Category Archives: Appeals

Appeals, Constitutional law, LAW FIRM

Cole v Whitfield (“Tasmanian Lobster case”) [1988] HCA 18

ON 2 MAY 1988, the High Court of Australia delivered Cole v Whitfield (“Tasmanian Lobster case”) [1988] HCA 18; (1988) 165 CLR 360; (1988) 78 ALR 42; (1988) 62 ALJR 303 (2 May 1988).

“Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish – Application to crayfish brought for sale from another State – The Constitution (63 & 64 Vict. c. 12), s. 92 – Sea Fisheries Regulations 1962 (Tas.), reg. 31(1) (d).”

http://www.austlii.edu.au/au/cases/cth/HCA/1988/18.html

A Tasmanian law that prohibited the possession of undersized lobsters imported from South Australia was upheld as not infringing the free trade provisions of s92 of the Constitution as it was not discriminatory in a protectionist sense.

Appeals, Criminal Law, LAW FIRM, United States

Carter v Rafferty 826 F.2d 1299 (1987)

ON 21 AUGUST 1987, the United States Court of Appeals, Third Circuit delivered Carter v Rafferty 826 F.2d 1299 (1987).

http://law.justia.com/cases/federal/appellate-courts/F2/826/1299/321412/

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Administrative Law, Appeals, LAW FIRM

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40

ON 31 JULY 1986, the High Court of Australia delivered Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (31 July 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/40.html

An administrative decision maker’s failure to take into account relevant considerations is an abuse of discretion creating a jurisdictional error that may be remedied by judicial review. The consideration must be relevant and one that the decision maker was bound to take into account.

Determining whether or not a decision maker was bound to take into account a consideration is to be through construction of the statute that confers the decision maker’s power. Implications may arise from the subject matter, scope and purpose of the statute.

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Appeals, Bias, Judges, LAW FIRM

Re JRL; Ex parte CJL [1986] HCA 39

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.”

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Appeals, Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Chamberlain v R (No 2) (“Chamberlain Case”) [1984] HCA 7

ON THIS DAY in 1984, the High Court of Australia delivered Chamberlain v R (No 2) (“Chamberlain case”) [1984] HCA 7; (1984) 153 CLR 521 (22 February 1984).

http://www.austlii.edu.au/au/cases/cth/HCA/1984/7.html

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Appeals, Contract, Evidence, LAW FIRM

Taylor v Johnson [1983] HCA 5

ON THIS DAY in 1983, the High Court of Australia delivered Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 (23 February 1983)

Per Mason ACJ, Murphy and Deane JJ “…a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.” (at 342).

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Appeals, Criminal Law, Criminal Procedure, LAW FIRM, Sentencing

Neal v R

ON 24 SEPTEMBER 1982, the High Court of Australia delivered Neal v R [1982] HCA 55; (1982) 149 CLR 305 (24 September 1982).

http://www.austlii.edu.au/au/cases/cth/HCA/1982/55.html

The ethnic or other background of an offender may be a material fact to be taken into account in sentencing.

Appeals, Criminal Procedure, LAW FIRM, Legal Aid

McInnis v R [1979] HCA 65

ON THIS DAY in 1979, the High Court of Australia delivered McInnis v R [1979] HCA 65; (1979) 143 CLR 575 (19 December 1979) .

http://www.austlii.edu.au/au/cases/cth/HCA/1979/65.html

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Appeals, Family Law, LAW FIRM

Taylor v Taylor [1979] HCA 38

ON 22 AUGUST 1979, the High Court of Australia delivered Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 (22 August 1979).

http://www.austlii.edu.au/au/cases/cth/HCA/1979/38.html

A husband failed to appear in family law proceedings in the Supreme Court of NSW due to a misunderstanding on the part of his legal representative. In his absence, the court made orders dissolving the marriage and transferring the matrimonial home to the wife. Once the husband became aware of the orders, he made an application to the newly established Family Court seeking variation of the Supreme Court orders to the effect that the matrimonial home be sold and the net proceeds be divided between he and his wife. On the day of the application, the wife’s legal representatives mistakenly attended the Family Law Division of the Supreme Court rather than the Family Court. In the absence of the wife, orders were made by Hogan J of the Family Court in accordance with the relief sought by the husband. The wife then appealed to the Full Court of the Family Court, who allowed the appeal ruling that Hogan J did not possess the statutory power to amend the Supreme Court’s orders.

The High Court allowed an appeal, ordering that the previous orders be set aside and that there be a re-hearing of the matter.

The High Court held that a court has an inherent jurisdiction to set aside orders where it is in the interests of justice to do so.

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Appeals, Evidence, LAW FIRM, Negligence

Warren v Coombes [1978] HCA 9

ON 13 MARCH 1979, the High Court of Australia delivered Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 (13 March 1979).

http://www.austlii.edu.au/au/cases/cth/HCA/1979/9.html

An appellate court may decide on the proper inference to be drawn from the facts found by a judge sitting alone at trial. Whilst it may give respect and weight to the trial judge’s conclusions, the appellant court must not shrink from giving effect to the conclusion that it reaches.

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