Full Court Matters - May 2001


(Other than Applications for Special Leave to Appeal)

COMMENCING 1 MAY 2001


WONG v. THE QUEEN (S193/2000)

LEUNG v. THE QUEEN (S198/2000)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 16 December 1999

Date of grant of special leave: 4 August 2000


On 8 November 1997 the appellants were arrested in Sydney and charged with being knowingly concerned in the importation of a quantity of heroin in contravention of s233B of the Customs Act 1901 (Cth) ("the Act"). On 7 September 1998, the appellants were convicted by a jury in the District Court and were each sentenced to a period of twelve years imprisonment with a non?parole period of seven years.

The appellants appealed against their conviction. By judgment of 15 September 1999 that appeal was dismissed by the Court of Criminal Appeal.

On 24 February 1999 the Acting Commonwealth Director of Public Prosecutions gave notice of intention to appeal against the sentence imposed on the appellants on the grounds that they were manifestly inadequate. Prior to the hearing of the appeals, the Director gave notice that he sought a "guidelines judgment" in relation to offences under s233B of the Act. In support of his submissions in relation to a guideline judgment, the Director submitted a bundle of material to the Court relating to the prevalence of offences under s233B, approaches to sentencing adopted in other jurisdictions, an analysis of sentences imposed in other Australian States and Territories and an analysis of sentences imposed for various contraventions of s233B in New South Wales courts. The appellants challenged the jurisdiction of the Court to issue a guideline judgment.

On 16 December 1999 the Court of Criminal Appeal, constituted by five justices, upheld the Crown appeals, holding that the sentences imposed by the trial judge were manifestly inadequate. The sentences of each appellant were quashed; in lieu thereof the Court imposed a period of fourteen years imprisonment with a non?parole period of nine years.

The Court promulgated a sentencing guideline. Simpson J expressed reservations concerning the suitability of the cases before the Court to provide the foundation for a guideline judgment in relation to couriers and persons low in the hierarchy of an importing organisation, on the basis that the two appellants could only be characterised as major participants.

The grounds of appeal include:

  • The promulgation and application of comprehensive quantitative guidelines for sentencing offenders under s233B(1)(d) of the Customs Act 1901 (Cth) –

(1) was not authorised by s5D or any other provision of the Criminal Appeal Act 1912 (NSW); and

(2) did not constitute an exercise of the judicial power of the Commonwealth within Chapter III of the Constitution and was therefore beyond the power of the Court in the exercise of federal jurisdiction;

and ss68 or 79 of the Judiciary Act 1903 did not operate to apply that provision or those provisions of the Criminal Appeal Act 1912 (NSW) in the proceedings.

  • The law of the State purporting to confer jurisdiction on the Court of Criminal Appeal to promulgate and apply the comprehensive quantitative guidelines in the circumstances of the case was inconsistent with s16A of the Crimes Act 1914 and/or s235 of the Customs Act 1901 within the meaning of s109 of the Constitution and to that extent invalid and would not be rendered applicable by ss68 or 79 of the Judiciary Act 1903.

ROXBOROUGH & ORS v. ROTHMANS OF PALL MALL AUSTRALIA LIMITED (S199/2000)

Court appealed from: Full Court of the Federal Court of Australia

Date of judgment: 11 November 1999

Date of grant of special leave: 4 August 2000


This appeal arises out of a determination made on 5 August 1997 in Ha v. State of New South Wales (1997) 189 CLR 465 ("Ha's case") that the Business Franchise Licences (Tobacco) Act 1987 (NSW) ("the Act") was invalid as imposing a duty or duties of excise. In the result, it was no longer necessary for either wholesalers or retailers of tobacco products to be licensees under the Act or to pay licence fees which the Act purported to impose as part of the licensing scheme.

In 1997 each of the appellants was a tobacco retailer licensed under the Act. The respondent was a tobacco wholesaler licensed under the Act. The effect of the contractual relationship between the appellants and the respondent was that the licence fees which the respondent was liable to pay each month were borne by the appellants. During the period between 1 July 1997 and 5 August 1997 the respondent sold tobacco products to each appellant. In respect of each sale the respondent issued a standard form invoice which separately identified the sales sub total and the tobacco licence fee. The sum of these was identified as the net total and each appellant paid the net total of each invoice to the respondent.

The issue in the Federal Court proceedings was whether the appellants or the respondent should receive the benefit of the windfall that arose in consequence of the decision in Ha's case. The appellants relied on several distinct bases for recovery of the amounts paid to the respondent as tobacco licence fee. (They now pursue recovery of the amounts paid on four bases only.) The proceedings were dismissed at first instance. An appeal to the Full Federal Court was dismissed by majority. Gyles J, dissenting, concluded that there had been a total failure of consideration in respect of the amount paid for tobacco licence fee and that that was sufficient to dispose of the matter.

The grounds of appeal include:

  • The majority erred in failing to hold that it was an express or alternatively an implied term of the contract between each appellant and the respondent that, in consideration of the appellant paying to the respondent the amount identified in each invoice as "TOBACCO LICENCE FEE". The respondent would pay the said amount as licence fee under the Business Franchise Licences (Tobacco) Act 1987 (NSW) ("the Act"); and
  • The majority erred in failing to hold that each appellant was entitled to recover from the respondent as moneys had and received the amount identified in each invoice as "TOBACCO LICENCE FEE" paid to the respondent by the appellant on the basis of total failure of consideration.

CHEUNG v. THE QUEEN (S200/2000)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 17 December 1999

Date of grant of special leave: 4 August 2000

Following conviction, the appellant was sentenced on 6 August 1993 to life imprisonment. In February 1999 he filed an application for leave to appeal against sentence. The application was some years out of time. The appellant had filed a Notice of Appeal within time, but the grounds did not include an application for leave to appeal against sentence. (It was the appellant's belief that the original Notice of Appeal did in fact contain an application for leave to appeal against sentence.)

The Crown had put its case to the jury on two bases:

(1) The evidence of an informant against the appellant as corroborated (the more serious factual scenario); or

(2) The corroborative and circumstantial evidence standing alone without the evidence of the informant (the less serious factual scenario).

The trial judge having carefully reviewed the evidence in the trial, found, as a fact, that the Crown had made out the first case. No request was made of the trial judge at any time that the jury should be asked whether it was the wider or the narrower factual basis which sustained their verdict.

In the application for leave to appeal against sentence, the primary ground of appeal relied on was that the trial judge should have asked the jury whether they found the appellant guilty on the Crown's primary case or the alternative. Newman J said that if such a power does exist in relation to crimes other than manslaughter the exercise of power is discretionary. He found that the trial judge correctly carried out his sentencing function. Simpson and Hidden JJ agreed, finding that it fell to the trial judge to find the facts for the purpose of sentence and it was open to his Honour to arrive at the conclusions he did.

Because of the seriousness of the matter and the appellant's false belief as to what was contained in the original Notice of Appeal, the Court granted leave to appeal, but dismissed the appeal.

The grounds of appeal are:

  • The Court erred in holding that the Judge at first instance had correctly applied the law in not asking the jury a question to attempt to understand which of two alternative Crown cases had been the basis of their verdict; and
  • The Court erred in rejecting a submission that the Judge at first instance had taken an approach to the factual basis for sentence which failed to ensure consistency with the verdict of the jury, and encroached upon his right to trial by jury.

* * * * * * * * *


Full Court Matters

(Other than Applications for Special Leave to Appeal)

COMMENCING 22 MAY 2001


CHEUNG v. THE QUEEN (S200/2000)

Court appealed from: NSW Court of Criminal Appeal

Date of judgment: 17 December 1999

Date of grant of special leave: 4 August 2000

Following conviction, the appellant was sentenced on 6 August 1993 to life imprisonment. In February 1999 he filed an application for leave to appeal against sentence. The application was some years out of time. The appellant had filed a Notice of Appeal within time, but the grounds did not include an application for leave to appeal against sentence. (It was the appellant's belief that the original Notice of Appeal did in fact contain an application for leave to appeal against sentence.)

The Crown had put its case to the jury on two bases:

(1) The evidence of an informant against the appellant as corroborated (the more serious factual scenario); or

(2) The corroborative and circumstantial evidence standing alone without the evidence of the informant (the less serious factual scenario).

The trial judge having carefully reviewed the evidence in the trial, found, as a fact, that the Crown had made out the first case. No request was made of the trial judge at any time that the jury should be asked whether it was the wider or the narrower factual basis which sustained their verdict.

In the application for leave to appeal against sentence, the primary ground of appeal relied on was that the trial judge should have asked the jury whether they found the appellant guilty on the Crown's primary case or the alternative. Newman J said that if such a power does exist in relation to crimes other than manslaughter the exercise of power is discretionary. He found that the trial judge correctly carried out his sentencing function. Simpson and Hidden JJ agreed, finding that it fell to the trial judge to find the facts for the purpose of sentence and it was open to his Honour to arrive at the conclusions he did.

Because of the seriousness of the matter and the appellant's false belief as to what was contained in the original Notice of Appeal, the Court granted leave to appeal, but dismissed the appeal.

The grounds of appeal are:

  • The Court erred in holding that the Judge at first instance had correctly applied the law in not asking the jury a question to attempt to understand which of two alternative Crown cases had been the basis of their verdict; and

The Court erred in rejecting a submission that the Judge at first instance had taken an approach to the factual basis for sentence which failed to ensure consistency with the verdict of the jury, and encroached upon his right to trial by jury.

 

RE THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS;

EX PARTE LU (M42/2000)

Order Nisi granted: 10 August 2000

The applicant ("Lu") is a citizen of Vietnam who arrived in Australia in 1982 with his family. He was granted a permanent entry permit. In 1990 Lu was involved in a number of criminal offences. In 1991 Lu and his co-offenders were sentenced in the NSW District Court. The sentencing judge imposed a term of six and a half years and recommended that Lu be deported. In 1992 the NSW Court of Appeal varied Lu's sentence by quashing the recommendation of deportation.

The Migration Act 1958 (Cth) ("the Act") was amended in December 1992 by the Migration Reform Act 1992 and then by the Migration (Offences and Undesirable Persons) Amendment Act 1992. The commencement date of both these Acts was ultimately fixed to be 1 September 1994. In June 1997 a delegate of the respondent ("the Minister") ordered that Lu be deported under s200 of the Act. Lu sought review of the deportation order from the Administrative Appeals Tribunal ("the AAT"). In October 1997 Lu was released from prison on parole. In June 1998 the AAT set aside the deportation order. The Minister appealed to the Federal Court, but this was later discontinued, after the Full Federal Court had delivered judgment, on 17 July 1998, in The Minister for Immigration and Multicultural Affairs v. Gunner ("Gunner's case"). The Full Court in Gunner's case did not question that the Minister, having ordered deportation of a permanent resident for criminal conduct under ss200, 201 of the Act, could thereafter cancel the permanent visa under (the former) s501 on the AAT setting aside the initial deportation order.

On 19 October 1998 the Minister made three decisions regarding Lu: (a) that Lu was not of good character; (b) to cancel Lu's visa; and (c) to include a certificate that Lu was an "excluded person". Lu has been detained as an unlawful non-citizen since November 1998.

Lu sought review in the Federal Court under Part 8 of the Act. Drummond J dismissed the application. Lu appealed unsuccessfully to the Full Court. Lu applied for special leave to appeal to the High Court. He also sought prerogative relief in respect of those decisions of the Minister. On 23 June 2000, Hayne J directed that the application for orders nisi be made by Notice of Motion to a Full Court, to be heard together with the application for special leave to appeal. On 10 August 2000 the Full Court dismissed the application for special leave, but granted the order nisi.

The issue to be determined is whether the decisions of the Minister are void so that a writ of prohibition, or an injunction, should issue to prevent the Minister acting on them or a writ of certiorari issue to quash the decisions. Lu contends that the documents before the Minister at the time he made his decision contained errors, omitted relevant facts and failed to draw the Minister's attention to issues raised on the documents. Lu also contends that the decision involved an unreasonable exercise of power in a way that represented an abuse of power.

Since the order nisi was granted by the High Court, the Full Court of the Federal Court has held (in Singh v. Minister for Immigration and Multicultural Affairs [2000] FCA 1426) that an excluded person certificate decision expressed in the form of the a certificate made by the Minister personally (in the same form as in the present case) does not constitute a valid certificate. The Minister contends that as a result of Singh's case, Lu is entitled to seek a merits review in the AAT of the Minister's decision to cancel his visa and that Lu should now be pursuing that right rather than continuing the High Court proceedings. The Minister has filed a Notice of Motion seeking that Lu's application be dismissed in the exercise of this Court's discretion.

 

 

ALLAN v. TRANSURBAN CITY LINK LIMITED (M90/2000)

Court appealed from: Full Federal Court

Date of judgment: 10 December 1999

Date special leave granted: 8 September 2000

In January 1996 the Development Allowance Authority (the "DAA") granted infrastructure borrowing certificates to the respondent ("Transurban") under Chapter 3 of the Development Allowance Authority Act 1992 (Cth) ("the DAA Act") in respect of the Melbourne City Link project. These certificates are in effect "tax incentives". City Link is a large tollway that involved the widening and connection of the Tullamarine and South-Eastern Freeways. Chapter 3 of the DAA Act includes s93O(2), which states that the DAA must not issue a certificate if there is a law in force which restricts the operation of other facilities in competition with the project. The appellant ("Allan") contends that the Melbourne City Link Act 1995 (Vic) is such a law, but this question has not yet been determined.

In January 1996 Allan and his family lived near the Tullamarine Freeway and anticipated that City Link would adversely affect their residential amenity. In March 1996 Allan requested the DAA to reconsider its decision. Following submissions from Allan and Transurban, DAA declined the request because it concluded that Allan was not "a person who is affected" by the decision as required under s119(1) of the Act. Allan applied to the Administrative Appeals Tribunal ('the AAT") for review. At a directions hearing the DAA raised preliminary objections on a number of grounds including lack of standing and that the DAA decision was non-reviewable. Transurban sought leave to make submissions at this point, but leave was refused by the AAT until jurisdictional issues were resolved. Transurban did not challenge this ruling and made no further attempt to take part in the proceedings. The AAT accepted it had jurisdiction to determine whether Allan had standing. The AAT in November held that the DAA's decision was reviewable but that Allan lacked standing.

Meanwhile, concerned at the imminent construction of City Link, Allan purchased a home further from the project in September 1996, sold his own home in November and moved in January 1997. Allan appealed unsuccessfully to the Federal Court. He then appealed to the Full Court, which allowed his appeal and remitted the matter to the AAT. Transurban then wrote to the AAT requesting to be joined as a party; Allan consented. At the directions hearing in May 1998, Transurban raised the fact that Allan had moved house and sought that his application be dismissed for want of standing because of this. At the hearing of the preliminary issues, Transurban and DAA then argued that Allan lacked standing because he could not gain anything personally by winning. The AAT dismissed the application for lack of standing.

Allan appealed to the Federal Court. Merkel J allowed the appeal, holding that Allan's change of address was irrelevant because standing was to be determined at the time Allan requested DAA to reconsider its decision.

Transurban appealed to the Full Court, which allowed the appeal. The Full Court found that the interest which Allan claimed was too remote.

The grounds of appeal include:

The Full Court erred by:

  • holding that the appellant would not have standing at common law unless he could show that he would gain something personally by a successful review of the decision he wishes to challenge;
  • holding that the appellant would not have standing under the Administrative Appeals Tribunal Act 1975 (Cth) and/or the Development Allowance Authority Act 1992 (Cth) unless he could show that he would gain something personally by a successful review of the decision he wishes to challenge; and
  • holding that the appellant's interest in the threat to his local environment and his residential amenity occasioned by the Melbourne City Link project was too remote from the decision he wishes to review.

SMITH v. THE QUEEN (S233/2000 and S234/2000)

Court appealed from: Supreme Court of NSW, Court of Criminal Appeal

Date of judgment: 21 October 1999

Date of grant of special leave: 8 September 2000

The issue raised by this appeal is whether evidence should be permitted to be given by people who were not witnesses to an offence, of their identification of people depicted in photographs taken at the time of the offence.

The appellant was tried before a judge and jury in the District Court on a charge of robbery in company. He was convicted and given a custodial sentence.

The Crown case was that at about 12.25 pm on 26 June 1997, four males entered the National Australia Bank at Caringbah and took the sum of $16,600, the property of the National Australia Bank. Still pictures were developed and enlarged from the bank's security camera film. Photographs depicted a male standing near the door dressed in a hooded jacket. Police officers viewed some of the photographs and identified the appellant as the person near the door. Police later showed bank employees and other witnesses of the robbery a video compilation of male faces, including the appellant, but none identified the appellant.

An application was made at the trial that the probative value of the identification evidence was weakened by its prejudicial effect. Further, the appellant relied upon s76 of the Evidence Act 1995 ("the Act"), submitting that the police officers concerned were really giving lay opinion evidence and that s78 of the Act did not render it admissible. The trial judge was not persuaded that the prejudicial effect of the identification evidence outweighed its probative value and proceeded on an assumption that even if the evidence of recognition could be classified as opinion evidence, it fell within the exception provided by s78.

The Court of Criminal Appeal held that the evidence given by police officers was not evidence of an opinion. The Court further held that it was well open to the trial judge to conclude that the probative value of the police evidence about the photographs outweighed the danger of unfair prejudice to the applicant.

The ground of appeal is:

  • The Court of Criminal Appeal of New South Wales erred in determining that evidence of identity could be presented to the jury by persons who claimed to know the appellant examining photographs of the offence.

FROST & ORS v. WARNER (S195/2000)

Court appealed from: Supreme Court of NSW, Court of Appeal

Date of judgment: 24 November 1999

Date of grant of special leave: 4 August 2000

On 8 January 1990 forty-nine people boarded the 36 foot motor boat, "N'Gluka", at the Soldier's Point Marina. Dennis Warner, the respondent's husband, was in control of the boat at all material times. The respondent was the holder of the certificate of registration of the vessel under Regulation 11 of the Water Traffic Regulations (NSW) as then in force. The weather was fine and the sea was calm. The vessel cruised on Port Stephens to a restaurant. The people on the boat disembarked, had lunch, and reboarded the vessel to return to the Marina. It was on that voyage that the vessel lost stability and sank. Five children in a forward cabin were unable to get out and drowned.

The appellants sued the respondent and Mr Warner for damages. At trial, the judge found that the vessel would have righted itself, but for the fact that it was grossly and dangerously overloaded with the result that it had a very poor reserve of stability. His Honour found that Mr Warner was negligent. His Honour further found that the respondent, as the holder of the certificate of registration in respect of a motor vessel which sank in consequence of the negligence of Mr Warner, was vicariously liable for his negligence and that she was liable for personal negligence. The findings against the respondent were based on her being the registered controller of the vessel.

The respondent appealed against the findings of the trial judge that she was liable for the negligent acts of her husband and that she was negligent as a result of her own acts or omissions. (The finding that Mr Warner was negligent was not appealed.) The Court of Appeal found that the respondent's being the holder of the certificate of registration did not give rise to a personal duty of care any more than it made her liable for the negligence of Mr Warner.

The grounds of appeal are:

  • The Court of Appeal erred in holding that the respondent was not responsible, by virtue of her position as holder of the Certificate of Registration of the vessel, "N'Gluka", under the Water Traffic Regulations (NSW) as being in force, for the negligence of Dennis Warner; and
  • The Court of Appeal erred in holding that the respondent did not hold a duty of care to the appellants which included a duty to prevent the vessel from sailing while it was dangerously overloaded.

VELEVSKI v. THE QUEEN (S197/2000)

Court appealed from: New South Wales Court of Criminal Appeal

Date of judgment: 10 May 1999

Date of grant of special leave: 4 August 2000

The bodies of the appellant's wife Snezana, his daughter aged six and his twin daughters aged three and a half months were found by the police in the afternoon of 20 June 1994 at the appellant's residence in a suburb of Wollongong. All had had their throats cut. A knife was found which was capable of inflicting the wounds and being the relevant weapon.

The appellant was charged with their murder. There was no doubt that whoever killed the appellant's wife also murdered his children. A prominent issue at the trial was whether the Crown had excluded any possibility that Snezana had killed the children and then committed suicide. (No-one contended, as obviously it could not be, that the three children were other than victims of murder.)

The Crown case at the trial fell into two parts: the circumstantial case; and, the medical case. It was common ground that the medical evidence was not sufficient to convict the appellant. (The trial judge so instructed the jury.) Each of the forensic pathologists who testified, even those who believed that Snezana had been murdered, acknowledged the possibility that she may have committed suicide. The Crown identified a number of circumstances said to be incriminating. When added to the medical evidence they were enough, so it was said, to exclude any reasonable hypothesis other than guilt.

After a trial extending almost two months, the appellant was convicted on four counts of murder.

The principal ground of appeal relied on was that the verdict was unsafe and unsatisfactory. The appeal was dismissed by majority. David Kirby J, dissenting, would have set aside the jury's verdict on the grounds that it was unreasonable. His Honour found that a miscarriage of justice was caused by the imbalance in the medical evidence adduced in the prosecution case. His Honour said "[t]he jury ought to have had a reasonable doubt as to the guilt of the accused".

The grounds of appeal are:

  • The majority of the Court of Criminal Appeal erred in holding that no miscarriage of justice was caused by the failure of the Crown to call as witnesses Professors Hilton and Botterill and Drs Lawrence and Duflou.
  • The majority of the Court of Criminal Appeal erred in failing to hold that a miscarriage of justice was caused by the admission of inadmissible evidence from the medical witnesses called by the prosecution;
  • The Court of Criminal Appeal erred in holding that the trial judge did not err in his directions to the jury on lies; and
  • The majority of the Court of Criminal Appeal erred in holding that the verdicts of the jury were not unreasonable.

FLANAGAN v. HANDCOCK (S258/2000)

Court appealed from: Full Court of the Family Court

Date of judgment: 17 November 1999

Date of grant of special leave: 13 October 2000

This appeal involves two issues: the jurisdiction of the Family Court under the provisions of the Child Support (Assessment) Act 1989 (Cth); and, whether the paramountcy of the best interests of the child principle applies in respect of injunctions sought under s68B(1) of the Family Law Act 1975 (Cth) after the 1995 amendments to that Act.

The appellant (Mr Flanagan) and the respondent (Mrs Handcock) are the parents of twin daughters born 18 April 1996. They lived in a de facto relationship from mid 1992 to mid 1996. The children have lived with Mrs Handcock since the parents separated, but have had contact with Mr Flanagan.

Shortly after separation, Mrs Handcock applied for and obtained an administrative assessment for child support to be payable by Mr Flanagan. There has been a significant amount of litigation about that original, and subsequently issued, child support assessments.

On 30 November 1998, Judicial Registrar Johnston heard child support proceedings between Mr Flanagan and Mrs Handcock. He delivered his decision on 29 January 1999.

Mr Flanagan filed an application on 8 February 1999 seeking to review the orders of Johnston JR and he also filed an application on 15 March 1999 seeking to injunct Mrs Handcock from using the surname "Handcock" for the children.

The applications came before Rose J on 12 May 1999. The outcome of the proceedings was that his Honour made some adjustments to the figures arrived at by Johnston JR, but otherwise dismissed the review application and the application for an injunction.

Mr Flanagan sought leave to appeal the orders made in relation to child support by Rose J and appealed against the order made by Rose J on the same date dismissing his application for an injunction. On 2 March 2000 the Full Court dismissed the application for leave to appeal and the appeal. In relation to the leave to appeal, the Full Court (by majority) found that there was no error of principle nor any substantial injustice to Mr Flanagan demonstrated. Finn J, dissenting, would have granted leave to appeal and would have allowed the appeal in relation to the order which applied to the years 1998/1999 and 1999/2000. In relation to the appeal from the order of

Rose J dismissing Mr Flanagan's application for an injunction, the Court noted that the decision of Rose J was an exercise of judicial discretion and appellate courts will only interfere with such an exercise within certain well defined limits.

The grounds of appeal include:

Part A "The Application for Review"

  • Kay and Holden JJ were mistaken as to the law in their separate Reasons for Judgment because:

(1) Kay and Holden JJ erred by failing to consider that the only application before the trial judge, Rose J, was for a decrease. (Johnson and Johnson (1998) 24 Fam LR.); and

(2) Kay and Holden JJ erred by failing to consider that the trial judge had

failed to inform the applicant that he was reviewing any other years

other than the 1997 and 1998 Child Support Years. (Johnson and Johnson (1998) 24 Fam LR.);

  • Finn and Kay and Holden JJ erred in their respective Reasons for Judgment, by failing to consider that:

(1) The trial judge had erred by failing to correct arithmetic errors made by Judicial Registrar Johnston in the Reasons for Decision dated 29 January 1999.

(2) The trial judge had erred by accepting as evidence from the respondent, Exhibit 1 "Weekly Costs – A... and C...", during the course of the proceedings and without adequate substantiation.

Part B "The Application for Injunction"

  • Finn J was mistaken as to the law in her separate reasons for judgment. Her Honour erred in coming to the conclusion that decisions, prior to the decision of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and prior to the substantial rewriting of Part VII of the Act, must carry little authority in determining an application for an injunction in relation to the use of a particular name for a child;
  • Kay and Holden JJ were also mistaken in considering that the discretion of the trial judge had not miscarried and that the trial judge was not mistaken as to the law by considering that:

(1) The paramountcy principle although relevant was not decisive in determining an application for an injunction in relation to the use of a particular name for a child; and

(2) The decision of the trial judge was only an exercise in discretion in an application for an injunction in relation to the use of a particular name for a child.

The respondent has filed a notice of motion seeking a revocation of the grant of special leave or, in the alternative, the revocation of part of the grant of special leave. The respondent contends that the grant should have been limited to the issue of the injunction.