Mosman Lawyers
The Deputy Chief Magistrate Jane Calver was appointed to the District Court of NSW last Thursday. She will be sworn in as a District Court judge on 29 October.
For more information visit http://www.justice.nsw.gov.au/Pages/media-news/media-releases/2014/deputy-chief-magistrate-judge.aspx
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ON 23 OCTOBER 2014, the NSW Parliament passed the Criminal Records Amendment (Historical Homosexual Offences) Bill 2014.
The legislation amends the Criminal Records Act 1991 (NSW) by providing a process for extinguishing convictions for certain consensual homosexual conduct that was illegal in New South Wales up until 1984. The process also covers conduct that ceased to be an offence when the unequal age of consent laws were changed in 2003.
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Orders were made today in the Federal Court of Australia determining that native title is held by the Butchulla People over land and waters on Fraser Island, Queensland.
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ON 24 OCTOBER 1995, the High Court of Australia delivered Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995)
At 179:
“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
At 180:
“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.
At 177:
A court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.
At 177:
Jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.
At 177-8
Examples of a court acting beyond its jurisdiction by entertaining a matter outside the limits of the court’s functions include:
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ON 21 OCTOBER 2005, the High Court of Australia delivered CSR Limited v Eddy [2005] HCA 64; (2005) 80 ALJR 59 (21 October 2005).
http://www.austlii.edu.au/au/cases/cth/HCA/2005/64.html
The High Court overruled the NSW Court of Appeal decision of Sullivan v Gordon, holding that a person who claims damages for personal injuries cannot claim special damages for the loss of capacity to care for a disabled family member that they would have cared for had they not been injured.
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The Land and Environment Court of NSW today delivered Donohoe v Manly Council [2014] NSWLEC 1214.
The court upheld an appeal against a planning decision of Manly Council, ordering that the Development Consent concerning 46 White Street, Balgowlah, be modified by enlarging the basement, adding a study to each townhouse, modifying the form of the roofs and making minor changes to the internal layout of each townhouse.
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ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.
http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm
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G v H [1994] HCA 48; (1994) 181 CLR 387; (1994) 124 ALR 353 (19 October 1994).
http://www.austlii.edu.au/au/cases/cth/high_ct/181clr387.html
A child’s paternity had been inferred by the Full Court of the Federal Court of Australia by reason of matters including the father’s refusal to undergo a paternity test.
On appeal to the High Court, it was argued that the adverse inference was not just in the light of the evidentiary rule set out in Briginshaw v Briginshaw (that for issues of importance and gravity arising in a civil case, serious consideration be given as to whether the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist).
The High Court held that whilst paternity is a serious matter, it was just to draw the adverse inference against the putative father because the paternity test was capable of conclusively determining the child’s paternity and that the child’s right to maintenance and support should not depend on establishing paternity in accordance with the Briginshaw test.
“ Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided … Paternity is a serious matter, both for father and for child. However, it is not clear that the question of paternity should be approached on the basis that it involves a grave or serious allegation in the Briginshaw v Briginshaw sense when what is at issue is the maintenance of a child and the evidence establishes that the person concerned is more likely than anyone else to be the father. After all, paternity can be determined easily and, for practical purposes, conclusively. And now that that is so, it is difficult to see why, if a person who could be the father declines to participate in procedures which will provide proof one way or the other, the child’s rights to maintenance and support should nonetheless depend on the biological fact of paternity being established on the basis that, so far as the putative father is concerned, the biological fact involves an allegation in much the same category as an allegation of moral or criminal wrongdoing. …”
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The NSW Young Lawyers’ Practitioner’s Guide to Criminal Law is an invaluable resource for users of the criminal justice system in NSW. Visit http://www.crimlawguide.com.au/
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John Stratton SC’s Criminal Law Survival Kit is a useful online resource for lawyers and the public involved with the criminal justice system. Visit http://www.criminallawsurvivalkit.com.au/
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