Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 (6 December 1985).
http://www.austlii.edu.au/au/cases/cth/high_ct/160clr583.html
Sydney, Australia
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Tag Archives: PERSONAL INJURY
Yorke v Lucas
Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661 (3 October 1985).
http://www.austlii.edu.au/au/cases/cth/high_ct/158clr661.html
The court said that although an intention to mislead or deceive is not a requisite element for a contravention of s52 of the Trade Practices Act 1974, the passing on of false information by a corporation is not misleading or deceptive conduct if it is apparent that the corporation is not the source of the information and it disclaims any belief in its truth or falsity.
To be liable for misleading or deceptive conduct, the individual passing on the information must either be an intentional participant, or if not, a participant with knowledge of the essential facts constituting the contravention of s52 (even if he or she does not know that those matters amount to a contravention).
Peter O’Grady, Lawyer
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Solicitor of the Supreme Court of NSW, Federal Court of Australia and High Court of Australia
Capital Gains Tax
20 SEPTEMBER 1985 is a pivotal date for the assessment of Capital Gains Tax under the Income Tax Assessment Act 1997 (Cth).
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He Kaw Teh v R [1985] HCA 43
ON 11 JULY 1985, the High Court of Australia delivered He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 (11 July 1985).
http://www.austlii.edu.au/au/cases/cth/HCA/1985/43.html
Even if a statute does not indicate that intent is an element of a grave criminal offence, it is to be presumed that intent is an element to be proved by the prosecution. In cases of possession, knowledge of the goods being in the accused’s custody is a necessary element and therefore knowledge must be proved by the prosecution.
In this case, the accused claimed that he did not know that he was in possession of heroin and therefore did not knowingly bring it into the country in contravention of the Customs Act.
Finding that the provision required proof of knowledge and intent, the court allowed the appeal and remitted the case back to determine the questions of knowledge and intent in accordance with the High Court’s judgment.
Sydney, Australia
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Council of the Shire of Sutherland v Heyman [1985] HCA 41
ON 4 JULY 1985, the High Court of Australia delivered Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424 (4 July 1985).
http://www.austlii.edu.au/au/cases/cth/HCA/1985/41.html
The council was sued by a resident homeowner for the expenses associated with remedying damage caused to their house due to it being constructed on inadequate footings. The owner alleged that the council was negligent in that it failed in it’s duty of care to ensure that the dwelling was properly constructed in accordance with the plans they approved because it failed to inspect the foundations before they were covered up.
The court did not find the council to be negligent in this case. Nevertheless, the decision established the principle that a public authority is governed by the ordinary principles of the law of negligence, even if it is a repository of a statutory discretion.
The court held that in certain circumstances a government body could be negligent in failing to prevent harm where a reasonable reliance arises from the community’s dependence on the function being exercised with due care.
Per Mason J at 464:
“…there will be cases in which the plaintiff’s reasonable reliance will arise out of a general dependence on an authority’s performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. …The control of air traffic, the safety inspection of aircraft and the fighting of a fire…by a fire authority…may well be examples of this type of function. …Whether the inspection of motor vehicles for registration purposes could generate such a general reliance is a more complex question…”
Per Mason J at 469:
“The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”
The “doctrine of general reliance” has since been rejected by the High Court: see Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council (1998) 192 CLR 330.
Sydney, Australia
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Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37
ON 11 JUNE 1985, the High Court of Australia delivered Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 (11 June 1985).
http://www.austlii.edu.au/au/cases/cth/HCA/1985/37.html
Sydney, Australia
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R v Chin [1985] HCA 35
ON 29 MAY 1985, the High Court of Australia delivered R v Chin [1985] HCA 35; (1985) 157 CLR 671 (29 May 1985).
http://www.austlii.edu.au/au/cases/cth/high_ct/157clr671.html
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Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 (29 May 1985).
http://www.austlii.edu.au/au/cases/cth/HCA/1985/34.html
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663, at p 682; Smith v. McIntyre [1958] TASStRp 11; (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
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Re Bevanere Pty Limited v Gaetan Djino Lubidineuse [1985] FCA 134
Re Bevanere Pty Limited v Gaetan Djino Lubidineuse; Suzette Mauricette Lubidineuse; Robert Gervais Lezare and Brigitte Margareet Lezare [1985] FCA 134; (1985) 7 FCR 325; 59 ALR 334 (1985) Atpr Para 40 – 565 (24 April 1985).
http://www.austlii.edu.au/au/cases/cth/FCA/1985/134.html
Sydney, Australia
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R v Crabbe [1985] HCA 22
ON 26 MARCH 1985, the High Court of Australia delivered R v Crabbe [1985] HCA 22; (1985) 156 CLR 464 (26 March 1985). Douglas Crabbe killed five people and injured many more when he drove a Mack truck into a bar at Uluru after being refused service of alcohol. He was tried for murder on the grounds of recklessness as opposed to intent.
“…a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results.”
Sydney, Australia
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