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An interesting case recently came out of the Supreme Court of the Australian Capital Territory (ACT).

Australia’s federation, with its large states and territories, sometimes throws up the odd situation of residents in one state being closer to the capital of a neighbouring jurisdiction than to that of their own. To address this, each State and Territory government has passed legislation giving each state and territory Supreme Court the jurisdiction of each of the others. By way of example, New South Wales’ Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) s.4(3) says that “The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters”

ACT welcome
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Based on this section, Alice Bailey-Brown and her parents commenced proceedings in the Supreme Court of the ACT against the operators of the hospital where she was born. They alleged that the hospital had negligently managed her birth, causing cerebral palsy.  The defendant applied to transfer the matter to the Supreme Court of New South Wales (NSW), relying on s.5(2)(b)(ii) and (iii) of the equivalent ACT statute.  That section relevantly says –

If —

(a) a proceeding (in this subsection called the relevant proceeding ) is pending in the Supreme Court (in this subsection called the first court ); and

(b) it appears to the first court that …

(ii) having regard to—

(A) whether, in the opinion of the first court, apart from this Act and a law of … another State relating to cross-vesting of jurisdiction, the relevant proceeding … would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of another State or Territory; and

(B) the extent to which … the matters for determination in the relevant proceeding are matters arising under … a law of that other State or Territory and not within the jurisdiction of the first court apart from this Act and a law of … another State relating to cross-vesting of jurisdiction; and

(C) the interests of justice;

it is more appropriate that the relevant proceeding be determined by that other Supreme Court; or

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory;

the first court shall transfer the relevant proceeding to that other Supreme Court.

The defendant pointed out that –

  • The plaintiffs were residents of NSW.
  • The defendant was a creation of NSW law with no presence in the ACT.
  • The alleged negligence occurred in NSW.
  • The applicable law was that of NSW.
  • The defendant’s likely witnesses were based in NSW.
  • The plaintiffs’ treating doctors and expert witnesses were mainly based in NSW.

Despite this, the Court declined to transfer the matter.  The test was to balance the competing interests to establish what the interests of justice required.  It noted that –

  • The plaintiffs’ home in Wagga Wagga was much closer  to Canberra (2 hours 45 minutes) than to Sydney (about 5 hours).
  • The lead plaintiff was aged six years, severely disabled and required constant care.
  • The estimated dutation of the trial was three weeks.
  • At least some of the plaintiffs’ witnesses were based in Canberra.
  • It was possible the matter would be heard sooner in Canberra than in Sydney.

Her Honour’s concluding observation was particularly pointed:

it takes but a moment’s thought about the reality for these parents and their severely disabled child in litigating this matter from Sydney as opposed to Canberra to reach the conclusion that NSW is not the more appropriate forum for this matter. Whatever the merit of the case in medical negligence, I am not minded to make their lives any harder than they already are, by forcing them to litigate in a forum that makes it considerably more difficult for them to attend to the needs of their infant plaintiff.

The Court dismissed the application to transfer the case to the Supreme Court of NSW.

Bailey-Brown v Southern New South Wales Local Health Authority [2019] ACTSC 78

Police v Dumughn (2002) H&FLR 2015-23

Police v Darren Scott Dumughn (2002) H&FLR 2015-23

Wollongong Local Court (New South Wales)

12 November 2002

Coram: Unnamed Magistrate

Appearing for the Prosecution: Not known.
Appearing for the Defendant: Not known (possibly unrepresented).

Catchwords: New South Wales – criminal law – theft of tobacco products – convicted in absentia

Facts: The defendant was a 29-year-old supermarket night filler and packer.  It was alleged that in 2000 and 2001 he stole cigarettes valued at $4,986.00 from his employer.

He did not attend the hearing “because he had been afraid of being found guilty of something he did not do”.

Held: Despite the defendant’s failure to appear, the court considered that it was able to deal with the matter and convicted him in absentia.

Judgment

No written judgment is available.  This casenote has been prepared based on the report in the Illawarra Mercury of 13 November 2002.

Note: The defendant was subsequently arrested, granted bail and required to reattend court on 3 December 2002.  The subsequent disposition of the mater is not known.

Comment: This case is interesting for the fact that the defendant was convicted in his absence.  Noting the common concern with the health effects of tobacco (1) and their economic impact (2), it is interesting to speculate whether theft of cigarettes (as opposed to, say, apples) made the court less sympathetic than it might otherwise have been. It is also striking that radically contrasting philosophies would potentially agree that the defendant was in some ways harshly treated: a libertarian perspective would be alert to theft of these particular consumer goods being treated particularly harshly (3), while a socialist analysis may be inclined to afford some indulgence to a person addicted to a commodity inflicted on the public (4).

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(1) Consider State v Native Wholesale Supply (2014) H&FLR 2014-32 and Proprietor v Adolfs (2014) H&FLR 2014-36.

(2) Adam Beam, ‘Kentucky Lawmakers Tackle Details of $100M Tobacco Settlement’, Insurance Journal, 13 March 2015

(3) For example, “Smoking is a legal activity that doesn’t cause violence, yet the government sees it as worse than murder”: Australian Smokers’ Rights Party, ‘Tell them they’re dreaming’, 19 July 2012.

(4) Cf Louise O’Shea, ‘An unhealthy dose of corporate meddling’, Red Flag, 3 March 2014.

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Police v Licciardello (2007) H&FLR 2015-1

Police v Chas Licciardello (2007) H&FLR 2015-1

Sutherland Local Court (New South Wales)

c. 23 January 2007

Coram: Keogh M.

Appearing for the Prosecution: Not known
Appearing for the Defendant: Stephen Russell (instructors not identified)

Catchwords: New South Wales – criminal law – rugby – supporters – satire – offensive behaviour at stadium – reasonable person

Facts: The defendant was a television satirist.  On 14 July 2006 he attended at the Jubilee Stadium prior to a rugby match between the Canterbury Bulldogs and the St George-Illawarra Dragons. In order to parody Bulldogs supporters’ reputation for violence, he dressed in the team colours and offered to sell imitation knuckledusters and flares, a rubber knife, balaclavas and boxes labelled “Rohypnol” as “Official Bulldogs Merchandise”.  The incident was filmed with the intention of later screening it on television.  The spectators present generally took the incident in good spirit, but a number of fans became aggressive (1), prompting police to intervene and charge the defendant with offensive behaviour.

The Summary Offences Act 1988 (NSW), §4 provides that –

(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.

(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.

(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

The video of the incident was viewed by the Court.

Held: Dismissing the charge, that –

1. The crowd’s response was relevant in considering the charge.  Her Worship observed that “I can’t ignore the fact that overwhelmingly the crowd responded to the accused’s conduct as if it were a joke, which it was – although it may not have been a joke to everyone’s liking”.

2. That one group of people did not appreciate the humour involved and were insulted did not necessarily prove that the conduct was offensive.  Most people at the incident were good natured and shared the joke, and reasonable people would not have been offended.

An application for the police to pay the defendant’s costs was refused.

Judgment

No written judgment is available.  This report has been prepared based on the account in the Herald Sun (Melbourne), 24 January 2007, at p.7.

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(1) Suggesting a failure to appreciate irony!

R v Unidentified Sports Coach (2014) H&FLR 2014-61

The Queen v Unidentified Sports Coach (2014) H&FLR 2014-61

Albury District Court (New South Wales)

2 December 2014

Coram: Judge Whitford

Appearing for the Appellant: Christine Mendes (instructors not identified)
Appearing for the Respondent: Andrew Hanshaw (instructed by NSW Director of Public Prosecutions)

Catchwords: New South Wales – sports coach – indecent assault on a girl under 16 years – grooming – appeal – sentence

Facts:  The defendant was a 25 year old sporting coach from a small community in the Riverina.  In 2013 he committed a number of offences in relation to a 14 year old girl.  It appears the victim was known to him in their community but not part of the sports team he coached.  Over a period of some months he sent her a number of sexually explicit text messages and suggested both sexual activity and developing a relationship.  On two occasions he touched her in a sexual manner.  He was charged with indecent assault on a girl under 16 years (Crimes Act 1900, §61L), and with grooming (Crimes Act 1900, §66EB).

The NSW Local Court (Magistrate Greenwood) noted the impact of the offences on the victim, including her loss of reputation and feeling judged and blamed.  A pre-sentence report indicated that the offender had little insight or remorse into his offending.  He was sentenced at first instance to 20 months imprisonment, to serve a minimum of 15 months:  R v Unidentified Sports Coach (2014), Border Mail, 15 July 2014, p.__.  The defendant appealed against the severity of the sentence.

Held: allowing the appeal, that the defendant had extensive support from his family and community.  A variation of the penalty was considered to have the potential to continue the defendants efforts at rehabilitation.  The sentences imposed by Magistrate Greenwood were converted to suspended sentences.

Judgment

No written judgment is available.  The report prepared based on the account in the Border Mail (Albury Wodonga), 3 December 2014, p.3.

Police v Morey and Hall (2014) H&FLR 2014-23

Police v Kylin Morey and Benjamin Hall (2014) H&FLR 2014-23

Albury Local Court

1 April 2014

Coram: Greenwood M

Appearing for the Prosecutor: Not known
Appearing for the Defendants: Not known

Catchwords: Australia – New South Wales – prominent football player – affray – sentence

Facts: The defendants pleaded guily to affray in connection with two assaults at the Boomerang Hotel on 26 October 2014.  Morey had repeatedly struck one man who did not retaliate, and another who tried to intervene.  He threw a table at the second man as he was being escorted off the premises.  Hall, his friend, had also been ordered to leave the Hotel, but ran back inside and struck another patron, rendering him unconscious.  Morey gave evidence that he had been too drunk to remember the incidents.  Evidence was given that Morey had argued with members of another group prior to the fight.

Morey was decribed in one account as a “Hume football premiership hero”, having kicked eight goals for the Brocklesby-Burrumbuttock ‘Saints’ in their premiership win over the Holbrook ‘Brookers’.  In connection with the assault, he expressed remorse and embarassment.

Held: The court described the matter as ‘really troubling’.  In connection with Morey, Her Honour noted that a gaol term would have been imposed but for his plea of guilty and the fact that he had voluntarily gone to police and admitted his involvement.  In relation to Hall, she noted that a blow rendering someone unconscious may cause fatal injuries*

Morey and Hall were both sentenced to 150 hours community service for affray.  Hall was also fined $1500.00 for being an excluded person on licensed premises.

Judgment

Written reasons are not available.  Details in this report have been taken from the Newcastle Herald of 19 February 2014 and the Border Mail of 2 April 2014 at p. 7.

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* Cf R v William John Lovel(Supreme Court of Victoria, Hollingworth J, 16 October 2013, reported in Shepparton News, 22 October 2013 at p. 1 and Campaspe News, 22 October 2013 at pp. 1 and 3)

The Queen v Lane (2011) H&FLR 2014-16

The Queen v Keli Lane (2011) H&FLR 2014-16

Supreme Court of New South Wales

15 April 2011

Coram: Whealy J

Appearing for the Crown: Mark Tedeschi SC (instructed by the Solicitor for Public Prosecutions)
Appearing for the Defendant: Keith Chapple SC (instructed by Archbold Legal)

Catchwords: New South Wales – murder – newborn – circumstantial – water polo – Olympics – sentencing – mother – premeditated

Facts: The defendant was convicted of the murder of her newborn daughter on or about 14 September 1996. Earlier that day (then aged 21 years) she had been discharged from Auburn Hospital with her daughter but later that day arrived home without her. She had concealed both the pregnancy and birth from her associates. The child’s body has never been located and the Crown’s case was entirely circumstantial. Lane pleaded not guilty and maintained at trial that she had given the child to her (the child’s) father to raise and not seen it since.

At the time of the offence the defendant was a sports enthusiast and semi-professional athlete, as were many of her friends and family members. The Crown argued at trial that the murder was prompted by the defendant’s wish not to have a child interfere with her goal of representing Australia in water polo at the 2000 Olympics in Sydney.

Held: Whealy J sentenced the defendant (by then aged 35 years) to 18 years imprisonment, to serve a minimum of 13 years and five months. He did not take the option of imposing a sentence of life imprisonment. Relevant to the sentencing decision were the factors that –

1. The killing of a child by its mother is “tore asunder the natural relationship between mother and daughter”

2. The offence had been premeditated for a short period.

3. Aggravating factors were the age of the victim and that the murder involved abuse of a position of trust.

4. The Court accepted that she had murdered her daughter “in a situation of desperation … [from which] from her perception there was simply no way out”. His Honour accepted that Lane was unlikely to reoffend and presented no risk to the community.

The defendant’s (perhaps excessive) passion for sports appears not to have been an aggravating factor.

Judgment

Whealy J’s sentencing remarks are restricted. This report has been prepared based on reports prepared by the Australian Broadcasting Corporation and the Sydney Morning Herald.

An appeal against conviction to the Court of Criminal Appeal was dismissed: Lane v R [2013] NSWCCA 317. It appears no attempt was made to appeal to the High Court of Australia.

Varipatis v Almario (2013) H&FLR 2014-9

Varipatis v Almario (2013) H&FLR 2014-9

Court of Appeal of New South Wales

18 April 2013

Coram: Basten, Meagher and Ward JJA.

Appearing for the Appellant: Mr D Higgs SC and Ms E Peden (instructed by TressCox Lawyers)
Appearing for the Respondent: Mr DE Graham SC and Mr NJ Broadbent (Instructed by Turner Freeman)

Catchwords: New South Wales – obesity – liver disease – cancer – medical practitoner – refusal to attempt weight loss – failure to treat patient’s obesity – negligence – bariatric surgery – reasonable care – breach of duty – state of medical knowledge

Facts: Mr Almario (plaintiff) was morbidly obese. It was common ground that his obesity resulted in a number of conditions including liver disease which progressed to cirrhosis and finally to terminal liver cancer. He was a patient of Dr Varipatis (defendant) from August 1997 to February 2011. On 27 April 1998 the appellant referred him to a Dr Yates for pulmonary problems. Dr Yates saw the appellant twice in June and July 1998 and recommended that he be referred to a specialist at the obesity unit of a major hospital. When the plaintiff consulted the defendant on 30 July 1998, he formally declined such a referral and stated that he would not attempt weight loss.

The plaintiff sued the defendant on the basis that he (the defendant) had failed to take necessary steps to treat the plaintiff’s obesity, resulting in him developing the liver conditions.

At trial the court held that the defendant had been negligent in failing to refer the plaintiff to a bariatric surgeon by 30 July 1998, in failing to refer him to an obesity clinic, and in failing to refer him to a hepatologist or similar physician by 30 September 2000. However, only the failure to refer him to a bariatric surgeon was found to be causative*.  The defendant appealed.

Held: Upholding the appeal –

Per Basten JA (Ward JA agreeing) and Meagher JA –

(1) To take reasonable care for the health of a patient, a general practitioner may be obliged to advise bluntly that weight loss is required, to discuss how this may be achieved, and to encourage them to accept suitable referrals. However, the general practitioner’s duty of care does not require an exercise in futility: if a patient declines to take the advise of his general practitioner and appropriate specialists there is no breach of duty in failing to write a further referral.

(2) On the state of medical knowledge in 1998, a reasonable general practitioner would not have referred the plaintiff to a bariatric surgeon at that time. Accordingly, Dr Varipatis had not been negligent in failing to make such a referral.

Per Basten JA (Ward JA agreeing) –

(3) On the state of medical knowledge in 2000, it was unlikely referral to a hepatologist would have resulted in any particular recommendation in relation to weight loss.

Judgment

The Court’s judgment is available here.

On 16 August 2013 the High Court of Australia declined to hear an appeal from the Court of Appeal’s decision: Almario v Varipatis [2013] HCATrans 193

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* Almario v. Varipatis (No. 2) [2012] NSWSC 1578