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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Courts and Tribunals

Magistrate Christopher O’Brien appointed Deputy Chief Magistrate

Magistrate Christopher O’Brien has been appointed NSW Deputy Chief Magistrate. He will be sworn in on 3 November 2014.

For further information visit http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2014/deputy-chief-magistrate-judge.aspx

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Courts and Tribunals

Deputy Chief Magistrate Jane Calver appointed to District Court

The Deputy Chief Magistrate Jane Calver was appointed to the District Court of NSW last Thursday. She will be sworn in as a District Court judge on 29 October.

For more information visit http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2014/deputy-chief-magistrate-judge.aspx

Legal Helpdesk

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Criminal Law, Discrimination Law, Human Rights, Law reform

Criminal Records Amendment (Historical Homosexual Offences) Bill 2014

ON 23 OCTOBER 2014, the NSW Parliament passed the Criminal Records Amendment (Historical Homosexual Offences) Bill 2014.

The legislation amends the Criminal Records Act 1991 (NSW) by providing a process for extinguishing convictions for certain consensual homosexual conduct that was illegal in New South Wales up until 1984. The process also covers conduct that ceased to be an offence when the unequal age of consent laws were changed in 2003.

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Native Title

De Satge on behalf of the Butchulla People #2 v State of Queensland [2014] FCA 1132

Orders were made today in the Federal Court of Australia determining that native title is held by the Butchulla People over  land and waters on Fraser Island, Queensland.

Lawyers

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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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Damages, LAW FIRM, Personal Injury

CSR Limited v Eddy [2005] HCA 64 | 21 October 2005

ON 21 OCTOBER 2005, the High Court of Australia delivered CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59 (21 October 2005).

http://www.austlii.edu.au/au/cases/cth/HCA/2005/64.html

The High Court overruled the NSW Court of Appeal decision of Sullivan v Gordon, holding that a person who claims damages for personal injuries cannot claim special damages for the loss of capacity to care for a disabled family member that they would have cared for had they not been injured.

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LAW FIRM, Manly, Planning Law

Donohoe v Manly Council [2014] NSWLEC 1214

The Land and Environment Court of NSW today delivered Donohoe v Manly Council [2014] NSWLEC 1214.

The court upheld an appeal against a planning decision of Manly Council, ordering that the Development Consent concerning 46 White Street, Balgowlah, be modified by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse.

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Mosman Solicitor & Notary