Brendan's legal news

[brendan]

The rule of law in action -

http://www.theage.com.au/news/national/judge-scathing-of-asio-officers/2007/11/12/1194766551580.html

In the NSW Supreme Court today, Justice Michael Adams said one ASIO officer had committed "the crime of false imprisonment and kidnap at common law".

He also referred to the unjustified and unlawful interference with Mr ul-Haque's personal liberty and the unlawful trespass of officers at his family home.

[kido_1]

Yeh, its a bit sad what ASIO did.

[brendan]

http://www.theaustralian.news.com.au/story/0,25197,22748933-601,00.html

[b][i]R v Ul-Haque[/i] [2007] NSWSC 1251[/b]

Adams J: "To my mind, to conduct an extensive interview with the accused, keeping him incommunicado, under colour of the warrant, was a gross breach of the powers given to the officers under the warrant. The courts have, for over two hundred years, been jealous and rightly jealous, of the use which might be made of search warrants to interfere with the liberty of the citizen and the right of the citizen to his or her own privacy and to maintain the integrity of their personal possessions including, of course, their home. The words of the great Sir Edward Coke, from his Third Institute, ?for a man?s house is his castle??have become an ironic commentary on lost liberty."

As Kirby J observed in [b][i]Ruddock v Taylor [/i][2005] HCA 48 at 137-138[/b]: "The tort of false imprisonment?reflects the fundamental interest of the common law in protecting individual liberty and freedom of movement ? As Fullagar J observed in Trobridge v Hardy (1955) 94 CLR 147 at 152: ?The mere interference with the plaintiff's person and liberty constituted prima facie a grave infringement of the most elementary and important of all common law rights.? ? This concern is especially significant in respect of a claim for wrongful imprisonment made against members or officers of the Executive Government. It is a fundamental principle of Australia?s constitutional law that the Executive may not interfere with the liberty of an individual without valid authorization. In re Bolton; ex parte Beane, Deane J explained (1987) 162 CLR 514 at 528-529 ? ?The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate?It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.??

[costargh]

I would have liked a Legal moderator who had actually done the subject...

moderator action: *laughs evilly*

[kido_1]

When is the Legal Studies Exam?

[costargh]

Tomorrow

3.00-5.15

15 minutes reading time
2 hours writing

13 questions
12 of which must be answered
The final question gives an option of part a or b to answer

[brendan]

Schoolies in trouble 'could sue'

"As about 30,000 teenagers begin arriving on the Gold Coast today for the week-long Schoolies celebration, a local lawyer believes the Queensland Government could be held liable for injury and sexual assault compensation claims.

Gold Coast lawyer Bruce Simmons said by taking over official control of Schoolies Week, the State Government had essentially assumed responsibility for the teenagers attending."

The Common Law:

"True it may be, that vulnerability, power, control, generality or particularity of the class, the resources of, and demands upon the authority, may each be, in a given case, a relevant circumstance, but none should, I think, of itself be decisive."[1]

"In my opinion, therefore, in a novel case where a plaintiff alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions:

    1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests? If no, then there is no duty.

    2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm? If no, then there is no duty.

    3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? If no, then there is no duty.

    4. Did the defendant know, or ought the defendant to have known, of the risk of harm to the specific class including the plaintiff if it did not exercise its powers? If no, then there is no duty.

    5. Would such a duty impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? If yes, then there is no duty.

    6. Are there any other supervening reasons in policy to deny the existence of a duty of care (e.g., the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? If yes, then there is no duty."[2]

[1] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 664 [321] per Callinan J.

[2] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 35 [82] per McHugh J.

[costargh]

Lol thats funny ^^^

Whats your view on that Brendan? (I'm genuinely interested, not taking the piss lol)

I am not sure what to think when I read that lol

[brendan]

I know the Wrongs Act 1958 and the common law, but i don't know the queensland statutory regime regarding this issue.

[brendan]

Section 35 of the Civil Liability Act 2003 (QLD):

?The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty--
(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions;
(b) the general allocation of financial or other resources by the authority is not open to challenge;
(c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.?

Section 36 of the Civil Liability Act 2003 (QLD):

?(1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority.
(2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.?

Section 35 codified many of the common law principles regarding the liability of Public Authorities conveniently summarised in McHugh J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 35 [82].
 
1. Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the plaintiff or his or her interests?

Yes. In the present case the risk of harm of the kind charged was reasonable foreseeable in the sense that it was "real and not far-fetched": Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 268 per Gleeson CJ.

2. By reason of the defendant's statutory or assumed obligations or control, did the defendant have the power to protect a specific class including the plaintiff (rather than the public at large) from a risk of harm?

Mr. Simmons described the risk of harm as being ?injury and sexual assault?, committed by third parties and not the State government themself.

Gleeson CJ observed in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 265 that:
?Leaving aside contractual obligations, there are circumstances where the relationship between two parties may mean that one has a duty to take reasonable care to protect the other from the criminal behaviour of third parties, random and unpredictable as such behaviour may be. Such relationships may include those between employer and employee, school and pupil , or bailor and bailee. But the general rule that there is no duty to prevent a third party from harming another is based in part upon a more fundamental principle, which is that the common law does not ordinarily impose liability for omissions.?

His Honour then went on to state (at 267):

?The unpredictability of criminal behaviour is one of the reasons why, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Organisation Ltd [1987] AC 241 at 261, per Lord Mackay of Clashfern...
It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour (Mason P, in W D & H O Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 358-359, indicated a negative opinion on that question, and gave cogent reasons for that indication). It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated.?

Mr. Simmons argued that the State government assumed responsibility for the illumination of the car park. That argument confuses two different meanings of responsibility: capacity and obligation. The relevant question is whether the State government assumed an obligation to care for the security of persons in the position of the plaintiff by protecting them from attack by third parties: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 264 per Gleeson CJ.

Accordingly, I find that it cannot be stated that the State government had the requisite control over the unpredictable criminal behavior of 3rd parties.

3. Was the plaintiff or were the plaintiff's interests vulnerable in the sense that the plaintiff could not reasonably be expected to adequately safeguard himself or herself or those interests from harm?
 
I will finish this later.

[costargh]

http://www.dandenongleader.com.au/article/2007/11/19/25539_osv_news.html

Owner to fight compulsory acquisition

Adrian Ballantyne

19Nov07
Business owner Paul Rodrigues

Business owner Paul Rodrigues

A DANDENONG businessman has vowed to take legal action after a compulsory acquisition offer for his property short-changed him more than $1 million.

Planning agency VicUrban last week offered $750,000 for the property, near Dandenong Station, despite owner Paul Rodrigues selling it to a Gold Coast developer for $1.8 million.

Mr Rodrigues signed a contract of sale with Knight Property Investments in November last year for the Greenland Place property but had not reached final settlement.

But VicUrban seized the property under compulsory acquisition law as part of its Revitalising Central Dandenong project, making the contract redundant.

Mr Rodrigues branded VicUrban's move dictatorial and vowed to fight them in court.

``Saddam Hussein never did anything like this,'' Mr Rodrigues said.

``He's not going to take your property off you and give you a couple of bucks for it.''

Compulsory acquisition law allows for Victorian Civil and Administrative Tribunal and Supreme Court appeals if parties cannot agree on the compensation amount.

But VicUrban development director Michael King said the agency was still waiting on an independent valuation of the property  before a negotiation process could begin.

``I understand that he's upset but this is only the first step in the process,'' Mr King said.

``All the valuations have to be done on a market value,'' he said.
VicUrban had now secured 50 per cent of the properties it planned to acquire in Dandenong, Mr King said.

VicUrban's Revitalising Central Dandenong project involves the redevelopment of much of Dandenong's CBD, the construction of a new City Walk precinct and the new George St Bridge.

Thoughts?

[Pencil]

Thoughts?

It's not a house, it's a home!
bahaha

[costargh]

Lol Ionic Australian film.

[brendan]

[b]Do Judges Vary in Their Treatment of Race?[/b]
David S. Abrams and Marianne Bertrand
Does the legal system discriminate against minorities? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges systematically differ in how they sentence minorities, avoiding potential bias from unobservables by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.

[b]The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability[/b]
David S. Abrams and Albert H. Yoon
One of the most challenging problems in legal scholarship is the measurement of attorney ability. Measuring attorney ability presents inherent challenges because the nonrandom pairing of attorney and client in most cases makes it difficult, if not impossible, to distinguish between attorney ability and case selection. Las Vegas felony case data, provided by the Clark County Office of the Public Defender in Nevada, offer a unique opportunity to compare attorney performance. The office assigns its incoming felony cases randomly among its pool of attorneys, thereby creating a natural experiment free from selection bias. We find substantial heterogeneity in attorney performance that cannot be explained simply by differences in case characteristics, and this heterogeneity correlates with attorneys? individual observable characteristics. Attorneys with longer tenure in the office achieve better outcomes for the client. We find that a veteran public defender with ten years of experience reduces the average length of incarceration by 17 percent relative to a public defender in her first year. While we find no statistical difference based on law school attended or gender, we find evidence that the public defender?s race correlates with sentence length, with Hispanic attorneys obtaining sentences that were up to 26 percent shorter on average than those obtained by black or white attorneys. We also find evidence suggesting that differences in sentencing may be driven partly by different plea bargaining behavior on the part of the public defenders.

[brendan]

ABC Radio National Law Report
http://www.abc.net.au/rn/lawreport/rss/lrt.xml