Stephens v. The Queen
Case No.
S53/2022
Case Information
Lower Court Judgment
09/07/2021 Supreme Court of New South Wales (Court of Criminal Appeal) (Simpson AJA, Davies & Button JJ)
Catchwords
Criminal law – Historical offences – Presumption against retrospectivity – Where, on 8 June 1984, Crimes Act 1900 (NSW) amended to repeal s 81, which proscribed indecent assault on male person, and inserted s 78K, which proscribed homosexual intercourse with male person between ages of 10 and 18 years – Where appellant prosecuted for alleged sexual offences committed against complainant between January 1982 and December 1987 – Where complainant turned 16 years old on 6 July 1987 – Where, on 29 November 2018, appellant arraigned on indictment containing 18 counts – Where date range for alleged offences extended across 8 June 1984, with indictment drafted so that one count alleged offence against s 81, and another count, pleaded in alternative, alleged offence against s 78K, with dates commensurate with dates provisions were in force – Where, on 1 December 2018, s 80AF of Crimes Act came into effect – Where s 80AF applied if: (a) uncertainty as to when during period conduct alleged to have occurred; (b) victim of alleged conduct child (under age of 16 years) for whole of period; (c) no time during that period that alleged conduct, if proven, would not have constituted sexual offence; and (d) because of change in law or change in age of child during that period, alleged conduct, if proven, would have constituted more than one sexual offence during that period – Where s 80AF provided that prosecution could rely on offence carrying lesser maximum penalty for entirety of charged period – Where indictment amended on 5 February 2019 to take benefit of s 80AF, with s 81 carrying lesser maximum penalty – Whether s 80AF of Crimes Act, which came into effect on 1 December 2018, had retrospective application to appellant's trial, which commenced no later than 29 November 2018 upon arraignment.
Documents*
08/04/2022 Hearing (SLA, Canberra and remote connection)
14/04/2022 Notice of appeal
06/05/2022 Written submissions (Appellant)
06/05/2022 Chronology (Appellant)
20/05/2022 Written submissions (Respondent)
27/05/2022 Reply
16/06/2022 Hearing (Full Court, Canberra)
16/06/2022 Outline of oral argument (Appellant)
16/06/2022 Outline of oral argument (Respondent)
07/09/2022 Judgment (Judgment summary)
Bryant & Ors v. Badenoch Integrated Logging Pty Ltd
Case No.
A10/2022
Case Information
Lower Court Judgment
24/06/2021 Federal Court of Australia (Middleton, Charlesworth and Jackson JJ)
[2021] FCAFC 64, [2021] FCAFC 111
Catchwords
Corporations law – Voidable transactions – Unfair preferences – "Peak indebtedness" rule – Interpretation of s 588FA of Corporations Act 2001 (Cth) – Where, pursuant to s 588FA(1), transaction an unfair preference given by company to creditor if company and creditor are parties to transaction and, as a result of transaction, creditor receives more than creditor would have were creditor to prove for debt in winding up – Where s 588FA(3)(c) provided s 588FA(1) applies to all transactions forming part of relationship as if single transaction where, relevantly, transaction an integral part of a continuing business relationship – Where Full Court set aside primary judge's finding that liquidators entitled to choose point of peak indebtedness during statutory period in endeavouring to show, from that point, preferential payment under s 588FA(1) – Whether, by enacting s 588FA(3)(c), Parliament intended to abrogate liquidator's right to choose any point during statutory period, including point of peak indebtedness, to show point from which preferential payment under s 588FA(1) – Proper point for single transaction under s 588FA(3)(c) – Whether continuing business relationship will cease if operative and mutual purpose of inducing further support is subordinated to predominant purpose of recovering past indebtedness.
Documents*
18/03/2022 Hearing (SLA, Canberra by remote connection)
01/04/2022 Notice of appeal
09/05/2022 Written submissions (Appellants)
09/05/2022 Chronology (Appellants)
03/06/2022 Written submissions (Respondent)
24/06/2022 Reply
18/10/2022 Hearing (Full Court, Canberra) (Audio-visual Recording)
18/10/2022 Outline of oral argument (Appellants)
18/10/2022 Outline of oral argument (Respondent)
08/02/2023 Judgment (Judgment summary)
Kingdom of Spain v. Infrastructure Services Luxembourg S.à.r.l. & Anor
Case No.
S43/2022
Case Information
Lower Court Judgment
25/06/2021 Federal Court of Australia (Allsop CJ, Perram and Moshinsky JJ)
[2021] FCAFC 3 and [2021] FCAFC 112
Catchwords
Private international law – Foreign state immunity – Interaction between s 9 of Foreign States Immunities Act 1985 (Cth) ("Immunities Act") and Convention on the Settlement of Investment Disputes between States and Nationals of Other States ("ICSID Convention") – Where proceedings commenced in Federal Court for recognition of award of International Centre for Settlement of Investment Disputes ("ICSID") under s 35(4) of International Arbitration Act 1974 (Cth) ("Arbitration Act") – Where Kingdom of Spain asserted sovereign immunity – Where s 9 of Immunities Act provided that foreign state immune from jurisdiction of courts of Australia in proceeding – Where s 10 of Immunities Act provided foreign state not immune in proceeding in which it submitted to jurisdiction whether by agreement or otherwise – Where Art 54(1) provided each Contracting State shall recognize award rendered pursuant to ICSID Convention as binding – Where Art 54(2) of ICSID Convention referred to recognition or enforcement of award – Whether, by Art 54 of ICSID Convention, Kingdom of Spain agreed to submit itself to jurisdiction within meaning of s 10 of Immunities Act – Whether ICSID Convention excludes claims for foreign state immunity in proceedings for recognition and enforcement of an award – Proper meaning of "recognition" and "enforcement" in Art 54.
Documents*
18/03/2022 Hearing (SLA, Canberra by remote connection)
01/04/2022 Notice of appeal
06/05/2022 Written submissions (Appellant)
06/05/2022 Chronology (Appellant)
20/05/2022 Written submissions (European Commission, seeking leave to appear as amicus curiae)
03/06/2022 Written submissions (Respondents)
24/06/2022 Reply
25/08/2022 Written submissions in response to European Commissions seeking leave to appear (Respondents)
09/11/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
08/11/2022 Outline of oral argument (Appellant)
08/11/2022 Outline of oral argument (Respondents)
10/11/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
25/11/2022 Supplementary written submissions (Respondents)
25/11/2022 Supplementary written submissions (Appellant)
12/04/2023 Judgment (Judgment summary)
Allianz Australia Insurance Limited v. Delor Vue Apartments CTS 39788
Case No.
S42/2022
Case Information
Lower Court Judgment
09/07/2021 Federal Court of Australia (McKerracher, Derrington and Colvin JJ)
Catchwords
Insurance – Insurance contracts – Indemnity – Election – Estoppel – Waiver – Duty of utmost good faith – Where s 28(3) of Insurance Contracts Act 1984 (Cth) enables insurer to reduce liability in respect of claim where, relevantly, insured breached duty of disclosure – Where insured notified claim under insurance policy following cyclone damage – Where insurer agreed to indemnify despite non-disclosure of prior defects – Where insurer took steps consistent with providing indemnity – Where insurer emailed insured stating, despite non-disclosure, claim would be honoured – Where insurer subsequently sought to disclaim liability on basis of non-disclosure – Where majority of Full Court of Federal Court of Australia dismissed appeal, holding insurer had elected not to raise defence under s 28(3) – Whether insurer elected not to raise defence under s 28(3) – Whether, if doctrine of election did not apply, insurer waived entitlement to raise defence under s 28(3) – Whether insurer estopped from raising defence under s 28(3) – Whether insured suffered detriment – Whether insurer breached duty of utmost good faith and, if so, whether insured suffered loss justifying relief.
Documents*
17/03/2022 Hearing (SLA, Canberra by remote connection)
30/03/2022 Notice of appeal
06/05/2022 Written submissions (Appellant)
06/05/2022 Chronology (Appellant)
02/06/2022 Written submissions (Respondent)
23/06/2022 Reply
10/08/2022 Hearing (Full Court, Canberra)
09/08/2022 Outline of oral argument (Respondent)
10/08/2022 Outline of oral argument (Appellant)
11/08/2022 Hearing (Full Court, Canberra)
14/12/2022 Judgment (Judgment Summary)
Electricity Networks Corporation Trading as Western Power v. Herridge Parties & Ors
Case No.
P5/2022
Case Information
Lower Court Judgment
02/07/2021 Supreme Court of Western Australia (Court of Appeal)(Buss P, Murphy & Mitchell JJA)
Catchwords
Torts – Negligence – Duty of care – Breach of duty – Statutory authority – Where Western Power ("WP") statutory authority established under Electricity Corporations Act 2005 (WA) with functions including management, provision and improvement of electricity transmission and distribution services in South West Interconnected System ("SWIS") – Where service cable owned by WP ran from WP's termination pole into mains connection box secured adjacent to top of point of attachment pole ("PA pole") on Mrs Campbell's property – Where PA pole owned by Mrs Campbell – Where electricity passed from wires of WP's service cable to wires of Mrs Campbell's consumer mains cable – Where WP had systems for regular inspection of WP's network assets, but did not regularly inspect or maintain consumer-owned PA poles – Where WP engaged Thiess to replace WP's network poles in Parkerville area, including termination pole, but inspection did not comply with industry standards or Thiess' contractual obligations – Where PA pole fell causing electrical arcing, igniting dry vegetation around base of pole – Where resulting fire spread, becoming Parkerville bushfire, and causing property damage – Where primary judge found WP owed duty to take reasonable care to inspect PA pole to ascertain whether safe and fit condition for supply of electricity before and when undertaking works on pole, but duty discharged by engaging Thiess – Where trial judge apportioned liability for losses 70% as to Thiess and 30% as to Mrs Campbell, and dismissed claims against WP – Where Court of Appeal formulated duty as one owed to persons in vicinity of SWIS to take reasonable care to avoid or minimise risk of injury, and loss to property, from ignition and spread of fire in connection with delivery of electricity through distribution system – Where Court of Appeal held WP had breached duty by failing to have system in place to respond to risk of harm and apportioned liability for losses 50% as to WP, 35% as to Thiess and 15% as to Mrs Campbell – Whether WP, as statutory authority with defined duties, owes common law duty to take reasonable care to avoid fire, discharge of which would oblige WP to exercise discretionary statutory powers in relation to property not owned or controlled by WP – Whether duty of care asserted inconsistent with statute – Proper test for inconsistency between common law duty and statutory scheme which regulates statutory authority.
Documents
17/03/2022 Hearing (SLA, Canberra and remote connection)
30/03/2022 Notice of appeal
05/05/2022 Written submissions (Appellant)
05/05/2022 Chronology (Appellant)
01/06/2022 Written submissions (Second Respondents)
01/06/2022 Written submissions (Fifth Respondent)
02/06/2022 Written submissions (First Respondents)
02/06/2022 Written submissions (Fourth Respondent)
23/06/2022 Reply
06/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
06/09/2022 Outline of oral argument (Appellant)
06/09/2022 Outline of oral argument (Fourth Respondent)
06/09/2022 Outline of oral argument (Fifth Respondent)
07/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
07/09/2022 Outline of oral argument (First Respondents)
07/09/2022 Outline of oral argument (Second Respondents)
08/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
07/12/2022 Judgment (Judgment summary)