Welcome to this week's edition.
|
Sponsored by:   |
Actavis UK Ltd v Eli Lilly & Co Ltd, CA, 13/1/10
The Court of Appeal upheld the judge's order that the appellant pharmaceutical company, which had unsuccessfully applied for the revocation of a patent, was jointly liable, along with the other unsuccessful pharmaceutical company, for the costs of the successful party. The appellant's action was initially separate to that of the other unsuccessful pharmaceutical company but, ultimately, such actions were ordered to be heard simultaneously before the same judge. Prior to the commencement of the trial, the applicant discontinued its action but following the trial of the other action, was ordered to pay the costs of the successful party, split equally between the two pharmaceutical companies on the grounds that it was impossible to distinguish between the two actions. The Court of Appeal held that such order was not perverse and that it was not contrary to the spirit of the CPR to hold the appellant equally accountable in costs, as it was effectively a co-party to the other action and had the benefits of the other unsuccessful party's experiments and evidence.
Biddle & Co (A Firm) v Tetra Pak Ltd & Ors, Ch, 21/1/10
Warren J held that a claimant who had issued claims against two defendants could serve separate Particulars of Claim on each defendant. Warren J held that the CPR (more particularly, r7.4 and r16.4), did not prohibit separate Particulars of Claim from being served on different defendants against whom different causes of action were relied upon. In the absence of a prohibition, there was no reason why a claimant could not serve separate Particulars of Claim on different defendants, especially in circumstances where such a course might enable the overriding objective to be better achieved.
The Associated Press reports that the Supreme Court decided that a corporation's principal place of business is where the company's executives work, not where the company's products are sold. The unanimous ruling by the high court will likely make it harder to sue out-of-state corporations in state courts, which are considered friendlier to class-action lawsuits than are federal courts.
Source: http://www.law.com/jsp/article.jsp?id=1202444339091&src=EMC-Email&et=editorial&bu=Law.com&pt=Law.com%20Newswire%20Update&cn=LAWCOM_NewswireUpdate_20100223&kw=In%20Unanimous%20Ruling%2C%20Supreme%20Court%20Says%20Business%20HQ%20Is%20Where%20Executives%20Are
The National Law Journal reports that the Supreme Court established new, more permissive rules for police who want to question a suspect for a second time after the suspect invokes his Miranda rights to remain silent. And, in a further ruling, the justices said that Florida's alternative wording of the warning is acceptable, even though it does not explicitly state that a suspect has a right to have a lawyer present during questioning.
Source: http://www.law.com/jsp/article.jsp?id=1202444486063&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100225&kw='Miranda'%20Dealt%20One-Two%20Punch%20by%20High%20Court
Russian news service, Ria Novosti, notes that a Saudi newspaper reported that a woman in Saudi Arabia is suing a five-star hotel because she received mosquito bites. The paper, Al Hayat, reported that a court in the city of Jidda started considering the lawsuit as the woman demanded that hotel owners pay her 5 million Saudi riyals (US$1.3 million) in damages. She claimed that as a result of numerous mosquito bites she had suffered while staying at the hotel she fell ill, started having severe pains and itching, and her skin turned red. It is reported that a doctor advised her to undergo a medical examination and start treatment in a hospital.
Source: http://en.rian.ru/strange/20100209/157817268.html
The Productivity Commission has released its final report on the Contribution of the Not-for-Profit Sector. The Commission found there is a need for wide-ranging reforms to remove unnecessary burdens and costs faced by the not-for-profit sector. Among its recommendations, the Commission noted the need for reform of government purchasing and contracting arrangements.
Download the Productivity Commission report here: http://www.pc.gov.au/projects/study/not-for-profit/report
The Alliance has continued its fight to prevent mandatory sentencing laws being introduced in states and territories across Australia as governments seek to remove judicial discretion when police or emergency service workers are assaulted.
Mr Barns spoke with The Mercury this week, following an article in the newspaper quoting a Police Association of Tasmania spokesperson calling for such mandatory measures to be introduced in Tasmania.
Mr Barns told the paper that mandatory sentencing was dangerous and threatened civil liberties, as judges needed to be able to assess situations on a case-by-case basis in the event of mitigating circumstances.
He also said while the majority of police officers behaved appropriately when confronting situations, there had been times when they had mishandled their power and this was another reason why such a law should not be introduced.
In the article, the police association spokesperson claims that Mr Barns' comments undermine the integrity of the justice system, but fails to understand that mandatory sentencing is what undermines the justice system.
Interestingly, the Queensland Police Commissioner this week admitted that police officers in south-east Queensland had become desensitised to situations and his answer was to put more police on the street because of this desensitisation.
To view The Mercury story, click here:
http://www.themercury.com.au/article/2010/03/02/131035_scalesofjustice.html
To view the original police association article, click here: http://www.themercury.com.au/article/2010/03/01/130771_scalesofjustice.html
To view the Queensland Police Commissioner's admission, click here: http://www.news.com.au/couriermail/story/0,20797,26798301-3102,00.html?from=public_rss
Alliance member and criminal lawyer, Peter Russo, discussed proposed mandatory sentencing laws for Queensland with the National Indigenous Broadcasting Service this week.
Mr Russo told the station that from every angle the proposed laws spelt disaster for civil rights, and Indigenous people may find themselves increasingly vulnerable to such draconian laws, which would stop judges assessing situations on a case-by-case basis.
Defamation law specialist, Michael Hall, was interviewed by Channel Nine's Denham Hitchcock, on Tuesday, for the Alliance.
Mr Hall, from NSW's Nigel Bowen Chambers, took up the call following a request to the Alliance by Mr Hitchcock to explain aspects of the law in light of the recent Lara Bingle privacy and defamation case.
His interview was aired on the station on Tuesday evening's news.
The Bingle case involves privacy and defamation issues following the publication of a nude photograph of the model.
Comments from SA president, Tony Kerin, on problems with the South Australian workers' compensation system have been distributed across via an OHS news service on the net to anyone with an interest in OHS issues.
South Australian representives, including Mr Kerin and Peter Moloney, have been working tirelessly during the South Australian election campaign to raise the issue of the flawed WorkCover system.
The campaign has included television and newspaper advertisements, press releases, media interviews and lobbying of both sides of government.
To read what is being said, go to: http://www.workplaceohs.com.au/NewsDetail.asp?ID=24882
In accordance with the provisions of By-law 1.1, the ALA is seeking nominations for branch president and secretary positions in ALL states and territories in the upcoming elections.
Branch presidents in TAS, NT and ACT have indicated that they will not seek re-election. Qualified members may nominate, however, whether an incumbent is standing or not.
The February issue of Precedent (issue #96) contains the electoral nomination form. Our committees and the Council of Directors play an important and vital role in the success and future of this organisation. All members with voting rights are encouraged to participate.
Some members may be too shy to nominate themselves for these positions and wait to be asked. Don't wait! You are encouraged to consider nominating if you feel you have something to offer your branch, or as a director. If you have any questions about what is involved at either branch or director level, please do not hesitate to contact Mark Blumer, or a director or branch committee member.
This is the final call for expressions of interest from all the Alliance's solicitor members and member firms that have the capacity to place law students in their practice under the various PLT programs.
This is a worthwhile program with the capacity to present a positive image of the ALA to the broader community.
The ALA would like to match existing and new student members with solicitor members for the PLT program as an incentive to attract more student members to the organisation. However, to make such an offer, the ALA head office requires solicitors or firms, from all jurisdictions, to notify us that they are willing to take on a PLT student. The terms of engagement would be up to each solicitor/firm.
Benefits typically include:
1. receiving a diligent and capable worker for up to 15 weeks;
2. contribution to the advancement of legal knowledge of students;
3. opportunity to showcase the advantages of plaintiff work;
4. opportunity to stimulate the interest of students in the nuances of the law;
5. having your name or the name of your firm become more widely known;
6. not having to hunt for reliable and hard-working prospective employees; and
7. having a future clerk or solicitor employee join your firm.
Please register your interest to participate in this program with Michel Geurts, ALA General Manager, at michel@lawyersalliance.com.au
The South Australian Committee is liaising with the Law Society's Accident and Compensation Committee regarding the issue of doctors not reporting and doctors not wanting to involve themselves in medico-legal work.
"It makes me happy. I mean, who wouldn't be happy when they can assure everyone that the world isn't about to explode after all? Sure, sure - it upsets the enviro-doom, de-industrialisation crowd. But they enjoy being miserable anyway so ironically enough it's win-win."
Climate change sceptic, Tamas Calderwood.
(1)
A proposed office fit-out for the Australian Taxation Office in Collins Street, Melbourne, is estimated to cost $50.9 million.
(2)
The proportion of couples choosing a civil celebrant to officiate their marriage - 65%.
The proportion of couples who chose to live together prior to marriage - 77.7%.
November is the most popular month to marry, with over 15,000 marriages. This was followed by March and October (2008).
ABS at: http://www.abs.gov.au/ausstats/abs@.nsf/mediareleasesbyCatalogue/118F4A846EEB21F8CA2576200025DF55?Opendocument
(3)
Global military expenditure in 2008 is estimated to have totalled $1,464 billion. This represents an increase of 45% since 1999.
Stockholm International Peace Research Institute, Sweden.
(1) SLIP & FALL
A shopping centre and its contract cleaners were sued over a wet/damp floor. The centre escaped liability as it had delegated its duty to the cleaners. Joinder of shopping centre by plaintiff was not unreasonable. Bullock orders were given. This case provides good guidance for counsel when invited to provide a range for general damages.
Link: http://www.courts.act.gov.au/supreme/judgments/jennings.htm
(2) LIMITATIONS
Court of Appeal on applicant's legal onus to justify extension of time v respondent's onus to adduce evidence to establish actual prejudice. No error was found in the Master's reasoning.
Link: http://www.courts.act.gov.au/supreme/judgmentsca/laws.htm
The ALA would like to thank John Little of Maliganis Edwards Johnson for these contributions.
Basha v Vocational Capacity Centre Pty Ltd & Anor [2009] NSWCA 409
In Basha, the plaintiff sued a vocational capacity centre and the practitioner who conducted the physical assessment for injury suffered during the course of that assessment on behalf of a workers' compensation insurer, the GIO. She had just undergone a right shoulder rotator cuff repair and a left shoulder decompression procedure. Less than a month later, she was required during the assessment to crawl nine metres and undertake other exercises that were alleged to have aggravated her existing injuries and required her to undergo further surgery. At first instance, Garling DCJ found negligence. The plaintiff appealed on quantum and the defendants appealed against the finding of breach of duty of care.
Applying s5B of the Civil Liability Act, the Court of Appeal was satisfied that the trial judge did not err in concluding that the crawling and weight-bearing activities were inappropriate and negligent. Accordingly, the defendants' appeals were dismissed with costs. The plaintiff's damages were substantially increased.
The ALA would like to thank Andrew Morrison SC for this contribution.
Wilson v Nilepac Pty Ltd [2009] NSWSC 1365 (McCallum J)
In Wilson, the plaintiff was a 40 year old barrister who signed up for a fitness program with a personal trainer at a local gym. Four weeks into the program he suffered a lower back injury (prolapsed disc). He sued the personal trainer and the company owning the gym. The defendants acknowledged a duty of care and did not allege contributory negligence. The trial judge was not satisfied that there was any breach of contract or breach of duty on the part of the defendants on the facts, although he accepted the plaintiff as a truthful if fallible witness. The trial judge was, however, satisfied that on the probabilities that the injury was caused during the exercise routine.
The ALA would like to thank Andrew Morrison SC for this contribution.
Primary teachers will be tested on their literacy, numeracy and science skills before entering Queensland classrooms under new laws. Education and Training Minister, Geoff Wilson, said the amendments would allow the Queensland College of Teachers to develop a new testing regime for teacher graduates. Other changes included the recognition of experience for those working in non-school settings such kindergartens or TAFE Senior Colleges for the purposes of teacher registration.
Queensland disability service providers will benefit from a $920,000 funding boost by a joint State-Commonwealth program.
Four lawyers possessing a combined total of 127 years of legal experience have been appointed new judges of the District Court. The new judges are Kiernan Dorney QC, Brian Harrison, Richard Jones and David Reid. The appointments covered the retirements of Senior Judge Gilbert Trafford-Walker, Judge Helen O'Sullivan and Judge Charles Brabazon QC, and the appointment of Justice Alan Wilson as a Supreme Court judge. The appointments restore the number of District Court judges to a full complement of 38.
Kiernan Dorney QC has been practising as a barrister in Queensland since 1974 and has been a member of both the Legal Practice Tribunal and the Commercial and Consumer Tribunal. Brian Harrison is a former Aboriginal and Torres Strait Islander Legal Service and Legal Aid lawyer who was admitted as a solicitor in 1975 and has been practising at the private bar in Rockhampton and Mackay since 1986.
Richard Jones joined the private bar in Brisbane in 1985 and has practised extensively in the civil jurisdiction, particularly on compensation law and Land Court matters. He was appointed a member of the Land Court in 2005. Since 1979, David Reid has practised as either a barrister or solicitor, focusing most recently on accident compensation cases, but previously also doing significant work in commercial and equity matters.
Pollard v Walker Australia Pty Ltd 8/2/10 [2010] SAWCT 2
In Pollard, a worker fell and suffered a work aggravation of his pre-existing radioscaphoid arthritis in his wrist. The effects of the work aggravation continue to cause him partial incapacity, although not so as to incapacitate him for the work he was performing before his fall. He remains willing to do his pre-fall duties, but the respondent is not willing to provide them because of the risk of aggravating the wrist. Due to an alleged failure of the worker to attend work as per a return to work plan, the respondent claimed a breach of mutuality. McCouaig DP found that the worker did not breach mutuality by not attending for work and hence the respondent erred by ceasing his weekly compensation on the basis of such an alleged breach.
The ALA would like to thank David Kidd of Kidd's Law Publications (Kidd LRS Pty Ltd) for this contribution.
With South Australia's state elections to be held on 20 March, the Liberal Opposition has pledged to fix what it has dubbed ‘the WorkCover mess' created by Mike Rann's Labor government, by ‘clawing back' the authority's $1.1 billion in unfunded liability through a range of reforms designed to increase accountability. Based on the model currently used in Queensland, opposition leader, Isobel Redmond, said her party plans to split WorkCover's existing dual role of regulator and insurer, with a new independent regulatory authority taking responsibility for ensuring WorkCover's operation, as the insurer is ‘more open, transparent and accountable'.
While the WorkCover Act requires a review of WorkCover in 2011, Redmond said that her party would initiate an earlier review of the WorkCover Act if elected, with the intention of including the WorkCover Board's performance, WorkCover's management and the claims manager, EML, and legal services provider, Minter Ellison. The Liberals have pledged to ‘abolish the monopoly in claims management' when the current claims manager's contract expires.
OE & DR Pope Pty Ltd v Harris & Orchard (No 3) [2010] SASC 10 (1 February 2010)
The plaintiff brought an action against his accountant for professional negligence. The plaintiff sought leave to file a 3rd further amended statement in the terms of the draft exhibited to the affidavit of its solicitor filed that day. The court rejected the application for the following reasons:
1). The cause of action was not properly pleaded; and 2). The defendant properly admitted that it had provided some services, but only in the context of a claim where the precise nature of the auditing had no bearing of the relief sought.
The court dismissed the claim and awarded costs to the defendant, to be paid by the plaintiff.
The ALA would like to thank Roopa Varadharajan for this contribution.
Judgment: http://www.austlii.edu.au/au/cases/sa/SASC/2010/10.html
Eastern Australia Airlines Pty Ltd v McLennan [2009] VSCA 293 (11 December 2009)
In McLennan, the respondent sought damages for pain and suffering and loss of earning capacity arising from an injury she sustained in November 2004 while employed by the applicant, Eastern Australia Airlines. Qantas Airways Ltd (Qantas), the parent company and self-insurer of Eastern Airlines employees, was required to respond to the respondent's application under s134AB(4) of the Accident Compensation Act 1985 within 120 days of receipt, failing which, by s134AB(9) of the Act, the worker is deemed to have suffered a serious injury.
Qantas was required to respond to the application within 120 days of 30 May 2008. However, according to Qantas, due to a defect in service, they did not receive the application until 29 September 2008 and thereafter responded within the time prescribed. If this argument was accepted by the court, the respondent should not have been deemed to have suffered a serious injury and consequently was not entitled to issue her proceeding. The Victorian Supreme Court of Appeal dismissed the application for leave to appeal, finding that the application was received by or was brought to the attention of Qantas on 30 May 2008. The court was satisfied that the sending of the application by registered mail did achieve the purpose of bringing the application to the attention of Qantas. The failure of the defendant to respond to the application as required by s134AB(7) was because it was overlooked or in some other way misplaced, and was not due to any defect in service.
The ALA would like to thank Daniel Storok for this contribution.
Judgment at: http://www.austlii.edu.au/au/cases/vic/VSCA/2009/293.html
Midland Brick has been hit with a $70,000 fine after an incident in which an employee lost his right arm in 2006. The labor hire employee was cleaning a material conveyor machine at the company's Jandakot premises when the machine unexpectedly started, ripping his right arm and shoulder from his body.
Worksafe WA says there was no emergency stop button and some of the guards were not properly attached to the machinery. In December, Midland Brick was convicted of failing to provide a safe workplace and causing serious harm to an employee.
Source: http://www.abc.net.au/news/stories/2010/02/23/2828251.htm
An indictment must be presented within four weeks of committal unless time is extended by regulation, rules of the court or with the leave of the court, providing always that the accused is to be re-arraigned when the jury is empanelled: ss129 & 130 of Criminal Procedure Act 1986. The manner in which voir dire proceedings should be conducted is set out generally in s189 of Evidence Act 1995. Pre-trial orders in prescribed sexual offence cases are binding on the trial judge unless, in the opinion of the trial judge, it would not be in the interests of justice for the order to be binding: s130A of the Criminal Procedure Act 1986. Notice of alibi must be given by the accused to the Director of Public Prosecutions at least 21 days prior to trial. If notice in the required form is not given, an accused person cannot adduce evidence of alibi without the leave of the court: s150 of the Criminal Procedure Act 1986.
The Australian Institute of Criminology has released a report titled: Crime risks of three-dimensional virtual environments by Ian Warren and Darren Palmer.
Three-dimensional virtual environments (3dves) are the new generation of digital multi-user social networking platforms. Their immersive character and avatars enable a degree of virtual interaction not possible through conventional text-based internet technologies. In addition to the conventional range of cybercrimes (including economic fraud, the dissemination of child pornography and copyright violations), 3dves are the source of speculation and concern about a range of specific and emerging forms of crime and harm to users. Internal regulation by user groups, terms of service, or end-user licensing agreements, possibly linked to real-world criminological principles, are suggested. This paper also provides some directions for future research aimed at understanding the role of Australian criminal law and the justice system more broadly in this emerging field.
Trends & issues in crime and criminal justice No. 388.
Link: http://www.aic.gov.au/en/publications/current%20series/tandi/381-400/tandi388.aspx
The Australian Lawyers Alliance 2010 National Conference will be held 21-23 October at the Alice Springs Convention Centre. This will be the Alliance's first NT conference and will feature a program offering a range of educational and opportunities to meet and exchange information with your peers in a relaxed but stimulating environment.
Located in the geographical heart of Australia, Alice Springs is the perfect location to bring together members from across the country. We invite all members to join us at this exciting event.
If you are interested in presenting a paper at this conference, please submit a 400-word (max) abstract on your proposed topic. We are particularly interested in topics that have national relevance and a strong practical focus. Topics on all areas of social justice law will be considered.
Abstracts should be sent via email to conferences@lawyersalliance.com.au no later than Friday 5 March 2010. For further details and submission guidelines, please call 02 9258 7700 or email as above.
Friday 19 - Saturday 20 March 2010, Crowne Plaza Terrigal
This annual conference attracts more than 150 attendees and provides an excellent opportunity for practitioners to keep up to date with the latest developments in personal injuries law and socialise and exchange information in a relaxed environment.
The conference also attracts 8 CLE points and covers the mandatory units.
Click here to register for this event. Thank you to our major partners, Furzer Crestani Services and Perpetual, and our event partners, Ask Funding and The Intersafe Group, ipac and Evidex.
Wednesday 24 March 2010, 4.00pm - 6.30pm, Perth
You are invited to join the WA branch for this not-to-be-missed sentencing seminar. The topic for discussion is: The Top 40 Cases for 2007 - 2009. Chaired by The Hon Justice Buss, Court of Appeal, Supreme Court of Western Australia and presented by barristers, Tom Percy QC and Jon Davies.
An analysis of the 40 most important recent sentencing appeal cases decided in the Cour of Appeal, Western Australia, including: homocide and serious assault cases, sex cases, practice and procedure cases and mitigating factors.
Click here to register and for further information.
Put these confirmed dates in your diary:
NSW State Conference, 19-20 March 2010, Crowne Plaza Terrigal
VIC State Conference, 14-15 May 2010, Peppers The Sands Resort Torquay
SA State Conference, 4 June 2010, Hotel Grand Chancellor, Adelaide
ACT Branch Conference, 25 June 2010, Hyatt Hotel Canberra
Medical Law Conference, 23 July 2010, Amora Jamison Hotel, Sydney
WA State Conference, 20 August 2010, Novotel Langley Hotel, Perth
National Conference, 21-23 October 2010, Alice Springs Convention Centre
Keep an eye on our website for updates - www.lawyersalliance.com.au/events
Were you unable to attend a Lawyers Alliance event? Don't worry, you haven't missed out. Papers from all ALA conferences and most seminars are available to purchase.
Most state and territory CLE/CPD schemes offer points for the reading of papers and can therefore add to your CLE/CPD credits.
Click here to download the paper order forms from Lawyers Alliance events going back to 2004.