The case of “Stanton v Callaghan” confirms the existence of immunity from suit for expert witnesses in court cases involving negligence during “1998” as dictated by (Bailii.org, 1998). This case occurred prior to the Jones v Kaney case, which was argued for during 2011. In the Stanton v Callaghan case, the plaintiff, Mr Stanton, approached a structural engineer, Mr Callaghan, to prepare a report on the damaged property, stating that the work carried out previously, with the agreement of the insurers, was not appropriate because it feel apart, so that he could claim for a sum of money from the insurance company to carry out the total underpinning work for the property....
Australia's current legal system does not acknowledge or identify individuals right due to the present protection of individual rights from Australia's Constitution, common law and legislation, which have been established through the Commonwealth or State Parliaments, contrasting to the US system with a Bill of Rights. Individuals have the right to vote, the right to a trial, freedom of religion and the forbidding of discrimination. Additionally, in relation to criminal
A claimant, who demonstrated that the defendant has been unjustly enriched at the claimant’s expense, may still be refused a remedy under the law of restitution because of a defence. In the last few years, the defences to restitution of an unjust enrichment has been increasingly important, owing to the fact that the grounds for restitution of an unjust enrichment have been broaden. For instance, the ‘but for’ causation test for mistakes of fact has been accepted, and the courts are also more ready to bypass the requirement of a total failure of consideration, and the mistake of law bar was also abolished. Therefore, it is important to have the defences in place to secure ‘sufficient security of receipt’ and to prevent opening a floodgate for restitution. The scope of restitution is now more acceptable and ‘openly controlled’ by the defences, particularly the change of position defence, as opposed to the court setting down arbitrary restrictions on liability. And this paper will try to study and analyze if the defence of change of position is effective in protecting a defendant from hardship.
‘Judicial independence is the priceless possession of any country under the rule of law’ and the Australian judicial system is currently failing in the establishment and maintenance of independence and impartiality as a defining characteristic of all of the courts. While federal jurisdictions are protected under s 72 of the Australian Constitution, state jurisdictions require equal structural safeguards so that the implicit influence of the Executive branch does not impede on judicial application of the rule of law.
...be expected as legislation keeps pace. The proposition that ‘we must legislate to protect them [fundamental freedoms], just as we have done to protect us from discrimination’, is paramount along with dialogue – the law should not be the de facto educator. Attacking the imbalances between rights is akin to challenging an imaginary enemy – there is no ‘invisible hand’ tilting the scales. In December 2013, the Attorney-General of Australia tasked the ALRC to investigate and identify Commonwealth laws that encroach upon traditional rights, freedoms and privileges; and whether the encroachment upon those traditional rights, freedoms and privileges is appropriately justified. In answer to the original polemic, change may not be as balanced, fast or effective enough for some, but the key point is that the tensions, like cross-winds, keep us moving in the right direction.
This paper will discuss how the courts use the concept of duty of care in the English legal system to limit liability and how through case law they have created specific principles and standard tests which have placed limits on dealing with negligence.
Where as in the case of R v Manunta , he stated that where an apparent non-compliance with Browne v Dunn was followed by judicial comment to the jury, it is vital to consider the substance of the comment, as the purpose of the comment may differ based on circumstances. Furthermore, the case of R v MAP where the courts consideration that whether Browne v Dunn applied to the defense councils failure to cross-examine is consistent with the principles outlined in MWJ v R . It elaborates on the explication of the rule in Browne v Dunn by exploring the circumstances which may surround the failure to cross examine on a fact in issue. The facts of the revolve around a conviction of rape, according to section 349 of the criminal code 1899 (QLD), the offence of rape covers various nonconsensual sexual penetration.
Derrington HD. Theory of negligence advanced in the High Court of Australia. The Australian Law Journal. 2004;78:595-611.
...n the evidence provided on appeal (objections on the chain of command) was different from the objection raised during the trial of the case( objection on the admissibility of the testimony by the State’s forensic chemist). It is worth noting that this decision is consistent with the court’s decision in the cases of Guevara v State, 97 S.W.3d 579, 583 (Tex.Crim. App. 2003).Also Tex. R.App. P. 33.1(a); Tex. R. Evid. 103(a)(1); and Heidelberg v. State, 144 S.W. 3d.535, 538 (Tex. Crim. App. 2004) which outlined the fact that an objection made by the defendant during trial should be similar by that made by him/ her during appeal.
The case was decided upon by judges Glidewell, Russell, and Purchas LJJ at the Court of Appeal of England and Wales. The plaintiff, Lester Williams, claimed against the defendants, Roffey Bros. and Nicholls (Contractors) Ltd., for the sum of £32,708.70.
The adversarial system in Australia includes five central features to support in the equality and justice of the system. The conduct of the litigation both prior to and during the trial is left substantially in the hands of the parties; Evidence is generally elicited by a procedure whereby each party in turn calls witnesses whom it questions and who are then cross-examined by the other party with a view to discrediting or casting doubt on the accuracy or relevance of their testimony; The role of the judge is to preside and to act as a form of umpire rather than to take any active part in the selection or questioning of witnesses; The judicial function is designed to be concentrated into one continuous hearing; and, Compliance with the rules of court is, in general, enforced only at the request of one of the parties.
This case, Carlill V Carbolic Smokeball Company took place in Court of Appeal against a decision made in the district court.