Brain Injury Awareness week (11-17 August) begins today.
Over half a million Australians have an acquired brain injury (ABI) and more than 1.6 million Australians are in some way affected. ABI is commonly caused by accidents, disease, stroke, infection or substances.
The National ABI Conference is being held in Bendigo from 11-12 August.
For more information go to http://www.brainlink.org.au/campaign/8/brain-injury-awareness-week-2014
Sydney, Australia
1300 00 2088
ON 11 AUGUST 1961, the High Court of Australia delivered McLellan v Bowyer [1961] HCA 49; (1961) 106 CLR 95 (11 August 1961).
http://www.austlii.edu.au/au/cases/cth/high_ct/106clr95.html
When exercising its discretion to grant leave to treat a witness as hostile, the court may take into account the witnesses’ demeanour, prior inconsistent statements, conduct in the witness box, answers to non-leading questions and choice of language (at 102-103).
Sydney, Australia
1300 00 2088
ON 11 AUGUST 1948, the High Court of Australia delivered Bank of NSW v Commonwealth (“Bank Nationalisation case”) [1948] HCA 7; (1948) 76 CLR 1 (11 August 1948).
http://www.austlii.edu.au/au/cases/cth/HCA/1948/7.html
The High Court held that the nationalisation of banks was beyond the Commonwealth’s constitutional power.
The Banking Act 1947 (Cth) provided that the Commonwealth Bank could acquire shares in private banks, whether by agreement or compulsion. The effect of the legislation would be to grant an monopoly to the Commonwealth Bank, owned by the Commonwealth.
The Banking Act 1947 was held to be invalid on a number of grounds including (1) that it infringed the s92 constitutional guarantee of freedom of interstate trade, commerce and intercourse by compelling the States and their agencies to bank with the Commonwealth Bank and (2) the proposed acquisition was not on just terms as required under s51(xxxi).
Sydney, Australia
1300 00 2088
ON 11 AUGUST 1961, the High Court of Australia delivered Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (11 August 1961).
http://www.austlii.edu.au/au/cases/cth/HCA/1961/48.html
In an action for negligence, the two requirements to be satisfied when recovering damages for loss of earning capacity are (1) “the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury” and (2) “the diminution of his earning capacity is or may be productive of financial loss”: per Dixon CJ, Kitto and Taylor JJ at 347.
Receipt of wage related payments, such as sick leave or long service leave, are to be set off against a claim for financial loss (at 346). However, pensions are not to be taken into account as they are a contractual right in the plaintiff’s favour rather than compensation for his or her work (at 343).
Sydney, Australia
1300 00 2088
ON 10 AUGUST 1956, the High Court of Australia delivered Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (10 August 1956).
http://www.austlii.edu.au/au/cases/cth/HCA/1956/42.html
The duty of care of a reasonably prudent employer is “a duty to take reasonble care to avoid exposing the employees to unnecessary risks of injury” (per Dixon CJ and Kitto J at 25) and “a duty to ensure that all reasonable steps are taken to provide a safe system of working” (per Fullagar J at 34).
Sydney, Australia
1300 00 2088
ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).
http://www.austlii.edu.au/au/cases/cth/HCA/1977/43.html
The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.
Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).
Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).
An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.
A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.
1300 00 2088
ON 9 AUGUST 2001, the High Court of Australia delivered Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72; 181 ALR 307; 75 ALJR 1342 (9 August 2001).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/68.html
A provision conferring jurisdiction on a court is to be liberally construed (at [11]).
Statutory interpretation should begin with consideration of the text of the legislation. Judicial exposition should not be favoured over analysis of the legislation itself (at [9], [46]-[51]).
A judge has an obligation to state his or her reasons (at [32]-[33]).
1300 00 2088
ON 9 AUGUST 1949, the High Court of Australia delivered R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389 (9 August 1949).
http://www.austlii.edu.au/au/cases/cth/HCA/1949/33.html
A court has a discretion to withhold the granting of a writ of mandamus:
“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.” (at 400).
1300 00 2088
ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).
http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html
The plaintiff was a pedestrian who was injured when a bike courier collided with him on a footpath. The defendant was the courier company who engaged the cyclist. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.
The High Court allowed an appeal by the cyclist, holding that the cyclist was not an independent contractor because:
The relevant considerations for determining whether or not a person is an independent contractor include:
1300 00 2088
ON 7 AUGUST 2014, the Supreme Court of NSW delivered Underwood v Gaudron [2014] NSWSC 1055 (7 August 2014).
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1055.html
The plaintiff Helen Underwood brought proceedings seeking a family provision order under the Succession Act 2006 (NSW) with respect to the estate or notional estate of her late mother. Named as defendants were her sisters, Mary Genevieve Gaudron (the former High Court justice) and Kathryn Teresa Gaudron.
The plaintiff had no contact with the deceased for 20 years, the estate was relatively small and had already been distributed. The proceedings were commenced more than 3 years after the deceased’s death.
Justice Hallen dismissed the summons with the intention of making no orders made as to costs.
Sydney, Australia
1300 00 2088
Legal Helpdesk Lawyers 