Tag Archives: Sydney Solicitors

CMB v Attorney General for New South Wales [2015] HCA 9

ON 11 MARCH 2015 the High Court of Australia delivered CMB v Attorney General for New South Wales [2015] HCA 9 (11 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/9.html

The High Court allowed an appeal against a decision of the NSW Court of Criminal Appeal to impose a custodial sentence, remitting the matter to the CCA for re-determination.

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Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10

ON 11 MARCH 2015 the High Court of Australia delivered Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10 (11 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/10.html

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Australian Safeway Stores Pty Ltd v Zaluna [1987] HCA 7 | 10 March 1987

NEGLIGENCE. OCCUPIER’S LIABILITY. INJURY. ON THIS DAY IN 1987, the High Court of Australia delivered Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 (10 March 1987).

http://www.austlii.edu.au/au/cases/cth/HCA/1987/7.html

An occupier of premises owes a duty of care under the ordinary principles of negligence to take reasonable care for the safety of a person who enters the premises, irrespective of whether they are an invitee, trespasser or licensee.

Per Mason, Wilson, Deane and Dawson JJ at 488:

“We think it is wholly consistent with the trend of recent decisions of this Court touching the law of negligence, both in this area of an occupier’s liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty. Ltd. v. Minister Administering the Environmental Planning and Assessment Act 1979 [1986] HCA 68; (1986) 68 ALR 161 and Cook v. Cook [1986] HCA 73; (1986) 61 ALJR 25; 68 ALR 353, to simplify the operation of the law to accord with the statement of Deane J. in Hackshaw, at pp.662-663:

‘… it is not necessary, in an action in
negligence against an occupier, to go through the
procedure of considering whether either one or
other or both of a special duty qua occupier and an
ordinary duty of care was owed. All that is
necessary is to determine whether, in all the
relevant circumstances including the fact of the
defendant’s occupation of premises and the manner
of the plaintiff’s entry upon them, the defendant
owed a duty of care under the ordinary principles
of negligence to the plaintiff. A prerequisite of
any such duty is that there be the necessary degree
of proximity of relationship. The touchstone of
its existence is that there be reasonable
foreseeability of a real risk of injury to the
visitor or to the class of person of which the
visitor is a member. The measure of the discharge
of the duty is what a reasonable man would, in the
circumstances, do by way of response to the
foreseeable risk.'”

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Sydney, Australia

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Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7

ON 4 MARCH 2015, the High Court of Australia delivered Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (4 March 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/7.html

The High Court allowed an appeal by the Australian Communications Media Authority (ACMA) against a decision of the Federal Court of Australia regarding the investigation of a broadcast in December 2012 by Today FM (Sydney) Pty Ltd, a licensee under the Broadcasting Services Act 1992 (Cth).

The broadcast contained a recorded telephone conversation between two radio presenters and two of the staff of the King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient. The conversation was recorded and broadcast without the consent of either of the hospital staff.

ACMA investigated the matter and determined that Today FM breached a licence condition of breaching a law of the Commonwealth or State or Territory by communicating a private conversation without the consent of the principal parties in breach of the Surveillance Devices Act 2007 (NSW).

Today FM brought proceedings in the Federal Court of Australia seeking declarations and injunctions against ACMA. They argued (1) that ACMA was not authorised to determine the breach of the licence condition issue until a competent court had determined that Today FM had committed the Surveillance Devices Act offices and (2) in the alternative, that if ACMA was so authorised, the legislation was invalid because of its inconsistency with the separation of judicial and executive powers in the Constitution.

The Federal Court dismissed the matter but on appeal the Full Court of the Federal Court allowed an appeal on the grounds of the first argument.

Special leave was granted for ACMA to appeal to the High Court of Australia. The High Court allowed the appeal, holding that ACMA has the power to make an administrative determination that a licensee has committed a criminal offence (under the Surveillance Devices Act), notwithstanding there being no court determination of the offence as the tribunal is not exercising judicial power not adjudging or punishing criminal guilt.

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Sydney, Australia

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Jones v Dunkel [1959] HCA 8 | 3 March 1959

ON THIS DAY IN 1959, the High Court delivered Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (3 March 1959).

http://www.austlii.edu.au/au/cases/cth/HCA/1959/8.html

The unexplained failure of a party to use certain evidence may, in some circumstances, result in an inference that the evidence would not have assisted their case.

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Sydney, Australia

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Hicks v United States of America CMCR 13-004

ON 18 FEBRUARY 2015, the United States Court of Military Commission Review delivered Hicks v United States of America CMCR 13-004.

http://inbrief.nswbar.asn.au/posts/e371c68ea0afb7756df6834080046337/attachment/hicks.pdf

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Sydney, Australia

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Cassegrain v Gerard Casseagrain & Co Pty Ltd [2015] HCA 2

ON 4 FEBRUARY 2015, the High Court of Australia delivered Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2 (4 February 2015).

http://www.austlii.edu.au/au/cases/cth/HCA/2015/2.html

Felicity Cassegrain and her husband Claude Cassegrain received an interest as joint tenants in land owned by Gerard Cassegrain & Co Pty Ltd. The transfer of the interest was found to be fraudulent on the part of Claude because he nominated the consideration for the transaction to be the debiting of his loan account when he knew that the company did not owe him the money. Gerard subsequently transferred his interest in the land to Felicity for nominal consideration. There was no allegation of Felicity being involved in any fraud.

Proceedings were brought in the NSW Supreme Court to transfer Felicity’s title back to the company because of the fraud. The trial judge concluded that Claude had acted fraudulently and ordered that he pay the company equitable compensation, but dismissed the proceedings against Felicity as there was no fraud by her.

The NSW Court of Appeal allowed the company’s appeal of the NSW Supreme Court decision, concluding that Claude was Felicity’s agent.

The High Court allowed in part Felicity’s appeal of the Court of Appeal decision. The High Court held that Felicity’s title in joint tenancy was not defeated by fraud under s42 of the Real Property Act 1900 (NSW) because Claude acted outside the scope of the authority given to him by her and was therefore not her agent.

The High Court also held that Felicity was not a bona fide purchaser on the transfer of Claude’s interest to her and declared and ordered that the company may recover a half interest in the land as tenant in common by the operation of s118(1)(d)(ii) of the Real Property Act.

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