Tag Archives: LOWER NORTH SHORE

Courts and Tribunals

High Court of Australia

The High Court of Australia http://www.hcourt.gov.au/ is the highest court in Australia.

The High Court was established by the Constitution on 1 January 1901 and first sat in Melbourne in 1903.

The Court hears three types of cases:

  • Original matters specified in the Constitution including disputes between the States and/or the Commonwealth, interpretation of the Constitution and interpretation of Commonwealth laws.
  • Appeals from single justices of the High Court.
  • Appeals from the State and Territory Supreme Courts, Federal Court of Australia and Family Court of Australia.

There is no automatic right to an appeal. A party wanting to appeal must make an application for special leave. In determining an application for special leave, the court may have regard to any relevant matters but shall have specific regard to:

  • questions of law either of public importance or subject to differences of opinion between the state courts and
  • whether it is in the interests of the administration of justice, generally or in the particular case.

Decisions of the court are binding on all other courts in Australia. The court is not bound by it’s earlier decisions.

The High Court is constituted by seven justices, including a Chief Justice. The current court consists of:

  • Chief Justice French AC.
  • Justice Hayne AC.
  • Justice Crennan AC.
  • Justice Kiefel AC.
  • Justice Bell AC.
  • Justice Gageler.
  • Justice Keane.

Since 1980, the High Court’s principal registry has been in Canberra at Parkes Place, Parkes, ACT 2600, tel (02) 6270 6857.

There are registry offices in all capital cities. The Sydney registry is at Level 23, Law Courts Building, Queens Square, Sydney NSW 2000, tel (02) 9230 8369.

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Contract, Damages, Employment Law

Addis v Gramophone Co Ltd [1909] UKHL 1 | 26 July 1909

ON 26 JULY 1909, the House of Lords delivered Addis v Gramophone Co Ltd [1909] UKHL 1, [1909] AC 488.

http://www.bailii.org/uk/cases/UKHL/1909/1.html

The decision is notable for establishing the general principle that damages for breach of contract do not cover injured feelings, mental anxiety, distress, anguish or frustration.

In cases of wrongful or unfair dismissal, damages are limited to lost earnings during the period of notice and are not to compensate the manner of dismissal; loss of reputation; difficulty of finding other employment; or injured feelings, mental anxiety, distress, anguish or frustration.

Damages for breach of contract are compensatory and the court may not award exemplary damages.

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Planning Law, Property Law

Housing Commission of NSW v San Sebastian Pty Ltd [1978] HCA 28 | 25 July 1978

ON 25 JULY 1978, the High Court of Australia delivered Housing Commission of NSW v San Sebastian Pty Ltd [1978] HCA 28; (1978) 140 CLR 196 (25 July 1978).

http://www.austlii.edu.au/au/cases/cth/HCA/1978/28.html

When valuing land for the purposes of compensation for resumption, no regard is to be given to either the increase or diminution in the value of the land entirely brought about by the resumption.

See also: Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565.

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Sydney, Australia

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Equity, Property Law, Taxation

Norman v Federal Commissioner of Taxation [1963] HCA 21 | 25 July 1963

ON 25 JULY 1963, the High Court of Australia delivered Norman v Federal Commissioner of Taxation [1963] HCA 21; (1963) 109 CLR 9 (25 July 1963).

http://www.austlii.edu.au/au/cases/cth/HCA/1963/21.html

A husband had voluntarily assigned to his wife the right to company dividends and interest on a debt payable at will. The court held that the dividends and interest were future property not capable of being assigned for consideration and were therefore to be assessed as taxable income of the husband.

Assignment is “the immediate transfer of an existing proprietary right, vested or contingent, from the assignor to the assignee” per Windeyer J at 26.

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Sydney, Australia

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Administrative Law, Commercial Law, Consumer Law, Courts and Tribunals, Disability Law, Discrimination Law, Elder Law, Ethics, Guardianship, Human Rights, Licensing, Professional conduct

NSW Civil and Administrative Tribunal

The NSW Civil and Administrative Tribunal (NCAT)http://www.ncat.nsw.gov.au/ncat/index.html commenced on 1 January 2014 pursuant to the NSW Civil and Administrative Act 2013 and Civil and Administrative Regulation 2013.

The NCAT takes over the functions of 22 former state tribunals, including:

  • Aboriginal and Torres Strait Islander Health Practice Tribunal
  • Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
  • Administrative Decisions Tribunal
  • Charity Referees
  • Consumer, Trader and Tenancy Tribunal
  • Dental Tribunal
  • Guardianship Tribunal
  • Chinese Medicine Tribunal
  • Chiropractic Tribunal
  • Medical Radiation Practice Tribunal
  • Medical Tribunal
  • Nursing and Midwifery Tribunal
  • Occupational Therapy Tribunal
  • Optometry Tribunal
  • Osteopathy Tribunal
  • Pharmacy Tribunal
  • Physiotherapy Tribunal
  • Podiatry Tribunal
  • Psychology Tribunal
  • Local Government Pecuniary Interest and Disciplinary Tribunal
  • Local Land Boards
  • Victims Compensation Tribunal (transferred into the ADT in June 2013)
  • Vocational Training Appeals Panel.

The NCAT is constituted by a President (a Supreme Court judge), Deputy Presidents of each of the four divisions, a Principal Registrars and Members including Principal Member, Senior Members and General Members.

The NCAT has four divisions:

  • Administrative and Equal Opportunity, which deals with review of administrative decisions of government agencies and resolution of discrimination matters.
  • Consumer and Commercial, which deals with a broad number of disputes about the supply of goods and services, including agent commissions and fees; agricultural tenancies; boarding houses; consumer claims; conveyancing costs; dividing fences; holiday parks (long-term occupancy); home building; motor vehicles; pawnbrokers and second-hand dealers; residential parks; retail leases; retirement villages; social housing; strata and community schemes; tenancy; travel compensation fund appeals.
  • Guardianship, which has jurisdiction over people who live in NSW or hold property or financial assets in NSW: to make guardianship orders for the appointment of a private or public guardian; make financial orders for a private or public financial manager; provide consent for medical or dental treatment; review enduring powers of attorney; review an enduring guardianship appointment; approve a clinical trial involving people with decision-making disabilities.
  • Occupational, including: administrative review of licensing decisions with respect to transport drivers/operators, security guards, builders, real estate agents, motor dealers and repairers, pawnbrokers and second hand dealers, stock and station agents, business agents, travel agents, valuers and licenced conveyancers; professional discipline of occupations governed by a statutory council, board, panel or authority.

The current President is Justice Robertson Wright SC and the Deputy-Presidents are Magistrate Nancy Hennessy, Mr M D Schyvens, Mr Stuart Westgarth, The Hon. Wayne Haylen QC and Judge Kevin O’Connor AM.

The principal registry is located at Level 9, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000, tel 1300 006 228.

The divisional registries are:

  • Administrative and Equal Opportunity: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.
  • Consumer and Commercial: Level 12, 175 Castlereagh Street, Sydney NSW 2000 (also at Liverpool, Hurstville, Newcastle, Penrith, Tamworth and Wollongong).
  • Guardianship: Level 3, 2a Rowntree Street Balmain NSW 2041.
  • Occupational: Level 10, John Maddison Tower, 86-90 Goulburn Street, Sydney NSW 2000.

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Courts and Tribunals, De Facto relationships, Family Law

Family Court of Australia

The Family Court of Australia http://www.familycourt.gov.au/ was established under the Commonwealth Family Law Act 1975 http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/  to specifically deal with marriage, divorce, matrimonial causes, parental responsibility for children and financial matters arising out of the breakdown of de facto relationships and certain other matters.

The court commenced on 5 January 1976. It is constituted by a Chief Justice, Deputy Chief Justice, Judges of Appeal Division, Family Court of Western Australia and Judicial Committees.

Since 5 July 2004, the Chief Justice has been Diana Bryant AO.

The Chief judge makes rules delegating the judicial powers to Registrars and non-judicial officers.

The court provides both judicial and administrative procedures for the determination of disputes.

The court has registries in all states apart from Western Australia, which has it’s own Family Court. All of the registries support the family law jurisdiction of the Federal Circuit Court.

At first instance, the court hears matters before single judges. The court also has an appeal division (Full Court) which hears appeals from first instance decisions of the Family Court and the family jurisdiction of the Federal Circuit Court.

In the Sydney metropolitan area, the Family Court has registries at:

  • Sydney Family Law Registry: Lionel Bowen Building, 97-99 Goulburn Street, Sydney NSW 2000, tel 1300 352 000.
  • Parramatta Family Law Registry: Garfield Barwick Commonwealth Law Courts Building, 1-3 George Street, Parramatta NSW 2150, tel 1300 352 000.

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Sydney, Australia

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Criminal Law, Criminal Procedure, Sentencing

Postiglione v R [1997] HCA 26 | 24 July 1997

ON 24 JULY 1997, the High Court of Australia delivered Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 145 ALR 408; (1997) 71 ALJR 875 (24 July 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/26.html

The decision is an exposition of the principle of due proportionality set out in the earlier decision of the court in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984).

Different sentences may be imposed upon like offenders to reflect different degrees of culpability or different circumstances of the offenders.

At 302, Dawson and Gaudron JJ said:

“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

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Employment Law

Australian Postal Corporation v D’Rozario [2014] FCAFC 89

ON 23 JULY 2014, the Full Court of the Federal Court of Australia delivered Australian Postal Corporation v D’Rozario [2014] FCAFC 89 (23 July 2014).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/89.html

Three Australia Post employees were dismissed for sending pornographic material by email from their work email addresses to others including work colleagues.

The employees took their matters to the Fair Work Commission, seeking reinstatement on the basis that their termination was “harsh, unjust and unreasonable”.  At first instance, the Fair Work Commission dismissed the applications of two of the workers and ordered that the third receive compensation but not reinstatement.

 

The workers appealed to the Full Bench of the Fair Work Commission, who ordered reinstatement in all three cases on public interest grounds.

Australia Post appealed the Commission’s decision to the Full Court of the Federal Court of Australia. The Full Court found that there was no appellable error with the Full Bench’s decision with respect to the first two workers and dismissed their appeals. The Full Court quashed the decision of the Full Bench with respect to the third worker on the grounds that the Full Bench failed to consider whether or not it was in the public interest to allow the appeal.

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Sydney, Australia

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Constitutional law, Taxation

South Australia v Commonwealth (“First Uniform Tax case”) [1942] HCA 14 | 23 July 1942

ON 23 JULY 1942, the High Court of Australia delivered South Australia v Commonwealth (“First Uniform Tax case”) [1942] HCA 14; (1942) 65 CLR 373 (23 July 1942).

http://www.austlii.edu.au/au/cases/cth/HCA/1942/14.html

The Commonwealth passed four Acts

  • Income Tax Act 1942, which imposed income tax as high as 90 percent, leaving no room for additional state income tax.
  • States Grants Act 1942, allowing grants to states who did not impose income tax.
  • Section 221 of the Income Tax Assessment Act 1942, requiring Commonwealth taxes to be paid before state taxes.
  • the Income Tax (Wartime Arrangements) Act 1942, requiring the states to transfer to the Commonwealth all tax collection officers, offices, equipment and records.

The effect of the four acts was to put an end to the end of state income taxes.

The Act was challenged in the High Court by South Australia, Victoria, Queensland and Western Australia. The Court dismissed the actions, holding that the four pieces of legislation were valid.

The solicitor for the Commonwealth was Fred Whitlam, the father of the Honourable Edward Gough Whitlam AC QC, Prime Minister of Australia from 1972 to 1975.

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Sydney, Australia

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Intellectual Property, Trade Practices

Sydney Lawyers

ON 22 JULY 1982, the Federal Court of Australia delivered Re Taco Company of Australia Inc; Taco Bell v Taco Bell Pty Limited; Denbrad Management Pty Limited; Robert Francis; Eric Baillie Francis [1982] FCA 136 (22 July 1982).

http://www.austlii.edu.au/au/cases/cth/FCA/1982/136.html

Taco Bell Pty Ltd (the first respondent) was incorporated in NSW, Australia and had for several years operated a business in Bondi called Taco Bell’s Casa and in 1974 registered the business names of Taco Bell and Taco Casa. Taco Company of Australia Inc (the appellant) was incorporated in the United States with the intention to establish Taco Bell restaurants in Australia and from 1981 operated a Taco Bell restaurant in Sydney.

The respondents sued the appellant for misleading and deceptive conduce under s52 and s53 of the Commonwealth Trade Practices Act 1975 and for passing off. The appellant made similar counter-claims.

At trial, the first respondent was successful in establishing a breach of s52 and passing off.

An appeal was dismissed and injunctions were granted in favour of the respondents restraining the appellant from, within the Sydney metropolitan area (1) using the name Taco Bell or (2) passing off goods and services as being that of the respondents.

A number of observations and principles come from this case.

Representation

At 202, Deane and Fitzgerald JJ observed that a finding on whether or not conduct is a representation is “a question of fact to be decided by considering what [was] said and done against the background of all surrounding circumstances”.

and

“In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. In other cases, the process will be more complicated and call for the assistance of certain guidelines upon the path to decision.”

The doctrine of erroneous assumption

At 200, Deane and Fitzgerald JJ held:

“no conduct can mislead or deceive unless the representee labours under some erroneous assumption”.

and

“Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them.”

When determining whether conduct should be categorised as misleading or deceptive or as likely to mislead or deceive, the nature of the erroneous assumption “will be a relevant, and sometimes decisive, factor”

Misconception

There must be a misrepresentation, not mere tendency to cause confusion or uncertainty.  At 201, Deane and Fitzgerald JJ accepted that the “question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52”.

Injunctions

At 207, Deane and Fitzgerald JJ said “Injunctive relief granted to restrain contravention of s52 of the [TP Act] should plainly be limited to what is necessary in the circumstances of the particular case.”

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