Tag Archives: SYDNEY LAWYERS

Appeals, Constitutional law, LAW FIRM

Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish

Cole v Whitfield (“Tasmanian Lobster case”) [1988] HCA 18; (1988) 165 CLR 360; (1988) 78 ALR 42; (1988) 62 ALJR 303 (2 May 1988).

“Constitutional Law (Cth) – Freedom of interstate trade and commerce – Prohibition by State law of sale of undersize crayfish – Application to crayfish brought for sale from another State – The Constitution (63 & 64 Vict. c. 12), s. 92 – Sea Fisheries Regulations 1962 (Tas.), reg. 31(1) (d).”

http://www.austlii.edu.au/au/cases/cth/HCA/1988/18.html

A Tasmanian law that prohibited the possession of undersized lobsters imported from South Australia was upheld as not infringing the free trade provisions of s92 of the Constitution as it was not discriminatory in a protectionist sense.

Damages, LAW FIRM, Personal Injury

Damages – negligence – personal injuries

Cullen v Trappell [1980] HCA 10; (1980) 146 CLR 1 (1 May 1980).

“Damages – Negligence – Personal injuries – Effect of taxation liability on quantum of damages – Whether damages should be reduced by tax plaintiff would have paid in respect of earnings if he had not been injured – Gourley principle.
Practice (N.S.W.) – Judgment – Interest – Damages for personal injuries – Damages for economic loss up to date of judgment – Damages for other than economic loss – Discretion – Supreme Court Act, 1970 (N.S.W.), s. 94 (1).”

http://www.austlii.edu.au/au/cases/cth/HCA/1980/10.html

The court overruled the earlier High Court decision of Atlas Tiles Ltd v Briers (1978) 144 CLR 202 and affirmed the rule in British Transport Commission v Gourley [1956] AC 185.

Damages are to compensate the plaintiff for the loss suffered, no more or no less. If the damages are taxable income, allowance should be made for this by an award of the gross sum.  If the damages are not taxable, the award should be reduced by any tax the plaintiff would have been required to pay. If the plaintiff is entitled to a tax deduction as a result of the loss, an allowance should be made in the award.

In a claim for personal injuries damages, a court must assess the plaintiff’s pre-injury earning capacity with regards to their net income after tax.  An assessment involving gross income would result in over-compensation.

Interest on past continuing losses is not to be paid at the full rate for the whole period as this would lead to over-compensation. Instead, interest is to be paid at half the rate over the full period or at the full rate over half the period so as to take into account the gradual way in which interest accrues. The awarding of interest is a discretionary matter that must be approached in a “broad and practical way”.

 

Lawyers

1300 00 2088

Duty of Care, LAW FIRM, Negligence, Personal Injury, Torts

Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Likelihood of harm occurring – Personal injury

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (1 May 1980).

“Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Likelihood of harm occurring – Erection of sign “deep water” in vicinity of shallow water – Whether foreseeable that inexperienced water-skier would fall and suffer injury.”

http://www.austlii.edu.au/au/cases/cth/HCA/1980/12.html

Mason J at p48 expressed the “risk calculus”, that when deciding on a breach of duty of care, the court must not only determine a foreseeable risk but it must also determine a reasonable man’s response by “consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.

Lawyers

Sydney, Australia

1300 00 2088

Contract, LAW FIRM, Property Law

Contract for sale of land – Refusal by purchaser to complete – Anticipatory breach – Specific performance – Recision – Damages

Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; (1976) 136 CLR 444 (30 April 1976).

“Vendor and Purchaser – Sale of land – Contract of sale – Refusal by purchaser to complete – Anticipatory breach – Suit for specific performance by vendor – Continued refusal by purchaser to complete – Whether vendor entitled to rescind and claim damages.”

A contract may be rescinded by a vendor for repudiation whilst an action for specific performance is on foot if the purchaser refuses to complete and acts as though it intends to be no longer bound by the contract.

Lawyers

Sydney, Australia

1300 00 2088

Appeals, Evidence, LAW FIRM

Appeal – rehearing

Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (30 April 2003).

“Appeal – Rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.”

The court affirmed the principles, developed over many previous cases, to be applied by appellant courts when considering whether or not to overturn the findings of credit made by a trial judge.

An appellate court must be satisfied that the findings are “glaringly improbable” or “contrary to compelling inferences”; or that the judge has “failed to use” or “palpably misused” his or her advantage or acted on facts which were inconsistent with the evidence or were glaringly improbable..”

http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html

Lawyers

1300 00 2088

Criminal Law, Criminal Procedure, LAW FIRM

Stay of proceedings – Inherent jurisdiction – Abuse of process – Medical practitioners – Complaints

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ALR 289; (1993) 67 ALJR 485 (29 April 1993).

Stay of proceedings – Inherent jurisdiction – Abuse of process – Medical practitioners – Complaints

http://www.austlii.edu.au/au/cases/cth/HCA/1993/77.html

The NSW Court of Appeal had granted a stay of proceedings concerning new complaints made against three medical practitioners regarding their treatment of patients at the Chelmsford Private Hospital in Sydney on the grounds that the new complaints raised issues overlapping with earlier complaints such that they were so unfairly and unjustly oppressive that they constituted an abuse of process.

The High Court affirmed the Court of Appeal’s decision, holding that the court has the inherent power or jurisdiction to stay proceedings as an abuse of process if the continuation of the proceedings would involve unacceptable injustice or unfairness.  The court also held that the grounds upon which such a stay is granted is not limited to matters where the proceedings are brought for an improper purpose or where there is no possibility of a fair hearing.

Lawyers

Sydney, Australia

1300 00 2088

LAW FIRM, Legislation, Media Law

Statutes – Construction – Media law – Trade law

Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 (28 April 1998).

“Statutes – Construction – Reconciliation of conflicting provisions – Intention of legislature – Presumption that provisions intended to achieve consistent goals – Leading and subordinate provisions – Grammatical meaning and legal meaning.

Statutes – Construction – Acts done in breach of a condition regulating a statutory power – Whether invalid – Mandatory and directory provisions – Purpose-based test.

Media law – Television – Regulation of programming – Australian Broadcasting Authority – Standard prescribing Australian content requirements – Whether inconsistent with legislative requirement that functions be performed consistently with Australia’s international obligations.

Media law – Television – Regulation of programming – Australian Broadcasting Authority – Power to make standards that “relate to … the Australian content of programs” – Whether restricted to standards conferring preferential treatment.

Trade law – Australia New Zealand Closer Economic Relations Trade Agreement.”

http://www.austlii.edu.au/au/cases/cth/HCA/1998/28.html

Statutory construction is to start with an examination of the provision to be construed. When determining the validity of an act done in breach of a statutory provision, the test is “to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”, rather than to “use the elusive distinction between mandatory and directive requirements”.  The purpose is determined by consideration of “the language of the relevant provision and the scope and object of the whole statute.”

Lawyers 1300 00 2088

Duty of Care, Insurance Law, LAW FIRM, Legislation, Negligence, Personal Injury

March v Stramare (E & M H) Pty Ltd [1991] HCA 12

ON THIS DAY in 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991).

Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent actor exonerated by intervening negligent act – Apportionment of liability – Wrongs Act 1936 (S.A.), s. 27a(3).

The “but for” test was considered to be not a definitive test of causation in negligence.  Causation is a question of fact to be determined with reference to common sense and experience.

http://www.austlii.edu.au/au/cases/cth/HCA/1991/12.html

The “but for” test has since been revived by the operation of the Civil Liability Acts: see for instance Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

.

Lawyers

Sydney, Australia

1300 00 2088

Environmental Law, Local Government, Planning Law, Sydney Law Firms, Sydney Solicitors

Jones v Mosman Council [2015] NSWLEC 1121

ON 24 APRIL 2015, the NSW Land and Environment Court delivered Jones v Mosman Council [2015] NSWLEC 1121 (24 April 2015).

Development Application: conciliation conference; agreement between the parties; orders.

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2015/1121.html

The Court made orders to give effect to an agreement between the applicant (Melanie Jones and Saeed Moazzam) and the respondent (Mosman Council) that was reached at conciliation on 24 April 2015.

The terms of the agreement are as follows:

1. The applicant is granted leave to amend Development Application No. 8.2014.39.1 in accordance with the plans referred to in Condition 1 of Annexure “A” hereto.
2. The applicant shall pay the respondent’s costs pursuant to section 97B of the Environmental Planning and Assessment Act 1979 agreed in the sum of $7,000.00, such costs to be paid within 28 days of orders being made in accordance with this agreement.
3. The appeal is upheld.
4. Development Application No. 8.2014.39.1 relating to the land at 173 Spit Road,
Mosman, for demolition of existing dwelling and construction of 4 units, is approved, subject to the conditions set out in annexure “A” to this agreement.

The link to annexure “A” is http://www.caselaw.nsw.gov.au/asset/553ed1a8e4b0fc828c9966f1.pdf

Lawyers

1300 00 2088

Damages, Duty of Care, Landmark cases, LAW FIRM, Personal Injury, Work injuries, Workers Compensation

Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962”

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

Lawyers

1300 00 2088