Tag Archives: SOLICITORS

LAW FIRM

Fit out update: Day 13

The carpet has now been laid. It looks great but is uneven at the front door and needs an adjustment.

I am told that the air-conditioning now works. The landlord’s tradesman originally did not connect it to the electricity before the fit out commence! He came back to fix the problem but left a 30 x 30 cm hole in the freshly plastered and painted ceiling that needs to be fixed.

Signage will be added on Wednesday and furniture will go in on Thursday. Some lights need fixing on Friday.

We hope to be fully up and running by Monday.

9 December (1)9 December (2)

Criminal Law, Defences, LAW FIRM

R v Dudley and Stephens (“Lifeboat case”) (1884) 14 QBD 273 | 9 December 1884

ON 9 DECEMBER 1884, the Queens Bench Division of the High Court of Justice delivered R v Dudley and Stephens (1884) 14 QBD 273.

http://cyber.law.harvard.edu/eon/ei/elabs/majesty/stephens.html

In 1848, Sydney Barrister John Henry Want purchased an English 52 foot yacht, “The Mignonette”. Want arranged for the yacht to be sailed from England to Australia by Tom Dudley (Captain), Edwin Stephens, Edmund Brooks and Richard Parker.

On 18 May 1884, Mignonette set sail from Southampton to Sydney. On 5 July, somewhere near the Cape of Good Hope, the yacht was struck by a wave and sank. The crew abandoned ship to the lifeboat with only turnips and water.

On 29 July, the lifeboat was rescued by “The Montezuma”. The crew of the Montezuma discovered that Richard Parker had been eaten by Dudley, Stephens and Brooks. The survivors were taken to Falmouth, Cornwall, where they were interviewed about incident. Dudley and Stephens made statements to the effect that on about 25 July, Parker was close to death so they decided to kill him so they could, as well as eat his flesh, preserve his blood to drink. Brooks denied being party to the killing but admitted to eating part of Parker.

Dudley and Stephens justified their actions out of necessity to preserve their own lives. They maintained that this justification was an ancient custom of the high seas.

Dudley and Stephens were charged and tried. The matter ended up before the Queens Bench of the High Court in London.

Dudley and Stephens were convicted of murder. The court held that the law did not recognise a defence of necessity, either in precedent nor morality.

Per Lord Coleridge CJ:

“Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity’. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it…..”

“It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’”

Dudley and Stephens were sentenced to death. In response to public pressure, the Government commuted the sentence to a 6 month term of imprisonment on the grounds that the trial court had withheld the verdict of manslaughter from the jury. Dudley and Stephens were released from prison on 20 May 1885.

John Henry Want later became the Attorney General for New South Wales from 1894 to 1899.

Lawyers

Sydney, Australia

1300 00 2088

Evidence, Injunctions, LAW FIRM, United Kingdom

Anton Piller KG v Manufacturing Processes Ltd [1975] EWCA Civ 12 | 8 December 1975

ON 8 DECEMBER 1975, the England and Wales Court of Appeal delivered Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12 (08 December 1975).

http://www.bailii.org/ew/cases/EWCA/Civ/1975/12.html

The Court of Appeal held that it had inherent jurisdiction to order defendants in most exceptional circumstances to “permit” the plaintiffs’ lawyers to enter the defendants’ premises to inspect and remove material. Such circumstances are (1) when the plaintiffs have a strong prima facie case of very serious actual or potential damage and (2) clear evidence of the defendants being in the possession of “vital material which they might destroy or dispose of to defeat the ends of justice before an application inter partes may be made”.

The Court of Appeal held that in very exceptional circumstances such an application may be made ex parte (in the absence of the defendants).

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM

Financial System Inquiry Final Report

ON 7 DECEMBER 2014, the Report of the Financial System Inquiry chaired by David Murray was released.

http://fsi.gov.au/publications/final-report/

Lawyers

Sydney, Australia

1300 00 2088

Contract, LAW FIRM, United Kingdom

Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1 | 7 December 1892

ON 7 DECEMBER 1892, the England and Wales Court of Appeal delivered Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1; [1893] 1 QB 256.

Carbolic Smoke Ball Company was the manufacturer of the Carbolic Smoke Ball which they claimed could prevent “influenza, colds, or any disease caused by taking cold…”.

Carbolic promoted the product with the following advertisement:

“100 pounds reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks according to the printed directions supplied with each ball. 1,000 pounds is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter”.

On the strength of the advertisement, Carlill purchased the smoke ball, used it as directed but nevertheless caught the flue. She claimed the 100 pounds which Carlill refused to pay on the basis that there was no binding contract because the advertisement was a “mere puff” that meant nothing.

The Court of Appeal held that there was a binding contract.

Per Lindley LJ ((1893) 1 Q.B. 256, at p. 262): “…the person who makes the offer shows by his language and from the nature of the transaction that he does not expect and does not require notice of the acceptance, apart from notice of the performance.”

Lawyers

Sydney, Australia

1300 00 2088

Bias, LAW FIRM

Ebner v Official Trustee in Bankruptcy [2000] HCA 63 | 7 December 2014

ON 7 DECEMBER 2000, the High Court of Australia delivered Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337; 176 ALR 644; 75 ALJR 277 (7 December 2000).

Per Gleeson CJ, McHugh, Gummow and Hayne JJ at [6]:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [13]. That principle gives effect to the requirement that justice should both be done and be seen to be done [14], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.”

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM

Completion of painting

Day 10, painting completed! Thanks Zelko and the boys, a very professional job done in difficult conditions (without air conditioning).

Signage, carpet, furniture and air conditioning to come early next week.

Fitout 6 November (2)Fitout 6 November

Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Longman v R [1989] HCA 60 | 6 December 1999

ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).

http://www.austlii.edu.au/au/cases/cth/high_ct/168clr79.html

Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.

The High Court held that what the jury was told was not sufficient.

Per Brennan, Dawson and Toohey JJ at [30]:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.

Lawyers

Sydney, Australia

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Administrative Law, Criminal Law

Cunneen v Independent Commission Against Corruption [2014] NSWCA 421

ON 5 DECEMBER 2014, the NSW Court of Appeal delivered Cunneen v Independent Commission Against Corruption [2014] NSWCA 421.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=176019

Lawyers

Sydney, Australia

1300 00 2088

Contract, LAW FIRM

Barton v Armstrong [1973] UKPC 2 | 5 December 1973

ON 5 DECEMBER 1973, the United Kingdom Privy Council delivered Barton v Armstrong & Ors [1976] AC 104; [1973] UKPC 2 (5 December 1973).

http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKPC/1973/2.html&query=BARTON+and+V+and+ARMSTRONG&method=boolean

A contract may be set aside on the grounds of duress if the use of illegitimate pressure was one of the causes for a party to enter into the agreement. If illegitimate pressure is established, the burden is on the person who applied such pressure to show that the pressure did not operate to cause the party to enter into the agreement.

Lawyers

Sydney, Australia

1300 00 2088