Tag Archives: Sydney Lawyers

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

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Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50

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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tralia 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.

Lawyers

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New South Wales v Williamson [2012] HCA 57

“COSTS – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 2004 (NSW), s 338 – Where “personal injury damages” defined to have same meaning as in Civil Liability Act 2002 (NSW), Pt 2 – Whether maximum costs limitation applies to claims for personal injury damages resulting from intentional acts.

COSTS – Limit on maximum costs in connection with claim for “personal injury damages” – Legal Profession Act 2004 (NSW), s 338 – Claim for false imprisonment not claim for “personal injury damages” – Where such claim is included in claim for damages and not severable part of claim, the claim for damages not claim for “personal injury damages”.

STATUTORY INTERPRETATION – Principles – Reading provision in context – Whether, when operative statute adopts term in source statute, account must be taken of operation of term in source statute – Effect of amendments to statute.

WORDS AND PHRASES – “award of personal injury damages”, “claim for personal injury damages”, “false imprisonment”, “maximum costs”, “personal injury damages”, “same meaning”.

Civil Liability Act 2002 (NSW), Pt 2, ss 3B, 11.
Legal Profession Act 2004 (NSW), Pt 3.2 Div 9, ss 337, 338.”

http://www.austlii.edu.au/au/cases/cth/HCA/2012/57.html

In New South Wales v Williamson [2012] HCA 57 (12 December 2012), the High Court of Australia dismissed an appeal against a decision of the NSW Court of Appeal who had dismissed an appeal against a decision of the Supreme Court of NSW in which that court held that Williamson’s costs were not regulated by s338(1) of the Legal Profession Act 2004 (NSW).

Williamson had settled an action against the State for the amount of $80,000 plus costs, as agreed or assessed, for damages in an action that pleaded allegations of trespass and false imprisonment on the part of police officers. Williamson and the State could to agree to costs and the State sought a declaration that the costs they were liable to pay were regulated by s338(1).

Section 338(1) provided that where the amount recovered on a claim for personal injury damages did not exceed $100,000, the maximum costs for legal services provided to a plaintiff were fixed at 20% of the amount recovered or $10,000, whichever is greater.

The High Court dismissed the State’s appeal. It held that actions for trespass are regulated by s338(1) but actions for false imprisonment are not as they are a claim for deprivation of liberty, not personal injury.

Per French CJ and Hayne J at [8]:

‘At least to the extent to which the claim for false imprisonment seeks damages for deprivation of liberty and loss of dignity, it is not a claim for damages for personal injury. Because no part of the lump sum settlement can be attributed to either the respondent’s claim for trespass or his claim for false imprisonment, it is not possible to say of the amount that was recovered that it was “recovered on a claim for personal injury damages”‘.

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Sydney, Australia

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Brisbane South Regional Health Authority v Taylor [1996] HCA 25

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; (1996) 139 ALR 1; (1996) 70 ALJR 866 (2 October 1996).

“LIMITATION OF ACTIONS – Personal injury – Extension of limitation period – Exercise of discretion to grant extension – Whether fulfilment of statutory conditions gives rise to presumptive right to an order extending limitation period – Rationales for existence of limitation periods – Presumption of prejudice where long delay – Whether justice of the case required granting of extension – Actual prejudice – Limitation of Actions Act 1974 (Q) s 31.”

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1996/25.html

An application for an extension of a time limitation should be refused if an extension would result in significant prejudice to a defendant.

Per Toohey and Gummow JJ at p547:

“There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) [1964] VicRp 103; [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:

`It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'”

Per Toohey and Gummow J at 548-9:

“The material consideration (the most important consideration in many cases) is whether, by reason of the time that has elapsed, a fair trial is possible. Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application. It is no sufficient answer to a claim of prejudice to say that, in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired.”

Per Toohey and Gummow JJ at p550:

“The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.”

Per McHugh J at p551:

“An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.”

Per McHugh J at p552-3:

“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[16]. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed[17]. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them[18]. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period[19]. As the New South Wales Law Reform Commission has pointed out[20]:

‘The potential defendant is thus able to make the most productive use of his or her resources[21] and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided.[22] To that extent the public interest is also served.’

Even where the cause of action relates to personal injuries [23], it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[24].”

Per McHugh J at p555:

“To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.”

Per McHugh J at p555:

“When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underling limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.”

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Sydney, Australia

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Dey v Victorian Railways Commissioners [1949] HCA 1

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 (22 February 1949).

“Workers’ Compensation – Injury by accident arising out of or in course of employment – Death of worker – Negligence of employer – Option of dependants to apply for compensation or take other proceedings – Award of compensation obtained by widow on behalf of herself and children – Effect of award as barring claim by dependants under Lord Campbell’s Act – Workers’ Compensation Acts 1928- 1946 (No. 3806 – No. 5128) (Vict.)* – Wrongs Act 1928 (No. 3807) (Vict.), Part III. – The 1946 Workers’ Compensation Rules, rr. 8, 81.*
Practice – Supreme Court (Vict.) – Dismissal of action – Abuse of process – Inherent jurisdiction – Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.”

http://www.austlii.edu.au/au/cases/cth/HCA/1949/1.html

A widow who had received a workers compensation award for her late husband’s death was not entitled to maintain a compensation to relatives action in her own right but the infant children were competent to sue by their next friend.

Per Dixon J at 91:

“The application [to dismiss proceedings on the grounds of being frivolous, vexatious and abuse of process] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

Lawyers

Sydney, Australia

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