Australian Conservation Foundation v Commonwealth [1979] HCA 1; (1980) 146 CLR 493 (16 February 1979).
http://www.austlii.edu.au/au/cases/cth/high_ct/146clr493.html
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Category Archives: Civil procedure
Calderbank v Calderbank [1975] All ER 333
ON 5 JUNE 1975, the English Court of Appeal delivered Calderbank v Calderbank [1976] Fam 93;[1975] 3 WLR 586; [1975] 3 All ER 333; (1975) FLR Rep 113.
At the completion of court proceedings, costs usually follow the event (ie are awarded to the successful party). However, a party may make an application for a special order for costs in circumstances where, before the completion of the proceedings, that party makes an offer without prejudice save as to costs and the other party unreasonably fails to accept the offer.
A successful party who has made a Calderbank offer may apply for an order for indemnity costs (ie full costs incurred on a lawyer/client basis, instead of the ordinary party/party costs).
An unsuccessful party who has made a Calderbank offer may apply for an order for costs (possibly indemnity costs), contrary to the rule that costs follow the event.
In determining such an application, the court is to exercise it’s general discretion as to costs. Such discretion is wide.
The practise developed in Australia has been for Calderbank offers to:
- be in writing.
- be marked “without prejudice, save as to costs”.
- be in clear, precise and certain terms capable of being accepted.
- specify a time for acceptance.
- be a genuine compromise.
- separate the issue of costs from the principal offer.
- state that the party intends to bring to the court’s attention the letter or it’s contents in any application for special orders as to costs.
- indicate that the offer is made in accordance with the principles enunciated in Calderbank v Calderbank.
Click to access CalderbankvCalderbank1975.pdf
Sydney, Australia
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1967 | Daar v. Yellow Cab Co.
ON 15 NOVEMBER 1967, the Supreme Court of California delivered Daar v Yellow Cab Co 67 Cal.2d 695 (1967).
http://scocal.stanford.edu/opinion/daar-v-yellow-cab-co-27419
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
ON 20 DECEMBER 1965, the NSW Law Reform (Miscellaneous Provisions) Act 1965 was enacted and commenced.
http://www.austlii.edu.au/au/legis/nsw/consol_act/lrpa1965404
Sydney, Australia
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Watts v Rake [1960] HCA 58
ON 12 AUGUST 1960, the High Court of Australia delivered Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (12 August 1960).http://www.austlii.edu.au/au/cases/cth/HCA/1960/58.html
In a personal injuries action, the defendant bears the evidentiary onus of proof to “exclude the accident as a contributory cause” of the plaintiff’s disabilities: per Dixon CJ at 160.
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Jones v Dunkel [1959] HCA 8
ON 3 MARCH 1959, the High Court delivered Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959).
http://www.austlii.edu.au/au/cases/cth/HCA/1959/8.html
The unexplained failure of a party to use certain evidence may, in some circumstances, result in an inference that the evidence would not have assisted their case.
Sydney, Australia
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Luxton v Vines [1952] HCA 19
ON 4 April 1952, the High Court of Australia delivered Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (4 April 1952).
http://www.austlii.edu.au/au/cases/cth/HCA/1952/19.html
“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678″. (at p358)”
Sydney, Australia
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Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
ON THIS DAY in 1946, the NSW Parliament enacted the Law Reform (Miscellaneous Provisions) Act 1946.
http://www.austlii.edu.au/au/legis/nsw/consol_act/lrpa1946404
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Briginshaw v Briginshaw [1938] HCA 34
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. …”
Sydney, Australia
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Swiss Civil Code
ON 10 DECEMBER 1907, Switzerland introduced the Swiss Civil Code.
Sydney, Australia
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