Glossary
Alphabetical Terms
A B C D E I J L M N O P Q R S T U V W


A

Fox 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. 
KS v Veitch (No 2) [2012] NSWCCA 266; (2012) 84 NSWLR 172 - provides that at a later stage of the hearing of the application, the applicant may seek leave to use the protected counselling communication for some purpose, such as to formulate cross-examination that suggests that the complainant has made inconsistent statements to a counsellor in relation to the circumstances of the offence or to suggest that the complainant may be unreliable.   R v CDJ [2020] QDCPR 115 - DCJ rejected the view that upon the making of an application for leave it becomes necessary for the court “to embark upon an examination of the material to determine not just whether the claim for privilege is to be allowed bu
Kandola 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.
Markiewicz v Crnjac [2021] VSCA 290 at [13] - explained that an application to the Tribunal for an order for termination of a tenancy agreement was necessary and would only be made, where based on the failure to comply with a tenancy agreement, if the tenant could comply without suffering severe hardship. 


B

  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 w
Nudd 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.
Cummings 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.
The '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'


C

Calderbank 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 sp
an addition or supplement that explains, modifies, or revokes a will or part of one.
Gissing 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”. 
Binsaris v Northern Territory (2020) 94 ALJR 664 at 670-671 [28] - provides that the common law powers include those to prevent the commission of a crime to apprehend a person suspected of having committed an offence. Enever v The King [1906] HCA 3 - provides that the common law powers include those to prevent breaches of the peace.  R v Turner [1962] VicRp 2; [1962] VR 30 - provides that the exercise of the common law powers, like the statutory powers, is subject to constraints, such as doing only that which is reasonable and necessary.
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