Monthly Archives: February 2015

LAW FIRM

Hustler Magazine v Falwell 485 US 46 (1988) | 23 FEBRUARY 1988

ON THIS DAY IN 1988, the US Supreme Court delivered Hustler Magazine v Falwell 485 US 46 (1988).

https://supreme.justia.com/us/485/46/case.html

Per Rehnquist CJ at 485:

‘We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’

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https://supreme.justia.com/us/485/46/case.html

Per Rehnquist CJ at 485:

‘We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing, in addition, that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.’

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Constitutional law, LAW FIRM, United States

Marbury v Madison 5 US 137 (1803) | 24 February 1803

ON THIS DAY IN 1803, the US Supreme Court delivered Marbury v Madison 5 US 137 (1803).

http://laws.lp.findlaw.com/getcase/us/vol/getcase/US/5/137.html

The Supreme Court of the United States held invalid legislation passed by Congress which purported to enlarge the original jurisdiction of the Supreme Court by authorising the issue of mandamus. The Court held that Congress had no power to give original jurisdiction to the Supreme Court in cases other than those described in Art III.

The decision is significant in that it sets the principle that the US Supreme Court has the ultimate power to review the validity of acts of Congress enacted in violation of the United States Constitution.

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Sydney, Australia

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Courts and Tribunals, Judges

Appointment of Justin Smith to the Federal Circuit Court of Australia

On 27 JANUARY 2015, Mr Justin Smith SC was appointed as a judge of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Smith graduated from the University of Sydney in 1991 with a Bachelor of Arts and Bachelor of Laws. He was admitted to practice in the Supreme Court of New South Wales in 1992 and was appointed Senior Counsel earlier this year.
Mr Smith’s primary areas of practice are administrative law (including migration, customs and taxation law), commercial and equity law, insolvency, succession and regulatory and disciplinary cases as well as varied appellate work. Mr Smith volunteered at Redfern Legal Centre between 1993 and 1997, where he provided free legal advice and took on pro bono matters both at trial and on appeal.”

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Sydney, Australia

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Courts and Tribunals, Judges

Appointment of Ian Newbrun to the Federal Circuit Court of Australia

ON 4 FEBRUARY 2015, Ian Newbrun was appointed as a judge of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Newbrun graduated with a Bachelor of Laws from the University of Sydney in 1979 and a Masters of Laws from the London School of Economics and Political Science in 1981. He was admitted to practice in the Supreme Court of New South Wales in 1982.
Mr Newbrun’s primary areas of practice are common law actions, will disputes, insurance law, contractual and other commercial disputes and administrative law. He is currently the New South Wales Chairperson of the Federal Medicare Participation Review Committee and a Deputy Chairperson of the New South Wales Health Profession Tribunals since 2012. He has been a panel advisor to the New South Wales Refugee Review Tribunal Legal Advice Scheme. Mr Newbrun is a qualified arbitrator hearing referred actions from the NSW Local and District Courts.”

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Sydney, Australia

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Courts and Tribunals, Judges

Appointment of Salvatore Vasta to the Federal Circuit Court of Australia

On 1 JANUARY 2015, Mr Salvatore Vasta was appointed as a member of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Vasta graduated from the University of Queensland with a Bachelor of Arts in 1984. He graduated from the Barrister’s Admission Board in 1990 and was admitted to practice in the Supreme Court of Queensland that same year. Mr Vasta was admitted to practice in the High Court of Australia in 2003.
Mr Vasta started his legal career as a legal officer in the Queensland Office of the Director of Public Prosecutions (ODPP) in 1990. During his career, he has been a Queensland Crown Prosecutor, Senior Crown Prosecutor and is the current Principal Crown Prosecutor at the Queensland ODPP.
Mr Vasta is a Member of the Bar Association of Queensland and is the Deputy Chairman of the Queensland Cricket Board. He is the Vice-President of the International Association of Prosecutors and the President of the Crown Prosecutors Association of Queensland.”

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Sydney, Australia

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Courts and Tribunals, Judges

Appointment of Alexander (Sandy) Street SC to the Federal Circuit Court of Australia

On 1 JANUARY 2015, Mr Alexander (Sandy) Street was appointed as a judge of the Federal Court of Australia.

According to the Federal Attorney General:

“Mr Street graduated from the University of Technology, Sydney, in 1982 with a Bachelor of Laws. He was first admitted to practice in the Supreme Court of New South Wales in 1982 and has subsequently been admitted to practice in the Supreme Courts of the Australian Capital Territory, Victoria, Queensland, and Western Australia. Mr Street was appointed Senior Counsel in New South Wales in 1996 and Queen’s Counsel in Western Australia in 1997. He was also admitted to practice in New Zealand in 2001.
With more than 30 years’ experience at the Bar, Mr Street has a broad range of subject matter expertise. His areas of practice have included constitutional law, commercial law, corporations law, banking and administrative law, bankruptcy and insolvency, energy and mining, international arbitration, maritime and admiralty law, competition law, military law, insurance and reinsurance, and appellate matters.
Mr Street joined the Royal Australian Navy Reserves as a Lieutenant in 1987 and has been promoted to the rank of Commander. He served as the Deputy Head of the Sydney Naval Legal Panel for two years.”

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Sydney, Australia

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Courts and Tribunals, Judges

Appointment of the Hon Justice James Edelman

ON 20 APRIL 2015, the Hon Justice James Edelman will commence his appointment as a judge of the Federal Court of Australia, to replace the Hon Justice Peter Jacobson.

According to the Federal Attorney General:

“Justice Edelman graduated from the University of Western Australia with a Bachelor of Economics in 1995 and a Bachelor of Laws with first class honours in 1996, and from Murdoch University with a Bachelor of Commerce in 1997. He was awarded a Rhodes scholarship in 1998 and obtained a Doctor of Philosophy in Law from the University of Oxford in 2001.
Justice Edelman was admitted to practise in the Supreme Court of Western Australia in 1998. He practiced as a barrister at the Chambers of Mr Malcolm McCusker QC in Perth and at the Chambers of Lord Grabiner QC at the English Bar.
Justice Edelman continues to teach as an Adjunct Professor at the University of Queensland and the University of Western Australia. He is also a Conjoint Professor of Law at the University of New South Wales.”

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Sydney, Australia

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Contract, Damages, Landmark cases, LAW FIRM, United Kingdom

Hadley v Baxendale [1854] EWHC Exch J70 | 23 February 1854

ON THIS DAY IN 1854, the Court of Exchequer Chamber delivered Hadley v Baxendale [1854] EWHC Exch J70
(1854) 9 Ex Ch 341; 156 ER 145 (23 February 1854).

http://www.bailii.org/ew/cases/EWHC/Exch/1854/J70.html

The decision lays down the rule for assessing damages for breach of contract. There are two limbs: (1) losses which “may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself”; or (2) losses which “may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as the probable result of the breach of it”.

Per Alderson B:

“Now we think the proper rule is such as the present is this: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made where communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. For such loss would neither have flowed naturally from the breach of this contract in the great multitude of such cases occurring under ordinary circumstances, nor were the special circumstances, which, perhaps, would have made it a reasonable and natural consequence of such breach of contract, communicated to or known by the defendants. The Judge ought, therefore, to have told the jury, that, upon the fats then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. There must therefore be a new trial in this case.”

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Sydney, Australia

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LAW FIRM, Property Law, Sydney Solicitors

Solicitors advising on loan or security documents

Solicitors are sometimes asked by their clients to provide independent legal advice to satisfy the bank’s requirement that the client obtain independent legal advice when going guarantor providing security for a borrower.

Rule 58 of the NSW Solicitors Rules 2013 sets out the conditions upon which a solicitor may give independent advice on loan and security documents.

A Statutory Declaration made by the borrower evidencing the independent advice must be in the form set out in Schedules 1, 1A or 1B.

A Statutory Declaration made by the guarantor evidencing the independent advice must be in the form set out in Schedules 2 or 2A. The Statutory Declaration is to be returned to the bank.

The borrower or guarantor who receives the advice must sign an acknowledgement in the form set out in Schedule 4, 4A, 4B or 4C. The acknowledgement must be kept by the solicitor and NOT returned to the bank.

A solicitor must not sign a certificate to the effect that they have provided independent advice.

Click to access 814115.pdf

 

Solicitors Rules 2013

 

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Sydney, Australia

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Contract, Equity, Estoppel, LAW FIRM

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 | 19 February 1988

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 (19 February 1988).

http://www.austlii.edu.au/au/cases/cth/HCA/1988/7.html

Maher owned a commercial property at Nowra. Waltons was a national department store. Waltons and Maher entered into negotiations regarding the lease of Maher’s property conditional upon Maher demolishing the existing building and constructing a new one in accordance with Waltons’ requriements.

Waltons provided Maher with a draft lease contract. Maher suggested amendments and indicated they needed to complete the agreement in the next day or so in order to arrange building supplies before Christmas. Maher indicated that he did not want to demolish the building until he knew there was no problem with the lease. The solicitor for Waltons said to Maher that Waltons had informed him that the amendments were acceptable but would obtain formal instructions and inform him by the next day if they did not agree with any of the amendments. The solicitor for Waltons then sent Maher’s solicitor a redrafted lease with the suggested amendments and did not object to the amendments the next day, or at all. Maher then sent Waltons an executed lease by way of exchange and then proceeded with the demolition. A week later, Waltons had concerns about the transaction and, not having exchanged their counterpart of the lease, instructed their solicitor to go slow. Waltons then became aware that the building had been demolished and when the new building was 40% completed advised Maher that they did not wish to proceed with the transaction.

Maher sued Waltons in the Supreme Court of NSW, obtaining an order for specific performance or damages in lieu. An appeal to the NSW Court of Appeal was dismissed, as was an appeal to the High Court of Australia.

Per Mason CJ, Wilson, Brennan and Deane JJJ, Waltons was bound to enter into a lease agreement and estopped from denying an implied promise to complete the contract as it would be unconscionable for Waltons to take a course of inaction that exposed Maher to detriment by acting on a false assumption.

The High Court brought together proprietary and promissory estoppel under the broader principle of equitable estoppel. When a person makes a non-contractual or voluntary promise and knowingly induces the other party to act to his or her detriment in reliance on that promise, that person is precluded from resiling from the promise without avoiding the detriment. The person who makes the promise is liable to either honour the promise or avoid detriment to the other party.

Per Brennan J at 428-9:

“In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant’s property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff’s reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.”

Lawyers

Sydney, Australia

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