Category Archives: Appeals

Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish

Cole v Whitfield (“Tasmanian Lobster case”) [1988] HCA 18; (1988) 165 CLR 360; (1988) 78 ALR 42; (1988) 62 ALJR 303 (2 May 1988).

“Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish – Application to crayfish brought for sale from another State – The Constitution (63 & 64 Vict. c. 12), s. 92 – Sea Fisheries Regulations 1962 (Tas.), reg. 31(1) (d).”

http://www.austlii.edu.au/au/cases/cth/HCA/1988/18.html

A Tasmanian law that prohibited the possession of undersized lobsters imported from South Australia was upheld as not infringing the free trade provisions of s92 of the Constitution as it was not discriminatory in a protectionist sense.

Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish

Cole v Whitfield (“Tasmanian Lobster case”) [1988] HCA 18; (1988) 165 CLR 360; (1988) 78 ALR 42; (1988) 62 ALJR 303 (2 May 1988).

“Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish – Application to crayfish brought for sale from another State – The Constitution (63 & 64 Vict. c. 12), s. 92 – Sea Fisheries Regulations 1962 (Tas.), reg. 31(1) (d).”

http://www.austlii.edu.au/au/cases/cth/HCA/1988/18.html

A Tasmanian law that prohibited the possession of undersized lobsters imported from South Australia was upheld as not infringing the free trade provisions of s92 of the Constitution as it was not discriminatory in a protectionist sense.

Appeal – rehearing

Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (30 April 2003).

“Appeal – Rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.”

The court affirmed the principles, developed over many previous cases, to be applied by appellant courts when considering whether or not to overturn the findings of credit made by a trial judge.

An appellate court must be satisfied that the findings are “glaringly improbable” or “contrary to compelling inferences”; or that the judge has “failed to use” or “palpably misused” his or her advantage or acted on facts which were inconsistent with the evidence or were glaringly improbable..”

http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html

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CMB v Attorney General for New South Wales [2015] HCA 9 (11 March 2015)

ON 11 MARCH 2015 the High Court of Australia delivered CMB v Attorney General for New South Wales [2015] HCA 9 (11 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/9.html

The High Court allowed an appeal against a decision of the NSW Court of Criminal Appeal to impose a custodial sentence, remitting the matter to the CCA for re-determination.

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CMB v Attorney General for New South Wales [2015] HCA 9 (11 March 2015)

ON 11 MARCH 2015 the High Court of Australia delivered CMB v Attorney General for New South Wales [2015] HCA 9 (11 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/9.html

The High Court allowed an appeal against a decision of the NSW Court of Criminal Appeal to impose a custodial sentence, remitting the matter to the CCA for re-determination.

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Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10

ON 11 MARCH 2015 the High Court of Australia delivered Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10 (11 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/10.html

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Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 | 3 FEBRUARY 2010

ON THIS DAY IN 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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Bugden v Rogers (1993) Aust Tort Reports 81-246 | 23 November 2003

ON 23 NOVEMBER 1993, the NSW Court of Appeal delivered Bugden v Rogers (1993) Aust Tort Reports 81-246.

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Craig v South Australia [1995] HCA 58 | 24 October 1995

ON 24 OCTOBER 1995, the High Court of Australia delivered Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995) 

At 179:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

At 180:

“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.

At 177:

A court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.

At 177:

Jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.

At 177-8

Examples of a court acting beyond its jurisdiction by entertaining a matter outside the limits of the court’s functions include:

  • the absence of a jurisdictional fact
  • disregard of a matter that a relevant statute requires to be taken into account or ignored as a condition of jurisdiction.
  • misconstruction of the relevant statute thereby misconceiving the nature of the court’s function or extent of its powers with respect to the particular issue, though the line between jurisdictional error and mere error of exercise of jurisdiction may be difficult to identify.

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Guildford Four released | 19 October 1989

ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.

http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm

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