| Donoghue v
Commissioner of Taxation (FCA) - income tax - assessments made with
benefit of material provided by third party without permission - material subject
to legal professional privilege - assessments quashed (I B G) |
| Thompson t/as
Staunton and Thompson Lawyers v Schacht (No 2) (NSWCA) - professional
negligence - solicitors’ duties - application to re-open judgment granted -
credit allowed to damages otherwise calculated (I) |
| Douglas v James (NSWSC) - wills and
estates - appointer for capital protected trust did not have power to remove
and appoint trustees (B) |
| Smythe v Burgman (No
2) (NSWSC) - medical
negligence - patient’s leg amputated due to arterial clot - doctor not liable (I) |
| A v C (SASC) - judicial
review - preliminary issue - meaning of contractor
and public officer under Independent Commissioner Against Corruption
Act 2012 (SA) (B G) |
| Commissioner of
Highways v M & B Farmer Nominees Pty Ltd; Commissioner of Highways v Farmer
No 2 Pty Ltd (SASC) - compulsory acquisition of land - companies entitled to interest
on difference between total compensation and amount paid into Court (B C G) |
| Insurance Australia
Ltd v Albrecht (ACTSC) - costs - motor vehicle accident - s155(3)(c) Road Transport (Third Party Insurance) Act
2008 (ACT) applied to assessment of costs referred to in consent judgment -
declaration (I) |
| Summaries With Link (Five Minute Read) |
Donoghue
v Commissioner of Taxation
[2015] FCA 235
Federal Court of Australia
Logan J
Income tax - legal professional
privilege - applicant sought orders that assessments, which exposed him to multi-million
dollar liability to Commonwealth, were invalid - audit and assessments made
with benefit of material concerning applicant and other entities provided by
third party without permission - held: third party working to or for legal firm
with which applicant had retainer - material concerned subject to legal
professional privilege - Commissioner had no right under ss166 or 263 Income Tax Assessment Act 1936 (Cth) to
use material subject to legal professional privilege - auditor acted in wilful
disregard of applicant’s right to claim legal professional privilege in respect
of material - Commissioner’s process of assessment affected by conscious
maladministration - assessments quashed.
Donaghue (I B G)
|
Thompson
t/as Staunton and Thompson Lawyers v Schacht (No 2) [2015] NSWCA 70
Court of Appeal of New South Wales
Basten, Barrett & Leeming JJA
Judgments and orders - solicitors’
duties - professional negligence - Court allowed solicitors’ appeal against
assessment of damages - damages reduced including allowance for spousal
maintenance - solicitors sought to re-open judgment in relation to allowance
for spousal maintenance - solicitors claimed respondent did not merely suffer
no loss but obtained benefit - solicitors claimed benefit should have been
applied by reduction of damages - held: absent prejudice Court should reopen judgment
if satisfied issue clearly articulated for Court’s consideration - there was
live issue for Court’s consideration - principal judgment simply removed amount
for spousal maintenance from award - no credit given for benefit to respondent
- Court’s findings resulted in contradiction between rejecting head of damages
and not acceding to submissions for credit - application granted - credit
allowed to damages otherwise calculated.
Thompson (I)
|
Douglas
v James
[2015] NSWSC 299
Supreme Court of New South Wales
McDougall J
Wills and estates - proceedings concerning
complex testamentary trusts created by deceased’s Will - whether first defendant as “Appointor” for “Capital
Protected Trust” (CPT) had power to remove and appoint trustees of CPT -
construction of Will - held: first
defendant did not have power to remove plaintiffs as trustees and appoint
others in their place - rectification of Will refused - plaintiffs entitled to declaratory
relief sought - cross-summons failed.
Douglas (B)
|
Smythe
v Burgman (No 2)
[2015] NSWSC 298
Supreme Court of New South Wales
Adamson J
Medical negligence - plaintiff claimed
damages from doctor for leg amputation - plaintiff claimed doctor negligent in
failing to diagnose arterial ischaemia on either of two dates - ss5D(1), 5E,
5O, 15B(2)(c) & 16 Civil Liability
Act 2002 (NSW) - s 69(4) Evidence Act
1995 (NSW) - credit - usual practice - held: plaintiff failed to establish
breach of duty by doctor - Court satisfied doctor considered arterial ischaemia
and reasonably rejected it - even if doctor negligent, Court not satisfied negligence
would have caused or contributed to loss of leg - judgment for defendant.
Smythe (I)
|
A v
C [2015] SASC 35
Supreme Court of South Australia
Blue J
Judicial review - contract - A and B
sought relief in relation to investigation by Independent Commissioner Against Corruption
under Independent Commissioner Against
Corruption Act 2012 (SA) - preliminary issue - whether A was public officer performing work as contractor for public authority or Crown
under the Act - held: A entered into contract Crown governing A’s appointment as
Board member - contract renewed or extended thereafter counterparty to contract
was Crown - contractor extended to person
who performed work as member of government board pursuant to contract with
Crown - A was contractor and thereby public officer within meaning of Act.
AvC (B G)
|
Commissioner
of Highways v M & B Farmer Nominees Pty Ltd; Commissioner of Highways v
Farmer No 2 Pty Ltd
[2015] SASC 40
Supreme Court of South Australia
Blue J
Real property - compulsory acquisition
of land - Commissioner of Highways compulsorily acquired land from companies - Commissioner
offered compensation and paid sum into Court - parties agreed companies entitled
to compensation in greater sum and transfer of surplus land - parties disagreed
whether companies entitled to interest on the difference between total
compensation and amount paid into Court - s33 Land Acquisition Act 1969 (SA) - held: on proper construction,
interest was payable under s33 on difference between total compensation, whether
in form cash or otherwise, and amount paid into Court.
Commissioner (B C G)
|
Insurance
Australia Ltd v Albrecht
[2015] ACTSC 68
Supreme Court of the Australian Capital
Territory
Mossop M
Costs - first plaintiff was compulsory
third-party insurer of second plaintiff - defendant and second plaintiff
involved in motor vehicle accident - insurer admitted breach of duty of care by
second plaintiff - plaintiffs sought declaration s155(3)(c) Road Transport (Third Party Insurance) Act
2008 (ACT) applied to assessment of costs referred to in consent judgment -
whether defendant’s entitlement to costs limited by s155(3)(c) - statutory
interpretation - held: reference to awards
not confined to judgments entered after hearing, and included consent judgments
- declaration that s155(3)(c) applied - orders for payment of costs in
accordance with s155(3)(c)(i)-(ii).
Insurance (I)
|
| CRIMINAL |
| Executive Summary |
| R v Kelsall (No 3) (NSWSC) - criminal law -
evidence - statements to doctors which amounted to protected confidences admissible |
| Summaries With Link |
R v
Kelsall (No 3)
[2015] NSWSC 253
Supreme Court of New South Wales
R A Hulme J
Criminal law - admissibility of evidence
of protected confidences - accused pleaded not guilty to two counts on
indictment alleging indecent assault and murder- admissibility of statements
made by accused to two doctors in mid 2012 - statements were protected confidences under Ch 3 Pt 3.10
Div 1A Evidence Act 1995 (NSW) -
Court required to exclude evidence if satisfied of matters in ss126B(3) &
126B(4) - held: probative value of evidence high - no violation of therapeutic
relationship as accused had no ongoing relationship with doctors - evidence was
of type doctors would consider being outside scope of what was required to be
kept confidential, a matter about which patients usually informed - evidence of
disclosures admissible.
RvKelsall |
Old
Wine
by Margaret Widdemer
If I could lift
My heart but high
enough
My heart could fill
with love:
But ah, my heart
Too still and heavy
stays
Too brimming with
old days.
Margaret Widdemer
|
