Category Archives: LAW FIRM

Causation, Duty of Care, LAW FIRM, Negligence, Occupiers Liability, Personal Injury, Torts

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 | 10 November 2009

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).

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Art, LAW FIRM

Attorney-General v Trustees of the National Art Gallery of NSW (1945) 62 WN (NSW) 212 | 8 November 1943

ON 8 NOVEMBER 1943, Justice Roper of the Supreme Court of NSW in Attorney-General v Trustees of the National Art Gallery of NSW (1945) 62 WN (NSW), 212, dismissed a challenge to William Dobell receiving the Archibald Prize for his portrait of fellow artist Joshua Smith.

http://www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_28mar06.pdf

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LAW FIRM, Succession

Palmer v Bank of New South Wales [1975] HCA 51 | 29 October 1975

ON 29 OCTOBER 1975, the High Court of Australia delivered Palmer v Bank of New South Wales [1975] HCA 51; (1975) 133 CLR 150 (29 October 1975).

http://www.austlii.edu.au/au/cases/cth/high_ct/133clr150.html

A promise to leave one’s estate to another upon their death is not a promise to preserve the property of the estate until death. An express contract is necessary to curtail how a testator uses his or her property in their lifetime.

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Agency, Bankruptcy, Contract, Corporations Law, Equity, Evidence, Insolvency, LAW FIRM, Limitations, Remedies

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 | 28 October 2008

ON 28 OCTOBER 2008, Justice Owen of the Supreme Court of WA delivered The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (28 October 2008).

http://www.austlii.edu.au/au/cases/wa/WASC/2008/239.html

One of Australia’s longest cases.

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Duty of Care, LAW FIRM, Negligence

Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59 | 28 October 1981

ON 28 OCTOBER 1981, the High Court of Australia delivered Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59; (1981) 150 CLR 225 (28 October 1981).

http://www.austlii.edu.au/au/cases/cth/HCA/1981/59.html

Government departments and their agencies are under a duty to take reasonable care when passing on information to members of the public.

The measure of damages for negligent mis-statement is “the amount necessary to restore the plaintiff to the position he was in before the statement, subject to the loss being foreseeable.”

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Criminal Law, LAW FIRM

R v Wald | 28 October 1971

ON 28 OCTOBER 1971, Judge Levine of the NSW District Court delivered R v Wald.

It was ruled that an abortion performed by a medical practitioner is lawful in New South Wales if there is “any economic, social or medical ground or reason” for the practitioner to hold an honest and reasonable belief that a termination at any stage of the pregnancy was required to avoid “serious danger to the pregnant woman’s life or to her physical or mental health”.

Per Levine DCJ at 29:

“In my view it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health. It may be that an honest belief be held that the woman’s mental health was in serious danger at the very time she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of pregnancy, if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s 83 of the Act could be proved.”

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Criminal Law, Damages, LAW FIRM, Torts

CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47 | 27 October 1995

ON 27 OCTOBER 1995, the NSW Court of Appeal delivered CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47.

The plaintiff (CES) sought civil damages for the loss of opportunity to terminate a pregnancy arising from the defendants’ alleged breach of duty of care by failing to detect a pregnancy . Newman J of the Supreme Court of NSW found in favour of the defendants, not satisfied that the evidence justified a finding that termination of pregnancy would have been legal in accordance with Levine J’s test in R v Wald.

The NSW Court of Appeal upheld an appeal, ordering a new trial. The Court of Appeal held that the evidence did not justify a finding than a termination of pregnancy would have been illegal.

The Wald test, per Levine DCJ (at 29) provides:

“It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s83 of the Act could be proved.”

Kirby P in CES and Anor v Superclinics (Australia) Pty Ltd and Ors said that the Wald test “allows a consideration of the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and proportionality of a termination.”

Kirby P said that there is “no logical basis for limiting the honest’ and reasonable expectation of such a danger to the mother’s psychological health to the period of the currency of the pregnancy alone.”

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LAW FIRM, Taxation

Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (“Scientology case”) [1983] HCA 40 | 27 October 1983

ON 27 OCTOBER 1983, the High Court of Australia delivered Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (“Scientology case”) [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983).

http://www.austlii.edu.au/au/cases/cth/HCA/1983/40.html

The High Court held that the Church of the New Faith was a religion in Victoria and therefore exempt from pay-roll tax.

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Evidence, LAW FIRM, Privilege

Baker v Campbell [1983] HCA 39 | 26 October 1983

ON 26 OCTOBER 1983, the High Court of Australia delivered Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 (26 October 1983)

The court ruled that legal professional privilege is not confined to actual or expected judicial and quasi-judicial proceedings, but may, in the absence of a provision to the contrary, be asserted in investigatory procedures.

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Administrative Law, Appeals, Courts and Tribunals, LAW FIRM, Practice and Procedure

Craig v South Australia [1995] HCA 58 | 24 October 1995

ON 24 OCTOBER 1995, the High Court of Australia delivered Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995) 

At 179:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

At 180:

“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.

At 177:

A court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.

At 177:

Jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.

At 177-8

Examples of a court acting beyond its jurisdiction by entertaining a matter outside the limits of the court’s functions include:

  • the absence of a jurisdictional fact
  • disregard of a matter that a relevant statute requires to be taken into account or ignored as a condition of jurisdiction.
  • misconstruction of the relevant statute thereby misconceiving the nature of the court’s function or extent of its powers with respect to the particular issue, though the line between jurisdictional error and mere error of exercise of jurisdiction may be difficult to identify.

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