Tag Archives: Mosman Lawyers

Mosman Lawyers

Constitutional law, Taxation

South Australia v Commonwealth (“First Uniform Tax case”) [1942] HCA 14 | 23 July 1942

ON 23 JULY 1942, the High Court of Australia delivered South Australia v Commonwealth (“First Uniform Tax case”) [1942] HCA 14; (1942) 65 CLR 373 (23 July 1942).

http://www.austlii.edu.au/au/cases/cth/HCA/1942/14.html

The Commonwealth passed four Acts

  • Income Tax Act 1942, which imposed income tax as high as 90 percent, leaving no room for additional state income tax.
  • States Grants Act 1942, allowing grants to states who did not impose income tax.
  • Section 221 of the Income Tax Assessment Act 1942, requiring Commonwealth taxes to be paid before state taxes.
  • the Income Tax (Wartime Arrangements) Act 1942, requiring the states to transfer to the Commonwealth all tax collection officers, offices, equipment and records.

The effect of the four acts was to put an end to the end of state income taxes.

The Act was challenged in the High Court by South Australia, Victoria, Queensland and Western Australia. The Court dismissed the actions, holding that the four pieces of legislation were valid.

The solicitor for the Commonwealth was Fred Whitlam, the father of the Honourable Edward Gough Whitlam AC QC, Prime Minister of Australia from 1972 to 1975.

Lawyers

Sydney, Australia

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Intellectual Property, Trade Practices

Sydney Lawyers

ON 22 JULY 1982, the Federal Court of Australia delivered Re Taco Company of Australia Inc; Taco Bell v Taco Bell Pty Limited; Denbrad Management Pty Limited; Robert Francis; Eric Baillie Francis [1982] FCA 136 (22 July 1982).

http://www.austlii.edu.au/au/cases/cth/FCA/1982/136.html

Taco Bell Pty Ltd (the first respondent) was incorporated in NSW, Australia and had for several years operated a business in Bondi called Taco Bell’s Casa and in 1974 registered the business names of Taco Bell and Taco Casa. Taco Company of Australia Inc (the appellant) was incorporated in the United States with the intention to establish Taco Bell restaurants in Australia and from 1981 operated a Taco Bell restaurant in Sydney.

The respondents sued the appellant for misleading and deceptive conduce under s52 and s53 of the Commonwealth Trade Practices Act 1975 and for passing off. The appellant made similar counter-claims.

At trial, the first respondent was successful in establishing a breach of s52 and passing off.

An appeal was dismissed and injunctions were granted in favour of the respondents restraining the appellant from, within the Sydney metropolitan area (1) using the name Taco Bell or (2) passing off goods and services as being that of the respondents.

A number of observations and principles come from this case.

Representation

At 202, Deane and Fitzgerald JJ observed that a finding on whether or not conduct is a representation is “a question of fact to be decided by considering what [was] said and done against the background of all surrounding circumstances”.

and

“In some cases, such as an express untrue representation made only to identified individuals, the process of deciding that question of fact may be direct and uncomplicated. In other cases, the process will be more complicated and call for the assistance of certain guidelines upon the path to decision.”

The doctrine of erroneous assumption

At 200, Deane and Fitzgerald JJ held:

“no conduct can mislead or deceive unless the representee labours under some erroneous assumption”.

and

“Such an assumption can range from the obvious, such as a simple assumption that an express representation is worthy of credence, through the predictable, such as the common assumption in a passing-off case that goods marketed under a trade name which corresponds to the well-known trade name of goods of the same type have their origins in the manufacturer of the well-known goods, to the fanciful, such as an assumption that the mere fact that a person sells goods means that he is the manufacturer of them.”

When determining whether conduct should be categorised as misleading or deceptive or as likely to mislead or deceive, the nature of the erroneous assumption “will be a relevant, and sometimes decisive, factor”

Misconception

There must be a misrepresentation, not mere tendency to cause confusion or uncertainty.  At 201, Deane and Fitzgerald JJ accepted that the “question whether particular conduct causes confusion or wonderment cannot be substituted for the question whether the conduct answers the statutory description contained in s 52”.

Injunctions

At 207, Deane and Fitzgerald JJ said “Injunctive relief granted to restrain contravention of s52 of the [TP Act] should plainly be limited to what is necessary in the circumstances of the particular case.”

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Insolvency, Mortgage, Settlements

National Australia Bank Limited v Said

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.

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Sydney, Australia

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Environmental Law, Planning Law, Trees between neighbours dispute

Goodwin v Haddad & anor [2014] NSWLEC 1145

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.

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Sydney, Australia

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Defences, Negligence, Personal Injury, Work injuries

Smith v Charles Baker & Sons House of Lords [1891] UKHL 2 | 21 July 1891

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.

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Sydney, Australia

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Dust Diseases, Personal Injury, Work injuries, Workers Compensation

Dust Diseases Tribunal | 21 July 1989

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:

  • President Justice R O Blanch AM
  • Judge J P Curtis
  • Judge W P Kearns SC
  • Judge Finnane RFD QC
  • Acting Judge P J Johns

The court is situated at 12th Floor, John Maddison Tower, 88 Goulburn Street, Sydney NSW 2000. For all enquiries call (02) 9377 5440.

Lawyers

Sydney, Australia

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Appeals, Bias, Conflict of interest, Courts and Tribunals, Waiver

Smits v Roach [2006] HCA 36 | 20 July 2006

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.

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Sydney, Australia

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Criminal Law, Criminal Procedure

Brutus v Cozens [1972] UKHL 6 | 19 July 1972

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.

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Administrative Law, Elder Law

R v Hunt; Ex Parte Sean Investments Pty Ltd [1977] HCA 32 | 19 July 1979

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.

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Criminal Law, Criminal Procedure, Evidence

May v O’Sullivan [1955] HCA 38 | 18 July 1955

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.

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