| Serrao by his Tutor Serrao v Cornelius (NSWCA) - negligence - pedestrian struck by motor vehicle from behind in darkness after midnight - pedestrian and driver both intoxicated - respondent's breach of duty did not cause appellant's injuries - cross-appeal allowed
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| Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd (NSWSC) - security of payments - application to set aside adjudicator's determination on basis there was no “payment claim” refused - statutory demand not set aside
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| Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No. 2) (NSWSC) - land tax - primary production exemption - comparison of primary production with other uses - land tax assessments set aside - one assessment upheld
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| Hettiarachci v RACV (VSC) - accident compensation - Magistrate's reasons inadequate - erroneous finding of no medical material to support claim - appeal allowed
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| Ziverts v City of Albany (WASC) - discovery - legal professional privilege - inspection of certain documents ordered - claim for privilege otherwise upheld
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Dear Subscriber
1.This Benchmark Television broadcast is with Dr Anton Hughes on Patents and Software with Ian Benson.
2. Software patents have become very common because of the ubiquity of computers, the size of the market which means there is substantial money in patents, and the fact that software is infinitely malleable.
3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
5. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/cle
6. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
8. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Dr Anton Hughes on Patents and Software with Ian Benson |
| Software patents have become very common because of the ubiquity of computers, the size of the market which means there is substantial money in patents, and the fact that software is infinitely malleable. |
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| Summaries With Link (Five Minute Read) |
Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60
Court of Appeal of New South Wales
Leeming JA; Sackville & Emmett AJJA
Negligence - motor vehicle accident - appellant walking on road struck from behind by a car driven by respondent - accident occurred in darkness after midnight - parties both affected by alcohol - primary judge found respondent negligent and reduced damages by 40% for contributory negligence - appellant contended primary judge should not have found appellant contributorily negligent and that in any case damages for contributory negligence should be reduced - respondent challenged finding she breached duty of care and finding that breach caused injuries - ss3B(2)(a), 5B, 5D & 5E Civil Liability Act 2002 (NSW) - ss7A & 7B Motor Accidents Compensation Act 1999 (NSW) - sch 1 Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW) - s9 Road Transport (Safety and Traffic Management) Act 1999 (NSW) - held: primary judge's finding that appellant, immediately before accident, was not on the bitumen surface of road but on gravel verge could not stand - primary judge's conclusion that respondent's breach caused appellant's injuries relied on this finding and must therefore be set aside - cross-appeal allowed - parties be given opportunity to make submissions on “blameless accident “ case put by appellant in alternative.
Serrao |
Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334
Supreme Court of New South Wales
Meagher JA
Security of payments - plaintiff sought to set aside adjudicator's determination that it owed amount to defendant on basis that there was no “payment claim” in accordance with s13(2) Building and Construction Industry Security of Payment Act 1999 (NSW) - plaintiff also sought to set aside statutory demand made by defendant - ss5, 8, 9, 13, 14, 15, 17 & 24 Security of Payments Act - ss459E, 459F & 459G Corporations Act 2001 (Cth) - s69 Supreme Court Act 1970 (NSW) - held: defendant did not make binding election to pursue a course in 15(2)(a) Security of Payments Act - claims were in respect of different reference dates and did not contravene s13(5) Security of Payments Act - no contravention of s13(8) - statutory demand not set aside - amended summons dismissed.
Kyle Bay |
Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No. 2) [2016] NSWSC 332
Supreme Court of New South Wales
White J
Land tax - plaintiff property developer sought review of Commissioner of State Revenue's decision to issue land tax assessments - whether plaintiff entitled to exemptions for land tax under s10AA(2) Land Tax Management Act 1956 (NSW) on basis lands used for primary production which was dominant use - held: Court concluded comparison of primary production with other uses not confined to comparison with other physical uses - holding of lands as part of stock in trade not a current use - consultants' work was connected with current commercial land development use to extent land physically used in carrying out activities to obtain approval land tax assessments set aside - one assessment upheld - counsel for plaintiff to bring in short minutes of order.
Metricon |
Hettiarachci v RACV [2016] VSC 97
Supreme Court of Victoria
J Forrest J
Accident compensation - appellant lost claim for compensation under Accident Compensation Act 1985 (Vic) - appellant appealed against Magistrate's decision concerning stress and anxiety claim arising out of employment - appellant contended Magistrate's reasons did not address his account of symptoms - appellant contended in the alternative that Magistrate specifically erred in finding there was no medical material to support work stress and anxiety - ss82 & 93 - held: Magistrate's reasons were inadequate - finding of no medical material erroneous - Magistrate's decision quashed - appeal allowed.
Hettircachci |
Ziverts v City of Albany [2016] WASC 94
Supreme Court of Western Australia
Beech J
Discovery - legal professional privilege - plaintiff sued defendant in nuisance and negligence - plaintiff claimed defendant's acts and omissions caused flooding and damage to her land - plaintiff disputed defendant's claims of legal professional privilege - O26, r4 & O26 r12 Rules of the Supreme Court 1971 (WA) - held: Court ordered inspection of certain documents and otherwise upheld claim to privilege.
Ziverts |
| CRIMINAL |
| Executive Summary |
| Afford v The Queen; DPP (Cth) v Afford (VSCA) - criminal law - importing commercial quantity of border controlled drug - directions to jury concerning intentional fault element - verdict unsafe and unsatisfactory - conviction set aside - Court directed acquittal - appeal allowed |
| Police v Gray (SASC) - criminal law - father convicted of aggravated assault against son for smacking thigh - defence of lawful parental correction - conviction quashed - appeal allowed |
| Summaries With Link |
Afford v The Queen; DPP (Cth) v Afford [2016] VSCA 56
Court of Appeal of Victoria
Maxwell P, Priest & Beach JJA
Criminal law - applicant found guilty of importing commercial quantity of border controlled drug - applicant sentenced to three years and two months imprisonment with non-parole period of two years - applicant sought to appeal against conviction - Director of Public Prosecutions appealed against sentence imposed - held: applicant's appeal upheld on grounds that the verdict of the jury was unreasonable and/or could not be supported by evidence, and that miscarriage of justice had occurred due to trial judge's failure to direction jury on intentional fault element - conviction was unsafe and unsatisfactory - conviction set aside - Court directed an acquittal - DPP's appeal dismissed without adjudication of merits.
Afford |
Police v Gray [2016] SASC 39
Supreme Court of South Australia
Peek J
Criminal law - appellant appealed against finding he was guilty of aggravated assault on 12 year old son - father had smacked son on thigh three times - no conviction recorded - appellant discharged without penalty - defence of lawful parental correction of a child - held: Magistrate erred in approach to parental correction - Magistrate misdirected himself as to matters' relevance and weight - appellant's actions bona fide and conduct not unreasonable - finding of guilt quashed - appeal allowed.
Police |
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Poem for Friday (Recitation here by Thomas Hellier)
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A Shropshire Lad: 52: Far in a western brookland
BY A. E. HOUSMAN
Far in a western brookland
That bred me long ago
The poplars stand and tremble
By pools I used to know.
There, in the windless night-time,
The wanderer, marvelling why,
Halts on the bridge to hearken
How soft the poplars sigh.
He hears: long since forgotten
In fields where I was known,
Here I lie down in London
And turn to rest alone.
There, by the starlit fences,
The wanderer halts and hears
My soul that lingers sighing
About the glimmering weirs.
A. E. HOUSMAN |
