ON 30 SEPTEMBER 1998, the High Court of Australia delivered Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 (30 September 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/61.html
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Tag Archives: LOWER NORTH SHORE
Pearce v R [1998] HCA 57
ON 10 SEPTEMBER 1998, the High Court of Australia delivered Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416 (10 September 1998).
Where more than one offence contains the same elements of conduct, an offender should not be punished more than once for the overlapping elements. The punishment should reflect what the offender has done and should not be affected by how the offence is expressed: at [40].
There is no single correct sentence for a particular offence to be applied with mathematical precision. It is important for proper principle to be applied: at [46].
Sydney, Australia
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Chappel v Hart [1998] HCA 55
ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html
A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.
Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure to do with the actual care provided.
The court also applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.
Per Gaudron J at [32]:
“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”
Per McHugh J at [23]:
“The question of causation is not resolved by philosophical or scientific theories of causation”
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Farrell v R [1998] HCA 50
ON 13 AUGUST 1998, the High Court of Australia delivered Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998).
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/50.html
Expert evidence is admissible to assist the court with the provision of specialized information likely to “outside the experience and knowledge of the judge or jury” and “beyond the experience of ordinary persons” (at 292-293).
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Avon Products Pty Ltd (Brookvale) Consent Award 1998 [1998] NSWIRComm 407
Avon Products Pty Ltd (Brookvale) Consent Award 1998 [1998] NSWIRComm 407 (6 August 1998).
http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/1998/407.html
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Garcia v National Australia Bank Ltd [1998] HCA 48
ON 6 AUGUST 1998, the High Court of Australia delivered Garcia v National Australia Bank Ltd [1998] HCA 48; 6 CCL 81; 194 CLR 395; 155 ALR 614; 72 ALJR 1243 (6 August 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/48.html
The High Court considered its earlier decisions of Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 as well as the English decision of Barclays Bank Plc v O’Brien [1994] 1 AC 180.
Yerkey v Jones provides a special rule for married women who, regardless of other characteristics, voluntarily guarantee their husband’s loans. There are two limbs: (1) a wife may have a guarantee set aside if the consent was obtained by undue influence, unless she received independent advice (at 649, per Dixon J); and (2) a wife has a prima facie right to have a guarantee set aside if she failed to understand the effect of the guarantee or its significance, unless steps were taken by the lender to inform the wife of such matters (at 683, per Dixon J).
Commercial Bank of Australia Ltd v Amadio is the leading Australian case on unconscionability. Unconscionable dealings are defined as the “unconscientious use of a superior position to the detriment of a party who suffers some special disability or is or is in some special position of disadvantage” (Mason J at 461). Such dealings occur when “one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientous advantage is taken” ((Mason J at 462). In other words, entry into the contract must be caused by taking advantage of a special disability, not mere inequality or impaired judgment.
In Garcia, the High Court rejected the submission that the rule in Yerkey v Jones had been overruled by or subsumed in Amadio. The court at [34] per Gaudron, McHugh, Gummow and Hayne JJ reaffirmed Yerkey v Jones as being a separate rule of unconsciounability (1) applying to married women and not dependant on any presumption of undue influence by the husband over the wife or the husband as acting as agent for the creditor and (2) dependant on “the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction’s purport and effect”.
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DJM and JLM [1998] FamCA 97
DJM and JLM [1998] FamCA 97 (15 July 1998).
http://www.austlii.edu.au/au/cases/cth/family_ct/1998/97.html
Sydney, Australia
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DJM and JLM [1998] FamCA 97
ON 15 JULY 1998, the Family Court of Australia delivered DJM and JLM [1998] FamCA 97 (15 July 1998).
http://www.austlii.edu.au/au/cases/cth/FamCA/1998/97.html
The court considered a number of issues including the determination of the pool of assets and how to treat a post separation change of employment resulting in a voluntary reduction of earnings less than one’s earning capacity.
Sydney, Australia
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White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806
ON 14 JULY 1998, the Federal Court of Australia delivered White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806 (14 July 1998).
http://www.austlii.edu.au/au/cases/cth/FCA/1998/806.html
Flower & Hart (a firm of lawyers) was ordered to pay the legal costs of White Industries (Qld) Pty Ltd who had been sued by Flower & Hart’s client, Caboolture Park Shopping Centre Pty Ltd (in liquidation).
Proceedings alleging misleading and deceptive conduct, fraud and negligence had been brought by Caboolture Park for the ulterior purpose of delaying payment of monies due under a building contract. The solicitor for Caboolture Park, Michael Meadows, held the view that the proceedings did not have any prospects or any substantial prospects of success but nevertheless advised his client to proceed in order to secure a bargaining position against White Industries.
Goldberg held that:
- the proceedings were not brought for a legitimate purpose of vindicating a right but rather, they had no prospects of success and were brought to postpone or delay the ultimate determination of the legitimate claim of White Industries.
- it was unreasonable to make the allegations in circumstances where there was no factual basis and no consideration was given as to whether or not there was a factual basis.
- it was unreasonable for the solicitors to initiate and continue the proceedings as they amounted to an abuse of process and oppressive conduct.
- it was unreasonable for the solicitor to shelter behind the advice of counsel, Ian Callinan QC.
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Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44
Re JJT; Ex parte Victoria Legal Aid [1998] HCA 44; (1998) 195 CLR 184; (1998) 155 ALR 251; (1998) 72 ALJR 1141 (25 June 1998).
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/44.html
Sydney, Australia
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