Monthly Archives: August 2014

Administrative Law, LAW FIRM, Migration Law

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 | 15 August 2003

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (15 August 2003).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/171.html

The applicant was a citizen of Iran who applied for a protection visa. Evidence upon which he relied included two letters purporting to show an association with a reformist cleric named Ayatollah Sayed Mohammad Shirazi.

The Refugee Review Tribunal affirmed the decision of the delegate of the Minister for Immigration and Indigenous Affairs not to grant the applicant’s visa, finding that it was not satisfied that he had a genuine fear of persecution and there was not a real chance that he would face persecution upon his return to Iran. The Tribunal concluded that several parts of the applicant’s evidence were implausible and that he was not a credible witness. Specifically, the Tribunal doubted the genuineness of the letters concerning the Ayatollah Shirazi.

It was common ground that the Tribunal did not at any time indicate to the applicant of its doubts about the letters, nor did it give the applicant an opportunity to put his case as to why they were genuine.

The applicant brought proceedings in the Federal Court seeking prerogative writs against the Tribunal’s decision. Those proceedings were dismissed by French J.

The Full Court of the Federal Court allowed an appeal, setting aside French J’s orders, issuing a writ of certiorari and remitting the matter back to the Tribunal. The Full Court held that procedural fairness imposes a duty on the Tribunal to ensure that an applicant is made aware of the case against him or her and given an opportunity to be heard in response to the issues to be decided.

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Animal rights, LAW FIRM, Law reform, Legislation

Cruelty to Animals Act 1876 (UK)| 15 August 1876

ON 15 AUGUST 1876, the UK Parliament enacted the Cruelty to Animals Act 1876.

The Act amended the Cruelty to Animals Act 1849, extending it to animal experiments by licensing and regulating scientific animal experiments and prohibiting such experiments that are painful.

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Sydney, Australia

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Civil procedure, LAW FIRM

Civil Procedure Act 2005 (NSW) | 15 August 2005

ON 15 AUGUST 2005, the substantive provisions of the NSW Civil Procedure Act 2005 commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa2005167/

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LAW FIRM, Planning Law

North Sydney Council v Bewley [2014] NSWLEC 145

ON 14 AUGUST 2014, the NSW Land and Environment Court delivered North Sydney Council v Bewley [2014] NSWLEC 145.

The court granted leave for North Sydney Council to discontinue its proceedings against the owner and occupier of 38 Shellcove Road, Kurraba Point with an order that each party pay their own costs.

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Sydney, Australia

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Constitutional law, Criminal Law, Criminal Procedure, LAW FIRM

Pollentine v Bleijie [2014] HCA 30

ON 14 AUGUST 2014, the High Court of Australia delivered Pollentine v Bleijie [2014] HCA 30 (14 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/30.html

The Criminal Law Amendment Act 1945 (Qld) provides that a judge of a trial in which a person is found guilty of a child sexual offence may seek medial opinion as to whether or not the offender is “incapable of exercising proper control over the offender’s sexual instincts” and if the opinion is that the offender is incapable of exercising such control, the judge may in addition to or in lieu of any other sentence, declare that the person is incapable of exercising such control and direct that the offender be detained in an institution during “Her Majesty’s pleasure”.

The plaintiffs challenged the validity of s18, alleging that the provision is contrary to Chapter III of the Constiution by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

The court upheld the validity of s18, holding that the provision is not contrary to Chapter III because the presiding judge has the discretion whether to direct the detention; and a decision to release an offender is not the subject of an unconfined executive discretion as it is subject to safeguards including medical opinion and judicial review.

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Sydney, Australia

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Constitutional law, LAW FIRM

Polyukhovich v Commonwealth (“War Crimes Act case”) [1991] HCA 32 | 14 August 1991

ON 14 AUGUST 1991, the High Court of Australia delivered Polyukhovich v Commonwealth (“War Crimes Act case”) [1991] HCA 32; (1991) 172 CLR 501 (14 August 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/32.html

Polyukhovich brought proceedings against the Commonwealth seeking declarations that the War Crimes Amendment Act 1988 (Cth) and certain provisions of the War Crimes Act 1945 (Cth) were constitutionally invalid on the grounds that the legislation (1) exceeded the Commonwealth’s defence (s51(vi)) and external affairs powers (s51(xxix)); and (2) invalidly usurped the Commonwealth’s judicial power, infringing Chapter III.

The High Court held that the legislation was valid.

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Sydney, Australia

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Duty of Care, LAW FIRM, Negligence, Occupiers Liability, Personal Injury

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 | 14 August 1997

ON 14 AUGUST 1997, the High Court of Australia delivered Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/39.html

A landlord has a duty to its tenants to use reasonable care and skill to provide safe premises. The obligation is limited to repair of defects which the landlord was or should have been aware. The landlord must reasonably respond to any information it receives as to the existence of any defect.

The court held that the rule in the English decision of Cavalier v Pope Cavalier v Pope [1906] AC 428 (a landlord is immune from liability in tort for defective premises causing injury) should no longer be followed in Australian law as it is inconsistent with the principles concerning of duty of care developed since Donoghue v Stevenson.

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Sydney, Australia

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LAW FIRM

Mosman Public Notices – 14 August 2014

Mosman Now – 14 August 2014

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Fitzgerald v The Queen [2014] HCA 28

ON 13 AUGUST 2014, the High Court of Australia delivered Fitzgerald v The Queen [2014] HCA 28 (13 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/28.html

The High Court quashed convictions for murder and aggravated causing serious harm with the intent to cause serious harm contrary to ss11 and 23 of the Criminal Law Consolidation Act 1935 SA).

A group of men group forcibly entered a house in Elizabeth South, South Australia and attacked the occupants, causing one to die and the other to suffer serious brain injuries. The accused’s DNA was recovered from a didgeridoo found at the crime scene. There was no direct evidence of the accused’s presence.

The prosecution asserted that accused was a member of the group that forcibly entered the house with the common intention of inflicting grievous bodily harm to persons inside. It was asserted that the DNA was from the accused’s blood that came to be on the didgeridoo during the attack.

The defence argued that on the evidence there were alternative hypotheses consistent with the accused’s innocence, including that the accused’s DNA may have been transferred to the didgeridoo when he shook the hand of one of the group members the night before.

The High Court held that a jury acting reasonably should have entertained a reasonable doubt as to the accused’s guilt because the prosecution’s contention that the DNA was from the accused’s blood was not made out beyond a reasonable doubt and the recovery of the DNA did not give rise to any inference as to when and how the DNA came to be on the didgeridoo.

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Sydney, Australia

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Honeysett v The Queen [2014] HCA 29

ON 13 AUGUST 2014, the High Court of Australia delivered Honeysett v The Queen [2014] HCA 29 (13 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/29.html

The High Court quashed a conviction for armed robbery, ordering a retrial.

The trial judge had admitted into evidence an anatomy professor’s opinion as to the common anatomical characteristics of the accused and a person recorded on CCT footage. The High Court held that the opinion was not based solely or substantially upon the professor’s specialised knowledge of anatomy but also included his subjective impression of the CCT images and therefore was not an exception under s79(1) of the Evidence Act 1995 (NSW) to the rule against the admission of opinion evidence.

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Sydney, Australia

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