Tag Archives: SYDNEY LAWYERS

Duty of Care, LAW FIRM, Motor Accidents, Negligence

Bourhill v Young [1942] UKHL 5 | 5 August 1942

ON 5 AUGUST 1942, the House of Lords delivered Bourhill v Young [1942] UKHL 5 (5 August 1942).

http://www.bailii.org/uk/cases/UKHL/1942/5.html

A car and motorcycle collided near a tram causing fatal injuries to the motorcyclist. The motorcyclist was travelling at excessive speed and was at fault. A passenger on the tram heard the sound of the collision but saw nothing. She was startled by the noise of the collision, suffering nervous shock, though she was not in immediate physical injury herself. She observed blood on the roadway after the motorcyclists body had been removed. She later suffered a miscarriage. She claimed damages including losses to her business arising from the nervous shock.

The House of Lords held that the motorcyclist was not guilty of negligence as he did not owe a duty of care to the tram passenger as he could not have reasonably foreseen the likelihood that anyone placed as her (in a position of apparent safety) could have been affected in such a manner.

Lawyers

Sydney, Australia

1300 00 2088

Civil procedure, Evidence, LAW FIRM, Pleadings, Practice and Procedure

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 | 5 August 2009

ON 5 AUGUST 2009, the High Court of Australia delivered Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html

In Aon Risk Services Australia Limited v Australian National University, the Australian National University on day three of a four week hearing was granted an adjournment to make significant amendments to their statement of claim against their insurance broker. The ACT Court of Appeal dismissed an appeal of the decision except in relation to costs. The High Court of Australia allowed an appeal, setting aside the Court of Appeal’s decision and sending the matter back to the ACT Supreme Court for directions towards final determination.

The High Court considered its earlier decision of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997) in the light of how it had been applied by the courts across Australia.

JL Holdings contains the often quoted passage regarding case management:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

Queensland v JL Holdings had come to be an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend  (2)case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.

The majority in Aon Risk Services Australia Limited v Australian National University (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [111-113] held that applications for leave to amend should not be approached on the basis that a party is entitled to raise an arguable claim subject to costs as compensation.

The majority also held that the statements made in Queensland v JL Holdings regarding the limiting of case management principles should not be applied in the future.

French CJ at [30] added that to ignore the concerns of case management would be to ignore the facts of undue delay, wasted costs, strain and uncertainty and erode public confidence in the legal system.

Lawyers

Sydney, Australia

1300 00 2088

Courts and Tribunals, Judges, LAW FIRM

Justice Derek Price AM | New Chief Judge of NSW District Court

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.

Lawyers

1300 00 2088

Intellectual Property, LAW FIRM, Trademarks

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.

Lawyers

Sydney, Australia

1300 00 2088

Appeals, Bias, LAW FIRM

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.

Lawyers 1300 00 2088

Administrative Law, Appeals, Courts and Tribunals, LAW FIRM

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.

Lawyers

Sydney, Australia

1300 00 2088

Constitutional law, LAW FIRM

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.

Lawyers

Sydney, Australia

1300 00 2088

Criminal Law, Criminal Procedure, LAW FIRM, Sentencing

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.

Lawyers 1300 00 2088

LAW FIRM, Planning Law

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.

Lawyers 1300 00 2088

Alternative Dispute Resolution, Consumer Law, LAW FIRM

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.

Lawyers

Sydney, Australia

1300 00 2088