Judgments, ordered by date

Browsing By Year (2024)

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AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10

Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
Date: 13 Mar 2024 Case Number: M63/2023
Statutes – Construction – Procedural fairness – Reasonable opportunity to respond – Where Independent Broad-based Anti-corruption Commission ("IBAC") conducted investigation into allegations of unauthorised access to and disclosure of internal email accounts – Where IBAC provided redacted draft special report containing proposed adverse findings against appellants – Where IBAC refused to provide evidentiary material for proposed adverse findings – Where s 162(3) of Independent Broad-based Anti-corruption Commission Act 2011 (Vic) relevantly provided that, if IBAC intends to include in report "a comment or an opinion which is adverse to any person", then IBAC must first provide person reasonable opportunity to respond to adverse material – Whether "adverse material" in s 162(3) referred to proposed adverse comments or opinions in report, or evidentiary material upon which proposed adverse comments or opinions based – Whether provision of substance or gravamen of adverse material sufficient to comply with obligation under s 162(3) – Whether substantive relief warranted where findings unaffected by misconstruction of s 162(3).

Words and phrases – "adverse comment or opinion", "adverse finding", "adverse material", "evidentiary material", "reasonable opportunity", "reasonable opportunity to respond", "special report", "substance or gravamen".

Independent Broad –based Anti-corruption Commission Act 2011 (Vic), s 162(3).

The King v Anna Rowan – A Pseudonym [2024] HCA 9

Gageler CJ, Gordon, Edelman, Jagot, Beech-Jones JJ
Date: 13 Mar 2024 Case Number: M47/2023
Criminal law – Defences – Defence of duress – Where respondent charged with sexual offences committed against two of her daughters in presence of respondent's partner "JR" – Where, prior to trial, respondent sought to raise defence of duress – Where supporting evidence on voir-dire included daughters' evidence, forensic psychologist's report and tendency evidence concerning JR's threatening, violent and controlling behaviour – Where trial judge ruled no factual basis for duress – Where trial proceeded without duress being put to jury and respondent convicted – Where Court of Appeal of Supreme Court of Victoria found duress should have been put to jury – Whether Court of Appeal implicitly adopted doctrine of "duress of circumstances" instead of requirement there be threat to inflict harm if accused failed to commit acts charged – Whether Court of Appeal erred in concluding evidence was sufficient to raise defence of duress at common law and under s 322O of Crimes Act 1958 (Vic).

Words and phrases – "defence of duress", "duress at common law", "duress of circumstances", "ongoing threat", "operative threat", "threat to inflict harm", "unstated demand".

Crimes Act 1958 (Vic) – s 322O.

Hurt v The King [2024] HCA 8

Gageler CJ, Edelman, Steward, Gleeson, Jagot JJ
Date: 13 Mar 2024 Case Number: C7/2023 C8/2023 S44/2023
Criminal law – Sentencing – Appeal against sentence – Minimum sentences – Where s 16AAB of Crimes Act 1914 (Cth), inserted by Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) ("Amendment Act"), provided for minimum terms of imprisonment, subject to limited exceptions, for offences – Where offences included s 474. 22A(1) of Criminal Code (Cth) ("Possessing or controlling child abuse material obtained or accessed using a carriage service") – Where elements of offence included, relevantly, "the person has possession or control of material" and "the person used a carriage service to obtain or access the material" – Where transitional provision in Amendment Act required "relevant conduct . . . engaged in" to take place on or after commencement of amendments, including insertion of s 16AAB – Whether minimum sentence provides yardstick for calculation of appropriate penalty in addition to restricting sentencing power – Whether "relevant conduct" concerns only "conduct" element of offence or also "circumstance in which conduct . . . occurs".

Words and phrases – "appropriate penalty", "appropriate term of imprisonment", "child sexual abuse offence", "conduct", "double function", "engaged in", "relevant conduct", "restriction on power", "sentencing", "sentencing discretion", "statutory minimum sentence", "yardstick".

Crimes Act 1914 (Cth) – ss 16AAA, 16AAB, 16AAC.

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) – Sch 6, items 3, 9.

Criminal Code (Cth) – s 474. 22A.

Redland City Council v Kozik [2024] HCA 7

Gageler CJ, Gordon, Edelman, Steward, Jagot JJ
Date: 13 Mar 2024 Case Number: B17/2023
Statutes – Construction – Statutory debt – Local government – Special rates and charges – Where appellant empowered by Local Government Act 2009 (Qld) ("Act") to levy special rates and charges in respect of rateable land – Where appellant purported to levy special charges on respondents' land – Where special charges levied pursuant to invalid resolutions – Where respondents paid special charges contained in rate notices – Where regulations made pursuant to Act provided for return of special rates or charges levied on land to which special rates or charges did not apply – Whether provision in regulations providing for return of special charges applicable where resolution levying special rates invalid.

Restitution – Unjust enrichment – Defence of good consideration – Where respondents paid special charges to appellant under mistake of law – Where appellant spent funds levied on works conducted on waterways adjacent to respondents' land – Where appellant statutorily obliged to conduct relevant works – Whether appellant had defence to respondents' claim for restitution.

Words and phrases – "benefit", "failure of consideration", "good consideration", "local government", "mistake of law", "money had and received", "recipient not unjustly enriched", "regulations", "restitution", "special rates and charges", "statutory construction", "statutory debt", "unjust enrichment".

Local Government Act 2009 (Qld) – ss 91, 92, 93, 94.

Local Government (Finance – Plans and Reporting) Regulation 2010 (Qld), ss 28, 32.

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6

Gageler CJ, Gordon, Edelman, Gleeson, Beech-Jones JJ
Date: 6 Mar 2024 Case Number: S12/2023
Immigration – Visas – Cancellation of visa – Where plaintiff found guilty of robbery offences when under 16 years of age before Children's Court of New South Wales – Where plaintiff committed subsequent robbery offences as adult – Where plaintiff's visa cancelled under s 501(2) of Migration Act 1958 (Cth) – Where delegate of Minister took into account "National Police Certificate" that listed robbery offences committed by plaintiff when under 16 years of age – Where "National Police Certificate" described plaintiff as being "convicted" of offences dealt with by Children's Court – Where delegate advised that plaintiff had "serious convictions" from 13 years of age – Where, at time of offending, s 14(1)(a) of Children (Criminal Proceedings) Act 1987 (NSW) prohibited Children's Court from proceeding to, or recording, any conviction if child was under 16 years of age – Where s 85ZR(2)(b) of Crimes Act 1914 (Cth) provided that where, under a State law, a person is, in particular circumstances or for a particular purpose, taken never to have been convicted of an offence, the person shall be taken in any State, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State never to have been convicted of that offence – Whether delegate erroneously took into account matters precluded by ss 85ZR(2)(b) and 85ZS(1)(d)(ii) of Crimes Act by considering the offences committed by plaintiff when under 16 years of age – Whether delegate's decision affected by jurisdictional error.

Words and phrases – "conviction", "criminal history", "finding of guilt", "for any purpose", "jurisdictional error", "materiality", "proceeding to conviction", "recording of conviction", "taken to be", "visa cancellation".

Children (Criminal Proceedings) Act 1987 (NSW) – s 14.

Crimes Act 1914 (Cth) – ss 85ZM, 85ZR, 85ZS.

Migration Act 1958 (Cth) – s 501(2).

Xerri v The King [2024] HCA 5

Gageler CJ, Gordon, Steward, Gleeson, Jagot JJ
Date: 6 Mar 2024 Case Number: S76/2023
Criminal law – Sentence – Calculation – Statutory interpretation – Maximum penalty – Persistent child sexual abuse offence – Where s 66EA of Crimes Act 1900 (NSW) came into effect from 1 December 2018 with maximum penalty of life imprisonment – Where previous s 66EA of Crimes Act provided for maximum penalty of 25 years – Where appellant pleaded guilty to offence of being an adult who had maintained an unlawful sexual relationship with child – Where appellant sentenced under current s 66EA to eight years imprisonment – Where maximum penalty of life imprisonment served as "valuable guidepost" in sentencing – Where appellant's offending occurred prior to commencement of current s 66EA and appellant pleaded guilty after current s 66EA commenced – Whether replacement of s 66EA of Crimes Act constituted new offence or increase in penalty for "offence" which already existed for purposes of s 19 of Crimes (Sentencing Procedure) Act 1999 (NSW) ("Procedure Act") – Meaning of word "offence" in s 19 of Procedure Act – Where retrospective operation of s 66EA offence – Whether maximum penalty for offence committed by appellant remained 25 years imprisonment by operation of s 19 of Procedure Act – Whether significant differences between former and current s 66EA of Crimes Act such that they are not same offence.

Words and phrases – "child sexual abuse", "differences of substance", "increased penalty", "life imprisonment", "maximum penalty", "new offence", "offence", "persistent sexual abuse of a child", "retrospective", "retrospective offence", "sentence".

Crimes Act 1900 (NSW) – s 66EA.

Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW).

Crimes (Sentencing Procedure) Act 1999 (NSW)
– ss 19, 25AA.

Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4

Gageler CJ, Gordon, Steward, Gleeson, Jagot JJ
Date: 14 Feb 2024 Case Number: B32/2023
Statutes – Construction – Where Sch 1A of Carriage of Goods by Sea Act 1991 (Cth) contained amended Hague-Visby Rules (the "Australian Hague Rules") – Where Art 3(8) of Australian Hague Rules provided that any clause in contract for carriage of goods by sea relieving or lessening carrier's liability for loss or damage to goods otherwise than as provided for in Australian Hague Rules shall be void – Where arbitration clause in bill of lading provided for resolution of disputes between carrier and shipper by arbitration in London under English law – Where arbitration commenced – Where shipper commenced proceedings in Federal Court of Australia and sought to restrain arbitration – Where carrier sought stay of Federal Court proceedings in favour of arbitration – Where carrier undertook to admit in London arbitration that Australian Hague Rules as applied under Australian law were to apply in arbitration – Where Federal Court made declaration by consent to similar effect – Whether arbitration clause in bill of lading rendered inoperative by Art 3(8) – Whether conduct of arbitration would relieve or lessen carrier's liability – Whether carrier's undertaking and Federal Court's declaration should be taken into account – Proper approach to standard of proof under Art 3(8).

Words and phrases – "arbitration", "arbitration clause", "Australian Hague Rules", "balance of probabilities", "burden of proof", "carrier's liability", "contract of carriage of goods by sea", "declaration", "declaration by consent", "foreign arbitration", "lessen the carrier's liability", "liability would be relieved or lessened", "ordinary civil standard of proof", "standard of proof", "undertaking".

Carriage of Goods by Sea Act 1991 (Cth) – ss 4, 7, 8, 9, Schs 1, 1A, Art 3(8).

International Arbitration Act 1974 (Cth) – ss 7, 39.

The King v Rohan (a pseudonym) [2024] HCA 3

Gageler CJ, Gordon, Edelman, Gleeson, Jagot JJ
Date: 14 Feb 2024 Case Number: M33/2023
Criminal law – Appeal against conviction – Criminal liability – Statutory complicity – Where s 324(1) of Crimes Act 1958 (Vic) provided, "if an offence . . . is committed, a person who is involved in the commission of the offence is taken to have committed the offence" – Where s 323(1)(c) of Crimes Act provided person is "involved in the commission of an offence" if person "enters into an agreement, arrangement or understanding with another person to commit the offence" – Where respondent convicted of offences of supplying drug of dependence to a child and sexual penetration of a child under 12 on basis of ss 323(1)(c) and 324(1) – Where prosecution relevantly alleged respondent and two co accused entered into agreement, arrangement or understanding to supply cannabis to two complainants (aged 11 and 12), and then sexually penetrate complainant (aged 11) – Where element of supply offence that child in fact be under 18 years of age – Where element of sexual penetration offence that child in fact be under 12 years of age – Where knowledge of age not an element of either offence – Whether prosecution required to prove that accused knew, at time of entering agreement, ages of complainants or that complainants were under specified age – Whether substantial miscarriage of justice resulted from failure to direct jury to be satisfied beyond reasonable doubt that parties to agreement knew ages of complainants – Whether fault element in Giorgianni v The Queen (1985) 156 CLR 473 applicable to s 323(1)(c) – Whether prosecution required to prove that accused knew or believed, at time of entering into agreement, essential facts that made conduct an offence, where knowledge or belief not an element of the offence itself.

Words and phrases – "accessorial liability", "agreement", "agreement, arrangement or understanding", "agreement to commit an offence", "complicity", "derivative liability", "essential facts", "group activity", "involved in the commission of an offence", "joint criminal enterprise", "primary liability", "statutory complicity".

Crimes Act 1958 (Vic) – s 49A, Subdiv 1 of Div 1 of Pt II.

Drugs – Poisons and Controlled Substances Act 1981 (Vic), s 71B.

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Gageler CJ, Gordon, Edelman, Gleeson, Jagot JJ
Date: 7 Feb 2024 Case Number: M20/2023
Immigration – Visas – Application for visa – Where delegate of Minister refused to grant visa under s 501 of Migration Act 1958 (Cth) as plaintiff did not pass character test and considerations favouring non refusal outweighed by considerations favouring refusal – Where delegate was required to comply with Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("Direction 90") in determining whether to refuse to grant visa – Where Direction 90 required decision maker to take into account considerations, including protection of Australian community (para 8. 1), any engagement in family violence by non citizens (para 8. 2), best interests of minor children affected by decision (para 8. 3), and expectations of Australian community (para 8. 4) – Whether delegate failed to comply with para 8. 3(1) of Direction 90 or failed to inquire about status of minor child in circumstances where it was legally unreasonable not to do so – Whether para 8. 2 of Direction 90 permitted delegate to give weight to family violence considerations in circumstances where delegate had given weight to considerations under other paragraphs – Whether para 8. 2 invalid – Whether delegate misapplied para 8. 4 of Direction 90.

Words and phrases – "direction", "double counting", "failure to consider", "failure to inquire", "illegitimate purpose", "irrational, illogical, or legally unreasonable", "legally unreasonable", "primary consideration", "relevant considerations", "relevant, legitimate, and non punitive", "repetitious weighing".

Migration Act 1958 (Cth) – ss 499, 501, 501CA.

Harvey v Minister for Primary Industry and Resources [2024] HCA 1

Gageler CJ, Gordon, Edelman, Steward, Gleeson JJ
Date: 7 Feb 2024 Case Number: D9/2022
Native title – Native title rights – Mining – Mineral leases – Where s 24MD(6B) of Native Title Act 1993 (Cth) entitles native title holders to certain procedural rights in relation to future acts that, relevantly, involve "the creation or variation of a right to mine for the sole purpose of the construction of an infrastructure facility . . . associated with mining" – Where Mount Isa Mines Limited carries on mining enterprise in Northern Territory – Where Mount Isa Mines Limited applied for mineral lease ("ML 29881") under Mineral Titles Act 2010 (NT) to construct Dredge Spoil Emplacement Area ("DSEA") on pastoral lease – Where first and second appellants native title holders in respect of land comprising pastoral lease – Where third appellant relevant prescribed body corporate for the purposes of Native Title Act – Whether appellants entitled to procedural rights in s 24MD(6B) of Native Title Act – Whether proposed grant of ML 29881 constitutes creation of right to mine for sole purpose of construction of infrastructure facility associated with mining pursuant to s 24MD(6B)(b) of Native Title Act – Whether definition of "infrastructure facility" in s 253 of Native Title Act exhaustive – Whether DSEA infrastructure facility.

Words and phrases – "associated with mining", "definition", "dredging", "exhaustive", "explanatory memorandum", "extrinsic materials", "future act", "includes any of the following", "infrastructure facility", "mine", "mineral lease", "mining", "mining lease", "mining operations", "mining tenement", "native title holders", "ordinary meaning", "right to mine", "right to negotiate", "sole purpose", "statutory interpretation".

Acts Interpretation Act 1901 (Cth) – s 15AB.

Mineral Resources (Sustainable Development) Act 1990 (Vic) – ss 4(1), 14(1).

Mineral Resources Act 1989 (Qld) – ss 234(1)(b), 316(2).

Mineral Resources Development Act 1995 (Tas) – ss 3, 84(1)(a), 106(1).

Mineral Titles Act 2010 (NT) – ss 11(1), 12(1), 40, 44, 74(2), 86, 148.

Mining Act 1971 (SA) – ss 6(1), 48(1).

Mining Act 1978 (WA) – ss 85(1)(d), 87(1).

Mining Act 1992 (NSW) – s 73(1)(c).

Native Title Act 1993 (Cth) – ss 24MD(6A), 24MD(6B), 26(1)(c)(i), 26(2), 226, 253.

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