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Abuse of process
PRACTICE AND PROCEDURE – abuse of process – unconditional discontinuance proceedings in different court involving same substratum of fact – whether abuse of process operates against person not party to earlier proceeding – where earlier proceeding not decided upon merits –…
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Challenges to non-economic loss awards
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Judge's reasons
in AppealToll Pty Ltd v Harradine [2016] NSWCA 374
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Motor vehicles and injuries at work
Toll Pty Ltd v Harradine [2016] NSWCA 374 The authorities establish that if the forklift in the present case was being used to unload the contents of the stillage onto the trailer, and the forklift was stationary during this process,…
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Solicitor's duty beyond the retainer
AS BANNISTER & ORS v SIRROM ENTERPRISES PTY LTD [2016] SASCFC 153 85. The extent to which the duty requires a solicitor to advise on matters beyond a client’s express instructions is problematic. In Micarone v Perpetual Trustees Australia Ltd,[1] Debelle…
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Oz standards not dispositive
Harrington Estates (NSW) Pty Ltd t/as Harrington Grove Country Club v Turner [2016] NSWCA 369 NEGLIGENCE – liability of occupier – liability of landscape architect – patron injured as stepped into garden bed in Club car park – true depth…
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Administrative law: The role of a medical assessor
AAI Limited v State Insurance Regulatory Authority of New South Wales (formerly the Motor Accidents Authority of New South Wales) [2016] NSWCA 368 On its proper construction the MAC Act does not require a medical assessor to make a determination…
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Police officers: duty of care owed by State
State of New South Wales v Briggs [2016] NSWCA 344 1. Per curiam: In relation to the numerically large body of police officers, breach of a duty of care must be assessed in light of a postulated system that should have been…
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Contributory negligence under the CLA
Accordingly, the existence and extent of a claimant’s contributory negligence is to be assessed by reference to the risk of harm which is the subject of his or her claim for damages, and the precautions that a reasonable person in…
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Construction and interpretation of contracts
in Contract -
Workers compensation insurer entitled to recover payments from a blameless motor accident insurer
State of NSW v Wenham [2016] NSWCA 336 The appellant was the employer of Ms Goddard. Ms Goddard was driving behind a truck driven by the first respondent and owned by the second respondent. A wheel assembly disconnected from the…
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Exemplary damages: general principles and criminal penalty
Cheng v Farjudi [2016] NSWCA 316 Principles [49] Because, as her Honour observed, the usual rule is that exemplary damages are not awarded where a person has been subject to a criminal sanction, I have found it appropriate to re-visit the…
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Communication with the Court
John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 [12] The rule is that a judge should not receive any communication from anyone concerning a case that the judge is to decide, made with a view to influencing the…
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Accident, recklessness and insurance
in InsuranceMatton Developments Pty Ltd v CGU Insurance Limited [2016] QCA 208 Margaret McMurdo P: For the appellant to be deprived of the benefit of the accidental overload clause, the overloading and damage must have been expected (Westco Australia Pty Ltd v…
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Appeal from District Court on seperate determination of liability
Damjanovic v. Sharpe Hume & Co. (Services) Pty. Ltd, .Damjanofic v. York Agencies Pty. Ltd., Damjanovic v. Rosier & Ors, Damjanovic v. Z. Spehar, Damjanovic v. I. Spehar [2001] NSWCA 130 3 The question of fact which was determined giving rise…
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Domestic assistance, need, pets and hobbies
Teuma and Anor v C P and P K Judd Pty Ltd [2007] NSWCA 166 [48] Mr Harben relied on Geaghan v D’Aubert (2002) 36 MVR 542 where Stein JA (with whom Handley JA and Foster AJA agreed) held that Griffiths v Kerkemeyer (1977) 139 CLR 161 services did not…
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Proof to the civil standard
Chen v State of New South Wales (No 2) [2016] NSWCA 292
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Fallibility
in Fact FindingCoote v Kelly; Northam v Kelly [2016] NSWSC 1447
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Pleadings – their purpose
In Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44 at [20] – [21] Hodgson JA said, inter alia: “The general requirement to avoid surprise means that material facts must be stated in such a way that the…