Category Archives: Civil procedure

Civil procedure, Evidence, Family Law

Briginshaw v Briginshaw [1938] HCA 34 | 30 June 1938

ON 30 JUNE 1938, the High Court of Australia delivered Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).

http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.html

Where serious or grave allegations are made in a civil case, the court must, when making findings of fact, apply the civil standard of proof but, depending on the nature of the issue, give serious consideration as to whether or not it has reached the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist.

Per Dixon J at 362:

“… [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …”

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Equity, Injunctions, Practice and Procedure, Property Law

Mareva Compania Naviera SA v International Bulkcarriers SA (“The Mareva”) [1980] 1 All ER 213 | 23 June 1975

ON 23 JUNE 1975, the English Court of Appeal delivered Mareva Compania Naviera SA v International Bulkcarriers SA
(“The Mareva”) [1980] 1 All ER 213.

http://www.uniset.ca/other/cs4/19801AER213.html

The court introduced the asset freezing Mareva injunction by ordering that the defendant be restrained from removing its assets from it’s jurisdiction pending trial.

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Duty of Care, Legislation, Medical negligence, Negligence, Nuisance, Occupiers Liability, Personal Injury, Product liability, Professional negligence, Torts

Civil Liability Act 2002 (NSW) | 18 June 2002

ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

  • Statement of principles for determining negligence.
  • Modification of causation test.
  • No duty to warn of obvious risk.
  • No liability for materialisation of inherent risk.
  • No liability for harm suffered from obvious risks of dangerous recreational activities.
  • No duty of care for risk warning of dangerous recreational activity.
  • Standard of care for professionals.
  • Contributory negligence can defeat a claim.
  • Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
  • Limiting interest.
  • Restrictions for persons in custody.
  • Restrictions for mental harm.
  • Allocation of proportionate liability for concurrent wrongdoers.
  • Limiting liability of public authorities.
  • Restricting recovery for intoxicated persons.
  • Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
  • Apologies not to affect liability.
  • Limiting damages for birth of a child.
  • Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
  • Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

  • Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
  • Dust diseases.
  • Tobacco.
  • Motor Accidents and public transport accidents.
  • Workers, Victims and Sporting Injuries compensation.

 

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Costs, Litigation funding

Litigation funding advisory panel

THE COMMONWEALTH ATTORNEY-GENERAL is to convene an advisory panel to look into the litigation funding industry.

Litigation funding advisory panel

http://www.theaustralian.com.au/business/legal-affairs/crackdown-on-opportunistic-class-actions/story-e6frg97x-1226927445137#mm-premium

Lawyers 1300 00 2088

Civil procedure, Costs, LAW FIRM, Practice and Procedure

Fu Chen v Stephen Paul Firth trading as Firths, The Compensation Lawyers [2013] NSWSC 1873

Fu Chen v Stephen Paul Firth trading as Firths, The Compensation Lawyers [2013] NSWSC 1873

Lawyers

1300 00 2088

Civil procedure, Negligence, Practice and Procedure

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10

Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 (3 April 2013).

http://www.austlii.edu.au/au/cases/cth/HCA/2013/10.html

Lawyers 1300 00 2088

Civil procedure, LAW FIRM, Practice and Procedure

Malaysian Airlines Australia v Patel [2011] NSWCA 339

Malaysian Airlines Australia v Patel [2011] NSWCA 339 (28 October 2011).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/339.html

Lawyers 1300 00 2088

Civil procedure, Dust Diseases, LAW FIRM, Personal Injury

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

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

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Dust Diseases, Insurance Law, LAW FIRM, Personal Injury, Workers Compensation

Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9

ON THIS DAY in 2010, the High Court of Australia delivered Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9.  A workers compensation insurer failed to discharge its onus to prove the limit of its liability under a contract of indemnity.  Absence of such evidence resulted in the indemnity being deemed unlimited.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/9.html

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Evidence, LAW FIRM, Pleadings, Practice and Procedure

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

ON 5 AUGUST 2009, the High Court of Australia delivered Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html

In Aon Risk, the Australian National University on day three of a four week hearing was granted an adjournment to make significant amendments to their statement of claim against their insurance broker. The ACT Court of Appeal dismissed an appeal of the decision except in relation to costs. The High Court of Australia allowed an appeal, setting aside the Court of Appeal’s decision and sending the matter back to the ACT Supreme Court for directions towards final determination.

The High Court considered its earlier decision of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997) in the light of how it had been applied by the courts across Australia.

JL Holdings contains the often quoted passage regarding case management:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

Queensland v JL Holdings had come to be an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend  (2)case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.

The majority in Aon Risk Services Australia Limited v Australian National University (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [111-113] held that applications for leave to amend should not be approached on the basis that a party is entitled to raise an arguable claim subject to costs as compensation.

The majority also held that the statements made in Queensland v JL Holdings regarding the limiting of case management principles should not be applied in the future.

French CJ at [30] added that to ignore the concerns of case management would be to ignore the facts of undue delay, wasted costs, strain and uncertainty and erode public confidence in the legal system.

Lawyers 1300 00 2088