Recent Cases - 13wentworthselbornechambers
16613
page-template-default,page,page-id-16613,ajax_fade,page_not_loaded,,qode-child-theme-ver-1.0.0,qode-theme-ver-16.8,qode-theme-bridge,disabled_footer_top,wpb-js-composer js-comp-ver-5.5.2,vc_responsive
 

Recent Cases

High Court of Australia

  • Catchwords: Criminal practice – Private prosecution – Authority to prosecute – Where private citizen sought to commence criminal proceeding for offence of crime against humanity contrary to s 268.11 of Criminal Code (Cth) – Where offence located within Div 268 of Criminal Code – Where s 268.121(1) provides that proceedings under Div 268 must not be commenced without Attorney-General’s written consent – Where Attorney-General did not consent – Where s 268.121(2) of Criminal Code provides that offence against Div 268 “may only be prosecuted in the name of the Attorney-General” – Where s 13(a) of Crimes Act 1914 (Cth) provides that any person may “institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth” unless contrary intention appears – Whether s 268.121(2) expresses contrary intention for purpose of s 13(a) – Whether s 268.121(2) precludes private prosecution of offence against Div 268. Words and phrases – “commencement of proceedings”, “committal”, “consent”, “consent of the Attorney-General”, “contrary intention”, “crime against humanity”, “in the name of”, “indictable offence against the law of the Commonwealth”, “private prosecution”, “prosecuted in the name of the Attorney- General”, “relator proceeding”, “right to prosecute”, “summary proceedings”, “trial on indictment”.

  • Catchwords: Constitutional law – State Parliament – Constitution – Ch III – Where plaintiff convicted of murder of police officer – Where plaintiff sentenced to imprisonment for life with non-parole period – Where plaintiff’s non-parole period expired – Where s 74AB of Corrections Act 1986 (Vic) prevented making of parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person, and does not pose risk to community – Where s 74AB identified plaintiff by name and applied only to plaintiff – Where plaintiff not in imminent danger of dying or seriously incapacitated – Where s 74AAA of Corrections Act imposed conditions for making parole order if person convicted of murder and victim police officer – Whether ss 74AB and 74AAA contrary to Ch III of Constitution and therefore invalid – Whether ss 74AB and 74AAA impermissibly legislatively resentenced plaintiff – Whether ss 74AB and 74AAA impose additional or separate punishment to that imposed by sentencing court – Whether s 74AB distinguishable from provision upheld in Knight v Victoria (2017) 261 CLR 306; [2017] HCA 29 – Whether Knight and Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 should be reopened. Words and phrases – “additional or separate punishment”, “judicial power”, “legislative punishment”, “legislatively resentenced”, “life imprisonment”, “minimum term”, “more punitive or burdensome to liberty”, “non-parole period”, “opportunity to be considered for release on parole”, “parole”, “severity of the punishment”, “substantive operation and practical effect”.

  • Catchwords: Insurance law – Motor vehicles – Personal injury – Where appellant injured in motor vehicle collision – Where appellant gave evidence father driving vehicle at time of collision – Where appellant alleged injuries caused by negligence of father – Where appellant’s blood located on driver’s airbag – Where expert evidence relating to possible source of blood – Where expert evidence relating to seatbelt and airbag design – Where trial judge concluded appellant driving vehicle – Where Court of Appeal dismissed appeal – Whether trial judge’s findings glaringly improbable or contrary to compelling inferences. Appeal – Rehearing – Where trial judge drew inferences and made findings of fact based on lay and expert evidence – Where Court of Appeal found inferences wrong in material respects – Whether Court of Appeal erred in failing to conclude trial judge misused advantage as trial judge – Whether Court of Appeal failed to conduct “real review” of evidence given and trial judge’s reasons for judgment. Words and phrases – “contrary to compelling inferences”, “glaringly improbable”, “real review”, “trial judge’s advantage”.

  • Catchwords: Limitation of actions – Debts created by statute – Debts secured by charge – Where Council commenced proceeding against respondent for overdue rates and charges – Where overdue rates and charges secured by charge – Where respondent argued claim was an action to recover a sum recoverable by virtue of an enactment under s 10(1)(d) of Limitation of Actions Act 1974 (Qld) – Where Council argued claim was an action to recover a principal sum of money secured by a charge and subject to s 26(1) of the Act – Where proceeding falls within both ss 10(1)(d) and 26(1) – Whether s 26(1) applies to exclude operation of s 10(1)(d). Words and phrases – “Barnes v Glenton”, “claim in rem”, “limitation of actions”, “overlap between limitation periods”, “personal claim”, “real claim”, “sums secured by mortgage or charge”, “what claims are within limitation statutes”.

  • Catchwords: Practice and procedure – Costs – Legal practitioners – Barristers – Where self‑represented litigant may not obtain any recompense for value of his or her time spent in litigation – Where exception commonly referred to as “Chorley exception” exists for a self-represented litigant who is a solicitor – Where first respondent is a barrister – Where first respondent undertook legal work in litigation in which she was represented – Where first respondent incurred costs on her own behalf and for legal services provided by herself – Whether Chorley exception operates to benefit barristers – Whether Chorley exception recognised as part of common law of Australia. Words and phrases – “anomalous”, “Chorley exception”, “common law of Australia”, “costs”, “costs payable”, “creature of statute”, “employed solicitors”, “equality before the law”, “exception to the general rule”, “exercise of professional skill”, “incorporated legal practice”, “indemnity”, “judicial abolition”, “professional legal services”, “prospective overruling”, “remuneration”, “rule of practice”, “rules committees”, “self-represented litigants”, “statutory power”.

Full Federal Court

  • Catchwords: ADMINISTRATIVE LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal – whether the Tribunal exceeded its decision-making power in imposing conditions inconsistent with the essence of the application to the Great Barrier Reef Marine Park Authority, the primary decision-maker – whether the Tribunal misunderstood or erred in its application of the precautionary principle – whether the Tribunal proceeded on the basis of a false (and erroneous) dichotomy between scientific and non-scientific evidence – whether, in varying the permit to include certain conditions, the Tribunal denied the applicant procedural fairness or erred in failing to specify that its decision was not to come into operation until a later date under s 43(5B) of the Administrative Appeals Tribunal Act 1975 (Cth) ENVIRONMENT LAW – appeal on a question of law from a decision of the Administrative Appeals Tribunal – the decision under review by the Tribunal was the decision of the Great Barrier Reef Marine Park Authority to grant two permissions under the Great Barrier Reef Marine Park Regulations 1983 (Cth) to the applicant to use and enter the Marine Park: to conduct a program to take animals or plants that pose a threat to human life or safety, being the Queensland Shark Control Program; and to conduct a research program comprising certain specified studies – whether the Tribunal misunderstood or erred in applying the precautionary principle

  • Catchwords: PATENTS – validity – computer-implemented method and apparatus for displaying information – whether invention as claimed is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies PATENTS – validity – innovative step – whether claimed invention supported by an innovative step – whether additional innovative steps established COSTS – whether error shown in an award of costs to the successful respondent at trial

  • Catchwords: PATENTS – construction – where claims in suit comprised method claims and system claims for core sample orientation – where the method in claim 1 involved two timers, one in the downhole device and one on the surface – whether the primary judge erred in his construction of the patent – whether, on the true construction of claim 1, it required both the downhole timer and the surface timer to count with reference to the same initial reference time – whether the word “beyond” meant no more than “after” or “later than” – appeal dismissed

  • Catchwords: MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority to refuse a protection visa – where Authority possessed a written record of appellant’s entry interview but incomplete audio recording of interview – where Authority rejected certain claims in part because they were not raised at the entry interview – whether Authority fulfilled its statutory task – no error disclosed in the reasons of the Authority or Federal Circuit Court MIGRATION – where Authority drew conclusions from news articles – where news articles not in evidence – whether Authority acted illogically or unreasonably in drawing conclusions – reading of reasons as a whole – no error disclosed – appeal dismissed with costs

  • Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – protection visa – where visa was cancelled on the basis that the appellant provided incorrect answers in his visa application – whether the Tribunal failed to consider that, on cancellation of the visa, the appellant was at immediate and ongoing risk of being removed to Iran or taken to a regional processing country pursuant to s 198AD of the Migration Act 1958 (Cth) – whether the Tribunal failed to give reasons for concluding that the appellant was not at real risk of significant harm – whether the Tribunal’s decision was legally unreasonable insofar as it made adverse credibility assessments which were perfunctory, emphatic and unsustainable on their own terms – appeal dismissed

NSW Court of appeal

  • Catchwords: COSTS – appeal – appeal determined without a determination on the merits – further prosecution of the appeal had become futile – both parties acted reasonably – no order as to costs

  • Catchwords: LEASES AND TENANCIES – Social Housing Tenancy Agreement – Agreement terminated by order of NCAT pursuant to s 91 of Residential Tenancies Act – whether termination would occasion undue hardship to tenant – meaning of undue hardship in context of Residential Tenancies Act – discretion to terminate notwithstanding undue hardship – whether NCAT had regard to hardship in exercise of its discretion – adequacy of reasons for exercising discretion ADMINISTRATIVE LAW – requirement for NCAT to give reasons – adequacy of reasons for making of a discretionary decision to terminate a social housing tenancy agreement – whether NCAT had regard to hardship to the tenant of termination – whether reasons for decision adequately disclosed how hardship was taken into account TRIBUNALS – New South Wales Civil and Administrative Tribunal – required to give reasons – adequacy of reasons – reference to “all of the circumstances of the case”

  • Catchwords: PROCEDURAL FAIRNESS – Vexatious Proceedings Act 2008 (NSW) – where persons the subject of orders made under the Act not heard and not given an opportunity to be heard before orders made – non-compliance with s 8(3) of Vexatious Proceedings Act conceded – whether Court of Appeal should itself entertain application for orders under Vexatious Proceedings Act – not appropriate to do so in the circumstances

  • Catchwords: SUPERANNUATION – accident and sickness insurance – benefits for disablement – where benefits insured under group life policy – benefit for “total and permanent disability” – where insurer declined claim twice – where the insurer’s second decision took into account its first decision – whether insurer took into account irrelevant consideration – whether insurer in breach of its contractual duty – whether insurer acted reasonably and fairly in its consideration of the claim

  • Catchwords: ADMINISTRATIVE LAW – compulsory acquisition of property for the purpose of the construction of a tollway – validity of proposed acquisition notices issued – statutory authority of RMS to acquire land under s 177 of the Roads Act 1993 (NSW) STATUTORY INTERPRETATION – Roads Act 1993 (NSW), s 177 – meaning of “the purposes of this Act” – whether “the purposes of this Act” are confined to the objects described in s 3 of the Act