Tag Archives: SOLICITORS

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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Consumer Law, Contract, Defences, Property Law

Petelin v Cullen [1975] HCA 24 | 17 July 1975

ON 17 JULY 1975, the High Court of Australia delivered Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 (17 July 1975).

http://www.austlii.edu.au/au/cases/cth/HCA/1975/24.html

Petelin owned land at Liverpool. He spoke little English and could not read English. Cullen through his agent sent Petelin $50 with a letter seeking his agreement to extend an option to purchase land for a further 6 months. Cullen’s agent then saw Petelin and asked him to sign to the letter that he received the $50. Petelin signed the letter believing he had signed a receipt, not an option.

Cullen sought an order for specific performance in the Supreme Court of NSW. The Supreme Court dismissed the action on the grounds that Petelin had made out the defence of non est factum. The NSW Court of Appeal then overturned the Supreme Court decision, ordering specific performance.

The High Court allowed Petelin’s appeal, overturning the Court of Appeal’s decision and dismissing Cullen’s action for specific performance.

The High Court found that Petelin was entitled to the defence of non est factum as he believed that he had signed a receipt, was not careless and that in any event, Cullen was not an innocent person without knowledge or reason to doubt the validity of the signature.

To make out a defence of non est factum, the defendant must show:

  • that he or she signed the document in the belief that it was radically different from what it was in fact, and
  • that (at least as against innocent persons) his or her failure to read and understand the document was not due to carelessness.

There is a heavy onus on the defendant to show that he or she believed the document to be radically different from what it was in fact.

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Sydney, Australia

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Planning Law

IPM Pty Ltd v Mosman Municipal Council [2014] NSWLEC 1141

ON 16 JULY 2014, the NSW Land and Environment Court delivered IPM Pty Ltd v Mosman Municipal Council [2014] NSWLEC 1141.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172731

The court refused an appeal against Mosman Council’s decision to refuse a development application for the reconfiguration of retail tenancies and the fit out and use of one of the tenancies by Dan Murphy’s as retail liquor premises on the ground level of 710 Military Road, Mosman.

The court found that the site was not suitable for the proposed use because of the impacts arising from the traffic congestion and noise that it would generate.

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Sydney, Australia

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Damages, Evidence, Personal Injury

Purkess v Crittenden [1965] HCA 34 | 16 July 1965

ON 16 JULY 1965, the High Court of Australia delivered Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 (16 July 1965).

http://www.austlii.edu.au/au/cases/cth/HCA/1965/34.html

Where a plaintiff has made out a prima facie case that his or her incapacity was the result of the defendant’s negligence, the onus of adducing evidence that the incapacity was to do with a pre-existing condition, or that the incapacity would have in any event resulted from the pre-existing condition, rests with the defendant. However, the burden remains on the plaintiff on the whole of the evidence to satisfy the court or tribunal of the extent of the injury caused by the defendant’s negligence.

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Sydney, Australia

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Damages, Medical negligence, Negligence

Cattanach v Melchior [2003] HCA 38 | 16 July 2003

ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003).

http://www.austlii.edu.au/au/cases/cth/HCA/2003/38.html

A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. She told the doctor that she believed that her right fallopian tube had been removed when she was 15. The doctor performed a tubal ligation on the left fallopian tube and made no further investigation regarding the right tube. As it turned out, the right tube had not been removed and the woman later fell pregnant, unintentionally.

The woman and her husband sued the doctor and the State of Queensland (who ran the hospital) seeking damages for negligence on the grounds that the doctor failed to advise the woman of the risks of conceiving without specific investigation of the right fallopian tube.

The woman and her husband were awarded damages for the costs of raising and maintaining the healthy but unintended child, despite those damages being for pure economic loss (ie not arising from any actual injury).

The Civil Liability Acts have since prohibited awards of damages for the costs of rearing or maintaining a child or the parents’ loss of earnings whilst rearing or maintaining a child.

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LAW FIRM, Privacy

Privacy Concerns about the Opal Card

ON 16 JULY 2014, the NSW Privacy Commissioner issued a media release in response to privacy concerns about the Opal Card.

Under existing privacy laws, law enforcement bodies may access information reasonably required for their investigations. The police will therefore be able to access personal information stored on an individual’s Opal card.

The NSW Privacy Commissioner says that it is important that the police inform the public on the rules for accessing their Opal card information and that Transport NSW has ongoing processes to keep the information secure.

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Damages, Discrimination Law, Human Rights

Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82

ON 15 JULY 2014, the Full Court of the Federal Court of Australia delivered Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 (15 July 2014).

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/82.html

On appeal, an employee of Oracle had her damages award increased from $18,000 to $130,000 with respect to sexual harassment she suffered from another employee.

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Sydney, Australia

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Criminal Law

Gerard Baden-Clay guilty

Gerard Baden-Clay has been found guilty of murdering his wife, Allison Baden-Clay.

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