Part 1 - KENDIRJIAN V LEPORE [2017]
Lucas Sall
I Summary
In 1999, a case was brought before NSW District Court, to assess the damages of a Mr Kendirjian whom had, as a result of a motor vehicle accident suffered injury, thus claiming damages via the Motor Accidents Compensation Act 1999 from a Mrs Ayoub. (Kendirjian v Ayoub) This claim, resulting in a settlement offer of $600’000 plus costs, was denied by the plaintiff, thus resulting in court proceedings. On assessment by the trial judge, Mr Kendirjian was awarded damages of $308,432.75 plus an additional $10’000 to assist with heavy lifting aid and home requirements. Mr Kendirjian, then sued the barrister and solicitor, for negligence in failing to present him with the original $600’000
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(“Kendirjian”) Via this, the court also chose not to reopen the case of Atwells allowing the appeal and remitting the balance of the matter to the District Court of NSW. Edelman J rejected the respondent’s (Mr Conomos) central contention for distinguishing Attwells thus striking down the argument of the respondents. It seems that the High Court will be reluctant to depart from the decision made in Atwells. The decision in Kendijian resulted in a majority supporting Edelman J’s analysis and reasoning thus resulting in a joint judgement.
In conclusion, the court found that in fact, Mr. Kendirjian had right to appeal, thus his appeal was accepted. Kendirjian confirms that the immunity still does not apply to settlements or matters in regard to settlements acknowledged out of court. Kendirjian and Atwells currently stand as the primary case law in Australia on the topic of Advocates Immunity and via the decision in Kendirjian, The High Court of Australia has affirmed its decision in Atwells, indicating that it will stick by its decision in future case
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Kirby J notes this in D’Orta. Australia should follow suit and abolish Advocates Immunity.
It shall be argued, that advocates immunity within common law countries is outdated and in need of change. As stated by The Melbourne University Law Review ‘the immunity is often perceived by commentators and the media as an anachronism that is out of step with modern tort law.’ The UK House of Lords recently altered its stance on advocates’ immunity by removing it altogether, using case law. (Arthur J S Hall & Co (a firm) v Simons ) As a modern and contemporary society, Australia should follow in the steps of the UK by abolishing the doctrine , whether that be via parliament or the judicature.
The courts are currently limited by the doctrine and are thus unable to protect the rights and liberty of those who deserve remedies. The UK, being primarily of modernity in regard to their legal approach could be argued as quite different to Australia and thus in rebuttal to that position, one would argue even New Zealand, another Australasian country has moved towards and abolished Advocates Immunity. In the case of Chamberlains v Lai New Zealand’s highest court chose to abolish Advocates Immunity, thus moving New Zealand towards a more just and modernist
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
Conversely, experience in the Sydney Supreme Court involved prolonged hearings sighting judges and lawyers dressed in wigs and robes. Interestingly, due to the comprehensive nature of cases, suitcases were used to transport files. With decisions declaratory and representative of Australian law, the Supreme Court bestows solemn attention to detail. The emphasis for strict adherence to the due process of law is essential in ensuring judicial legitimacy. The clear distinction between tiers ensures the accessibility and efficiency of courts which mounts to the achievement of justice.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
Lord Bingham of Cornhill, ‘The Rule of Law’, November 2006, Sixth Sir David Williams Lecture, Centre for Public Law, University of Cambridge
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.
...f] Queensland: Queensland Law Reform Commission. pp. 2 - 20. Available through: QLD Government http://www.qlrc.qld.gov.au/wpapers/wp37.pdf [Accessed: 2 Mar 2014].
In order to understand the Australian judicial system’s changing perspectives towards case management, it is important to look at two particular cases. The first is Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, which will be referred to as the J L Holdings case. This is a significant case because it established how Australian courts initially approached pre-trial procedures and the administration of justice in civil procedure. The dispute between Queensland and J L Holdings had proceeded to the High Court because their original trial judge had refused Queensland to amend their defence and Queensland’s successful appeal, pleading that such a refusal would prejudice their argument, had allowed for the determination that the amendment should have been granted on the justification that courts should always prioritise the achievement of justice over the implementation of case management principles (Boniface & Legg 2010). The key point to take away from this case that is relevant is that this appeal had set a precedent that prioritised justice over any consideration for any consequence of delay or expense. However, this approach would soon be overturned in the case of Aon Risk Services
That said, we still need to ask does the Victorian Charter of Human Rights comply with Australia’s international agreements. Specifically, does it provide adequate protection for human rights and does it remedy subsequent breaches? In this essay, I will answer this question. To achieve this, I will first identify and review the preamble and principles of the charter and outline the preliminary section of the charter. I will investigate the definition of a ‘Public Authority’ and outline the importance of the exclusions under this section. I will then focus on the primary mechanism in the charter, the statements...
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
This essay will examine the main cause of the demise of the derivative claim which is the possibility of pursuing a corporate relief and even costs via an unfair prejudice petition, a relief and order that was initially only available via derivative action. Further this essay will discuss as to how the boundaries between the statutory derivative action and the unfair prejudice should be drawn and what restrictions should be added to the unfair prejudice remedy under section 994 of the Companies Act 2006 so that the significance of the statutory derivative action can be reinstated.
One such case is R v Rimmington (2006) where Lord Bingham said that conduct forbidden by law should be clearly indicated so that a person is capable of knowing that it is wrong before he does it and that nobody should be punished for doing something which was not a criminal offence when it was done. Moreover Lord Bingham and Lord Walker in the Privy Council decision in Sharma v Brown-Antoine (2007) said that the rule of law requires that, subject to any legal immunity or exemption, the law should be even-handed and apply to all
Press Release, Judgment of the Court of Justice in Case C-84/94, United Kingdom v Council, 12 November 1996.
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.
in Australia." Journal Of Law And Society 37.1 (2010): 85-104. Wiley Online Library. Web. 3 Feb. 2014.
‘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.