Monthly Archives: February 2015

Administrative Law, Banking and finance, Contribution and indemnity, Equity, LAW FIRM, Migration Law

Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3

ON 11 FEBRUARY 2015, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2015] HCA 3 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html

On 22 June 2014, the High Court of Australia delivered Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 (20 June 2014), ordering that the Minister determine the plaintiff’s application for a permanent protection visa according to law.

In July 2014, the Minister refused to grant the plaintiff a permanent protection visa on that grounds that he was not satisfied that the grant of such a visa was “in the national interest” because the plaintiff was an unauthorised maritime arrival.

On 11 February 2015, in the most recent case, the High Court held that the Minister’s decision in July 2014 to not grant the visa was not according to law because under the Migration Act 1958 (Cth) the Minister could not refuse such an application just because the plaintiff was an unauthorised maritime arrival.

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Banking and finance, Contribution and indemnity, Equity, LAW FIRM

Lavin v Toppi [2015] HCA 4

ON 11 FEBRUARY 2015, the High Court of Australia delivered Lavin v Toppi [2015] HCA 4 (11 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/4.html

The appellants and respondents were sureties who had guaranteed a consolidated loan with the National Australia Bank.

In 2010, NAB demanded repayment of the balance of the loan debts and brought proceedings against all of the guarantors. In settlement of proceedings against the appellants, NAB covenanted not to sue them for the guaranteed debt in return for the payment of a minor portion of the debt. The respondents then paid the disproportionately high balance of the debt and then brought proceedings against the appellants seeking the recovery of the amount they paid to NAB in excess of their proportionate share.

The appellants resisted the appellants claim, arguing that the appellants and respondents no longer had “coordinate liabilities” by reason of the debt only being enforceable against the respondents due to NAB’s covenant not to sue the appellants.

The NSW Supreme Court found in favour of the respondents and the Court of Appeal dismissed an appeal, holding that the respondents could still recover from the appellants because the covenant not to sue did not alter the liabilities between the appellants and respondents under the guarantee and therefore they still had “coordinate liabilities”.

The High Court dismissed an appeal by the appellants, holding the Court of Appeal to be correct in holding (1) that the covenant not to sue did not extinguish the appellants’ liability under the guarantee and (2) that the respondents had an equitable entitlement to contribution which could not be defeated by the covenant not to sue.

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Contract, Damages, LAW FIRM

Baltic Shipping Company v Dillon [1993] HCA 4 | 10 February 1993

ON THIS DAY IN 1993, the High Court of Australia delivered Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289; (1993) 67 ALJR 228 (10 February 1993).

http://www.austlii.edu.au/au/cases/cth/HCA/1993/4.html

As an exception to the rule that damages are not available for mental distress and disappointment arising from a breach of contract, such damages may be awarded if the contract in question contemplated the delivery of enjoyment, relaxation or peace of mind.

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Civil procedure, Dust Diseases, LAW FIRM, Personal Injury

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 | 9 February 2011

ON 9 FEBRUARY 2011, the High Court of Australia delivered British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011).

http://www.austlii.edu.au/au/cases/cth/HCA/2011/2.html

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Sydney, Australia

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LAW FIRM, Property Law

Cassegrain v Gerard Casseagrain & Co Pty Ltd [2015] HCA 2

ON 4 FEBRUARY 2015, the High Court of Australia delivered Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 (4 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/2.html

Felicity Cassegrain and her husband Claude Cassegrain received an interest as joint tenants in land owned by Gerard Cassegrain & Co Pty Ltd. The transfer of the interest was found to be fraudulent on the part of Claude because he nominated the consideration for the transaction to be the debiting of his loan account when he knew that the company did not owe him the money. Gerard subsequently transferred his interest in the land to Felicity for nominal consideration. There was no allegation of Felicity being involved in any fraud.

Proceedings were brought in the NSW Supreme Court to transfer Felicity’s title back to the company because of the fraud. The trial judge concluded that Claude had acted fraudulently and ordered that he pay the company equitable compensation, but dismissed the proceedings against Felicity as there was no fraud by her.

The NSW Court of Appeal allowed the company’s appeal of the NSW Supreme Court decision, concluding that Claude was Felicity’s agent.

The High Court allowed in part Felicity’s appeal of the Court of Appeal decision. The High Court held that Felicity’s title in joint tenancy was not defeated by fraud under s42 of the Real Property Act 1900 (NSW) because Claude acted outside the scope of the authority given to him by her and was therefore not her agent.

The High Court also held that Felicity was not a bona fide purchaser on the transfer of Claude’s interest to her and declared and ordered that the company may recover a half interest in the land as tenant in common by the operation of s118(1)(d)(ii) of the Real Property Act.

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Administrative Law, Appeals, Criminal Law, Evidence, LAW FIRM, Occupational Health & Safety

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 | 3 FEBRUARY 2010

ON THIS DAY IN 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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Conveyancing

Conveyancers licence check

Conveyancers (other than solicitors and barristers) must be licensed. They are regulated under the Conveyancers Licensing Act 2003 (‘the Act’).

To check if a conveyancer is licensed, visit The Department of Fair Trading Licensed Conveyancer Check.

The following information may be accessed about licensed conveyancers:

  • Name and business address of the holder.
  • Licence number.
  • Date of issue and expiry.
  • Disciplinary action taken against the licence holder.

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LAW FIRM, Legislation

Liquor (Amendment) Act 1954 (NSW)

ON THIS DAY IN 1955, the “six o’clock swill” was abolished by the NSW Liquor (Amendment) Act 1954.

Click to access la1954n50214.pdf

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Sydney, Australia

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Environmental Law, LAW FIRM, Planning Law

Mosman Local Environmental Plan 2012

ON THIS DAY IN 2012, the Mosman Local Environmental Plan 2012 commenced.

Click to access mlep20122011647295.pdf

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Disability Law, Discrimination Law, LAW FIRM

Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36

ON THIS DAY IN 2013, the Federal Magistrates Court delivered Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 (1 February 2013).

http://www.austlii.edu.au/au/cases/cth/FMCA/2013/36.html

The Commonwealth Disability Discrimination Commissioner successfully sued the Rail Corporation of NSW on the grounds that it failed to provide audible train announcements for the hearing impaired.

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