Category Archives: Appeals

Appeals, Bias, Family Law, Judges, LAW FIRM

Re JRL; Ex parte CJL [1986] HCA 39 | 30 July 1986

ON 30 JULY 1986, the High Court of Australia delivered Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (30 July 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/39.html

During a luncheon adjournment, a Family Court counsellor went to the chambers of a judge and had a private conversation in which she expressed certain things including a recommendation that separate representation being granted to the child. Her views were adverse to the husband. Counsel for the parties were then invited to the judges chambers where they were introduced to the counsellor and informed of her recommendations. Comments made by the judge indicated that there had been a private conversation between the counsellor and the judge. After lunch, counsel for the wife made an application seeking appointment of separate representation for the child. The husband asked for the judge to disqualify himself.

The High Court held that it was reasonable for the husband to apprehend that the judge might not bring and impartial or unprejudiced mind to the matter having had a private conversation with the counsellor who had formed an adverse view of him. On that basis, the court made absolute the order nisi for a writ of prohibition directing that the judge be prohibited from proceeding further with the matter.

The case is notable for Justice Mason’s warning that judicial officers are required to discharge their obligations unless disqualified to do so. They must not readily accept suggestions of appearance of bias, otherwise parties might be encouraged to seek their disqualification, without justification, for strategic reasons.

Per Mason J at 352:

“There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.
…
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Lawyers

Sydney, Australia

1300 00 2088

Appeals, Causation, Negligence, Personal Injury

Bunnings Group Ltd v Borg [2014] NSWCA 240

ON 28 JULY 2014, the NSW Court of Appeal delivered Bunnings Group Ltd v Borg [2014] NSWCA 240.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172896

The Court of Appeal allowed an appeal against a District Court decision awarding damages to customer of Bunnings Dural who was injured when some timber sleepers fell off a forklift onto his foot.

The Court of Appeal found that there was insufficient factual findings to come to the conclusion of negligence: there was conflicting evidence of the tilting of the forklift and no evidence about effect of warning or what would have occurred if there were more staff.

The Court of Appeal found that there were insufficient findings for it to make a substituted judgment.

The Court of Appeal set aside the verdict and ordered a retrial on the grounds that the trial judge failed to make clear findings about breach and causation as required under the Civil Liability Act 2002, ss 5B, 5C, 5D and 5E.

Lawyers

1300 00 2088

Appeals, Bias, Conflict of interest, Courts and Tribunals, Waiver

Smits v Roach [2006] HCA 36 | 20 July 2006

ON 20 JULY 2006, the High Court of Australia delivered Smits v Roach [2006] HCA 36; (2006) 228 ALR 262; (2006) 80 ALJR 1309 (20 July 2006).

http://www.austlii.edu.au/au/cases/cth/HCA/2006/36.html

The High Court held that the NSW Court of Appeal was correct in holding that the appellant was estopped from raising a conflict of interest as it’s senior counsel had waived the right to object at the start of the proceedings. The High Court held that the appellant was bound by the conduct of it’s senior counsel on the question of waiver.

The court also held that in determining bias on the part of a judicial officer, the appeal court must (1) identify why a judge might have decided the case in a manner other than on its legal or factual merits, and (2) explain the logical connection between the matter complained of and the feared deviation from impartial decision making.

Lawyers

Sydney, Australia

1300 00 2088

Appeals, Constitutional law, Courts and Tribunals, United Kingdom

Privy Council (Appeals from the High Court) Act 1975 | 8 July 1975

ON 8 JULY 1975, the Commonwealth Privy Council (Appeals from the High Court) Act 1975 commenced, abolishing appeals from the High Court of Australia to the Privy Council.

http://www.austlii.edu.au/au/legis/cth/consol_act/pcfthca1975417/

Lawyers 1300 00 2088

Animal rights, Appeals, Criminal Law

Hollingsworth v Royal Society for the Prevention of Cruelty to Animals, New South Wales [2014] NSWCA 220

ON 7 JULY 2014, the NSW Court of Appeal delivered Hollingsworth v Royal Society for the Prevention of Cruelty to Animals, New South Wales [2014] NSWCA 220.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172610

The court dismissed a Notice of Motion in which Kim Hollingsworth, representing herself, sought to invoke the supervisory jurisdiction of the Supreme Court in respect of a District Court decision of Judge Neilson on an appeal from the Local Court. The decision related to ancillary orders made with respect to convictions under the NSW Prevention of Cruelty to Animals Act 1979 regarding horses owned by, or in the care of, Ms Hollingsworth.

Lawyers

Sydney, Australia

1300 00 2088

Appeals, Corporations Law, Costs, LAW FIRM

Dubow v Fitness First Australia Pty Ltd [2011] NSWCA 401

Dubow v Fitness First Australia Pty Ltd [2011] NSWCA 401 (16 December 2011)

Lawyers

Sydney, Australia

1300 00 2088

Appeals, LAW FIRM, Torts

Su v So, Verekers Lawyers v So [2010] NSWCA 119

Su v So, Verekers Lawyers v So [2010] NSWCA 119 (27 May 2010).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/119.html

Lawyers 1300 00 2088

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

ON 3 FEBRUARY 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.

Lawyers 1300 00 2088

Appeals, Courts and Tribunals, LAW FIRM

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22

ON 24 MAY 2007, the High Court of Australia delivered Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 (24 May 2007).

http://www.austlii.edu.au/au/cases/cth/HCA/2007/22.html

Intermediate courts of appeal should follow “long established authority and seriously considered dicta” of the High Court, even if it does not form part of the ratio decidendi [134] and [158].

Lawyers

Sydney, Australia

1300 00 2088

Appeals, Bias, Conflict of interest, Courts and Tribunals, LAW FIRM, Waiver

Smits v Roach [2006] HCA 36

ON 20 JULY 2006, the High Court of Australia delivered Smits v Roach [2006] HCA 36; (2006) 228 ALR 262; (2006) 80 ALJR 1309 (20 July 2006).

http://www.austlii.edu.au/au/cases/cth/HCA/2006/36.html

The High Court held that the NSW Court of Appeal was correct in holding that the appellant was estopped from raising a conflict of interest as it’s senior counsel had waived the right to object at the start of the proceedings. The High Court held that the appellant was bound by the conduct of it’s senior counsel on the question of waiver.

The court also held that in determining bias on the part of a judicial officer, the appeal court must (1) identify why a judge might have decided the case in a manner other than on its legal or factual merits, and (2) explain the logical connection between the matter complained of and the feared deviation from impartial decision making.

Lawyers 1300 00 2088