High Court of Australia – [HCA]

  • Taylor v Attorney-General (Cth) [2019] HCA 30 (11 September 2019) ( Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Criminal practice – Private prosecution – Authority to prosecute – Where private citizen sought to commence criminal proceeding for offence of crime against humanity contrary to s 268.11 of Criminal Code (Cth) – Where offence located within Div 268 of Criminal Code – Where s 268.121(1) provides that proceedings under Div 268 must not be commenced without Attorney-General's written consent – Where Attorney-General did not consent – Where s 268.121(2)
    of Criminal Code provides that offence against Div 268 "may only be prosecuted in the name of the Attorney-General" – Where s 13(a) of Crimes Act 1914 (Cth) provides that any person may "institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth" unless contrary intention appears – Whether s 268.121(2) expresses contrary intention for purpose of s 13(a) – Whether s 268.121(2) precludes private prosecution of offence against Div 268.
    Words and phrases – "commencement of proceedings", "committal", "consent",
    "consent of the Attorney-General", "contrary intention", "crime against humanity", "in the name of", "indictable offence against the law of the Commonwealth", "private prosecution", "prosecuted in the name of the Attorney- General", "relator proceeding", "right to prosecute", "summary proceedings", "trial on indictment".
  • Minogue v Victoria [2019] HCA 31 (11 September 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff's non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened.

    Words and phrases – "additional or separate punishment", "judicial power", "legislative punishment", "legislatively resentenced", "life imprisonment", "minimum term", "more punitive or burdensome to liberty", "non-parole period", "opportunity to be considered for release on parole", "parole", "severity of the punishment", "substantive operation and practical effect".
  • Lee v Lee [2019] HCA 28 (04 September 2019) (Kiefel CJ, Bell, Gageler, Nettle and Edelman JJ)
    Catchwords:
    Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant gave evidence father driving vehicle at time of collision – Where appellant alleged injuries caused by negligence of father – Where appellant’s blood located on driver's airbag – Where expert evidence relating to possible source of blood – Where expert evidence relating to seatbelt and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether trial judge's findings glaringly improbable or contrary to compelling inferences.

    Appeal – Rehearing – Where trial judge drew inferences and made findings of fact based on lay and expert evidence – Where Court of Appeal found inferences wrong in material respects – Whether Court of Appeal erred in failing to conclude trial judge misused advantage as trial judge – Whether Court of Appeal failed to conduct "real review" of evidence given and trial judge's reasons for judgment.

    Words and phrases – "contrary to compelling inferences", "glaringly improbable", "real review", "trial judge's advantage".
  • Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 (04 September 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Practice and procedure – Costs – Legal practitioners – Barristers – Where self‑represented litigant may not obtain any recompense for value of his or her time spent in litigation – Where exception commonly referred to as "Chorley exception" exists for a self-represented litigant who is a solicitor – Where first respondent is a barrister – Where first respondent undertook legal work in litigation in which she was represented – Where first respondent incurred costs on her own behalf and for legal services provided by herself – Whether Chorley exception operates to benefit barristers – Whether Chorley exception recognised as part of common law of Australia.

    Words and phrases – "anomalous", "Chorley exception", "common law of Australia", "costs", "costs payable", "creature of statute", "employed solicitors", "equality before the law", "exception to the general rule", "exercise of professional skill", "incorporated legal practice", "indemnity", "judicial abolition", "professional legal services", "prospective overruling", "remuneration", "rule of practice", "rules committees", "self-represented litigants", "statutory power".
  • Brisbane City Council v Amos [2019] HCA 27 (04 September 2019) (Kiefel CJ, Gageler, Keane, Nettle and Edelman JJ)
    Catchwords:
    Limitation of actions – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d).

    Words and phrases – "Barnes v Glenton", "claim in rem", "limitation of actions", "overlap between limitation periods", "personal claim", "real claim", "sums secured by mortgage or charge", "what claims are within limitation statutes".
  • Glencore International AG v Commissioner of Taxation [2019] HCA 26 (14 August 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Privilege – Legal professional privilege – Where documents identified by plaintiffs as having been created by law practice for sole or dominant purpose of provision of legal advice to plaintiffs – Where privileged documents stolen from electronic file management system of law practice and disseminated – Where documents obtained by defendants – Where defendants refused to return documents to plaintiffs and provide undertaking not to refer to or rely upon documents – Where plaintiffs sought injunctive relief in equity's auxiliary jurisdiction solely on basis of legal professional privilege – Where plaintiffs did not seek injunctive relief on basis of confidentiality or other area of law – Where defendants demurred on basis that no cause of action disclosed – Whether legal professional privilege operates only as immunity or is also actionable legal right – Whether policy considerations justify creation of new actionable right in respect of documents subject to legal professional privilege.

    Words and phrases – "actionable legal right", "basis for relief", "breach of confidence", "cause of action", "common law right", "confidentiality", "development of the law", "immunity", "injunction", "legal professional privilege", "policy of the law", "public interest", "remedy".
  • Northern Territory v Sangare [2019] HCA 25 (14 August 2019) (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ)
    Catchwords:
    Practice and procedure – Costs – Where respondent commenced defamation proceedings against appellant – Where appellant wholly successful on appeal and at first instance – Where appellant sought order that respondent pay its costs – Where Court of Appeal made no order as to costs because respondent's impecuniosity would likely render order futile – Whether appellant entitled to order for costs – Whether impecuniosity of unsuccessful party can alone justify decision to deny successful party its costs.

    Words and phrases – "award", "costs", "discretion as to costs", "futility", "impecuniosity", "indemnity", "litigant-in-person", "litigation", "matters relating to costs", "successful party", "unmeritorious litigation", "unsuccessful party".
  • Palmer v Australian Electoral Commission [2019] HCA 24 (14 August 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Parliamentary elections (Cth) – House of Representatives – Counting of votes – Where s 274(2A)-(2C) of Commonwealth Electoral Act 1918 (Cth) provides for indicative two-candidate preferred count in each Division – Where s 7(3) of Commonwealth Electoral Act confers power on Australian Electoral Commission to do all things necessary or convenient for or in connection with performance of its functions – Where practice of Australian Electoral Commission to publish information about indicative two‑candidate preferred count for a Division after close of polls in that Division – Whether publication of information for a Division before polls closed in all parts of nation has any demonstrated effect on electoral choices – Whether information inaccurate or misleading – Whether publication constitutes imprimatur to any particular candidate or outcome – Whether publication authorised by s 7(3).

    Constitutional law (Cth) – Parliament – Elections – Whether publication of information about indicative two-candidate preferred count prior to close of polls nationally contrary to ss 7 and 24 of Constitution – Whether factual foundation of challenge established.

    Words and phrases – "direct and popular choice", "effect on electoral choices", "factual foundation", "imprimatur", "indicative two-candidate preferred count", "necessary or convenient", "partiality", "scrutiny of votes".
  • Comcare v Banerji [2019] HCA 23 (07 August 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Constitutional law (Cth) – Implied freedom of communication on governmental and political matters – Where Australian Public Service ("APS") Code of Conduct ("Code") included requirement in s 13(11) of Public Service Act 1999 (Cth) that employees behave in way that upholds APS Values and integrity and good reputation of APS – Where APS Values in s 10(1) of that Act included that APS is apolitical, performing functions in impartial and professional manner – Where Agency Head empowered by s 15(1) of that Act to impose sanctions on employee found to have breached Code, including termination of employment – Where employee of government Department published tweets critical of Department, its employees, policies and administration, Government and Opposition immigration policies, and members of Parliament – Where employment with Commonwealth terminated for breach of Code – Where employee claimed compensation under Safety, Rehabilitation and Compensation Act 1988 (Cth) for "injury", defined to exclude injury suffered as result of reasonable administrative action taken in reasonable manner in respect of employee's employment – Whether ss 10(1), 13(11) and 15(1) of Public Service Act impose effective burden on implied freedom – Whether burden on implied freedom justified – Whether impugned provisions for legitimate purpose – Whether provisions suitable, necessary and adequate in balance.

    Words and phrases – "adequate in its balance", "anonymous", "apolitical", "APS Code of Conduct", "effective burden", "impartial", "implied freedom of political communication", "integrity", "legitimate purpose", "necessary", "public servants", "public service", "reasonably appropriate and adapted", "suitable", "system of representative and responsible government", "tweets", "unjustified burden".
  • Victorian Building Authority v Andriotis [2019] HCA 22 (07 August 2019) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Statutes – Construction – Statutory powers – Mutual recognition – Where s 17(1) of Mutual Recognition Act 1992 (Cth) provides that person registered in one State for occupation entitled to be registered in equivalent occupation in second State where person lodges written notice with local registration authority of second State – Where s 20(1) of Mutual Recognition Act provides that registration in first State sufficient ground of entitlement to registration in second State – Where s 20(2) of Mutual Recognition Act provides that local registration authority of second State "may" grant registration on that ground – Where s 17(2) of Mutual Recognition Act provides that mutual recognition principle subject to exception that it does not affect operation of laws that regulate manner of carrying on occupation in second State, provided laws not based on attainment or possession of some qualification or experience relating to fitness to carry on occupation – Where respondent registered as waterproofer in first State – Where respondent refused registration in second State for non-compliance with "good character" requirement in local Act – Whether local registration authority has discretion to refuse registration – Whether "good character" requirement is law based on "qualification" relating to fitness to carry on occupation.

    Words and phrases – "character requirement", "disciplinary action", "discretionary power", "entitlement to registration", "fitness to carry on an occupation", "good character", "local registration authority", "may", "mutual recognition principle", "mutual recognition scheme", "qualification or experience", "registration for an occupation", "residual discretion", "sufficient ground of entitlement to registration".

Supreme Court of Tasmania – Full Court [TASFC]

Supreme Court of Tasmania – Court of Criminal Appeal [TASCCA]

  • Director of Public Prosecutions v Foster [2019] TASCCA 15 (12 September 2019) (Estcourt J, Brett J, Marshall AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Found guilty of two counts of assault and one count of demanding property with menaces with intent to steal – Where assaults committed in context of domestic violence – Sentence of 16 months' imprisonment with parole eligibility after half of that sentence manifestly inadequate.
  • Bell v Tasmania [2019] TASCCA 14 (11 September 2019) (Blow CJ, Geason J and Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Assault, stealing and wounding – Two incidents – Partner's fingers jammed in door and neck attacked with taser – Woman stabbed to hand when protecting stomach – Global sentence of 4 years' imprisonment with non-parole period of 2½ years not manifestly excessive.
  • Director of Public Prosecutions v Harwood (No 2) [2019] TASCCA 13 (30 August 2019) (Pearce J, Brett J, Porter AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or manifestly inadequate – Crown appeal – Causing grievous bodily harm – Respondent involved in argument with a young woman about her age and known to her – Reacted to verbal taunt by hitting complainant in the face with a glass – Complainant lost the sight of one eye and was severely disfigured – Respondent with no significant history of offending– Sentence of 12 months' imprisonment with 9 months suspended on conditions including performance of 80 hours of community service – Sentence held to be manifestly inadequate – Discussion of relevant factors.
  • Jenkins v Tasmania [2019] TASCCA 12 (29 August 2019) (Geason J, Marshall AJ and Porter AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Parity between co-offenders – Justified sense of grievance shown where no reasonable grounds for the differentiation – Appellant sentenced to imprisonment for crimes of violence – Appellant with lengthy record of offending giving rise to terms of imprisonment – Co-offender a young offender with no significant record and played lesser role – Appellant sentenced for additional crime while co-offender liable as accessory for appellant's acts – Appellant not sentenced for those acts – Co-offender sentenced to lesser term of suspended imprisonment coupled with community service – Reasonably open to sentencing judge to differentiate between offenders.
  • Director of Public Prosecutions v Brown [2019] TASCCA 11 (20 August 2019) (Blow CJ, Pearce J, Marshall AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Dangerous driving – Many motorists forced to take evasive action – One collision – Fourth conviction – Never licensed – Breach of bail condition requiring no driving – Evasion of police – Sentence of 22 months' imprisonment with non-parole period of 12 months manifestly inadequate.
  • Davidson v State of Tasmania [2019] TASCCA 9 (28 June 2019) (Wood J, Estcourt J, Marshall AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Trafficking in controlled substances – No manifest excess.
  • R J H v Tasmania [2019] TASCCA 8 (21 June 2019) (Blow CJ, Brett J and Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal dismissed – Aggravated sexual assaults and indecent assault – No direction as to restriction of evidence as to complainants' sexual reputations and sexual experience.
  • Allen v Tasmania [2019] TASCCA 7 (18 June 2019) (Blow CJ, Geason J and Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Manslaughter – Intentional stabbing to leg severing artery – Sentence of eight years' imprisonment with non-parole period of five years not manifestly excessive.
  • Director of Public Prosecutions v Greely [2019] TASCCA 10 (06 June 2019) (Estcourt J, Geason J, Marshall AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Pleaded guilty to one count of causing grievous bodily harm – Sentence of 12 months' imprisonment with 10 months suspended and 210 hours of community service manifestly inadequate.
  • Nowoczynski v Tasmania [2019] TASCCA 6 (29 May 2019) (Estcourt J, Brett J, Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference –Sentence manifestly excessive or inadequate – Particular offences – Offences against the person – Murder – Particularly vicious and intentional killing – Whether sentence of 22 years' imprisonment with a non-parole period of 13.5 years manifestly excessive – Head sentence not manifestly excessive – Exercise of sentencing discretion with regard to parole – Non-parole period of 13.5 years not manifestly excessive

Supreme Court of Tasmania – [TASSC]

  • The Honourable Will Hodgman v Tasmanian Industrial Commission [2019] TASSC 40 (06 September 2019) (Estcourt J)
    Catchwords:
    Administrative Law – Judicial review – Grounds of review – Jurisdictional matters – Whether decision of indemnity and legal assistance panel can be characterised as State Service Action for purposes of State Service Act 2000.
  • Legal Profession Board of Tasmania v Kitto [2019] TASSC 39 (05 September 2019) (Blow CJ)
    Catchwords:
    Professions and Trades – Lawyers – Complaints and discipline – Professional misconduct – Other matters – Failure to comply with order to pay opposing party's costs personally – Resisting payment until own client provided funds.
  • Barnes v Omant [2019] TASSC 38 (30 August 2019) (Wood J)
    Catchwords:
    Magistrates – Appeal and review - Tasmania – Motion to review – Other matters – Refusal of application by prosecution to adjourn sine die – Intention to proceed on substitute charges – Proposed undertaking to not proceed with complaint – Prosecution sought adjournment rather than dismissal due to impact on substitute charges – Effect of plea of autrefois acquit and incontrovertibility rule – No denial of justice to prosecution.
  • Brocklands Pty Ltd v Tasmanian Networks Pty Ltd (No 2) [2019] TASSC 37 (30 August 2019) (Blow CJ)
    Catchwords:
    Practice and Procedure – Security for costs – Factors relevant to exercise of discretion – Other particular cases and matters – Appeal by unsuccessful plaintiff – Appeal that could succeed – Uncertainty as to appellant's impecuniosity – Respondent capable of absorbing costs if necessary – Security not ordered.
  • Streets v Bakery One Pty Ltd [2019] TASSC 36 (28 August 2019) (Brett J)
    Catchwords:
    Contracts – General contractual principles – Discharge, breach and defences to action for breach conditions – Conditions and warranties – Breach of warranty – Breach of warranty not causative – Evidence incapable of establishing breach of warranty – Action dismissed.
  • Keller v Phillips [2019] TASSC 35 (21 August 2019) (Estcourt J)
    Catchwords:
    Torts – Negligence – Road accident cases – Liability of drivers of vehicles – Traffic lights and road signs – Intersections and junctions – Turning across traffic – Collision with motorcyclist in intersection – Vehicle turned across the path of oncoming motorcycle – Defendant's negligence in moving off from wholly stationary position in front of plaintiff's oncoming motorcycle was sole cause of collision
  • Davies v James [2019] TASSC 32 (16 August 2019) (Holt AsJ)
    Catchwords:
    Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Adult children generally –Medium sized estate – Equal bequest to four children – Applicant's failure to show that adequate provision for her proper maintenance and support had not been made.
  • R v Ware [2019] TASSC 30 (08 August 2019) (Blow CJ)
    Catchwords:
    Criminal Law – Procedure – Prosecution – Other matters – Power of Supreme Court to order trial by magistrate – Commonwealth prosecution.
  • Tasmania v Bell [2019] TASSC 34 (05 August 2019) (Blow CJ)
    Catchwords:
    Criminal law – General matters – Criminal liability and capacity – Defence matters – Ignorance and mistake of fact – Availability of defence of honest and reasonable mistake – Particular cases – Supplying controlled drug to a child – Supply to adult a less serious offence – Defence of mistake as to age not available.
  • Burdon v Burdon [2019] TASSC 31 (02 August 2019) (Holt AsJ)
    Catchwords:
    Succession – Family provision – Criteria for determining application – Treatment of particular applicants – Surviving spouse or partner – Mere right of occupancy of family home inadequate provision – Provision made conferring absolute interest in family home.