Popular Terms RSSFri, 28 Jan 2022 06:11:47 GMTNudd v The Queen [2006] HCA 9 - where it was held that within our system of justice, save for exceptional cases, "parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.

]]>Fri, 28 Jan 2022 06:11:47 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 GMTCummings v Claremont Petroleum NL (1996) 185 CLR 124 - provides that while a claim alleging breach of fiduciary duty is not a claim in contract, it is a claim “by reason of” a contract or breach of trust and it is a debt provable in bankruptcy. Badenach v Calvert [2016] HCA 18; 257 CLR 440 - provides that a solicitor owes a duty to their client in both contract (under the retainer) and tort.

]]>Wed, 26 Jan 2022 06:32:18 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 GMTGissing v Gissing [1970] UKHL 3; [1971] AC 886 - relied upon in stating that in counsel’s taxonomy a common interest constructive trust is a trust recognised by the court where property is acquired by A pursuant to an agreement with B, or otherwise under a common intention with B, that B is to have an interest in it, and B acts to his or her detriment on the basis of that common intention, typically by contributing to the purchase or holding costs. Zhang v Metcalf [2020] NSWCA 228 - provides that for the purposes of a joint endeavour constructive trust, loan repayments, at least of principal, count as “contributions”. 

]]>Tue, 25 Jan 2022 05:34:55 GMTan addition or supplement that explains, modifies, or revokes a will or part of one.

]]>Tue, 29 Sep 2020 21:52:59 GMT  Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695 - provides that there are circumstances in which the conduct of respondent’s counsel can provide a basis for aggravated damages, such as when counsel puts to an applicant that he or she is lying or asks questions which are without support, gratuitous or calculated to insult.    Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 - where generally speaking, a separate sum is not awarded as aggravated damages, because it is not a discrete head of damage.   Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 - provides that an award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable.   Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 - regarded an applicant’s knowledge of the falsity of the defamatory matter as an aggravating circumstance. ... Read more

]]>Tue, 25 Jan 2022 05:00:42 GMTBetts v Whittingslowe [1945] HCA 31; (1945) 71 CLR 637 at 649 - where Dixon J found that the defendant's breach of duty, coupled with the occurrence of an accident of the kind that might thereby be caused, was enough to justify an inference that the breach caused the accident.   New South Wales v Fahy [2007] HCA 20 - focused on how the particular injury happened may be misleading in attempting to determine issues of duty and its breach. 

]]>Wed, 08 Jun 2022 18:30:12 GMTKandola v Google LLC (No 2) [2021] FCA 1412 (12 November 2021) - provides that an applicant for preliminary discovery must satisfy the Court that there may be a right for the prospective applicant to obtain relief against a prospective respondent;  the prospective applicant is unable to ascertain a description of the prospective respondent; and another person, the respondent to the application for preliminary discovery, knows or is likely to know that description, or has or was likely to have had, control of a document that would help ascertain that description.

]]>Wed, 26 Jan 2022 05:34:37 GMTThe 'Briginshaw principle' (as it is known) means the tribunal must be satisfied of the relevant matters on the balance of probabilities, to a comfortable degree, based on clear, cogent and strict evidence. ... 5(b)), 'the more serious the allegation, the stronger the evidence needs to be'

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