceedings Act 2014 (Vic) ss 3, 29(2).

Practice and procedure – Proceeds of crime – Examination notice – State court exercising federal jurisdiction – Service – Manner of service – Postal service of examination notice under Proceeds of Crimes Act 2002 (Cth) – Whether Judiciary Act 1903 (Cth) s 79(1) picks up State rules of court – Acts Interpretation Act 1901 (Cth)ss 2(2),28A(1), (2) – Judiciary Act 1903 (Cth) s 79(1) – Proceed of Crimes Act 2002 (Cth) ss 180, 183 – Supreme Court (Criminal Procedure) Rules 2008 (Vic)r 6.04(3).

Hollingworth J – 27 Mar 2015 – 13 pages

Practice and procedure – Criminal law – Record of interview – Application by news media for access to audiovisual record of interview – Open justice – Relevant factors – Crimes Act 1958 (Vic) ss 464JA, 464JB.

Whelan, Priest and Kyrou JJA – 15 Dec 2016 – 33 pages

Practice and procedure – Costs – Wasted costs jurisdiction – Application for costs against lawyers for opposing party – Alleged breach of overarching obligations under Civil Procedure Act 2010 – Delay in application for costs – Adequacy of explanation for delay – Appropriate test for order – Factors relevant to the exercise of discretion under r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 – Civil Procedure Act 2010 (Vic) ss 7, 8, 9(1)(f), 18, 25, 29(1)(e), 29(1)(f), 30, 63 – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 63.23.

John Dixon J – 08 Jun 2016 – 50 pages

Practice and procedure – Discovery – Public interest immunity – Contents claim – Whether legitimate forensic purpose demonstrated by plaintiff – Whether basis for secrecy or confidentiality demonstrated – Whether balancing exercise called for – Documents concerning screening of incoming passengers by Australian Border Force – Completed incoming passenger cards, training materials, identification of officers and CCTV footage – Evidence Act 2008 (Vic), ss 130, 131A.

Macaulay J – 01 Aug 2016 – 46 pages

Practice and procedure – Discovery – Public interest immunity – Class claim – Documents characterised as Cabinet documents – Precursor documents – Sufficiency of evidence to support claim for public interest immunity – Whether cross-examination appropriate – Whether public interest immunity applies – Evidence Act 2008 (Vic) ss 130, 131A.

Macaulay J – 19 Aug 2016 – 71 pages

Practice and procedure – Discovery – Public interest immunity – Contents claim – Foreign relations documents – Sample documents – Whether public interest immunity applies – Evidence Act 2008 (Vic) ss 130, 131A – International organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013 (Cth) reg 6.

John Dixon J – 09 Dec 2015 – 50 pages

Practice and procedure – Evidence – Journalist privilege – Relevant considerations for declaring a journalist compellable to disclose confidential sources – Nature of public interest in disclosure – Nature of public interest in investigative journalism – Whether adverse consequences likely from disclosure – Balancing of interests – Evidence Act 2008 (Vic), ss 126J,126K, 131A.

Mandie and Beach JJA and John Dixon AJA – 08 May 2015 – 22 pages

Practice and procedure – Service of originating process outside Australia without leave – Application by defendant to set aside writ or stay proceeding – Relevant test – Whether plaintiff required to show `strongly arguable case’ – Supreme Court (General Civil Procedure) Rules 2005 (Vic) rr 7.01, 7.05.

Bell J – 28 Feb 2017 – 61 pages

Practice and procedure – Self-represented litigants – Duty of Court to provide assistance.

Practice and procedure – Special Referee – Report – Discovery – Electronic or technology-assisted review of documents – Management of large volume of potentially discoverable material.

Tate, Ferguson and McLeish JJA – 14 Apr 2016 – 14 pages

Practice and procedure – Appeal – Appeal from County Court – Judgment or order – Ruling and observations made by judge in exchange with counsel – County Court Act 1958 (Vic) s 74 – Supreme Court Act 1986 (Vic) s 10(1)(c).

Ierodiaconou AsJ – 05 Aug 2016 – 14 pages

Practice and procedure – Subpoena – Production of documents – Medical records – Privilege – Doctor and patient – Disclosure of patients’ names – Information necessary to prescribe or act for patient – Statutory interpretation.

Practice and procedure – Arbitration – Staying court proceeding – Application for a temporary stay of proceeding pending determination of arbitration involving parallel or substantially overlapping issues – Principles governing grant of temporary stay of proceeding pending outcome of concurrent arbitration – Whether temporary stay should be ordered.

Ierodiaconou AsJ – 10 Oct 2016 – 25 pages

Practice and procedure – Discovery of documents – Production for inspection of discovered documents – Power of Court to limit inspection of discovered documents – Overarching purpose – Resolving real issues in dispute – Utility of inspection – Cost of discovery and inspection – Applicability of related previous judicial discovery ruling in proceeding – Discretion of Court – Civil Procedure Act 2010 (Vic) s 55.

Zammit J – 14 Apr 2016 – 11 pages

Practice and procedure – Appeal to Judge from order of Associate Judge refusing leave to appeal – Scope and nature of appeal – Whether an appeal can be heard if there is no error.

Prerogative writs
T Forrest J – 02 Apr 2015 – 17 pages

Prerogative writs – Habeas corpus – Justification for detention – Person on parole arrested and detained on suspicion of involvement in drug trafficking – Person not charged with criminal offence – Adult Parole Board ordered detention and then cancelled parole following arrest – Precondition of state of satisfaction of Board – Whether suspicion of offence sufficient – Corrections Act 1986 (Vic) ss 78C(1)(a), (3).

Private international law
Kyrou and McLeish JJA – 30 Jun 2017 – 24 pages

Private international law – Choice of law – Wills and codicils – Deceased Australian citizen domiciled in China – Testamentary note made in China – Note disposed of part of Victorian personal estate – Whether will – Whether validity of note as a will governed by Victorian law or Chinese law – Whether Victoria appropriate forum – Proof of foreign law – Evidence Act 2008 (Vic) s 174 – Wills Act 1997 (Vic) s 17.

Professions
Kyrou and Ferguson JJA – 09 Mar 2017 – 22 pages

Professions – Discipline – Education – Misconduct – Investigation by school principal of complaint by student against teacher – Whether misconduct by principal in relation to the investigation and communication with parents – Meaning of ’misconduct’ – Education and Training Reform Act 2006 (Vic) s 2.6.1.

Public international law

Public international law – Foreign state immunity – Immunity from jurisdiction – Third party proceedings against Republic of Nauru – Claim for indemnity under Nauruan statute – ‘Commercial transaction’ – Foreign States Immunities Act 1985 (Cth) ss 9, 11.

Real property
Lansdowne AsJ – 05 Aug 2016 – 13 pages

Real property – Recovery of land – Application for summary judgment – Whether necessary for the plaintiff to plead and prove that the plaintiff gave notice of default and that the defendant failed to remedy the default – Transfer of Land Act 1958 (Vic), s 78(1).

Sifris J – 24 May 2016 – 14 pages

Real property – Joint tenancy – Severance of joint tenancy – Representation as to future – Whether intention to sever joint tenancy.

Riordan J – 22 Jul 2016 – 61 pages

Real property – Strata title – Owners corporation – Special resolution adopting rule prohibiting residential lot owners from conducting trade – Validity of rule – Powers of owners corporation to prohibit short-term subletting – Subdivision Act 1988 (Vic) ss 27(2C),29(2) – Subdivision (Body Corporate) Regulations 2001 (Vic) regs 201,202,219, 220 – Owners Corporation Act 2006 (Vic) ss 4, 6, 138, 139, 140(2)(b), sch 1, cll 1, 4, 5, 7, sch 2, cl 5 – Transfer of Land Act 1958 (Vic), ss 4, 40,88(3).

Hargrave J – 15 Mar 2017 – 121 pages

Real property – Indefeasibility of title – Fraud exception – Fraud of agent acting within scope of authority – In personam exception.

Restitution
Hargrave J – 15 Mar 2017 – 121 pages

Restitution – Money had and received – Indirect receipt – Stolen funds – Change of position defence – Whether defendants acted in good faith – Failure to make enquiries that an honest and reasonable person would make.

Statutes
Warren CJ, Beach and Ferguson JJA – 09 Dec 2016 – 27 pages

Statutes – Interpretation – Ordinary meaning of ‘any matter’ – Legislative intent, purpose and objects – Ombudsman Act 1973 (Vic) s 16.

Statutory interpretation

Statutory interpretation – Extrinsic materials – Explanatory Memorandum – ‘affects operation’ – ‘otherwise than as provided’ – Judiciary Act 1903 (Cth)s 79(1) – Proceeds of Crime Act 2002 (Cth)s 183 – Acts Interpretation Act 1901 (Cth) s 28A(2) – Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 6.04(3).

Testator’s family maintenance
McMILLAN J – 08 Apr 2016 – 24 pages

Testator’s family maintenance – No provision for adult daughter – Moral duty to the applicant conceded – Where quantum in dispute – Administration and Probate Act 1958 (Vic) Part IV – Justice Legislation Amendment (Succession and Surrogacy) Act 2014 (Vic) s 5.

Tort
Osborn and Beach JJA, J Forrest AJA – 21 Dec 2016 – 16 pages

Tort – Psychiatric injury – Significant injury threshold level – Amendment of legislation – Psychiatric injury impairment of 10 per cent or more – Certificate of determination issued prior to amendment – Application of new threshold level to proceedings on foot at the time of amendment – Transitional provision – Whether amendment had retrospective application – Wrongs Act 1958 (Vic) ss 28LB, 28LE, 28LF, 28LZH, 28LZS – Interpretation of Legislation Act 1984 (Vic) s 14(2).

Trade practices
John Dixon J – 10 Mar 2016 – 89 pages

Trade practices – Misleading or deceptive conduct – Whether conduct by solicitor ‘in trade or commerce’ – Australian Consumer Law s 18.

Vickery J – 10 Nov 2016 – 15 pages

Trade practices – Consumer protection – Misleading or deceptive conduct – Misrepresentations – Contractual documents – Whether misrepresentations incorporated in contractual documents capable of constituting misleading or deceptive conduct – Whether capable of constituting misleading or deceptive conduct towards person not party to contract – Trade Practices Act 1974 (Cth) s 52 – Australian Consumer Law s 18.

Trusts
Hargrave J – 20 May 2016 – 22 pages

Trusts – Trust accounts – Trust documents – Court-appointed trustee of deadlocked trusts – Fixed and discretionary trusts – Discretionary powers effectively removed by court order – Application by beneficiary for production of trust accounts and other trust documents – Whether ‘proprietary approach’ or ‘discretionary approach’ to be applied.

McMillan J – 30 Nov 2016 – 12 pages

Trusts – Trust accounts – Shortfall in funds – Appropriate method of distributing funds among persons entitled.

Wills and estates
Derham AsJ – 01 Dec 2016 – 14 pages

Wills and estates – Practice and procedure – Debtor died intestate – No administrator of estate yet appointed – Proceedings against the estate of the deceased by creditor – Mortgagee seeking possession of property of the deceased and payment of debt – Administration and Probate Act 1958 (Vic) s 19 – Supreme Court (General Civil Procedure Rules) 2015 (Vic), rr 6.10, 9.08(1), 9.08(5)(a)(i), 16.03(1)(a), 16.03(1)(b).

McMillan J – 09 Dec 2016 – 20 pages

Wills and estates – Administration proceeding – Account – Failure to provide timely and adequate financial information to beneficiaries – Costs – Beneficiaries seek costs against the executor in his personal capacity – Executor seeks costs against beneficiaries – Supreme Court Act 1986 (Vic) s 24 – Supreme Court (General Civil Procedure) Rules 2015 (Vic)r 63.07.

McMillan J – 28 Oct 2016 – 7 pages

Wills and estates – Probate – Small estate – Deemed grant of probate – Later discovery that estate exceeded the maximum monetary value for small estate provisions – Where grant of probate now required to distribute real property of estate – Whether revocation of deemed grant required before application for grant of representation – Administration and Probate Act 1958 (Vic)ss 71, 79.

Words and phrases
Sifris J – 07 Jun 2016 – 24 pages

Words and phrases – ‘good faith’ – ‘best interests of company’ – ‘serious question to be tried’.

Randall AsJ – 02 Jun 2016 – 39 pages

Words and phrases – ‘Centre of main interests’ – ‘Establishment’ – ‘Foreign main proceeding’ – ‘Foreign non-main proceeding’ – ‘Foreign proceeding’ – ‘Public policy’.

Osborn and Beach JJA, J Forrest AJA – 21 Dec 2016 – 16 pages

Words and phrases – ‘unless the contrary intention expressly appears’ – ‘expressly.’.

John Dixon J – 21 Sep 2016 – 20 pages

Words and phrases – ‘Justiciable controversy’ – ‘exclusive cognisance’.

Randall AsJ – 25 May 2016 – 11 pages

Words and phrases – `holiday’, `and’.

Keogh J – 23 Jan 2017 – 15 pages

Words and phrases – ‘Liability of the Crown’ – ‘Rights of parties.’.

Ierodiaconou AsJ – 10 Oct 2016 – 25 pages

Words and phrases – ‘No utility’.

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Happy New Law Term!

“If we want things to stay as they are, things will have to change.”

– Tancredi in The Leopard, by Giuseppe Tomasi de Lampedusa

As is tradition in the legal profession, the opening of Law Term is marked with black tie dinners and religious ceremonies. The Honourable T E F Bathurst AC, Chief Justice of New South Wales, delivered an insightful speech titled “The place of lawyers in politics” at the Opening of Law Term dinner.

For the profession, marking the opening of a new Law Term gives it time to reflect on the year that has passed and meditate upon the one ahead.

In his speech, the Chief Justice said (at [7]):

As the beneficiaries of a legal education, lawyers belong to a privileged class who can navigate the complexities of legislative drafting and understand the concrete implications of policy decisions, with the obligation to use this knowledge to the advantage of society.

With the passing of each year the pressures and pace of the administration and practice of law increase. The introduction of new technologies over the past 25 years has dramatically changed the way in which a practitioner goes about using legal knowledge to fulfil their obligation to society.

While it has always been the case that lawyers must know the law as it applies to a particular matter and be aware of any changes that may affect their client’s position, in the economic pressures of the digital age it is expected that one is able to (almost) instantaneously ascertain the relevant current law.

The words spoken by Tancredi in The Leopard are particularly relevant to the administration and practice of the law in the digital age. Digital disruption in the law (namely the use of artificial intelligence and machine learning) will continue to be a ubiquitous presence in day to day practice.

The role that technology, when used for the greater good, can play in promoting the rule of law cannot be underestimated. Tools such as JADE Professional and electronic portals such as those for the Victorian Reports and New South Wales Law Reports harness the power of technology not only to allow the courts and the profession at large to continue to use their knowledge to the advantage of society, but also to make the law more accessible and relevant to the ordinary citizen.

Join the revolution. Subscribe to, or renew your subscription to, JADE Professional in the month of February and receive 13 months for the price of 12, together with a copy of “Whiteley on Trial” by Gabriella Coslovich.

This gripping book by arts journalist Gabriella Coslovich has more twists and turns than an episode of Poirot … Whiteley on Trial is a gripping art-world thriller set in this heady milieu, meticulously told and intriguing for all sorts of reasons. The case and the book have certainly shaken up the art world.” —PHIL BROWN, COURIER MAIL

2017 – The Year in Review

What a year it has been! The team at JADE and Little William Bourke (the publisher of the Victorian Reports) have welcomed new friends, said goodbye to old ones; collectively flown tens of thousands of kilometres to teach, learn and explore new opportunities; and continued on our mission as leading digital disruptors in the legal information and research space.

We’ve travelled the country far and wide this year, delivering training sessions to our faithful subscribers and wooing new ones with the power of JADE and the technological advances in law reporting. Once again, we were overwhelmed with feedback from our users about how JADE Professional helps them work faster, better and smarter.

Here are some highlights of the year that has been 2017 …

Wishing you all a happy festive season, and a happy, healthy and prosperous New Year!

From all the team at BarNet, JADE and Little William Bourke

Launch of the New South Wales Law Reports online portal

Under the BarNet banner, we were very privileged to work with the Council of Law Reporting of New South Wales to build their online portal for the New South Wales Law Reports. In the same mould as the Victorian Reports, our aim was to develop a portal that allows the democratic access to all of the reported cases of the New South Wales Supreme Court in a flexible and cost-effective manner.

Launched in June this year by his Honour Chief Justice Bathurst, the NSWLR portal has been well received, not only in its home state but interstate and internationally.

The Chief Justice welcomed the introduction of the online portal, which gives users access to the State Reports dating back to 1900 and all New South Wales Law Reports, as having “the important role of bringing forgotten judgements back into the light”. (The Hon T F Bathurst AC, Chief Justice of New South Wales, ‘Launch of the Electronic State Reports (New South Wales)’. (Speech delivered at the launch of the NSW Law Reports, Ceremonial Court, Supreme Court of New South Wales, 28 June 2017.)

On a daily basis, we see users from far and wide accessing judgements of the New South Wales Supreme Court … from a user in WA downloading Baltic Shipping Company v Dillon “Mikhail Lermontov” (1991) 22 NSWLR 1, to a user in Yorktown Heights, New York ordering a copy of Proctor v Jetway Aviation [1982] 2 NSWLR 264.

The launch of the NSWLR portal represents another exciting development in not only the evolution of law reporting but the preservation of Australian legal history.

 

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