National Australia Bank Limited v Said [2014] NSWSC 959.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172788
Justice Harrison granted a stay of execution against a writ of possession issued to the bank on 17 March 2014 on strict terms that the defendant prosecute a claim for specific performance of an alleged settlement agreement with the bank and pay interest on the outstanding monies until the determination of those proceedings.
Sydney, Australia
1300 00 2088
ON 21 JULY 2014, the NSW Land and Environment Court delivered Goodwin v Haddad & anor [2014] NSWLEC 1145.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172870
The applicant sought orders under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 that the respondent, a neighbouring childcare centre, prune vegetation along their common boundary in order to restore sunlight.
The court upheld the application in part, ordering that each year in the first two weeks of March and September the respondent prune the vegetation to a height no more than 2.5 metres.
Sydney, Australia
1300 00 2088
ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).
http://www.bailii.org/uk/cases/UKHL/1891/2.html
The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).
On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.
The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.
Sydney, Australia
1300 00 2088
ON 21 JULY 1989, the Dust Diseases Tribunal of NSW (DDT) http://www.dustdiseasestribunal.lawlink.nsw.gov.au/ was established through the enactment of the Dust Diseases Act 1989 http://www.legislation.nsw.gov.au/viewtop/inforce/act+63+1989+FIRST+0+N/.
The DDT is a specialist tribunal with the exclusive jurisdiction to determine damages claims for death or injury arising from dust-exposure related diseases such as asbestosis and mesothelioma. The tribunal’s special purpose is to serve the interests of justice by expediting claims in circumstances where the claimants are in the advanced stages of illness.
The first judge to hear a case in the tribunal was Judge J L O’Meally AM RFD a tribunal Member (1989 to 1995), Senior Member (1995 to 1998) and President (1998 to 2011).
The Tribunal’s current judges are:
The court is situated at 12th Floor, John Maddison Tower, 88 Goulburn Street, Sydney NSW 2000. For all enquiries call (02) 9377 5440.
Sydney, Australia
1300 00 2088
ON 20 JULY 2006, the High Court of Australia delivered Smits v Roach [2006] HCA 36; (2006) 228 ALR 262; (2006) 80 ALJR 1309 (20 July 2006).
http://www.austlii.edu.au/au/cases/cth/HCA/2006/36.html
The High Court held that the NSW Court of Appeal was correct in holding that the appellant was estopped from raising a conflict of interest as it’s senior counsel had waived the right to object at the start of the proceedings. The High Court held that the appellant was bound by the conduct of it’s senior counsel on the question of waiver.
The court also held that in determining bias on the part of a judicial officer, the appeal court must (1) identify why a judge might have decided the case in a manner other than on its legal or factual merits, and (2) explain the logical connection between the matter complained of and the feared deviation from impartial decision making.
Sydney, Australia
1300 00 2088
ON 19 JULY 1972, the House of Lords delivered Brutus v Cozens [1972] UKHL 6 (19 July 1972).
http://www.bailii.org/uk/cases/UKHL/1972/6.html
The accused interrupted a game of tennis during the 1971 Wimbledon tournament. He entered the court, blew a whistle and distributed leaflets protesting against South African apartheid. Several others carrying banners and placards also entered the court. The accused was forcibly removed. The incident lasted two or three minutes.
The accused was charged with using insulting behaviour where a breach of the peace was likely to occur. At first instance, the Magistrate dismissed the charge, finding that the behaviour was not insulting. On appeal, the Divisional Court held that the conduct could be insulting as a matter of law and remitted the matter back to the Magistrate. The accused then appealed to the House of Lords.
1300 00 2088
ON 19 JULY 1979, the High Court of Australia delivered R v Hunt; Ex Parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322; (1979) 25 ALR 497 (19 July 1979).
http://www.austlii.edu.au/au/cases/cth/HCA/1979/32.html
The Commonwealth Minister for Health was required to consider, when conducting a review of a refusal to increase fees, the costs necessarily incurred by the approved nursing home in the provision of its services.
In this case the Minister considered that the nursing home’s increased rent was not a cost necessarily incurred because it was higher than rent normally paid by other nursing homes in the state.
The court held that the Minister failed to properly deal with the application because the rent was necessarily incurred in order to obtain possession of the premises.
The court granted a mandamus directing the Minister to consider the application according to law.
1300 00 2088
ON 18 JULY 1955, the High Court of Australia delivered May v O’Sullivan [1955] HCA 38; (1955) 92 CLR 654 (18 July 1955).
http://www.austlii.edu.au/au/cases/cth/HCA/1955/38.html
This decision sets out a procedural rule concerning the prosecution’s burden and onus of proof in criminal proceedings. There are two limbs.
The first limb: At the close of the prosecution case, the defendant may make a submission, without calling evidence, that there is “there is no case to answer”. The question to be determined is whether or not the defendant ought to be lawfully convicted.
The second limb: The question to be determined, as a question of fact, is whether or not on the whole of the evidence before it the court is satisfied of the defendant’s guilt beyond a reasonable doubt.
1300 00 2088
ON 17 JULY 1975, the High Court of Australia delivered Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 (17 July 1975).
http://www.austlii.edu.au/au/cases/cth/HCA/1975/24.html
Petelin owned land at Liverpool. He spoke little English and could not read English. Cullen through his agent sent Petelin $50 with a letter seeking his agreement to extend an option to purchase land for a further 6 months. Cullen’s agent then saw Petelin and asked him to sign to the letter that he received the $50. Petelin signed the letter believing he had signed a receipt, not an option.
Cullen sought an order for specific performance in the Supreme Court of NSW. The Supreme Court dismissed the action on the grounds that Petelin had made out the defence of non est factum. The NSW Court of Appeal then overturned the Supreme Court decision, ordering specific performance.
The High Court allowed Petelin’s appeal, overturning the Court of Appeal’s decision and dismissing Cullen’s action for specific performance.
The High Court found that Petelin was entitled to the defence of non est factum as he believed that he had signed a receipt, was not careless and that in any event, Cullen was not an innocent person without knowledge or reason to doubt the validity of the signature.
To make out a defence of non est factum, the defendant must show:
There is a heavy onus on the defendant to show that he or she believed the document to be radically different from what it was in fact.
Sydney, Australia
1300 00 2088
ON 16 JULY 2014, the NSW Land and Environment Court delivered IPM Pty Ltd v Mosman Municipal Council [2014] NSWLEC 1141.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172731
The court refused an appeal against Mosman Council’s decision to refuse a development application for the reconfiguration of retail tenancies and the fit out and use of one of the tenancies by Dan Murphy’s as retail liquor premises on the ground level of 710 Military Road, Mosman.
The court found that the site was not suitable for the proposed use because of the impacts arising from the traffic congestion and noise that it would generate.
Sydney, Australia
1300 00 2088
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