In 1964, the Australian Navy ships Melbourne and Voyager collided whilst performing exercises off Jervis Bay. Hundreds of servicemen were injured and 82 died.

Verwayen was one of the many servicemen who claimed damages for personal injury against the Commonwealth. His action was brought many years after the limitation period expired.

Verwayen’s solicitor acted for a number of servicemen. In another claim, the solicitor was assured in writing by the solicitor for the Commonwealth and the Minister of Defence that the Commonwealth would not be invoking the limitation defence. In other words, the Commonwealth would not be defending the case on the basis that the proceedings were barred because they were commenced after the expiry of the three year time limit.

The solicitor sought the same assurances from the Commonwealth before commencing Verwayen’s proceedings. The assurances were subsequently given after the proecceings were issued and the Commonwealth filed a defence pleading that the Commonwealth did not owe a duty of care because the harm occurred in combat exercises. The Commonwealth did not plead the limitation defence.

About 18 months after the proceedings were issued and 14 months after the defence was filed, the Commonwealth filed an amended defence pleading the limitation defence.

By a majority of 4:3, the High Court held that the Commonwealth could not plead the limitation defence.

Deane and Dawson JJ held that the appeal be dismissed applying the principle of estoppel by conduct. Both inferred that Mr Verwayen had prepared and prosecuted his action in reliance upon the representations made by the Commonwealth. The Commonwealth’s conduct raised an equity that could only be accounted for by holding it to the assumed state of affairs.

Toohey and Gaudron JJ held that the appeal be dismissed because the Commonwealth had waived its right to rely upon the defence.

Mason CJ, Brennan, Deane, Dawson and McHugh JJ were of the view that reliance upon a representation was fundamental to the establishment of an estoppel, but only Deane and Dawson JJ held that an estoppel could be applied in this case.

1300 00 2088

Criminal Law, Criminal Procedure, LAW FIRM, Law reform, Legislation

Mental Health (Forensic Provisions) Act 1990 (NSW)

September 3, 1990 Legal Helpdesk Lawyers

ON 3 SEPTEMBER 1990, the NSW Mental Health (Forensic Procedures) Act 1990 (formerly known as the Mental Health (Criminal Procedure) Act 1990) commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/mhpa1990355

The significant provisions are found in Part 3, specifically s32.

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 32
Persons suffering from mental illness or condition
32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013 ,

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

(3B) If the defendant fails to appear, the Magistrate may:
(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:
(a) issue a warrant for the defendant’s arrest, or

(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).

(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.

(5) The regulations may prescribe the form of an order under this section.

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Constitutional law, International Law, LAW FIRM

German Unification Treaty

August 31, 1990 Legal Helpdesk Lawyers

ON 31 AUGUST 1990, the German Unification Treaty was signed, amending the Basic Law for the Federal Republic of Germany.

Click to access unification_treaty.pdf

Peter O’Grady
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer

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Administrative Law, Appeals, LAW FIRM, Licensing, Media Law

Australian Broadcasting Tribunal v Bond (“Bond Media case”) [1990] HCA 33

July 26, 1990 Legal Helpdesk Lawyers

ON 26 JULY 1990, the High Court of Australia delivered Australian Broadcasting Tribunal v Bond (“Bond Media case”) [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990).

http://www.austlii.edu.au/au/cases/cth/HCA/1990/33.html

Sydney, Australia

1300 00 2088

Damages, LAW FIRM, Personal Injury, Torts

Malec v JC Hutton Pty Ltd [1990] HCA 20

June 26, 1990 Legal Helpdesk Lawyers

ON 26 JUNE 1990, the High Court of Australia delivered Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 (26 June 1990).

http://www.austlii.edu.au/au/cases/cth/HCA/1990/20.html

When assessing damages for events that would or would not have occurred, or might or might not have occurred, the approach is different to that events which have occurred.

A court determines on the balance of probabilities whether or not an event has occurred. For events that would have or might have occurred, the court is to adjust the award of damages to reflect the degree of probability of that event occurring.

Sydney, Australia

1300 00 2088

Constitutional law, LAW FIRM

Bropho v Western Australia [1990] HCA 24

June 20, 1990 Legal Helpdesk Lawyers

ON 20 JUNE 1990, the High Court of Australia delivered Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 (20 June 1990).

http://www.austlii.edu.au/au/cases/cth/HCA/1990/24.html

There is no basis in principle for unqualified insistence that the rule be applied inflexibly that the Crown is presumed not to be bound by legislation unless the presumption is overturned by either express words or necessarily implication. The strength of the presumption will depend on the circumstances, including the content and purpose of the statute.

1300 00 2088

Human Rights, LAW FIRM, Law reform, Legislation

Adoption Information Act 1990

April 2, 1990 Legal Helpdesk Lawyers

ON THIS DAY in 1991, the NSW Adoption Information Act 1990 came into force. The Act granted adoptees and relinquished parents the right to access adoption information and express interest in contact or veto contact. The Act was repealed by the Adoption Act 2000 which carried over the 1990 provisions.

http://www.austlii.edu.au/au/legis/nsw/num_act/aia1990n63257