http://jade.barnet.com.au AU - High Court of Australia Sat, 19 May 2012 00:45:01 EST Sat, 19 May 2012 00:45:01 EST Statutes Acts of Parliament Interpretation Presumptions as to legislative intention Presumption against retrospective operation Full Federal Court of Australia held that registration of Australian Principals Federation ("APF") under Workplace Relations Act 1996 (Cth) ("WR Act") invalid because of absence of "purging rule" terminating membership of organisation of persons no longer entitled to be members WR Act renamed Fair Work (Registered Organisations) Act 2009 (Cth) and s 26A inserted validating purported registrations made invalid because of absence of purging rule Whether s 26A operated to validate registration of APF. Constitutional law (Cth) Judicial power of Commonwealth Constitution, Ch III Whether s 26A in substance dissolved or reversed the orders of the Full Federal Court Whether s 26A impermissibly usurped or interfered with exercise of Commonwealth judicial power Whether s 26A invalid. Words and phrases "registered organisation", "retrospective operation", "usurpation of judicial power". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=264316 Fri, 04 May 2012 00:00:00 GMT Constitutional law (Cth) Judicial power of Commonwealth Constitution, Ch III Sentencing and parole procedure Whether determination made under s 13A of Sentencing Act 1989 (NSW) is a "matter" within s 73 of Constitution Whether s 154A of Crimes (Administration of Sentences) Act 1999 (NSW) invalid for setting aside, varying, altering or otherwise stultifying a judgment, decree, order or sentence of Ch III court. Words and phrases "parole", "sentencing". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=264317 Fri, 04 May 2012 00:00:00 GMT Corporations Duties and liabilities of directors and officers Section 180(1) of the Corporations Act 2001 (Cth) ("the Act") required directors and officers of a corporation to discharge duties with degree of care and diligence that reasonable person in their position and with their responsibilities would exercise "Officer" defined in s 9 of the Act Paragraph (a) of definition provided that secretary of a corporation is an "officer" Paragraph (b)(i) of definition provided that person who "participates in making" decisions that substantially affect business of corporation is an "officer" Appellant was company secretary and general counsel of corporation Whether appellant participated in making decisions substantially affecting business of corporation Whether s 180(1) applied to all tasks that officer of corporation performed within that corporation Whether responsibilities of company secretary and general counsel divisible How scope of "responsibilities within the corporation" of an officer to be determined. Words and phrases "in the capacity of", "occupied the office held by", "officer", "participate in making", "real contribution", "responsibilities within the corporation". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=264250 Thu, 03 May 2012 00:00:00 GMT Corporations Duties and liabilities of directors and officers Contraventions of civil penalty provisions of Corporations Act 2001 (Cth) ("the Act") Corporation released misleading announcement to Australian Stock Exchange ("ASX") Australian Securities and Investments Commission ("ASIC") brought proceedings against respondents (and others) for contraventions of the Act Section 180(1) of the Act required directors and officers to act with degree of care and diligence that reasonable person in that position would exercise ASIC alleged directors contravened s_180(1) by approving draft announcement not materially different from misleading announcement released to ASX ASIC alleged company secretary and general counsel of corporation contravened s 180(1) by not advising board that draft announcement was misleading Whether directors approved draft announcement. Evidence ASIC tendered minutes of board meeting recording tabling and approval of draft ASX announcement Minutes subsequently approved ASIC did not call corporation's solicitor, who had supervised preparation of draft minutes and attended board meeting Whether ASIC owed respondents a "duty of fairness" in its conduct of litigation Whether ASIC breached putative duty by not calling solicitor Whether proper consequence of any such breach was to discount cogency of ASIC's case Whether board minutes sufficient evidence to prove directors' approval of draft announcement. Words and phrases "cogency of proof", "duty of fairness", "obligation of fairness", "onus of proof", "satisfaction on the balance of probabilities". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=264257 Thu, 03 May 2012 00:00:00 GMT Intellectual property Copyright Infringement Authorisation Appellants owners and exclusive licensees of copyright in commercially released films and television programs ("appellants' films") Respondent internet service provider supplied internet services under agreement requiring that services not be used to infringe others' rights or for illegal purposes Users of respondent's internet services infringed copyright in appellants' films by making appellants' films available online using BitTorrent peer-to-peer file sharing system Notices served on respondent alleging copyright infringement by users of respondent's internet services Respondent took no action in response to notices Whether respondent authorised infringement of copyright in appellants' films by users of respondent's internet services. Words and phrases "authorise". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=263754 Fri, 20 Apr 2012 00:00:00 GMT Criminal law Evidence Admissibility of evidence about DNA analysis Appellant convicted of murder Expert gave evidence at trial about mitochondrial DNA testing of hair found on deceased's thumbnail Expert's statistical evidence given in form of frequency ratio and exclusion percentage Whether evidence of exclusion percentage relevant given evidence of frequency ratio Whether probative value of evidence of exclusion percentage outweighed by danger of unfair prejudice to appellant Whether evidence of exclusion percentage misleading or confusing. Evidence Judicial notice Argument for general rule that evidence of exclusion percentage is always inadmissible due to danger of unfair prejudice Facts underpinning adoption of general rule not proved Whether judicial notice can be taken of psychological research said to support adoption of general rule. Words and phrases "evidence", "exclusion percentage", "frequency ratio", "judicial notice", "misleading or confusing", "unfair prejudice". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=263678 Wed, 18 Apr 2012 00:00:00 GMT Constitutional law (Cth) Operation and effect of Constitution Freedom of interstate trade, commerce, and intercourse Validity of fees imposed for use of NSW race field information Practical effect of fee structure Prejudice upon trade and not upon particular traders Competitive disadvantage Whether Racing Administration Act 1998 (NSW), s 33A(2) must be read as not authorising provisions in Racing Administration Regulation 2005 (NSW) obnoxious to s 92 of Constitution Whether demonstrating greater financial impact on appellant relative to competitors sufficient to establish protection of intrastate trade from interstate competition. Words and phrases "competitive disadvantage", "discrimination", "protectionism". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=263021 Fri, 30 Mar 2012 00:00:00 GMT Constitutional law (Cth) Operation and effect of Constitution Freedom of interstate trade, commerce, and intercourse Approval of use of NSW race field information for fee on wagering turnover Practical effect of imposition of fee Connection between location of wagering operator business and turnover of that business Prejudice upon trade and not upon particular traders Whether power of approval under Racing Administration Act 1998 (NSW), s 33A confined by positive rule that trade and commerce between Territories and States shall be absolutely free Whether legislation granting power of approval imposed discriminatory restraints and interferences of protectionist kind. Constitutional law (Cth) Operation and effect of Constitution Inconsistency of laws Effect of Interpretation Act 1987 (NSW), s 31 on questions of inconsistency between Commonwealth and State law Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 limits State legislative power Whether Racing Administration Act, ss 33 and 33A inconsistent with Northern Territory (Self-Government) Act, s 49 and invalid to extent of inconsistency Whether Northern Territory (Self-Government) Act, s 49 interpreted in accordance with s 92 of Constitution. Words and phrases "free trade", "practical operation", "protectionism". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=263022 Fri, 30 Mar 2012 00:00:00 GMT Criminal law Appeal Jury misdirection Application of "proviso" Appellant convicted of offence under Occupational Health and Safety Act 2004 (Vic) Trial judge failed to direct jury that prosecution had to prove beyond reasonable doubt particular element of offence in issue Whether appellate court able to conclude that no substantial miscarriage of justice occurred Whether judicial "discretion" in applying proviso.Words and phrases "proviso", "substantial miscarriage of justice". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=263023 Fri, 30 Mar 2012 00:00:00 GMT Taxation Income tax Exemption from income tax under Div 50 of Income Tax Assessment Act 1997 (Cth) Charitable purpose Whether fund was applied for the purposes for which it was established Whether application of fund viewed as a whole sufficient to qualify for exemption. Trusts Trustees Charitable trust Breaches of trust Mingling of trust monies with other monies Use of trust monies by trustees in their personal capacity Relevance of success on possible application under s 85 of Trustee Act 1925 (NSW). Words and phrases "charitable trust", "income tax exemption", "misapplication of trust monies", "purposes for which it was established". http://jade.barnet.com.au/viewArticle.do?src=rss&aid=262958 Thu, 29 Mar 2012 00:00:00 GMT