The Honourable Justice Derek Michael Price AM has been appointed Chief Judge of the District Court of NSW commencing on and from 8 August 2014.
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Tag Archives: SOLICITORS
Aston v Harlee Manufacturing Co (“Tastee Freez case”) [1960] HCA 47 | 4 August 1960
ON 4 AUGUST 1960, the High Court of Australia delivered Aston v Harlee Manufacturing Co (“Tastee Freez case”) [1960] HCA 47; (1960) 103 CLR 391 (4 August 1960).
http://www.austlii.edu.au/au/cases/cth/HCA/1960/47.html
A person who first applies for an unused trademark in Australia is entitled to be regarded as the Australian author, even if he or she has copied a foreign mark, provided that he or she intends to use the trademark and there is no fraud involved.
Sydney, Australia
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R v Watson; Ex parte Armstrong [1976] HCA 39 | 3 August 1976
ON 3 AUGUST 1976, the High Court of Australia delivered R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 (3 August 1976).
http://www.austlii.edu.au/au/cases/cth/HCA/1976/39.html
The decision sets out the test under Australian law for apprehended bias.
A judge must not hear a case if “the parties or the public might reasonably suspect that he was not unprejudiced and impartial”: per Barwick CJ, Gibbs, Stephen and Mason JJ at 263.
Public confidence in the administration of justice is of fundamental importance: “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”: at 263.
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Administrative Appeals Tribunal
The Administrative Appeals Tribunal (AAT) http://www.aat.gov.au/ hears appeals of administrative decisions of Australian Government ministers, departments, agencies and tribunals. A decision may only be reviewed if a specific piece of legislation grants the AAT the power to review the decision.
The AAT began on 1 July 1976 under the Administrative Appeals Tribunal Act 1975 (Cth).
The AAT is authorized to review decisions in over 400 pieces of legislation covering areas such as social security, family assistance, veterans affairs, workers compensation, child support, bankruptcy, civil aviation, citizenship, immigration, corporations, financial services, customs, industry assistance, freedom of information, mutual recognition of occupations, security assessments and passports.
The AAT has five divisions: General Administrative, National Disability Insurance Scheme, Security Appeals, Taxation Appeals and Veterans’ Appeals Divisions
Appeals involve a merits review. The AAT reconsiders the facts, law and policy relating to the administrative decision on appeal and then makes it’s own decision by affirming, setting aside or varying the decision or remitting the matter back to the administrative decision maker. The tribunal is not bound by the laws of evidence and can inform itself in any manner that it considers appropriate. However, it is required to preform its functions in accordance with the law and is bound by the principles of natural justice and procedural fairness.
AAT decisions may be appealed in the Federal Court of Australia.
The AAT has registries all across Australia. The Sydney Registry is located at level 7, 55 Market Street, Sydney NSW 2000.
Sydney, Australia
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Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40 | 2 August 1962
ON 2 AUGUST 1962, the High Court of Australia delivered Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40; (1962) 108 CLR 372 (2 August 1962).
http://www.austlii.edu.au/au/cases/cth/HCA/1962/40.html
The case is notable for establishing the “Cigamatic doctrine”: that the Constitution grants to the Commonwealth a limited immunity from State laws.
The immunity relates to the Commonwealth’s executive capacities rather than the exercise of those capacities. In other words, a State law can regulate the exercise of Commonwealth executive capacities as long as it does not alter or deny those capacities: see Re Residential Tenancies Tribunal of NSW v Henderson; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 190 CLR 410; (1997) 146 ALR 495; (1997) 71 ALJR 1254.
Sydney, Australia
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Lowe v R [1984] HCA 46 | 2 August 1984
ON 2 AUGUST 1984, the High Court of Australia delivered Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984).
http://www.austlii.edu.au/au/cases/cth/HCA/1984/46.html
The case sets out the principle of due proportionality to be imposed by Australian courts when sentencing criminal offenders.
Whilst co-offenders do not have to receive the same sentence for the same offence, any discrepancy must not give the sense or appearance of their being an injustice done to the offender with the heavier sentence.
At 623, Dawson J (with whom WIlson J agreed) said:
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”
The principle is an application of the fundamental principle of equality of justice. At 610, Mason J observed:
“Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”
The parity principle only applies to co-offenders: per Gibbs CJ at 609, Mason J at 611 and Brennan J at 617-618.
Disparity may be an indicator of appelable error: per Brennan J at 617-618.
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21 Bungan Street Pty Limited v Warringah Council
ON 1 AUGUST 2014, the NSW Land and Environment Court delivered 21 Bungan Street Pty Limited v Warringah Council [2014] NSWLEC 1158.
The court upheld an appeal by a developer against a decision of Warringah Council regarding a proposed development at 11-13 Bernie Avenue, Forestville.
The court approved the development, which will include 11 units and 24 basement car spaces on the site where two detached dwelling houses will be demolished.
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NCAT Online Dispute Resolution
ON 1 AUGUST 2014, the NSW Civil and Administrative Tribunal commenced the pilot of Online Dispute Resolution, a web based tool allowing parties to selected small consumer claims to negotiate online without attending the Tribunal.
Sydney, Australia
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University of NSW v Moorhouse [1975] HCA 26 | 1 August 1975
ON 1 AUGUST 1975, the High Court of Australia delivered University of NSW v Moorhouse [1975] HCA 26; (1975) 133 CLR 1 (1 August 1975).
http://www.austlii.edu.au/au/cases/cth/HCA/1975/26.html
The University of NSW was declared to have authorized an infringement of the plaintiff’s copyright by providing coin operated photocopy machines without taking proper measures to prevent an infringement.
Subsequent to this decision, the Copyright Act 1968 (Cth) was amended to the effect that libraries are not to be taken as authorizing copyright infringement if a notice setting out the relevant provisions of the Act is displayed near the photocopy machine.
Sydney, Australia
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Sex Discrimination Act 1984 (Cth) | 1 August 1984
ON 1 AUGUST 1984, the Commonwealth Sex Discrimination Act 1984 commenced.
http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/
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