| Atkinson
v Commissioner of Taxation (FCAFC) - taxation - statement of
account incapable of conversion to a bill of exchange - appeal dismissed
(B G) |
| Jewelsnloo
Pty Ltd v Sengos (NSWSC) - contract - leave to reopen case to
rely on new evidence refused
(I B) |
| Naumovski
v Ugrinovski (VSC) - costs - subpoenas issued in breach of
overarching obligations in Civil
Procedure Act 2005 (Vic) - indemnity costs
(I) |
| Tamaresis
v CSR Ltd (VSC) - proceedings for damages for psychiatric reaction
to father’s death from mesothelioma - adjournment refused
(I C) |
| Kyaw
Nyunt (deceased) (SASC) – Wills – document of testamentary
nature written in Burmese - letters of administration granted to widow of deceased
(B) |
| The
Corporation of the City of Adelaide v Circelli
(SASC) - environment and planning - refusal to grant permanent stay of
prosecution - leave to appeal refused
(I C) |
| Terravision
Pty Ltd v Black Box Control Pty Ltd [No 2] (WASC) - pleadings -
licence agreement - impermissible aids to construction of agreement - paragraphs
of defence struck out
(I B) |
| Summaries With Link (Five Minute Read) |
Atkinson
v Commissioner of Taxation
[2015] FCAFC 18
Full Court of the Federal Court of
Australia
Foster, Yates & Gleeson JJ
Bills of exchange - Commissioner
commenced debt recovery proceedings against first appellant - ATO sent first
appellant statement of account in respect of income tax debt - ATO received
purported bill of exchange from first appellant - purported bill comprised
documents including statement of account to which alterations and additions
were made - primary judge ordered proceedings be dealt with without oral
hearing on basis they were frivolous or vexatious and dismissed appellants’
claim against Commissioner - whether converted statement of account constituted
bill of exchange - held: receipt of statement of account did not confer any
authority upon first appellant to “fill up” statement of account so that it
became completed bill of exchange, or to impose liability upon Commissioner to
pay damages - statement of account did not answer description in s25 Bills of Exchange Act 1909 (Cth) - no
denial of procedural fairness - appeal dismissed
Atkinson (B G)
|
Jewelsnloo Pty Ltd v Sengos [2015] NSWSC 80
Supreme
Court of New South Wales
Robb
J
Interlocutory
application - claim arising out of contract for sale of business between
plaintiff and second and third defendants - plaintiff alleged it entered
contract on faith of a false representation concerning income of business -
plaintiff sought leave to re-open its case to rely on additional evidence - new
evidence consisted substantially of business’s trading records - held: to
permit plaintiff to rely on new evidence would allow it to make fundamental
change in basis of case - much of the preparation undertaken by defendants would
be wasted - defendants would be subjected to significantly more cost, delay and
anxiety - plaintiff would not be able to compensate defendants for financial
consequences of being given leave to reopen - no explanation to justify giving
leave - leave refused - notice of motion dismissed.
Jewelsnloo
Pty Ltd (I B)
|
Naumovski v Ugrinovski [2015] VSC 49
Supreme
Court of Victoria
Zammit
J
Costs
- plaintiffs issued subpoena to first defendant and non-party - first defendant
and non-party objected - plaintiffs did not object to setting aside of
subpoenas - first defendant and non-party sought indemnity costs - obligations
to only take steps to resolve or determine dispute, to cooperate in conduct of
civil proceeding, to narrow issues in dispute, and to ensure costs reasonable
and appropriate - held: plaintiffs breached overarching obligations under ss19,
20, 23 & 24 Civil Procedure Act 2010
(Vic) - plaintiffs’ conduct had resulted in loss of time to Court and parties -
breaches of overarching obligations sufficient to justify indemnity costs.
Naumovski (I)
|
Tamaresis v CSR Ltd [2015] VSC 47
Supreme
Court of Victoria
J
Forrest J
Adjournment
- plaintiff sued defendant for psychiatric reaction to death of father from
mesothelioma - bulk of viva voce evidence to be taken in Greece - proceedings
scheduled to commence 6/3/15 - defendant sought adjournment on basis of late
provision of taxation records of plaintiff and defendant’s inability to obtain
medical records relating to treatment which may be held by medical
practitioners in Greece - held: defendant’s prospect of fair trial not
compromised by proceeding on 6/3/15 and taking of evidence in Greece - application
for adjournment refused.
Tamaresis (I C)
|
Kyaw Nyunt (deceased) [2015] SASC 14
Supreme
Court of South Australia
Gray
J
Wills
– deceased left document of testamentary nature in Burmese language – widow of
deceased sought grant of letters of administration – applicant submitted
document did not appoint executor and that, if it were a Will, it would be
wholly ineffective in disposing of deceased’s Australian estate – held:
document was not a Will under Pt 3 Wills
Act 1936 (SA) - grant of letters of administration of
deceased’s estate made to applicant - dispensation order under s67 Administration and Probate Act 1919 (SA)
made – interests of deceased’s children in deceased’s estate appropriately protected.
Kyaw
Nyunt (B)
|
The Corporation of the City
of Adelaide v Circelli
[2015] SASC 21
Supreme
Court of South Australia
Bampton
J
Environment
and planning - applicant charged with failure to comply with s45(5) Environment Protection Act 1993 (SA) -
prosecution commenced in summary jurisdiction of Environment, Resources and
Development Court of South Australia - applicant sought to appeal against
judge’s refusal to order a permanent stay of proceedings - judge dismissed
application on basis applicant had failed to show that prosecution was doomed
to failure, or that continuation of it would bring administration of justice
into disrepute - held: Court not satisfied there were special reasons
justifying permission to appeal - application dismissed.
The
Corporation of the City of Adelaide (I C)
|
Terravision Pty Ltd v Black
Box Control Pty Ltd [No 2]
[2015] WASC 66
Supreme
Court of Western Australia
Le
Miere J
Pleadings
- dispute arising out of licence agreement entered by parties - plaintiff
claimed defendant had not informed or notified it of transactions it was obliged
to give notice of and had not paid plaintiff in respect of those transactions -
plaintiff sought to strike out paragraphs of defendant’s amended substituted
defence - held: certain subparagraphs were not permissible aids to construction
of agreement, thereby raised irrelevant issues or failed to state defendant’s
case with reasonable particularity - certain subparagraphs struck out.
Terravision
Pty Ltd (I B)
|
| CRIMINAL LAW WEEKLY ADDENDUM |
| Executive Summary |
|
DPP v Torun (VSCA)
– manslaughter by unlawful or dangerous act – guilty plea – sentence of
imprisonment - 8 years with non-parole period of 5 years - not manifestly
inadequate
|
| Summaries With Link |
DPP v Torun [2015] VSCA 15
Court
of Appeal of Victoria
Ashley,
Whelan & Beach JJ
Sentencing
– respondent shot and killed girlfriend with gun that he had earlier loaded –
did not recall gun was loaded due to drug-addled state - pleaded guilty to manslaughter
by unlawful and dangerous act – imprisonment for 8 years with non-parole
period of 5 years – judge indicated that, but for guilty plea, respondent would
have been sentenced to term of imprisonment of 11 years with non-parole period
of 8 years and 6 months – DPP contended sentence was manifestly inadequate –
held: no appeal from judge’s finding that respondent’s behaviour did not
involve any intended or foreseen violence or injury to victim – no intention to
harm victim – sentence not outside range open to judge – no clear and egregious
inadequacy in the circumstances – appeal dismissed.
DPP
|
Where
They Lived
By Thomas Hardy
Dishevelled
leaves creep down
Upon that bank
to-day,
Some green, some yellow, and some pale brown;
The wet bents
bob and sway;
The once warm slippery turf is sodden
Where we
laughingly sat or lay.
The summerhouse
is gone,
Leaving a weedy
space;
The bushes that veiled it once have grown
Gaunt trees
that interlace,
Through whose lank limbs I see too clearly
The nakedness
of the place.
And where were
hills of blue,
Blind drifts of
vapour blow,
And the names of former dwellers few,
If any, people
know,
And instead of a voice that called, “Come in, Dears,”
Time calls,
“Pass below!”
Thomas Hardy
|
