THE FEDERALLAW REPORTS EDITOR. VICTOR KLINE Barrister-at-Law CONSULTING EDITOR ANTHONY DICKEY QC PRODUCTION EDITOR ALISON PAYNE REPORTERS

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1 DECEMBER 2013 Reports of the Supreme Courts of the Australian States when exercising Federal Jurisdiction, the Supreme Courts of the Northern Territory and Australian Capital Territory, the Family Court of Australia, the Federal Magistrates Court of Australia and Federal Tribunals THE FEDERALLAW REPORTS EDITOR VICTOR KLINE Barrister-at-Law CONSULTING EDITOR ANTHONY DICKEY QC PRODUCTION EDITOR ALISON PAYNE VICTOR KLINE DANIEL LORBEER REPORTERS ROBERT TURNBULL RODEN PRITCHARD SARAH SOMERSET VOL 277 PART 3 PAGES

2 The mode of citation of this part will be: 277 FLR TABLE OF CASES REPORTED Part 3 Pages Aitken v Virgin Blue Airlines (Federal Circuit Court of Australia) Albarran v Queensland Excavation Services Pty Ltd (NSW Sup Ct) Australian Electoral Commission (No 2); Holmdahl v (SA Sup Ct (FC)) Cherdchoochatri v The Queen (NSW Ct of Cr App) CIC Australia Ltd v ACT Planning and Land Authority (ACT Sup Ct) Edwin (No 2); R v (ACT Sup Ct) Faull v Commissioner for Social Housing (ACT) (ACT Sup Ct) Giannakopoulos; R v (Court of Criminal Appeal of South Australia) Holmdahl v Australian Electoral Commission (No 2) (SA Sup Ct (FC)) Immigration and Citizenship, Minister for v SZRTC (Federal Circuit Court of Australia)... 1 Liquor Commission; Withnell v (WA Sup Ct) Mentink v Registrar of Australian Register of Ships (No 2) (Qld Sup Ct) Mentink v Registrar of Australian Register of Ships (Qld Sup Ct) Nguyen; R v (ACT Sup Ct) Planning and Land Authority, ACT; CIC Australia Ltd v (ACT Sup Ct) Pratten v Director of Public Prosecutions (Cth) (NSW Sup Ct) Public Prosecutions (Cth), Director of; Pratten v (NSW Sup Ct) Queensland Excavation Services Pty Ltd; Albarran v (NSW Sup Ct) R v Edwin (No 2) (ACT Sup Ct) R v Giannakopoulos (Court of Criminal Appeal of South Australia) R v Nguyen (ACT Sup Ct) (Cases in bold reported in this part) ISSN

3 TABLE OF CASES REPORTED R v Tulloch (NT Ct of Cr App) R; Cherdchoochatri v (NSW Ct of Cr App) Ships (No 2), Registrar of Australian Register of; Mentink v (Qld Sup Ct) Ships, Registrar of Australian Register of; Mentink v (Qld Sup Ct) Social Housing (ACT), Commissioner for; Faull v (ACT Sup Ct) SZRTC; Minister for Immigration and Citizenship v (Federal Circuit Court of Australia)... 1 Tulloch; R v (NT Ct of Cr App) Virgin Blue Airlines; Aitken v (Federal Circuit Court of Australia) Withnell v Liquor Commission (WA Sup Ct) (Cases in bold reported in this part)

4 INDEX Part 3 Pages ADMINISTRATIVE LAW Australian Register of Ships Review of decision of Registrar of To close registration of a vessel Registered owner of vessel sought declaratory relief Jurisdiction of Court Whether respondent s decision reviewable Whether entry on register a decision of administrative character made under an enactment or a decision of an officer of the Commonwealth Utility of declaration Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 9 Judiciary Act 1903 (Cth), s 39(2) Constitution of the Commonwealth, s 76(2) Shipping Registration Act 1981 (Cth), ss 59, 66. Mentink v Registrar of the Australian Register of Ships (No 2) (Qld Sup Ct) Judicial review Reviewable decisions and conduct Withdrawal of prosecution or entry of a nolle prosequi Not properly the subject of an order of mandamus. Judicial review Supreme Courts of States Jurisdiction In respect of officers of the Commonwealth No inherent jurisdiction to grant certiorari No jurisdiction to grant certiorari under s 39B(1B) or s 39B(1C) when sought other than as an adjunct to orders of mandamus or prohibition Judiciary Act 1903 (Cth), s 39B(1B), (1C). CONSTITUTIONAL LAW Commonwealth legislative power Exclusive legislative power with respect to Commonwealth places Whether a State Act of Parliament applied as a Commonwealth law to a Commonwealth place Whether applied State Act of Parliament was inconsistent with a Commonwealth Act of Parliament Constitution of the Commonwealth, s 52 Crimes Act 1914 (Cth), s 37 Criminal Law Consolidation Act 1935 (SA), s 244 Listening and Surveillance Devices Act 1972 (SA), s 7 Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4. R v Giannakopoulos and Another (Court of Criminal Appeal of South Australia) Judicial power Where a Commonwealth law forbad interference with witnesses in a State judicial proceeding Whether such a law impermissibly interfered with the operation of the courts of South Australia Constitution of the Commonwealth, Ch III Criminal Law Consolidation Act 1935 (SA), s 244 Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4. R v Giannakopoulos and Another (Court of Criminal Appeal of South Australia)

5 INDEX CRIMINAL LAW AND PROCEDURE Listening devices Where undercover State police officer recorded conversation in a Commonwealth place Whether warrant for listening device required Whether conversation recorded could be used against accused Surveillance Devices Act 2004 (Cth), s 38 Listening and Surveillance Devices Act 1972 (SA), s 7. R v Giannakopoulos and Another (Court of Criminal Appeal of South Australia) Obtaining financial advantage by deception From the Commonwealth Failure to declare income in tax return Charge not duplicitous merely because income not declared falls into different categories Criminal Code Act 1995 (Cth), Sch, s Sentencing Maintaining a sexual relationship with a child under 16 years Crown appeal against inadequacy of sentence Whether fact that offender a female and victim a male a relevant consideration in sentencing. R v Tulloch (NT Ct of Cr App) PERSONAL PROPERTY Security interests in Priority between Motor vehicles Transitional security interests Leases Not written Lessee in possession Rights of Nature of Interests registrable but not registered Interests unperfected Lessee under administration Interests vesting in lessee Lessor s interest extinguished Later security interest granted in writing Default Possession Grantee empowered to take Later interest registered and perfected Later interest having priority Enforcement Powers of Personal Property Securities Act 2009 (Cth), ss 55, 112, 267(2), 311, 322 Personal Property Securities Regulations 2010 (Cth), reg 9.2. Albarran and Others v Queensland Excavation Services Pty Ltd and Others (NSW Sup Ct) SHIPPING AND NAVIGATION Australian Register of Ships Closure of registration upon receiving notice that ship no longer entitled to be registered Whether valid Whether notice able to be provided by someone other than the registered owner Application for rectification of register Rectification not ordered where inconsistent with a status or right which might be asserted by a third party Shipping Registration Act 1981 (Cth), ss 59, 66. Mentink v Registrar of the Australian Register of Ships (Qld Sup Ct) TAXATION Income tax Administration Notice requiring persons to produce documents Can be issued to obtain documents obtained by other authorities under search warrant Income Tax Assessment Act 1936 (Cth), s 264(1).

6 INDEX TAXATION continued Income tax Assessment Not reviewable by Supreme Court of State under s 39B(1C) merely because assessment tendered in evidence at trial of criminal charge in the Court Judiciary Act 1903 (Cth), s 39B(1C).