| Lahood
v Ernst & Young; In the Matter of Dave Lahood Pty Ltd (In Liq) (FCA)
- bankruptcy - corporations - orders for inquiry into conduct of trustee and
liquidators refused
(B) |
| White
v Johnston (NSWCA) - assault and battery - dentist’s
treatment was not assault on patient - matter remitted confined to alternative
negligence claim
(I) |
| Re RB,
a protected estate family settlement (NSWSC) - approval of family
settlement including statutory Will relating to protected person
(B) |
| Wilkinson
v C & M Leussink Pty Ltd (NSWSC) - workers compensation
- judicial review - jurisdictional error - decisions of Medical Appeal Panel
quashed
(I G) |
| Admiralty
Resources NL v Australis Mining Ltd (VSC) - security for costs
ordered in relation to new aspect of counterclaim
(I B C) |
| Carlyon
v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone (No.2) (QSC)
- costs - refusal of offer of settlement not imprudent - indemnity costs
refused
(I) |
| How v
How (TASSC)
- succession - family provision order in favour of deceased’s son refused
(B) |
| Summaries With Link (Five Minute Read) |
Lahood
v Ernst & Young; In the Matter of Dave Lahood Pty Ltd (In Liq) [2015] FCA 89
Federal
Court of the Australia
Foster
J
Bankruptcy
- corporations - bankrupt sought to litigate complaints against trustee in
bankruptcy arising out of administration of bankruptcy and complaints against
liquidators concerning administration of liquidation of corporation controlled
by bankrupt - ss19, 130, 134 & 179 Bankruptcy
Act 1966 (Cth) - ss488, 536 &1072C(4) Corporations Act 2001 (Cth) - held: the two administrations had
progressed to point where they should be finalised in near future - Court not
satisfied evidence justified any order for inquiry in either matter -
applications dismissed.
Lahood (B) |
White v Johnston [2015] NSWCA 18
Court
of Appeal of New South Wales
Barrett,
Emmett & Leeming JJA
Assault
and battery - respondent patient alleged appellant dentist’s treatment
constituted assault and was negligently performed - primary judge found dentist
had committed assault and battery on patient - dentist contended evidence did
not establish absence of therapeutic purpose in treatments she performed, that primary
judge erred in relying on evidence admitted to demonstrate tendency to charge
for services not performed, and in waiving notice requirement - appellant also
contended exemplary damages were excessive - held: evidence did not establish
absence of therapeutic purpose - awarding of damages in error - decision to
admit evidence relating to malpractice overturned - matter remitted to District
Court confined to alternative claim in negligence.
White (I) |
Re RB, a protected estate
family settlement
[2015] NSWSC 70
Supreme
Court of New South Wales
Lindsay
J
Wills
- succession - protected estate - application for approval of family settlement
concerning estate of defendant - defendant was a protected person under s38 NSW
Trustee and Guardianship Act 2009 (NSW) - statutory Will - family provision releases - lost capacity case - exercise of
protective jurisdiction - management and administration of property - held: orders
made for approval of family settlement including statutory Will relating to protected
person.
Re RB,
a protected estate family settlement (B) |
Wilkinson v C & M Leussink
Pty Ltd
[2015] NSWSC 69
Supreme
Court of New South Wales
Harrison
AsJ
Workers
compensation - judicial review - plaintiff sought to quash decisions of Medical
Appeal Panel to revoke medical assessment certificate and to refuse to
reconsider its earlier decision - held: Appeal Panel did not exceed its
jurisdiction - Appeal Panel did not misconstrue its jurisdiction under s328(2) Workplace Injury Management and Workers
Compensation Act 1998 (NSW) by conducting a de novo review - Appeal Panel
considered impairment to plaintiff’s right leg not due to work-related injury
but rather to underlying arthritic condition - Appeal Panel made findings as to
causation and in doing so purported to exercise statutory function it did not have
- Panel failed to address s323 concerning assessment of permanent impairment amounted
to error - jurisdictional error - plaintiff denied procedural fairness -
decisions quashed.
Wilkinson (I G) |
Admiralty Resources NL v
Australis Mining Ltd
[2015] VSC 33
Supreme
Court of Victoria
Elliott
J
Security
for costs - plaintiff sought security for costs from defendants in response to their
counterclaims - s1335(1) Corporations Act
2001 (Cth) - r62.02(1) Supreme Court
(General Civil Procedure) Rules 2005
(Vic) - delay - relevance of defendant’s amendment to counterclaim to add new
claim for nearly US$13 million - held: defendants had no assets in Australia
and were incorporated overseas - Court’s discretion enlivened - no material
delay in application for security for costs in relation to new claim - security
ordered in relation to new aspect of case alone.
Admiralty
Resources NL (I B C) |
Carlyon v Town & Country
Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone (No.2) [2015] QSC 25
Supreme
Court of Queensland
A
Lyons J
Costs
- Court delivered judgment for defendant - defendant sought indemnity costs on basis
of plaintiff’s imprudent refusal of offer to settle - rr360 & 361 Uniform Civil Procedure Rules 1999 (Qld)
- held: Court not satisfied plaintiff’s refusal of offer to settle was imprudent
in the circumstances - not a case where there were no reasonable prospects of
success - no special or unusual features to justify order for indemnity costs -
plaintiff to pay defendant’s costs on the standard basis.
Carlyon (I) |
How v How [2015] TASSC 4
Supreme
Court of Tasmania
Pearce
J
Succession
- applicant applied under Testator Family
Maintenance Act 1912 (Tas) for provision from estate of late father -
personal and financial circumstances of applicant - applicant’s relationship
with father - other claims on estate - testator’s reasons - s3(1) - held: Court
not satisfied applicant had been left without adequate provision for his proper
maintenance and support - application dismissed.
How (B) |
| CRIMINAL LAW WEEKLY ADDENDUM |
|
| R v Nguyen (SASCFC) - drug trafficking - unlawful search - evidence excluded - convictions set aside |
| Director of Public Prosecutions (Acting) v Pearce (TASCCA) - sentencing - grievous bodily harm - intellectual disability - suspended sentence not manifestly inadequate |
| Summaries With Link (Five Minute Read) |
R v Nguyen [2015] SASCFC 7
Court of Criminal Appeal of South Australia
Peek, Blue & Bampton JJ
Evidence - appellant charged with two counts of drug trafficking - appellant sought exclusion of evidence obtained by police officers stopping her vehicle and searching her handbag – claimed search was unlawful - primary judge ruled police officers had requisite reasonable suspicion - s52 Controlled Substances Act 1984 (SA) – further, primary judge would have exercised discretion not to exclude evidence in any event - appellant convicted - appellant contended primary judge erred in concluding police officers had requisite reasonable suspicion and in exercise of discretion - held: detective did not form requisite suspicion to justify search - search unlawful - no evidence to show detective’s mistaken understanding of breadth of powers conferred by Act was peculiar or isolated - evidence of search excluded in exercise of discretion -prosecution case wholly dependent on evidence of search - appeal allowed - convictions set aside.
R |
Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1
Court of Criminal Appeal of Tasmania
Blow CJ; Porter & Pearce JJ
Sentencing - respondent with intellectual disability pleaded guilty to one count of causing grievous bodily harm - primary judge sentenced respondent to imprisonment for 12 months - primary judge made order wholly suspending sentence of imprisonment for two years subject to special conditions - appellant contended sentence manifestly inadequate and seriousness of crime demanded sentence involving term of actual imprisonment or more tangible form of punishment - personal deterrence and denunciation - held: Court not persuaded primary judge erred in sentencing approach - given absence of prior convictions for violence, respondent's age, intellectual disability, and chance of rehabilitation, it was proper to allow for exercise of mercy - appeal dismissed.
Director of Public Prosecutions (Acting) |
A narrow
fellow in the grass
By Emily Dickinson
A narrow fellow in the grass
Occasionally rides;
You may have met him-did you not
His notice sudden is,
The grass divides as with a comb,
A spotted shaft is seen,
And then it closes at your feet,
And opens further on.
He likes a boggy acre,
A floor too cool for corn,
But when a boy and barefoot,
I more than once at noon
Have passed, I thought, a whip lash,
Unbraiding in the sun,
When stooping to secure it,
It wrinkled and was gone.
Several of nature’s people
I know, and they know me;
I feel for them a transport
Of cordiality.
But never met this fellow,
Attended or alone,
Without a tighter breathing,
And zero at the bone.
Emily
Dickinson
|
