Cases
Shahi v. Minister for Immigration and Citizenship
Case No.
M10/2011
Case Information
Catchwords
Plaintiff arrived by boat in May 2009 as an unaccompanied minor - an offshore entry person - granted a protection visa in September 2009 - plaintiff the proposer of Refugee and Humanitarian visa application for his mother and six other visa applicants - all visa applicants outside Australia - primary visa applicant was his mother - other visa applicants were secondary applicants - delegate of defendant made decision in May 2010 that two visa applicants (plaintiff's sister and her daughter) would be assessed separately from the other visa applicants - visa refused for those 2 applicants in July 2010 - other visa applicants also refused in December 2010 - whether jurisdictional error - whether relevant/irrelevant considerations - whether 'asking the wrong question' - whether excess of jurisdiction in respect of decision to separately assess.
Documents
27/01/2011 Application for an order to show cause
15/06/2011 Hearing (Single Justice, Melbourne)
17/06/2011 Special Case Stated
05/09/2011 Written submissions (Plaintiff)
05/09/2011 Chronology
14/09/2011 Written submissions (Defendant)
21/09/2011 Reply
26/09/2011 Hearing (Full Court, Adelaide)
14/12/2011 Judgment (Judgment summary)
PGA v. The Queen
Case No.
A15/2011
Case Information
Lower Court Judgment
23/12/2010 Supreme Court of South Australia (Court of Criminal Appeal)
(Doyle CJ, Gray J, White J)
Catchwords
Criminal law — Offences against the person — Sexual offences — Rape and sexual assault — Consent — Presumption of — Applicant charged in 2010 with rape, allegedly committed in 1963, against then wife — In 1963, s 48 of Criminal Law Consolidation Act 1935 (SA) ("Act") made person convicted of rape guilty of felony — Where elements of offence of rape in 1963 supplied by common law — Where South Australian Parliament amended s 48 of Act in 1976 — Whether common law of Australia in 1963 permitted husband to be found guilty of rape of his wife — Whether irrebuttable presumption of consent to sexual intercourse between married couples in 1963 — Effect of R v L (1991) 174 CLR 379 ("R v L") on common law in 1963 — Whether 1976 amendment to Act precludes subsequent amendment of common law position prevailing in 1963.
Criminal law — Appeal and new trial — Procedure — South Australia — Case stated and reservation of question of law — Whether common law of Australia in 1963 permitted husband to be found guilty of rape of his wife — Whether applicant can, as a matter of law, be convicted of counts of rape of his wife in 1963 — Act, s 350(2)(b).
Practice and procedure — Precedents — Development of common law — Prospective overruling — Whether common law recognises retrospective imposition of criminal liability absent statutory requirement — Whether change in common law effected by R v L to be applied retrospectively — Whether 1976 amendment to Act precludes subsequent amendment of common law position prevailing in 1963 — Acts Interpretation Act 1915 (SA), s 16.
Documents
08/06/2011 Hearing (SLA, Canberra)
21/06/2011 Notice of appeal
06/07/2011 Notice of Constitutional Matter (Appellant)
06/07/2011 Written submissions (Appellant)
06/07/2011 Chronology
27/07/2011 Notice of Contention
27/07/2011 Written submissions (Joint for the Respondent and Attorney-General for the State of South Australia intervening)
18/08/2011 Written submissions (Attorney-General of the State of Queensland intervening)
31/08/2011 Written submissions (Attorney-General of the Commonwealth of Australia intervening)
07/09/2011 Reply
27/09/2011 Hearing (Full Court, Adelaide)
30/05/2012 Judgment (Judgment summary)
Public Service Association of South Australia Incorporated v. Industrial Relations Commission of South Australia and Anor
Case No.
A7/2011
Case Information
Lower Court Judgment
15/03/2011 Supreme Court of South Australia (Doyle CJ, Duggan J, Vanstone J)
Catchwords
Administrative law — Judicial review — Grounds of review — Jurisdictional matters — Applicant notified two disputes in Industrial Relations Commission of South Australia ("Commission") — Commission at first instance and on appeal ruled it lacked jurisdiction to determine disputes — Section 206 of Fair Work Act 1994 (SA) ("Act") precludes review of Commission determinations unless "on the ground of an excess or want of jurisdiction" — Full Court of Supreme Court of South Australia ("Court") held it lacked jurisdiction to review Commission's determinations and dismissed summons for judicial review — Whether s 206 of Act precludes judicial review by Court of jurisdictional error not in "excess or want of jurisdiction" — Whether s 206 of Act beyond power of South Australian Parliament — Whether Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 impliedly overruled Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132.
Constitutional law — Commonwealth Constitution, Ch III — State Supreme Courts — Power of State Parliament to alter defining characteristic of Supreme Court of a State — Supervisory jurisdiction — Whether all jurisdictional errors of tribunals must be subject to review by the Supreme Court of a State — Whether s 206 of Act impermissibly limits Court's jurisdiction to exercise judicial review where jurisdictional error has occurred.
Industrial law — South Australia — Commission — Jurisdiction — Public servants — Disputes raised in Commission concerning "no forced redundancy" commitment, recreational leave loading and long service leave provisions in Enterprise Agreement — Whether Commission and Court erred in relation to jurisdiction.
Words and phrases — "on the ground of an excess or want of jurisdiction".
Documents
30/03/2011 Application for special leave to appeal
04/04/2011 Notice of constitutional matter (Applicant )
06/04/2011 Appearance (First Respondent, Submitting)
08/06/2011 Hearing (SLA, Canberra)
15/07/2011 Written submissions (Applicant)
15/07/2011 Chronology
22/07/2011 Written submissions (Attorney-General of the Commonwealth intervening)
08/08/2011 Written submissions (Second Respondent and Attorney-General for the State of South Australia intervening)
12/08/2011 Written submissions (Attorney-General for the State of Victoria intervening)
12/08/2011 Written submissions (Attorney-General for the State of Western Australia intervening)
12/08/2011 Reply
22/08/2011 Written submissions (Attorney-General of the State of Queensland intervening)
22/08/2011 Written submissions (Attorney-General for the State of Tasmania intervening)
29/08/2011 Reply to interveners (Appellant)
28/11/2011 Supplementary submissions (Second Respondent and Attorney-General for the State of South Australia)
29/11/2011 Hearing (Full Court, Canberra)
11/07/2012 Judgment (Judgment summary)
Tasty Chicks Pty Limited and Ors v. Chief Commissioner of State Revenue
Case No.
S218/2011
Case Information
Lower Court Judgment
Supreme Court of New South Wales (Court of Appeal)
(Giles JA, Macfarlan JA, Handley AJA)
Catchwords
Statutes — Acts of Parliament — Interpretation — Taxation and duties — Appeal and new trial — Powers of court — Substituted verdict or judgment — Section 97 of Taxation Administration Act 1996 (NSW) ("Act") allows taxpayer to apply to Supreme Court for review of decision of Chief Commissioner the subject of an objection — Section 97(4) of Act provides review by Supreme Court taken to be an appeal for purposes of Supreme Court Act 1970 (NSW) — Commissioner issued payroll tax assessments grouping first and second applicants with partnership and other companies —Commissioner disallowed applicants' objections — Applicants sought review by Supreme Court pursuant to s 97 of Act — Trial judge re-exercised discretion under de-grouping provisions and, contrary to Commissioner, held first and second applicants should be de-grouped — Court of Appeal held review under s 97 of Act an appeal in ordinary sense meaning Court not entitled to re-exercise discretion under de-grouping provisions and substitute its decision for that of Commissioner — Whether appeal instituted in Supreme Court pursuant to s 97 of Act an appeal by way of hearing de novo — Whether applicants required to prove that determination of Commissioner under review pursuant to s 97 of Act attended by error — Whether Avon Downs v Pty Limited v FCT (1949) 78 CLR 353 and House v The King (1926) 55 CLR 499 apply in proceedings under s 97 of Act in respect of Court's review of discretionary determination made by Commissioner — Affinity Health Pty Limited v Chief Commissioner of State Revenue (2005) 205 ATC 4637 — Act, ss 96 and 97 — Supreme Court Act 1970 (NSW), ss 19(2) and 75A.
Words and phrases — "appeal", "review".
Documents
10/06/2011 Hearing (SLA, Sydney)
22/06/2011 Notice of appeal
08/07/2011 Written submissions (Appellants)
08/07/2011 Chronology
29/07/2011 Written submissions (Respondent)
02/08/2011 Reply
08/09/2011 Hearing (Full Court, Canberra)
05/10/2011 Judgment (Judgment summary)
Australian Securities and Investments Commission v. Shafron
Australian Securities and Investments Commission v. Terry
Australian Securities and Investments Commission v. Hellicar
Australian Securities and Investments Commission v. Brown
Australian Securities and Investments Commission v. Gillfillan
Australian Securities and Investments Commission v. Koffel
Australian Securities and Investments Commission v. O’Brien
Australian Securities and Investments Commission v. Willcox
Case Nos.
S174/2011 to S181/2011
Related matter:
Case Information
Lower Court Judgment
17/12/2010 Supreme Court of New South Wales (Court of Appeal)
Catchwords
Corporations — Management and administration — Evidence — Misleading announcement sent to Australian Stock Exchange ("ASX") — At trial, Australian Securities and Investments Commission ("ASIC") failed to call solicitor ("Mr Robb") advising James Hardie Industries Ltd ("JHIL") who attended meeting of Board of Directors — Trial judge made adverse findings and declarations of contravention against first to eighth respondents — Whether ASIC obliged to call particular witnesses pursuant to obligation of fairness — Whether ASIC failed to discharge burden of proving that JHIL Board passed Draft ASX Announcement resolution — Whether ASIC obliged to call Mr Robb to give evidence of firm's receipt of Draft ASX Announcement — Whether ASIC's failure to comply with obligations, if extant, had negative evidentiary impact on ASIC's case — Whether certain oral evidence of respondents Brown and Koffel ought to have been accepted as correlating with terms of Draft ASX Announcement — Whether ASIC failed to prove that JHIL Board passed resolution approving tabled ASX Announcement — Whether of evidentiary significance that company associated with respondent O'Brien produced to ASIC identical version of Draft ASX Announcement — Whether evidence of JHIL company secretary that practice of retaining versions of announcements approved for market release did not relate to period of release of misleading announcement — Whether reliability and weight to be attributed to Board minutes open to question — Whether declarations of contravention made in respect of first to eighth respondents should be set aside — Whether, in respect of Shafron cross-appeal: Shafron was an officer of JHIL who participated in decisions affecting the business of JHIL; Shafron's responsibilities as company secretary and general counsel fell within scope of duty of care and diligence imposed on him as an "officer" by s 180(1) of Corporations Law and Corporations Act 2001 (Cth) ("Acts"); Shafron's conduct was in his capacity as JHIL company secretary; Shafron breached s 180(1) of the Acts.
Documents
13/05/2011 Hearing (SLA, Sydney)
25/05/2011 Notice of appeal
17/06/2011 Written submissions (Appellant)
17/06/2011 Annexure to submissions - annotated minutes of JHIL Board Meeting of 15 February 2001
17/06/2011 Annexure to submissions - Appellant's correlation evidence
17/06/2011 Annexure to submissions - Appellant's dramatis personae
17/06/2011 Chronology (Appellant)
20/07/2011 Written submissions (Respondent - Shafron)
20/07/2011 Written submissions (Respondent - Terry)
20/07/2011 Written submissions (Respondents - Hellicar, Brown, Gillfillan & Koffel)
20/07/2011 Annexure to submissions - respondents' aides memoir
20/07/2011 Written submissions (Respondent - O'Brien)
20/07/2011 Written submissions (Respondent - Willcox)
09/08/2011 Amended Chronology (Appellant)
12/08/2011 Reply (Shafron)
12/08/2011 Reply (Terry)
12/08/2011 Reply (Hellicar, Brown, Gillfillan & Koffel)
12/08/2011 Reply (O'Brien)
12/08/2011 Reply (Willcox)
24/10/2011 Hearing (Single Justice, Canberra)
25/10/2011 Hearing (Full Court, Canberra)
26/10/2011 Hearing (Full Court, Canberra)
27/10/2011 Hearing (Full Court, Canberra)
03/05/2012 Judgment (Judgment summary)