Three new Magistrates for NSW

August 19, 2014 Legal Helpdesk Lawyers

The NSW Attorney General has announced the appointments of Claire Girotto, Erin Kennedy and Philip Stewart as magistrates of the Local Court of NSW.

Ms Girotto was admitted to practice in 1990. She has worked for the NSW Director of Public Prosecutions for almost 25 years in Sydney and Wollongong. In the past 11 years she has managed the DPP’s Solicitor’s Office.

Ms Kennedy was admitted as a solicitor in 1995. She worked as a barrister for 14 years and in the last two years was a trial advocate for the Director of Public Prosecutions, prosecuting in criminal trials and sentencing hearings in the District Court at Parramatta and Gosford.

Mr Stewart was admitted as a solicitor in 1998 and has worked for Nyman Gibson Stewart, becoming a partner in 2002. Before he joined the legal profession he was a police officer for 14 years.

Ms Girotto will be sworn in on 25 August 2014 at 9.00am in Court 5.2 of the Downing Centre Local Court. Ms Kennedy and Mr Stewart will be sworn in on 8 September 2014.

Sydney, Australia

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Bail, LAW FIRM

Hatzistergos Review of new bail laws

August 19, 2014 Legal Helpdesk Lawyers

ON 5 AUGUST 2014, the NSW Premier and Attorney General announced changes to the Bail Act 2013 (NSW) following a review by former Attorney General, John Hatzistergos.

The changes will be introduced during the current session of parliament and will include:

Bail will be refused to an accused assessed to be an “unacceptable risk”.
Those accused of serious offences will bear the onus to “show cause”.
Bail assessment will include new risk factors including organised crime associations of the accused, victims’ safety concerns the accused’s history on bail or parole.
The common law presumption of innocence will be supplemented with other considerations such as protection of the community and protecting the integrity of the justice system.
The existence of the new Bail Act is not a “change of circumstances” to trigger a review of earlier bail decisions.

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LAW FIRM, Trademarks

Seven Up Company v OT Ltd [1947] HCA 59 | 19 August 1947

August 19, 2014 Legal Helpdesk Lawyers

Seven Up Company v OT Ltd [1947] HCA 59; (1947) 75 CLR 203 (19 August 1947).

http://www.austlii.edu.au/au/cases/cth/HCA/1947/59.html

The Seven Up Company, the US owner of the US soft drink trademark “7 UP” brought a motion to remove the Australian owned name “8 Up” from the Australian register of trademarks. Williams J dismissed the motion and an appeal to the Full Court was dismissed.

Per Williams J:

“… in the absence of fraud it is not unlawful for a trader to become the registered proprietor under the Trade Marks Act of a mark which has been used, however extensively, by another trader as a mark for similar goods in a foreign country, provided the foreign mark has not been used at all in Australia at the date of the application for registration. But the position is different if at that date the mark has become identified with the goods of the foreign trader in Australia because those goods have been brought into Australia by the foreign trader himself or by some importer or in some other manner. The court frowns upon any attempt by one trader to appropriate the mark of another trader although that trader is a foreign trader and the mark has only been used by him in a foreign country. It therefore seizes upon a very small amount of use of the foreign mark in Australia to hold that it has become identified with and distinctive of the goods of the foreign trader in Australia. It is not then a mark which another trader is entitled to apply to register under the Trade Marks Act because it is not his property but the property of the foreign trader. The registrar is entitled to refuse to register the mark for such goods. If it has been registered the court may rectify the register on the ground that the mark is wrongly entered on the register.”

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Commercial Law, Consumer Law, LAW FIRM, Negligence, Product liability, Trade Practices

Australian Knitting Mills Ltd v Grant [1933] HCA 35 | 18 August 1933

August 18, 2014 Legal Helpdesk Lawyers

ON 18 AUGUST 1933, the High Court of Australia delivered Australian Knitting Mills Ltd v Grant [1933] HCA 35; (1933) 50 CLR 387 (18 August 1933).

http://www.austlii.edu.au/au/cases/cth/HCA/1933/35.html

Per Dixon J at 418:

“The condition that goods are of merchantable quality requires that they should be in such an actual state that a buyer fully acquainted with the facts and, therefore, knowing what hidden defects exist and not being limited to their apparent condition would buy them without abatement of the price obtainable for such goods if in reasonably sound order and condition and without special terms.”

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Appeals, LAW FIRM

House v R [1936] HCA 40 | 17 August 1936

August 17, 2014 Legal Helpdesk Lawyers

ON 17 AUGUST 1936, the High Court of Australia delivered House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936).

http://www.austlii.edu.au/au/cases/cth/HCA/1936/40.html

The exercise of a judge’s discretion may be reviewed on appeal if the judge:

Acts on a wrong principle.
Allows him or herself to be guided by extraneous or irrelevant matters.
Mistakes the facts.
Fails to take into account a material consideration.

If there is no identifiable error, but if upon the facts the exercise of discretion is “unreasonable or plainly unjust”, an appeal court may infer that the judge has failed to properly exercise his or her discretion on the grounds that a substantial wrong has occurred.

Peter Dixon, Evatt and McTiernan JJ:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Sydney, Australia

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Criminal Law, LAW FIRM

77.60% of all criminal charges are proven in NSW

August 16, 2014 Legal Helpdesk Lawyers

The proportion of charges proven in NSW Criminal Courts in 2013 were as follows:

Assault 60.10%
Sexual assault 46.50%
Robbery 64.90%
Unlawful entry with intent/burglary, break and enter 67.20%
Theft (except motor vehicles) 78.90%
Murder 64.60%
Attempted murder 33.30%
Manslaughter and driving causing death 63%
Other acts intended to cause injury 62.50%
Non-assaultive sexual offences 70.70%
Dangerous or negligent acts endangering persons 52.70%
Abduction and kidnapping 64.90%
Deprivation of liberty/false imprisonment 30.80%
Harassment and threatening behaviour 66.30%
Blackmail and extortion 29.40%
Motor vehicle theft and related offences 67.90%
Receive or handle proceeds of crime 58.70%
Illegal use of property (except motor vehicles) 50.00%
Obtain benefit by deception 65.20%
Forgery and counterfeiting 72.30%
Deceptive business/government practices 67.80%
Other fraud and deception offences 54.00%
Import or export illicit drugs 77.40%
Deal or traffic in illicit drugs 63.20%
Manufacture or cultivate illicit drugs 92.60%
Possess and/or use illicit drugs 88.40%
Other illicit drug offences 83.80%
Prohibited weapons/explosives offences 69.80%
Regulated weapons/explosives offences 76.00%
Property damage 77.50%
Environmental pollution 73.30%
Disorderly conduct 65.40%
Regulated public order offences 79.00%
Offensive conduct 80.50%
Driver Licence offences 91.80%
Vehicle registration and roadworthiness offences 94.00%
Regulatory driving offences 96.10%
Breach of custodial order offences 97.90%
Breach of community-based order 96.20%
Breach of violence and non-violence orders 76.40%
Offences against government operations 82.30%
Offences against government security 60.90%
Offences against justice procedures 76.60%
Defamation, libel and privacy offences 60.00%
Public health and safety offences 76.50%
Commercial/industry/financial regulation 78.80%
Other miscellaneous offences 58.20%
Total All Offences 77.60%

Source: NSW Bureau of Crime Statistics and Research

1300 00 2088

Corporations Law, LAW FIRM

Macquarie Equities Limited to write to current and former clients

August 15, 2014 Legal Helpdesk Lawyers

ON 15 AUGUST 2014 Macquarie Equities Limited (MEL) were required to write to current and former clients alerting them of the possibility of remediation for flawed financial advice. The obligation arose from an Enforceable Undertaking imposed by ASIC following concerns arising from an investigation of MEL’s financial advisor network, Macquarie Private Wealth.

The process of remediation is intended to allow the clients to raise any concerns they have with MEL about poor financial advice they may have received and the losses for which they may wish to be compensated.

1300 00 2088

Costs, LAW FIRM, Offers of Compromise

Stewart v Atco Controls Pty Ltd (in Liquidation) [No 2] [2014] HCA 31

August 15, 2014 Legal Helpdesk Lawyers

Stewart v Atco Controls Pty Ltd (in Liquidation) [No 2] [2014] HCA 31 (15 August 2014).

On 7 May 2014, the appellants successfully appealed a decision of the Victorian Court of appeal. The High Court held that the first appellant was entitled to an equitable lien over settlement funds from litigation against the respondent, a secured creditor, and receivers appointed by the respondent. Accordingly, orders were made on 7 May setting aside the Court of Appeal’s orders and ordering that the respondent pay the appellant’s costs.

The applicant sought the variation of the costs order so that an order be made for costs on an indemnity basis on the grounds that the respondent unreasonably refused an offer containing an accommodation in its favour during the Court of Appeal proceedings.

The Court held that the respondent unreasonably refused the applicants’ offer and should therefore be liable for indemnity costs of the Court of Appeal proceedings and that the costs of the High Court proceedings remain on the usual basis as there was no offer for the respondent to accept at the time of the High Court proceedings.

The High Court therefore varied its earlier orders to the effect that the respondent pay the costs of the Court of Appeal proceedings on an indemnity basis.

http://www.austlii.edu.au/au/cases/cth/HCA/2014/31.html

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