Terms of AISLES - Australian Law Network RSSThu, 13 Jan 2022 03:24:29 GMTAdministration and Probate Act 1958 (Vic) s 34(1)(a)(c) - where an executor to whom probate has been granted remains out of Victoria for more than two years or is unfit to act or incapable of acting, the Court may order the removal of the executor and appoint some proper person or trustee company as administrator in place of the executor.  Trustee Act 1958 (Vic) s 48(1) - pursuant to which the Court may make an order appointing a new trustee either in substitution for or in addition to any existing trustee whenever it is expedient to do so.  Supreme Court (Administration and Probate) Rules 2014  - pursuant to which the application seeking that the defendant be passed over as an executor of the will of the deceased and that letters of administration be granted to State Trustees Limited is made.  Miller v Cameron[1936] HCA 13; (1936) 54 CLR 572 -provides that an executor or trustee will not necessarily be removed where there is a conflict between duty and interest, but in some cases such conflict may be sufficient. ... Read more

]]>Thu, 13 Jan 2022 03:24:29 GMTCalderbank v Calderbank (‘Calderbank’) [1976] Fam 93 (‘Calderbank’) - provided for principles such as: (i) That it is in the interests of the administration of justice that litigation should be compromised as soon as possible and so save both private and public costs;(ii) To indemnify an offeror whose offer is later found to have been reasonable against the costs thereafter incurred. This is considered reasonable because from the time of rejection of the offer the real cause of the litigation is the offeree’s rejection of the offer;(iii) To this end, a party in receipt of an offer of compromise should have some incentive to consider the offer seriously. That incentive is the prospect of a special order as to costs;(iv) It is nevertheless important not to discourage potential litigants from bringing their disputes to the Court   Hazeldene’s Chicken Farm v VWA (2005) 13 VR 435 (‘Hazeldene’s’) - where the Court of Appeal stated that matters relevant to that issue would ordinarily include: (a) the stage of the proceeding at which the offer was received; (b) the time allowed to the offeree to consider the offer;(c) the extent of the compromise offered;(d) the offeree’s prospects of success, assessed as at the date of the offer;(e) the clarity with which the terms of the offer were expressed;(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it. Mischel v Mischel Holdings Pty Ltd (in liq) (No 2) [2012] VSC 421 [33]–[34] - where the period for which the offer was open was reasonable in the circumstances, and the offer was expressed in clear terms, foreshadowing an order for costs in the terms sought. Grech v Deak-Fabrikant (No 4) [2016] VSC 35 [10] - provided that the Calderbank offer was so far in excess of the judgment sum that an order for indemnity costs from the date of the expiry of the offer is warranted. Gill v Gill (No 2) [2014] VSC 612 (‘Gill’) [14]  - held that an order for indemnity costs from... Read more

]]>Thu, 13 Jan 2022 03:07:46 GMTThe argument's that have failed in proving unlawfulness:Freedom of Political Communication: Cotterill v Romanes [2021] VSC 498, [1], [13]–[19] - Niall JA rejected an argument that sub-ss 200(1)(b) and (d) of the Public Health Act were invalid because they impose an impermissible burden on the freedom of political communication implied in the Australian Constitution.  Bennett v President, Human Rights and Equal Opportunity Commission [2003] FCA 1433 - Finn J held that a direction issued by an Australian Government agency to employees will not be ‘lawful and reasonable’ where it infringes the implied constitutional guarantee of freedom of communication about government and political matters. Australian Securities and Investments Commission v DB Management (2000) 199 CLR 321; [2000] HCA 7 - provides that the object of s 7 is to permit orders to be made which may, for the greater good, interfere with fundamental human rights, such as freedom of movement. In these circumstances, the principle of legality is not of any real assistance in discerning the meaning of particular provisions.Chief of Defence Force v Gaynor (2017) 246 FCR 298; [2017] FCAFC 41 - provides that the dictates of the plaintiff's conscience do not relieve him from complying with, or being bound by, valid orders. Effect of Directions on Public Health Act.Palmer v Western Australia [2021] HCA 5; (2021) 95 ALJR 229 - relied upon by the defendants in depending for their force and effect on the Public Health Act, in particular s 203, which makes it an offence for a person to refuse or fail to comply with a direction given to the person under s 200. Right to Bodily Integrity Kassam v Hazzard [2021] NSWSC 1320  - Beech-Jones J rejected a submission that mandatory vaccination orders in New South Wales violate any person’s right of bodily integrity.  Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320 - considered orders made pursuant to s 7 of the Act in response to the COVID-19 pandemic and found them to... Read more

]]>Mon, 22 Nov 2021 05:01:25 GMTAlwer v McLean [2000] VSC 396; (2000) 116 A Crim R 364 - where a speeding charge was found to be invalid because it failed to refer to an essential element of the offence provision.  Glenister v Magistrates’ Court of Victoria [2014] VSC 265 - where Ginnane J held that the existing charge-sheet, because it did not contain the essential elements of charges 1, 2 and 3 or the particulars that were necessary to give reasonable information as to the nature of the charges, did not sufficiently disclose the nature of the offences. Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344; (2015) 257 IR 204 - where the first defendant submitted that on appeal from Glenister, Ferguson and McLeish JJA in their joint judgment impliedly endorsed Ginnane J’s approach, albeit in obiter dicta.  Power to Amend the Charges or Understand what is implied. DPP v Kypri [2011] VSCA 257; (2011) 33 VR 157 - court considered that s 8 of the CPA was based on the power to amend previously found in s 50 of the Magistrates’ Court Act 1989(Vic)(“MCA”). Walters v Magistrates’ Court of Victoria [2015] VSC 88 - Zammit J considered whether a charge under s 49(1)(c) of the Road Safety Act 1986(Vic) was invalid and if so whether it was capable of amendment after the expiration of the limitation period. Smith v Van Maanen (1991) 14 MVR 365 - held that a reasonable accused, “striv[ing] conscientiously” to understand the charges, as the law requires, would have understood that it was impliedly alleged that he or she was under a duty not to disclose the relevant police information without reasonable excuse.Wells v Stillman [2020] VSC 51 - the first defendant relied upon this case submitting that the police information should have been identified in greater detail. ... Read more

]]>Tue, 16 Nov 2021 00:21:31 GMTFallon v Johnson [2018] VSC 273 at [19] - where a plaintiff suffers loss due to their motor vehicle being written off in a collision due to the negligence of the defendant, the ordinary principle that damages are compensatory applies, as does the ordinary principle that the plaintiff must mitigate their damage. Portbury Development Company Pty Ltd v Ottedin Investments Pty Ltd[2014] VSC 57 at [158] - where the onus of proof as to the plaintiff’s failure to mitigate his loss rests on the defendant.   Hardie Finance Corporation Pty Ltd v Ahern [No 3] [2010] WASC 403 at [767], [770] - provides that a plaintiff will not be held to have acted unreasonably simply because the defendant can suggest other and more beneficial conduct, so long as it was reasonable for the plaintiff to act in the way that he did. Umerji v Khan [2014] Civ 357 - mentioned the issue of whether the rules of mitigation required the claimant to claim on his insurance policy and with the proceeds buy a replacement car. Bradburn v Great Western Railway [1874] LR10Ex1;[1845] EngR538 - authority to the effect that a plaintiff’s insurance arrangements cannot be taken into account to reduce a tortfeasor’s liability. National Insurance Co of New Zealand v Espagne (‘Espagne’) [1961] HCA 15; (1961) 105 CLR 569 - considered what principle should govern the question of whether a particular benefit ought or ought not be taken into account in assessing damages. Clarke v McCullough [2012] NIQB 104 at [19], [20] - provides the principles for determining of credit hire-car cases which includes reference to the principle of res inter alios acta orthe legal principle that a tortfeasor cannot require the injured party to invoke his contract with his insurers in order to mitigate his loss. Bradburn v Great Western Rly Co [2007] 4 All ER 791; [2007] EWCA Civ923 - where defendants have had to accept that a claimant’s insurance arrangements are irrelevant and cannot be prayed in aid to reduce their liabilities. Tho... Read more

]]>Mon, 15 Nov 2021 23:48:01 GMTFox v Percy [2003] HCA 22; (2003) 214 CLR 118 - where it was held that appeal is not, as such, a common law procedure.  It is a creature of statute. 

]]>Wed, 22 Sep 2021 05:42:37 GMTState of New South Wales v Elmir (Final) [2019] NSWSC 1867 - where it was discussed that ‘extremism’ is the holding of extreme political or religious views; fanaticism’. Violent extremism can, therefore, be understood as violence motivated by, or undertaken in furtherance of, extreme political or religious views.

]]>Mon, 20 Sep 2021 04:20:21 GMTState of New South Wales v Cheema (Preliminary) [2020] NSWSC 876 - where it was held that the definition of a terrorist act under s 100.1 of the Criminal Code is broad and encompasses a range of preparatory offences and acts falling short of actual terrorist acts which cause injury to persons or damage to property.

]]>Mon, 20 Sep 2021 04:19:27 GMTLynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 - provides that the phrase "unacceptable risk" should be given its everyday meaning within its context and having regard to the objects of the Act. 

]]>Mon, 20 Sep 2021 04:17:55 GMTNolan v Nolan [2003] VSC 121; (2003) 10 VR 626 - where it was held that the essential elements required to establish a valid gift were set out as being the intention to make a gift (usually expressed by words), the intention on the part of the donee to accept the gift and delivery ("Nolan Test").

]]>Sun, 19 Sep 2021 09:11:28 GMT