Monthly Archives: December 2014

Contract, LAW FIRM, United Kingdom

Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1 | 7 December 1892

ON 7 DECEMBER 1892, the England and Wales Court of Appeal delivered Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1; [1893] 1 QB 256.

Carbolic Smoke Ball Company was the manufacturer of the Carbolic Smoke Ball which they claimed could prevent “influenza, colds, or any disease caused by taking cold…”.

Carbolic promoted the product with the following advertisement:

“100 pounds reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1,000 pounds is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter”.

On the strength of the advertisement, Carlill purchased the smoke ball, used it as directed but nevertheless caught the flue. She claimed the 100 pounds which Carlill refused to pay on the basis that there was no binding contract because the advertisement was a “mere puff” that meant nothing.

The Court of Appeal held that there was a binding contract.

Per Lindley LJ ((1893) 1 Q.B. 256, at p. 262): “…the person who makes the offer shows by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance, apart from notice of the performance.”

Lawyers

Sydney, Australia

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Bias, LAW FIRM

Ebner v Official Trustee in Bankruptcy [2000] HCA 63 | 7 December 2014

ON 7 DECEMBER 2000, the High Court of Australia delivered Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 (7 December 2000).

Per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [13]. That principle gives effect to the requirement that justice should both be done and be seen to be done [14], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”

Lawyers

Sydney, Australia

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LAW FIRM

Completion of painting

Day 10, painting completed! Thanks Zelko and the boys, a very professional job done in difficult conditions (without air conditioning).

Signage, carpet, furniture and air conditioning to come early next week.

Fitout 6 November (2)Fitout 6 November

Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Longman v R [1989] HCA 60 | 6 December 1999

ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).

http://www.austlii.edu.au/au/cases/cth/high_ct/168clr79.html

Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.

The High Court held that what the jury was told was not sufficient.

Per Brennan, Dawson and Toohey JJ at [30]:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.

Lawyers

Sydney, Australia

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Administrative Law, Criminal Law

Cunneen v Independent Commission Against Corruption [2014] NSWCA 421

ON 5 DECEMBER 2014, the NSW Court of Appeal delivered Cunneen v Independent Commission Against Corruption [2014] NSWCA 421.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=176019

Lawyers

Sydney, Australia

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Contract, LAW FIRM

Barton v Armstrong [1973] UKPC 2 | 5 December 1973

ON 5 DECEMBER 1973, the United Kingdom Privy Council delivered Barton v Armstrong & Ors [1976] AC 104; [1973] UKPC 2 (5 December 1973).

http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKPC/1973/2.html&query=BARTON+and+V+and+ARMSTRONG&method=boolean

A contract may be set aside on the grounds of duress if the use of illegitimate pressure was one of the causes for a party to enter into the agreement. If illegitimate pressure is established, the burden is on the person who applied such pressure to show that the pressure did not operate to cause the party to enter into the agreement.

Lawyers

Sydney, Australia

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LAW FIRM

“No Names” for Mosman Store

The fit out of the Legal Helpdesk store in Bridgepoint Mosman is up to day 8. We hoped to be in this week but works will carry over until next week.

Eric Horsfield of Great City Signs paid us a visit this morning and has fixed white vinyl to the glass. Receiving an urgent call from Matt Moran at Opera Bar, Eric has ducked off with a promise to be back early next week to fix the Legal Helpdesk signage. Until then we will be known as “No Names”.

Tony Laurent architect is dropping by this afternoon to finalise the colour scheme. Zelko and his Russian painters are expected in over the weekend. The carpet is travelling up the Hume Highway as I write this and should be laid by Monday.

Let’s hope we are up and running by this time next week!

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM

New High Court appointment

Justice Geoffrey Nettle of the Victorian Court of Appeal has been appointed to the High Court of Australia. He will replace Justice Susan Crennan.

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LAW FIRM

Productivity Commission report: Access to Justice Arrangements

The Productivity Commission today released its eagerly awaited report, Access to Justice Arrangements.

For a copy of the report visit http://www.pc.gov.au/projects/inquiry/access-justice/report

Lawyers

Sydney, Australia

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Taxation

Commissioner of Taxation v MBI Properties Pty Ltd [2014] HCA 49

The High Court of Australia today delivered Commissioner of Taxation v MBI Properties Pty Ltd [2014] HCA 49 (3 December 2014). http://www.austlii.edu.au/au/cases/cth/HCA/2014/49.html

Lawyers

Sydney, Australia

1300 00 2088