Monthly Archives: August 2014

Appeals, Family Law, LAW FIRM

Taylor v Taylor [1979] HCA 38 | 22 August 1979

ON 22 AUGUST 1979, the High Court of Australia delivered Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979).

http://www.austlii.edu.au/au/cases/cth/HCA/1979/38.html

A husband failed to appear in family law proceedings in the Supreme Court of NSW due to a misunderstanding on the part of his legal representative. In his absence, the court made orders dissolving the marriage and transferring the matrimonial home to the wife. Once the husband became aware of the orders, he made an application to the newly established Family Court seeking variation of the Supreme Court orders to the effect that the matrimonial home be sold and the net proceeds be divided between he and his wife. On the day of the application, the wife’s legal representatives mistakenly attended the Family Law Division of the Supreme Court rather than the Family Court. In the absence of the wife, orders were made by Hogan J of the Family Court in accordance with the relief sought by the husband. The wife then appealed to the Full Court of the Family Court, who allowed the appeal ruling that Hogan J did not possess the statutory power to amend the Supreme Court’s orders.

The High Court allowed an appeal, ordering that the previous orders be set aside and that there be a re-hearing of the matter.

The High Court held that a court has an inherent jurisdiction to set aside orders where it is in the interests of justice to do so.

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Sydney, Australia

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LAW FIRM, Planning Law

Landmark Group Pty Limited v Lane Cove Council [2014] NSWLEC 1187

ON 22 AUGUST 2014, the NSW Land and Environment Court delivered Landmark Group Pty Limited v Lane Cove Council [2014] NSWLEC 1187.

The court upheld an appeal against a decision of Lane Cove Council regarding a s96 modification of a Development Consent affecting the land at 15-21 Mindarie Street Lane Cove.

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Sydney, Australia

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Appeals, LAW FIRM

Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297

Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297

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Sydney, Australia

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LAW FIRM

Local Government (State) Award 2014

ON 21 AUGUST 2014, the Local Government (State) Award 2014 was posted in the Industrial Gazette.

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Administrative Law, Constitutional law, Courts and Tribunals, LAW FIRM, Legislation

Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 | 21 August 1992

ON 21 AUGUST 1992, the NSW Court of Appeal delivered Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125.

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Sydney, Australia

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Administrative Law, Constitutional law, LAW FIRM, Migration Law

Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 | 21 August 2007

ON THIS DAY in 2007, the Federal Court of Australia delivered Haneef v Minister for Immigration and Citizenship [2007] FCA 1273 (21 August 2007).

http://www.austlii.edu.au/au/cases/cth/FCA/2007/1273.html

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Sydney, Australia

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LAW FIRM

Mosman Public Notices – 21 August 2014

Mosman Now – 21 August 2014

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Criminal Law, Criminal Procedure, LAW FIRM, Sentencing

R v Whyte [2002] NSWCCA 343 | 20 August 2002

ON 20 AUGUST 2002, the NSW Court of Criminal Appeal delivered R v Whyte [2002] NSWCCA 343 (20 August 2002).

http://www.lawlink.nsw.gov.au/scjudgments/2002nswcca.nsf/a16acdaf45f305714a256724003189f5/3688dc39ade04a36ca256c1a001c5f31?OpenDocument

Whyte was sentenced to imprisonment for two years and three months, with a non-parole period of 12 months, after pleading guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm (s52A Crimes Act 1900 (NSW)). The Crown appealed against the sentence to the NSW Court of Criminal Appeal (CCA).

The CCA determined that the sentence was manifestly inadequate but exercised its discretion not to interfere.

The CCA delivered a guideline judgment with respect to sentencing for breach of s52A.

The CCA ruled that “A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.”

For typical cases involving high moral culpability, “…a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.”

A typical case was one which was considered to involve:

  • Young offender.
  • Of good character with no or limited prior convictions.
  • Death or permanent injury to a single person.
  • The victim is a stranger.
  • No or limited injury to the driver or the driver’s intimates.
  • Genuine remorse.
  • Plea of guilty of limited utilitarian value.

An appropriate increment is required for aggravating factors, which include:

  • Extent and nature of the injuries inflicted.
  • Number of people put at risk.
  • Degree of speed.
  • Degree of intoxication or of substance abuse.
  • Erratic or aggressive driving.
  • Competitive driving or showing off.
  • Length of the journey during which others were exposed to risk.
  • Ignoring of warnings.
  • Escaping police pursuit.
  • Degree of sleep deprivation.
  • Failing to stop.

The guideline focuses on objective circumstances of the offence. The subjective circumstances of the offender must also be considered.

The CCA (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) confirmed the validity of guideline judgments in NSW. The court ruled that ss 21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999 require a sentencing judge to follow a guideline judgment given by the Court of Criminal Appeal and that such a judgment ought to have the force of legislation.

The CCA said that numerical guidelines provide adequacy and consistency of sentencing where there is a tension between individualised justice and the principle of consistency.

The guideline is not a “rule” or “presumption” but a “check” or “sounding board”.

If a sentencing judge does not apply a guideline, reasons should be given.

Duty of Care, LAW FIRM, Negligence

Jaensch v Coffey [1984] HCA 52| 20 August 1984

ON 20 AUGUST 1984, the High Court of Australia delivered Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 (20 August 1984).

http://www.austlii.edu.au/au/cases/cth/HCA/1984/52.html

A plaintiff suffered nervous shock when immediately after an accident she saw her injured husband in hospital and was told of the seriousness of his injuries.

The High Court extended the class of persons to whom a duty of care is owed to those who, although not present at the scene of an accident, are at risk of suffering psychiatric injury by personally perceiving the direct and immediate aftermath of the accident in which a person with whom they are in a “close or intimate relationship” with is negligently injured or killed.

The duty of care was characterised as arising from the injury being reasonably foreseeable and sufficient proximity between the plaintiff and the defendant.

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Sydney, Australia

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LAW FIRM, Trees between neighbours dispute

Tree Disputes Between Neighbours

Disputes between neighbours concerning trees may be resolved through proceedings in the NSW Land and Environment Court.

The Trees (Disputes Between Neighbours) Act 2006 (NSW), which commenced on 2 February 2007, creates a statutory scheme that partially takes away the right to bring a common law action in nuisance over disputes about trees in adjoining properties (s5).

http://www.austlii.edu.au/au/legis/nsw/consol_act/tbna2006363/

Applicants may apply for orders with respect to trees that cause or are likely to cause damage or injury (Part 2) and high hedges that obstruct sunlight or views (Part 2A).

Part 2 orders for trees that cause or are likely to cause damage or injury

A land owner may make an application to the Land and Environment Court for an order to remedy, restrain or prevent damage to property or personal injury as a result of a tree situated on adjoining land (s7) that is zoned residential, rural-residential, village, township, industrial or business but not land that is managed by a council (s4).

The court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the land (s10(1)(a)) and has given notice in accordance with the Act (s10(1)(b)).

The court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property (s10(2)(a)), or is likely to cause injury to any person (s10(2)(b)).

In making its determination, the court is to consider the following matters (s12):

  • the location of the tree in relation to the boundary.
  • whether interference with the tree would require planning or heritage consent and whether such consent has been obtained.
  • whether interference with the tree would require approval under the native vegetation legislation.
  • the impact of pruning on the tree.
  • any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.
  • historical, cultural, social or scientific value.
  • contribution to the local ecosystem and biodiversity.
  • contribution to the natural landscape and scenic value of the land or locality.
  • intrinsic value to public amenity.
  • impact on soil stability, the water table or other natural features of the land or locality.
  • anything other than the tree that has contributed or is contributing to damage to property or likely injury to persons.
  • steps taken by the owner of the land on which the property is located to rectify damage to property or likely injury to persons.

Part 2A orders for high hedges that obstruct sunlight or views

A landowner may make an application to the Land and Environment Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (s14B(a)), or any view from a dwelling situated on the land (s14B(b)), if the obstruction occurs as a consequence of trees planted in groups of two or more that are planted to form a hedge (s14A(1)(a)) and rise to a height of at least 2.5 metres above existing ground level (s14A(1)(b)), except for trees on rural-residential land or crown land.

The court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach an agreement with the owner of the land (s14E(1)(a)) and has given notice in accordance with the Act (s14E(1)(b)).

The court must not make an order unless it is satisfied the trees are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land (s14D(1)(a)(i)) or are severely obstructing a view from a dwelling situated on the applicant’s land (s14D(1)(a)(ii)) and the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order (s14D(1)(b)).

In making its determination, the court is to consider the following matters (s14F):

  • the location of the tree in relation to the boundary.
  • whether the trees existed proper to the subject dwelling.
  • whether the trees grew to a height of 2.5m during the period in which the applicant owned the property.
  • whether interference with the tree would require planning or heritage consent and whether such consent has been obtained.
  • any other relevant development consent requirements or conditions.
  • historical, cultural, social or scientific value.
  • contribution to the local ecosystem and biodiversity.
  • contribution to the natural landscape and scenic value of the land or locality.
  • intrinsic value to public amenity.
  • impact on soil stability, the water table or other natural features of the land or locality.
  • the impact of pruning on the trees.
  • any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated.
  • anything other than the tree that has contributed or is contributing to damage to property or likely injury to persons.
  • steps taken by the owner of the land on which the property is located to rectify damage to property or likely injury to persons.
  • the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost.
  • whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves.
  • the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view.
  • the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.
  • such other matters as the Court considers relevant in the circumstances of the case.

Procedure

Applications may be made to the Land and Environment Court or the Local Court and are considered by a Commissioner of the Land and Environment Court.

The court sets a preliminary conference which is an informal conciliation conference, often held by telephone. If an agreement cannot be reached, a second hearing is held on site with a decision often made on site with written reasons provided 3 or 4 weeks later.

Orders of the court are provided to the parties and the relevant Local Court and the Heritage Council if it was a party to the proceedings. The Local Court is required to list the orders on planning certificates relating to the land.

Enforcement

Failure to comply with an order carries a maximum penalty of $1,100 (s15(1)). Proceedings for an offence may be brought in the summary jurisdiction of the Land and Environment Court (s15(2)).

Successors in title to the land are bound by the orders if the work has not been carried out (s16). The immediate successor in title to the applicants is entitled to the benefits of the order (s17).

The Local Council may, with notice, enter the land and perform the works that have not been carried out and then recover their reasonable costs (s17). A judgment debt in favour of the council may be lodged as a charge on the land (s17A).

Form more information go to http://www.lec.lawlink.nsw.gov.au/lec/types_of_disputes/class_2/trees_and_hedges.html.

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