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Tag Archives: LOWER NORTH SHORE
Eastman Inquiry
ON 29 MAY 2014, the Report of the Inquiry into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester was delivered to the Registrar of the ACT Supreme Court.
The report concluded that Mr Eastman suffered a substantial miscarriage of justice because he did not receive a fair trial according to the law and was not given a fair chance of acquittal. The report recommends that Mr Eastman’s murder conviction should be quashed.
Click to access Eastman_Inquiry_-_Board_of_Inquiry_Redacted_Full_Report_29_May_2014.pdf
http://www.eastmaninquiry.org.au/
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NSW Trustee and Guardian v Ralph Stern [2014] NSWSC 808
ON 28 MAY 2014, the Supreme Court of NSW delivered NSW Trustee and Guardian v Ralph Stern [2014] NSWSC 808 (28 May 2014).
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/808.html
Justice Hammerschlag delivered a judgment providing opinion, advice or direction under s63(1) of the Trustee Act 1925 with respect to trusts established by orders of Justice Ward on 7 May 2010 concerning Carol Judy Jennifer Sekers and others.
Sydney, Australia
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Hoffman & Hoffman [2014] FamCAFC 92
ON 27 MAY 2014, the Full Court of the Family Court of Australia delivered Hoffman & Hoffman [2014] FamCAFC 92 (27 May 2014)
http://www.austlii.edu.au/au/cases/cth/FamCAFC/2014/92.html
The Federal Magistrate had determined a property split of 50:50. The husband appealed, seeking a 70:30 split, on the grounds that the Federal Magistrate had failed to take into account his “special contributions” in the form of special skills and entrepreneurial flair.
The Court dismissed the appeal, holding that the Federal Magistrate was not required to take into account special contributions.
The court affirmed the state of the law with regards to the supposed doctrine of special contributions by quoting O’Ryan J in D & D [2005] FamCA 1462 at [271]:
“…the notion of special contribution has all been a terrible mistake … what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement” (emphasis in original). The task is to make findings as to the nature, form, characteristics and duration of each and all of the contributions made by each of the parties referenced to s 79(4), without adjectival qualification[17]. Thereafter the court must undertake the exquisitely difficult task of assessing how those respective contributions, often of differing types (a task which his Honour referred to below as a comparison of apples and carrots (at [42])), find expression in qualitative assessments.[18] In the context of a case such as the present one, the duration of the marriage[19] has an important influence upon what evidence is relevant in respect of contributions. There is no need to conduct a minute forensic examination of the details of contributions over many years with each party extolling their own efforts and attempting to diminish the other’s.”
Sydney, Australia
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Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518
ON 23 MAY 2014, the Supreme Court of NSW delivered Chaina v Presbyterian Church (NSW) Property Trust (No. 25) [2014] NSWSC 518 (“Scots College case”).
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=171197
The parents of a deceased schoolboy and a company related to the parents were awarded damages against the boy’s school arising from admitted negligence causing the boy’s drowning on a school hike in 1999.
The court found that the parents suffered mental harm which resolved by June 2001.
The parents were awarded damages which included an amount of $75,000 for their costs associated with the coronial inquest.
The father was awarded $202,486, the mother was awarded $138,887 and both were awarded $95,00 jointly. The associated company was awarded $56,000 with respect to a claim for loss of services (per quod servitium amisit) arising from the inability of the parents to work whilst suffering from the mental harm.
The amount awarded to the company was significantly less than that which the company had sought.
Sydney, Australia
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Litigation funding advisory panel
THE COMMONWEALTH ATTORNEY-GENERAL is to convene an advisory panel to look into the litigation funding industry.
Litigation funding advisory panel
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Mosman Lawyers
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Lawyers Costs
ON 21 MAY 2014, the NSW Chief Justice announced the results of his comprehensive review of the costs assessment scheme.
Click to access CJ_Announcement_210514.pdf
Sydney, Australia
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Grant v State of Victoria (The Office of Public Prosecutions) (No.2) [2014] FCCA 991
ON 22 MAY 2014, the Federal Circuit Court of Australia delivered Grant v State of Victoria (The Office of Public Prosecutions) (No.2) [2014] FCCA 991 (22 May 2014).
A solicitor who had been dismissed for poor performance successfully sued his employer, the Office of Public Prosecutions, for an adverse action under the Fair Work Act 2009 (Cth).
The poor performance was found to be a result of mental illness and that the employer should have understood the implications.
The court ordered that he be reinstated, be paid $93,750 (less tax) and a pecuniary penalty of $10,000.
Employers should reasonably accommodate an employee’s mental illness to allow them to continue in their employment. Poor performance needs to be carefully managed so as to avoid conduct constituting discrimination, harassment and bullying.
Sydney, Australia
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Lee v R; Lee v R [2014] HCA 20
ON 21 MAY 2014, the High Court of Australia delivered Lee v The Queen; Lee v The Queen [2014] HCA 20 (21 May 2014).
http://www.austlii.edu.au/au/cases/cth/HCA/2014/20.html
The High Court allowed two appeals, ordering that convictions be quashed with respect to various drug and firearms offences.
Before the trial, the appellants had given evidence before the NSW Crime Commission and such material was subject of a direction that it not be published if publication would prejudice a fair trial. Contrary to s13(9) of the New South Wales Crime Commission Act 1985, the material was published to members of the NSW Police Force and officers of the NSW Director of Public Prosecutions before the trial.
The appellants contended that the unlawful publication amounted to a miscarriage of justice under s6(1) of the NSW Criminal Appeal Act 1912.
The High Court held that the purpose of s13(9) was to protect a fair trial of a person who may later be charged with offences investigated by the Crime Commission. The later possession and possible use of the material by the prosecution was unfair, shifting the balance of power to the prosecution and departing from the kind of fair trial that the system of justice provides (as the court referred to in X7 v Australian Crime Commission [2013] HCA) and that s13(9) aims to protect.
The court said that the prosecution ought to have alerted the trial judge that it had come into possession of this material so that the judge could make directions to ensure that the trial was not affected.
Sydney, Australia
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