Category Archives: LAW FIRM

Costs, LAW FIRM, Offers of Compromise

Stewart v Atco Controls Pty Ltd (in Liquidation) [No 2] [2014] HCA 31

Stewart v Atco Controls Pty Ltd (in Liquidation) [No 2] [2014] HCA 31 (15 August 2014).

On 7 May 2014, the appellants successfully appealed a decision of the Victorian Court of appeal. The High Court held that the first appellant was entitled to an equitable lien over settlement funds from litigation against the respondent, a secured creditor, and receivers appointed by the respondent. Accordingly, orders were made on 7 May setting aside the Court of Appeal’s orders and ordering that the respondent pay the appellant’s costs.

The applicant sought the variation of the costs order so that an order be made for costs on an indemnity basis on the grounds that the respondent unreasonably refused an offer containing an accommodation in its favour during the Court of Appeal proceedings.

The Court held that the respondent unreasonably refused the applicants’ offer and should therefore be liable for indemnity costs of the Court of Appeal proceedings and that the costs of the High Court proceedings remain on the usual basis as there was no offer for the respondent to accept at the time of the High Court proceedings.

The High Court therefore varied its earlier orders to the effect that the respondent pay the costs of the Court of Appeal proceedings on an indemnity basis.

http://www.austlii.edu.au/au/cases/cth/HCA/2014/31.html

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Injunctions, LAW FIRM, Mortgage

Goater v Commonwealth Bank of Australia [2014] NSWCA 265

Goater v Commonwealth Bank of Australia [2014] NSWCA 265 (15 August 2014).

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LAW FIRM

Bar News – August 2014

 Bar News – August 2014

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Administrative Law, LAW FIRM, Migration Law

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 | 15 August 2003

WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (15 August 2003).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2003/171.html

The applicant was a citizen of Iran who applied for a protection visa. Evidence upon which he relied included two letters purporting to show an association with a reformist cleric named Ayatollah Sayed Mohammad Shirazi.

The Refugee Review Tribunal affirmed the decision of the delegate of the Minister for Immigration and Indigenous Affairs not to grant the applicant’s visa, finding that it was not satisfied that he had a genuine fear of persecution and there was not a real chance that he would face persecution upon his return to Iran. The Tribunal concluded that several parts of the applicant’s evidence were implausible and that he was not a credible witness. Specifically, the Tribunal doubted the genuineness of the letters concerning the Ayatollah Shirazi.

It was common ground that the Tribunal did not at any time indicate to the applicant of its doubts about the letters, nor did it give the applicant an opportunity to put his case as to why they were genuine.

The applicant brought proceedings in the Federal Court seeking prerogative writs against the Tribunal’s decision. Those proceedings were dismissed by French J.

The Full Court of the Federal Court allowed an appeal, setting aside French J’s orders, issuing a writ of certiorari and remitting the matter back to the Tribunal. The Full Court held that procedural fairness imposes a duty on the Tribunal to ensure that an applicant is made aware of the case against him or her and given an opportunity to be heard in response to the issues to be decided.

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Animal rights, LAW FIRM, Law reform, Legislation

Cruelty to Animals Act 1876 (UK)| 15 August 1876

ON 15 AUGUST 1876, the UK Parliament enacted the Cruelty to Animals Act 1876.

The Act amended the Cruelty to Animals Act 1849, extending it to animal experiments by licensing and regulating scientific animal experiments and prohibiting such experiments that are painful.

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Sydney, Australia

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Civil procedure, LAW FIRM

Civil Procedure Act 2005 (NSW) | 15 August 2005

ON 15 AUGUST 2005, the substantive provisions of the NSW Civil Procedure Act 2005 commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa2005167/

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LAW FIRM, Planning Law

North Sydney Council v Bewley [2014] NSWLEC 145

ON 14 AUGUST 2014, the NSW Land and Environment Court delivered North Sydney Council v Bewley [2014] NSWLEC 145.

The court granted leave for North Sydney Council to discontinue its proceedings against the owner and occupier of 38 Shellcove Road, Kurraba Point with an order that each party pay their own costs.

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Sydney, Australia

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Constitutional law, Criminal Law, Criminal Procedure, LAW FIRM

Pollentine v Bleijie [2014] HCA 30

ON 14 AUGUST 2014, the High Court of Australia delivered Pollentine v Bleijie [2014] HCA 30 (14 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/30.html

The Criminal Law Amendment Act 1945 (Qld) provides that a judge of a trial in which a person is found guilty of a child sexual offence may seek medial opinion as to whether or not the offender is “incapable of exercising proper control over the offender’s sexual instincts” and if the opinion is that the offender is incapable of exercising such control, the judge may in addition to or in lieu of any other sentence, declare that the person is incapable of exercising such control and direct that the offender be detained in an institution during “Her Majesty’s pleasure”.

The plaintiffs challenged the validity of s18, alleging that the provision is contrary to Chapter III of the Constiution by way of infringing the principle identified in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

The court upheld the validity of s18, holding that the provision is not contrary to Chapter III because the presiding judge has the discretion whether to direct the detention; and a decision to release an offender is not the subject of an unconfined executive discretion as it is subject to safeguards including medical opinion and judicial review.

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Constitutional law, LAW FIRM

Polyukhovich v Commonwealth (“War Crimes Act case”) [1991] HCA 32 | 14 August 1991

ON 14 AUGUST 1991, the High Court of Australia delivered Polyukhovich v Commonwealth (“War Crimes Act case”) [1991] HCA 32; (1991) 172 CLR 501 (14 August 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/32.html

Polyukhovich brought proceedings against the Commonwealth seeking declarations that the War Crimes Amendment Act 1988 (Cth) and certain provisions of the War Crimes Act 1945 (Cth) were constitutionally invalid on the grounds that the legislation (1) exceeded the Commonwealth’s defence (s51(vi)) and external affairs powers (s51(xxix)); and (2) invalidly usurped the Commonwealth’s judicial power, infringing Chapter III.

The High Court held that the legislation was valid.

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

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 | 14 August 1997

ON 14 AUGUST 1997, the High Court of Australia delivered Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/39.html

A landlord has a duty to its tenants to use reasonable care and skill to provide safe premises. The obligation is limited to repair of defects which the landlord was or should have been aware. The landlord must reasonably respond to any information it receives as to the existence of any defect.

The court held that the rule in the English decision of Cavalier v Pope Cavalier v Pope [1906] AC 428 (a landlord is immune from liability in tort for defective premises causing injury) should no longer be followed in Australian law as it is inconsistent with the principles concerning of duty of care developed since Donoghue v Stevenson.

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Sydney, Australia

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