ON THIS DAY in 1978, the High Court of Australia delivered Viro v R [1978] HCA 9; (1978) 141 CLR 88 (11 April 1978).
The High Court held that it is no longer bound by decisions of the Privy Council in the United Kingdom. The court is “pre-eminently equipped to decide what is the law for Australia”.
http://www.austlii.edu.au/au/cases/cth/HCA/1978/9.html
Sydney, Australia
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ON THIS DAY in 1984, the High Court of Australia delivered Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 (10 April 1984).
Equality had long been the starting point when dividing matrimonial property on divorce. The High Court in this case held that there is not to be a presumption of equality and that each case is to be determined upon a consideration of it’s particular circumstances.
Section 79(4) of the Family Law Act 1975 (Cth) requires consideration of the financial contributions, non-financial contributions and parental and/or homemaker services.
Sydney, Australia
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ON 8 APRIL 2015, the High Court of Australia delivered Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 (8 April 2015).
http://www.austlii.edu.au/au/cases/cth/HCA/2015/11.html
The High Court held that Queensland Rail is a trading corporation within the meaning of s51(xx) of the Constitution and as such is an employer governed by the Fair Work Act 2009 (Cth) and not subject the Queensland industrial relations laws which are invalid to the extent that they apply to Queensland Rail.
Sydney, Australia
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ON 8 APRIL 2015, the High Court of Australia delivered Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 (8 April 2015).
http://www.austlii.edu.au/au/cases/cth/HCA/2015/12.html
The High Court held that certain provisions under the Clean Energy Regulations 2011 (Cth) were valid as they did not give preference to one State over other States and therefore did not contravene s99 of the Constitution.
Sydney, Australia
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ON 8 APRIL 2015, the Full Court of the Federal Court of Australia delivered Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 (8 April 2015).
http://www.austlii.edu.au/au/cases/cth/FCAFC/2015/50.html
BANKING AND FINANCIAL INSTITUTIONS – CONSUMER PROTECTION – whether various stipulations for fees are penalties at law or equity, or genuine pre-estimate of damage or compensation – whether the relevant stipulations were for breach of term of contract, collateral or accessory in the nature of security for, and in terrorem of the primary stipulations, or for a further contractual right or accommodation – the relevance of the “tests” in Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited [1914] UKHL 1; [1915] AC 79 to the construction and characterisation of the provisions – whether the fees were extravagant or unconscionable – whether the charging of the fees constituted unconscionable conduct, unjust transactions or unfair contract terms under Australian Securities and Investments Commission Act 2001 (Cth), National Consumer Credit Protection Act 2009 (Cth), and Fair Trading Act 1999 (Vic)
LIMITATION OF ACTIONS – whether recovery statute-barred – construction of s 27(c) of the Limitation of Actions Act 1958 (Vic) – whether it applied to a mistake of law
The Full Court:
1.Dismissed an appeal by Paciocco against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
2.Allowed an appeal by Australia and New Zealand Banking Group Limited against the decision of Gordon J of the Federal Court in Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35.
The Full Court held that the bank fees in dispute were not penalties as it had not been proven that they were extravagant or unconscionable.
The Full Court also held that the fees were not unconscionable or unfair under the Commonwealth and State legislation concerning unconscionability, unjustness and unfairness.
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ON 8 APRIL 1988, the High Court of Australia delivered Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988).
A firm of solicitors was held to be negligent by failing to take reasonable steps to locate an executor (a non-client) following the death of a testatrix (a client whose will they prepared and retained for safe keeping) for some six years after the testatrix’s death. The solicitors were held to be liable to pay damages for the loss suffered by the executor (who was also a residuary beneficiary) in not being able to manage the estate during the period of delay.
The majority (Brennan, Deane and Gaudron JJ) held that the solicitors owed a tortious duty of care to the executor and that the action was not statute-barred.
http://www.austlii.edu.au/au/cases/cth/HCA/1988/15.html
Sydney, Australia
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ON THIS DAY in 2011, the High Court of Australia delivered Miller v Miller [2011] HCA 9 (7 April 2011).
A joint illegal enterprise (eg joyride) negates a duty of care (driver to passenger) thereby creating a defence of illegality on the part of the driver/insurer: see Gala v Preston [1991] HCA 18. However, in Miller v Miller the High Court held that the plaintiff (injured passenger) was owed a duty of care because she withdrew from the enterprise by asking to be let out of the car and there were no reasonable steps available to her to prevent the continuation of the offence.
http://www.austlii.edu.au/au/cases/cth/HCA/2011/9.html
Sydney, Australia
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ON THIS DAY in 1977, the England and Wales Court of Appeal delivered Miller v Jackson [1977] EWCA Civ 6 (06 April 1977). A cricket club was sued in negligence and nuisance caused by cricket balls landing on a neighbour’s property. Whilst ordering damages, the court refused to grant an injunction to cease the action or further action as the game of cricket itself was considered to be in the public interest.
Lord Denning began with the following:
“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”
http://www.bailii.org/ew/cases/EWCA/Civ/1977/6.html
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ON THIS DAY in 1952, the High Court of Australia delivered Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (4 April 1952).
http://www.austlii.edu.au/au/cases/cth/HCA/1952/19.html
“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678″. (at p358)”
Sydney, Australia
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ON THIS DAY IN 2004, the NSW Court of Appeal delivered Harvey & 1 Ors v PD [2004] NSWCA 97. A doctor performing STD tests upon a couple has a duty before the tests are performed to obtain the couple’s consent to share the results.
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2004/97.html
Sydney, Australia
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