ON THIS DAY in 2002, the NSW Court of Appeal delivered Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002).
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2002/419.html
Sydney, Australia
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Mosman Lawyers
Police Association of New South Wales v Commissioner of Police [2002] NSWIRComm 126
ON 20 DECEMBER 2002, the NSW Industrial Relations Commission delivered Police Association of New South Wales v Commissioner of Police [2002] NSWIRComm 126 (20 December 2002).
http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/2002/126.html
Sydney, Australia
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Alan Jones v John Fairfax Publications Pty Ltd and Anor [2002] NSWSC 1211
Alan Jones v John Fairfax Publications Pty Ltd and Anor [2002] NSWSC 1211 (18 December 2002)
Sydney, Australia
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Mosman Municipal Council v Waratah Village Partners Pty Ltd
Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184 (21 October 2002).
Mosman Municipal Council v Denning & 2 (Ors)
Mosman Municipal Council v Denning & 2 (Ors) [2002] NSWLEC 227 (4 October 2002).
Ipp Report
ON 30 SEPTEMBER 2002, Justice David Ipp issued his Review of the Law of Negligence final report.
Click to access ipp_report.pdf
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U v U [2002] HCA 36
ON 5 SEPTEMBER 2005, the High Court of Australia delivered U v U [2002] HCA 36; 211 CLR 238; 191 ALR 289; 76 ALJR 1416 (5 September 2002).
http://www.austlii.edu.au/au/cases/cth/high_ct/2002/36.html
An Indian mother and residential parent of a 9 year old girl applied to relocate to Mumbai where she had good employment prospects and family.
The Family Court rejected the application and appeals were dismissed by the Full Court of the Family Court of Australia and High Court of Australia.
The High Court made the following observations about relocation cases:
- The court, not the parties, defines the issues. The parties do not define the issues because they have failed to agree to a parenting plan. The court is not bound by the polarised options of the parties but instead must decide what is in the child’s best interests.
- There is no onus of the parent seeking relocation to show compelling reasons for relocation.
- Relocation disputes are unlikely to produce perfect solutions because of the wide range of predictions and discretion to make findings.
- It should be assumed that the non-resident parent ought not relocate to be nearer the relocating resident and child; and it should not be assumed that the residential parent should not subordinate her wish to relocate to the wish of the non-resident parent to remain in the place of his or her choosing.
- It is self-evident that, except in cases of abusive relationships, it is in the child’s best interests to develop good relationships with both parents.
Sydney, Australia
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Tame v New South Wales [2002] HCA 35
ON 5 SEPTEMBER 2002, the High Court of Australia delivered Tame v New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 (5 September 2002).
In a claim for damages for psychiatric injury caused by negligence, direct perception of the event or its aftermath is not a necessary aspect in all cases.
The question is whether it was reasonable to require the defendant to contemplate the risk of psychiatric injury to the plaintiff, and to take reasonable care to guard against the risk.
Sydney, Australia
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R v Whyte [2002] NSWCCA 343
ON 20 AUGUST 2002, the NSW Court of Criminal Appeal delivered R v Whyte [2002] NSWCCA 343 (20 August 2002).
Whyte was sentenced to imprisonment for two years and three months, with a non-parole period of 12 months, after pleading guilty to one charge of aggravated dangerous driving occasioning grievous bodily harm (s52A Crimes Act 1900 (NSW)). The Crown appealed against the sentence to the NSW Court of Criminal Appeal (CCA).
The CCA determined that the sentence was manifestly inadequate but exercised its discretion not to interfere.
The CCA delivered a guideline judgment with respect to sentencing for breach of s52A.
The CCA ruled that “A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.“
For typical cases involving high moral culpability, “…a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate.”
A typical case was one which was considered to involve:
- Young offender.
- Of good character with no or limited prior convictions.
- Death or permanent injury to a single person.
- The victim is a stranger.
- No or limited injury to the driver or the driver’s intimates.
- Genuine remorse.
- Plea of guilty of limited utilitarian value.
An appropriate increment is required for aggravating factors, which include:
- Extent and nature of the injuries inflicted.
- Number of people put at risk.
- Degree of speed.
- Degree of intoxication or of substance abuse.
- Erratic or aggressive driving.
- Competitive driving or showing off.
- Length of the journey during which others were exposed to risk.
- Ignoring of warnings.
- Escaping police pursuit.
- Degree of sleep deprivation.
- Failing to stop.
The guideline focuses on objective circumstances of the offence. The subjective circumstances of the offender must also be considered.
The CCA (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ) confirmed the validity of guideline judgments in NSW. The court ruled that ss 21A(4), 42A and 37A of the Crimes (Sentencing Procedure) Act 1999 require a sentencing judge to follow a guideline judgment given by the Court of Criminal Appeal and that such a judgment ought to have the force of legislation.
The CCA said that numerical guidelines provide adequacy and consistency of sentencing where there is a tension between individualised justice and the principle of consistency.
The guideline is not a “rule” or “presumption” but a “check” or “sounding board”.
If a sentencing judge does not apply a guideline, reasons should be given.
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Mosman Municipal Council v Toltz
Mosman Municipal Council v Toltz [2002] NSWLEC 175 (12 August 2002).
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