Commonwealth of Australia v. North Sydney Council [1998] NSWLEC 252 (14 October 1998).
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R v Jurisic [1998] NSWSC 423
ON 12 OCTOBER 1998, the NSW Court of Criminal Appeal delivered R v Jurisic Matter No 60131/98 [1998] NSWSC 423 (12 October 1998).
http://www.austlii.edu.au/au/cases/nsw/NSWSC/1998/423.html
The court delivered a Guideline Judgment for NSW courts to follow when sentencing offenders for dangerous driving (occasioning death and grievous bodily harm). The judgment was the first of its kind in NSW, made in response to concerns about the consistency and adequacy of sentences for dangerous driving since the introduction of s52A of the Crimes Act 1900 (NSW) in 1994.
The Court of Criminal Appeal promulgated the following guidelines:
“1 A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.
2 With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.
The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.”
Spigelman CJ at CL at 228 quoted the following passage from Hunt CJ at CL in R v Musumeci (unrep, 30/10/97, NSWCCA):
“This court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving:
- 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
- 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
- 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
- 4. The courts must tread warily in showing leniency for good character in such cases.
- 5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
- 6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.
- 7. The statement made by this court in relation to the previous offence of culpable driving — that it cannot be said that a full-time custodial sentence is required in every case — continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence.”
The guideline has been reformulated in R v Whyte and other subsequent decisions.
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Lee v R [1998] HCA 60
ON 30 September 1998, the High Court of Australia delivered Lee v R [1998] HCA 60; 195 CLR 594; 157 ALR 394; 72 ALJR 1484 (30 September 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/60.html
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Graham v R [1998] HCA 61
ON 30 SEPTEMBER 1998, the High Court of Australia delivered Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 (30 September 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/61.html
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Pearce v R [1998] HCA 57
ON 10 SEPTEMBER 1998, the High Court of Australia delivered Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416 (10 September 1998).
Where more than one offence contains the same elements of conduct, an offender should not be punished more than once for the overlapping elements. The punishment should reflect what the offender has done and should not be affected by how the offence is expressed: at [40].
There is no single correct sentence for a particular offence to be applied with mathematical precision. It is important for proper principle to be applied: at [46].
Sydney, Australia
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Chappel v Hart [1998] HCA 55
ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html
A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.
Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure to do with the actual care provided.
The court also applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.
Per Gaudron J at [32]:
“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”
Per McHugh J at [23]:
“The question of causation is not resolved by philosophical or scientific theories of causation”
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Farrell v R [1998] HCA 50
ON 13 AUGUST 1998, the High Court of Australia delivered Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998).
http://www.austlii.edu.au/au/cases/cth/high_ct/1998/50.html
Expert evidence is admissible to assist the court with the provision of specialized information likely to “outside the experience and knowledge of the judge or jury” and “beyond the experience of ordinary persons” (at 292-293).
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Avon Products Pty Ltd (Brookvale) Consent Award 1998 [1998] NSWIRComm 407
Avon Products Pty Ltd (Brookvale) Consent Award 1998 [1998] NSWIRComm 407 (6 August 1998).
http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/1998/407.html
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Garcia v National Australia Bank Ltd [1998] HCA 48
ON 6 AUGUST 1998, the High Court of Australia delivered Garcia v National Australia Bank Ltd [1998] HCA 48; 6 CCL 81; 194 CLR 395; 155 ALR 614; 72 ALJR 1243 (6 August 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/48.html
The High Court considered its earlier decisions of Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 as well as the English decision of Barclays Bank Plc v O’Brien [1994] 1 AC 180.
Yerkey v Jones provides a special rule for married women who, regardless of other characteristics, voluntarily guarantee their husband’s loans. There are two limbs: (1) a wife may have a guarantee set aside if the consent was obtained by undue influence, unless she received independent advice (at 649, per Dixon J); and (2) a wife has a prima facie right to have a guarantee set aside if she failed to understand the effect of the guarantee or its significance, unless steps were taken by the lender to inform the wife of such matters (at 683, per Dixon J).
Commercial Bank of Australia Ltd v Amadio is the leading Australian case on unconscionability. Unconscionable dealings are defined as the “unconscientious use of a superior position to the detriment of a party who suffers some special disability or is or is in some special position of disadvantage” (Mason J at 461). Such dealings occur when “one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientous advantage is taken” ((Mason J at 462). In other words, entry into the contract must be caused by taking advantage of a special disability, not mere inequality or impaired judgment.
In Garcia, the High Court rejected the submission that the rule in Yerkey v Jones had been overruled by or subsumed in Amadio. The court at [34] per Gaudron, McHugh, Gummow and Hayne JJ reaffirmed Yerkey v Jones as being a separate rule of unconsciounability (1) applying to married women and not dependant on any presumption of undue influence by the husband over the wife or the husband as acting as agent for the creditor and (2) dependant on “the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction’s purport and effect”.
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DJM and JLM [1998] FamCA 97
DJM and JLM [1998] FamCA 97 (15 July 1998).
http://www.austlii.edu.au/au/cases/cth/family_ct/1998/97.html
Sydney, Australia
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