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stephen.bourne.lawyer/V7QC32005:NZThe Queen v Albert Kereopa Taylor (11 November 2005) Judge A.D. Garland... Application for discharge and in alternative to quash indictment, but ample evidence disclosed to found the charge and convict accused; assessment of creditability and reliability of evidence not appropriate (matter for jury); application and alternative refused.
stephen.bourne.lawyer/4G9AK2011:USJason Pepper, Petitioner v United States (2 March 2011) [2011] USSC (2 March 2011)... After defendant’s sentence was set aside on appeal, defendant allowed at resentencing to submit evidence of rehabilitation that occurred after original sentence.
stephen.bourne.lawyer/22S5E2011:AUNSWVarma v Varma (No. 2) (4 February 2011) [2011] NSWCA 13... Application for interlocutory injunctive relief pending appeal, applicant must show prima facie case, relevant that primary judge held against applicant, relevant that relief sought would prevent executors from fulfilling their duties, other procedures available to sanction executors' conduct, balance of convenience favours executors, notice of motion dismissed with costs.
stephen.bourne.lawyer/XANK81960:USHawkeye-Security Insurance Company v Mary L R Davis and Norman E Davis (6 May 1960) 277 F.2d 765 (8th Circuit, 1960)... Car accident, late claim, insurer preoccupied with avoiding liability instead of diligently investigating accident, insurer not prejudiced by delay, liable, diversity issue considered.
stephen.bourne.lawyer/P64TY1996:NZNZ Insurance Co Ltd and another v Hinton Hill & Coles Ltd and others (23 May 1996) (1996) 19 TCL 27/7... Misrepresentation, new defendants joined, unlikely to enlarge scope, can protest jurisdiction after joined.
stephen.bourne.lawyer/5RDP22016:AUNSWR v Nelson (6 July 2016) Basten JA, Rothman J & Fagan J [2016] NSWCCA 130... Appeal by DPP against leniency of sentences imposed in DC for sexual intercourse involving victims aged 13 and 14; in each case prison sentence wholly suspended or bond imposed. CCA found it erroneous to refer to the sexual activities as "consensual" and (per DWB v R) DC could assume "a substantial risk of emotional harm." Moreover, victim impact statement indicated anxiety and depression from the offending: "Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences..." It was also "demeaning" to the individual victims that the DC imposed totally concurrently sentences. Aggregate sentence was increased to 3 years imprisonment, 2 years non-parole. Rothman J (concurring) said that "persons with cognitive disability are required to learn behaviours that they may be incapable of determining as a matter of executive functioning of their brain." Fagan J (dissenting) found the offender's behaviour was "less objectively serious" than in other cases reviewed, and would therefore have dismissed the appeal.
stephen.bourne.lawyer/SMYB72010:AUNSWRe William and Jane (6 December 2010) Palmer J [2010] NSWSC 1435... This was the first adoption application made by a same sex couple after the Adoption Amendment (Same Sex Couples) Act 2010 (NSW) came into force. The prospective adoptive parents – anonymised as Mr Smith and Mr Jones by the court – were a male couple who had been together for about 9 years, and had cared for William and Jane as authorised foster carers for about three and a half years. Palmer J emphasised that this case was not about same sex rights: "The Act emphasises that an adoption order is made for the benefit of, and in the interests of, the child and not for the benefit of, or in the interests of, the person seeking to adopt... What the Adoption Amendment (Same Sex Couples) Act 2010 addresses is not rights to adopt, but eligibility to adopt" [62]-[64]. His Honour noted that the "ideological debate" about same sex adoption was not a matter for the court, and the "novelty of same sex couple adoptions... does not justify the imposition of any special test" [106]. The court approved the adoption in this case as being clearly preferable in the best interests of the children.
stephen.bourne.lawyer/MWMQP2016:AUNSWAverkin v Insurance Australia Ltd (No 2) (30 June 2016) McColl JA, Basten JA & Leeming JA [2016] NSWCA 150... The court had previously found against insurer IAL in relation to its liability under the plaintiff's policy, and this further hearing was to determine the amount of judgment, and the costs to be awarded. The 'agreed value' under the policy was $38,870, less $800 excess. IAL argued that this did not meet the $40,000 threshold under UCPR r.42.35 for a costs award, but the Court of Appeal found that a judgment includes any interest awarded (in this case $4169.70) and so the threshold was exceeded and r.42.35 did not apply. Also, IAL was not entitled to ignore an offer of compromise merely because the plaintiff had not filed his evidence at the time. The plaintiff was therefore entitled to costs on an indemnity basis for part of the period of the litigation.
stephen.bourne.lawyer/EW2JE2016:AUNSWCharged with a crime? Three critical first steps (14 July 2016) Bourne, S.G.... If you are charged with a crime and required to attend court, there are three critical steps you should take without delay. It is essential that you are fully informed about your situation, and the possible consequences of a criminal conviction. You don't want to be locked out of some occupations forever, or be unable to travel to some countries, if you can get a better outcome. Although criminal law is complex, there are steps that can be taken to ensure you are treated fairly.
stephen.bourne.lawyer/F6FG52010:AUCOMWhy most conventional insurance is occurrence-based (24 May 2010) Stephen G Bourne... Fire and accident insurance typically occurrence-based - 'lost or not lost' for ships and cargos - 'claims made' for professional liability risks - insurer will not issue claims made policy for asset known to be already lost or damaged - occurrence-based cover better where knowledge of loss or damage will quickly follow the event itself.
stephen.bourne.lawyer/KD2KE2006:NZThe Queen v Andrew John Carse (25 August 2006) CA211/06... Inadmissible hearsay evidence introduced at trial, miscarriage of justice made out, however crown case overwhelmingly strong on the basis of unshaken evidence of two witnesses, so conviction saved.
stephen.bourne.lawyer/3KBVZ1995:NZRe Baby P (an unborn child) (1995) (1995) 13 FRNZ 472... Unborn child falls within expression "child" in CYPF Act, care and protection order granted.
stephen.bourne.lawyer/7PXZB2011:AUNSWTaseka v Koutabitsis & Anor (31 January 2011) [2011] NSWCA 4... Initial settlement negotiations proposed 'no order as to costs' - Later offer of lower amount silent as to costs - Nonetheless, court found that, in context, the later offer did not anticipate an order as to costs - Settlement confirmed on this basis.
stephen.bourne.lawyer/5WX2B1967:USTime v Hill (1967) (1967) USA Dist Ct.... Hills family held hostage, article on play based on true story, false light v freedom of speech.
stephen.bourne.lawyer/9TW8W1993:AUCOMRAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) (1993) ATPR 41-225... Insurance broker misrepresented indemnity policy, TPA s52, compensatory damages and declaratory relief awarded to insurer.
stephen.bourne.lawyer/PUNNG2008:AUVICAussie Tax Pty Ltd and Ronald John Asquith v Markel Capital Limited (18 December 2008) [2008] VSC 592; BC200811380... Plaintiff notified 2001 insurer of claim (re bad advice given 1999 and 2000), insurer declined, failure to notify earlier insurers was act of insured per ICA s54(1), as in FAI v AHC policy said lateness a basis for right to refuse to pay, so not entitled to refuse; liability of the 1999 insurer engaged; continuity extension in 2001 policy did not engage.
stephen.bourne.lawyer/KKEEC2010:AUNSWP E v M U (7 January 2010) 2009/12/1768; [2010] NSWDC 2... Dispute between neighbors pertaining to harassment of minimal nature, court to make APVO only when harassment is of substantial nature, APVO order set aside.
stephen.bourne.lawyer/PYQY21905:UKGrant v Grant and Calder [1905] [1905] AC 466... Divorce, adultery a question of fact, not proved, costs allowed notwithstanding suspicious behaviour.
stephen.bourne.lawyer/CKN341979:UKLB (Plastics) Ltd v Swish Products Ltd [1979] [1979] RPC 551; [1979] FSR 145... Plastic drawers, design copied with minor changes, not just mere general idea, copyright infringed.
stephen.bourne.lawyer/264NT2015:AUNSWSecretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR (14 July 2015) Bergin CJ [2015] NSWSC 926... The prospective adoptive parents were a female same-sex couple. The adoptive child's sibling lived with the paternal grandmother, who sought contact orders under the Family Law Act 1975 (Cth). Bergin J found that it was "clearly preferable" for the child to be adopted as proposed, rather than remain 'in care'. In relation to contact, Bergin J regarded the registration of the adoption plan to be sufficient – an order under the Family Law Act for the regime sought by the paternal grandmother would not be in the child's "best interests or proper in the circumstances" – and suggested that if problems arose regarding contact, the paternal grandmother could approach a party to the plan to seek a review of it. The court approved a hyphenated combination of the adoptive parents' surnames, on the basis that the combination of the new surnames with the child's existing given names would ensure preservation of her identity.
stephen.bourne.lawyer/ZJ3DA2016:AUCOMPaciocco v Australia and New Zealand Banking Group Limited (27 July 2016) French CJ, Kiefel J, Gageler J, Keane J & Nettle J [2016] HCA 28... ANZ's credit card payment terms allowed it to impose a late payment fee if the minimum repayment amount was not paid on time. The applicants said the fee was an unenforceable penalty. At first instance, Gordon J found for the applicants, but the Full Court of the Federal Court disagreed with Gordon J's rejection of ANZ's evidence of broader costs associated with customers not paying the minimum amounts. The principles applicable to penalties for contract breaches are addressed in Andrews v ANZ, and Dunlop v New Garage. While contract law "normally upholds the freedom of parties, with no relevant disability, to agree upon the terms of their future relationships", the law on penalties "expressed in exceptional language" is an exception to that general rule. The issue in this case was whether the late payment fee imposed by ANZ was "out of all proportion" to ANZ's interests which could be business or financial. The appellants failed to satisfy the HCA majority that the late payment fee was out of all proportion to the bank's costs. The appeal was dismissed.
stephen.bourne.lawyer/VBXW81984:NZIn the Adoption of G (1984) (1984) 3 NZFLR 175... Unmarried father didn't maintain child, adoption, consent required, child's welfare not paramount.
stephen.bourne.lawyer/UBFVQ2010:AUNSWSong v Ying (15 September 2010) Hodgson JA [2010] NSWCA 237... In civil proceedings, Mr Song applied for a certificate under s128 of the Evidence Act 1995, to prevent his evidence being used to found criminal charges. The District Court denied the application and Mr Song appealed. Because Mr Song's evidence would not be compelled, the Court of Appeal found the denial was appropriate.
stephen.bourne.lawyer/PHNUW2005:AUNSWNSW Aboriginal Land Council v Ace Global Markets Limited and Ors (11 February 2005) (2005) 188 FLR 389; (2006) 14 ANZ Ins Cas 61-703; [2005] NSWSC 39; BC200500406... Claims made and notified insurance policy, earlier valuation overstated value of property, relied on by investors, valuer failed to notify insurer of relevant circumstances at policy inception, investors unable to rely on Law Reform (Miscellaneous Provisions) Act 1946 s6(1), and ICA s54 not engaged.
stephen.bourne.lawyer/TCBRZ2004:AUNSWTzaidas v Child and Others (27 July 2004) (2004) 61 NSWLR 18; (2004) 208 ALR 651; (2004) 13 ANZ Ins Cas 61-617; [2004] NSWCA 252; BC200404824... Claims made and notified policy, deeming clause, failure to notify insurer, ICA s54 applies to failure, leave to join insurer under s6(4) LR (MP) Act, should not deny efficacy to statutory change.
stephen.bourne.lawyer/P6MWS2003:AUNSWGeorge Tzaidas bht Vickie Tzaidas v Child & Ors; Vickie Tzaidas v Child & Ors; Con Tzaidas v Child & Ors (25 July 2003) [2003] NSWSC 667; BC200304055... Hospital negligent, failed to notify insurers of claim, impecunious, leave sought to bring claim against insurer, recent case relevant to s54, but earlier case on s6 not overruled at first instance.
stephen.bourne.lawyer/SQBJ92007:AUNSWNettle v Mathieson Group Pty Limited and Anor (26 April 2007) [2007] NSWCA 98; BC200703151... Building design & work defective, defendant's principal died, proceedings 2 years later, defendant's run-off insurance invalid if new policy in force before claim made, but insurer may be liable under terms of insuring clause and ICA s54 per FAI v AHC -> leave to join insurer.
stephen.bourne.lawyer/BFN8M2013:AUNSWDirector-General, NSW Department of Family and Community Services Re JS (26 February 2013) Brereton J [2013] NSWSC 306... In relation to registration of adoption plans, s.50, Adoption Act provides that the parties to an adoption who have agreed to a plan may apply to the court for its registration. This scheme excludes any birth parent who does not consent to the adoption, effectively (at the time of this matter) shutting them out of an option that could enable contact and other ancillary arrangements to be embodied in orders through registration of a plan containing them. Brereton J expressed dissatisfaction with this situation: "This is a matter which, to my mind, is a lacuna in the current legislative structure... There are many birth parents who, like the father in this case, feel unable to consent to an adoption while not formally opposing it. They would feel much less reticent if their rights of contact could be secured by an Adoption Plan." [8]. His Honour also noted that if an adoption plan is approved, "the appropriate course is that the Court make an order that it be registered" [14]. Although the child's natural mother was deceased, his Honour nonetheless made a formal order dispensing with her consent.
stephen.bourne.lawyer/JW7NG2011:AUNSWKozjak v Oswin (No 2) (16 February 2011) [2011] NSWCA 15... Costs assessment - Issue of how much to be retained on account of unassessed costs - Orders as to distribution of balance.
stephen.bourne.lawyer/ZK2ED2011:HKWong Nai Chung trading as Sun Chung Flower Shop v Hong Kong Housing Society & Anor (21 January 2011) [2011] HKCFA 7... In seeking leave to appeal, plaintiff/appellant challenged the constitutionality of a statutory 'finality provision' (limiting his right to appeal), and sought orders in relation to the obligations of Hong Kong's Urban Renewal Authority. Court rejected the application for leave, and dismissed the appeal with costs.
stephen.bourne.lawyer/8XJ4H2010:AUNSWLoans to adult children - a risky business (23 August 2010) Stephen G Bourne... Poorly documented loan may cause later anguish if adult child becomes sick, dies unexpectedly, is adjudged bankrupt, or is affected by relationship breakdown - loan may be secured by mortgage or caveat - interest entitlement may require compliance with consumer credit law - statutory time limitation may prevent recovery of loan.
stephen.bourne.lawyer/EW4TN2014:AUNSWBBZ v Office of the Children's Guardian (1 August 2014) Goodchild, L. (Senior Member) [2014] NSWCATAD 112... BBZ convicted of 1989 sexual assault offences against a hitchiker he picked up; applied for working with children clearance in 2014 to be able to volunteer as a fire-fighter; clearance refused by Children's Guardian due to sexual assault history; NCAT says its jurisdiction "is protective and not punitive" and that on balance of probabilities BBZ not a risk to children despite expert evidence calculating risk of recidivism at 4% over 10 years; risk to the "safety of children" is the real issue.
stephen.bourne.lawyer/KBY4J2003:AUNSWGosford City Council v GIO General Ltd (7 March 2003) (2003) 56 NSWLR 542; (2003) 12 ANZ Ins Cas 61-566; [2003] NSWCA 34; BC200300808... Claims made insurance policy (not claims made and notified), broker failed to tell insurer of potential claim, no deeming clause, ICA s40 did not transform cover into 'discovery' policy.
stephen.bourne.lawyer/RQ28H2006:NZDavid Mark James Mathie v New Zealand Police (17 May 2006)... Charges of (i) dangerous driving, and (ii) driving while disqualified, guilty plea, cumulative sentences of imprisonment, 6 weeks for each of two charges, total 12 weeks, on appeal reduced to total of 9 weeks, original sentence not manifestly excessive, but express discount to be given for guilty plea.
stephen.bourne.lawyer/N463Z2011:AUNSWCharara v Integrex Pty Limited (7 February 2011) [2011] NSWCA 9... Alleged debt of $3,200 owed to applicant - Statutory demand previously set aside, as disputed matter of fact to be determined at trial - Applicant sought leave to appeal - Respondent sought $20,000 security for costs - Applicant sought review of decision to order security for costs in the sum of $1,000, with proceedings stayed pending payment of that sum - On appeal, decision as to security for costs upheld, but stay order to operate for 14 days, and each party to meet own costs in preceding and current applications.
stephen.bourne.lawyer/JPXT72007:AUNSWMacquarie Underwriting Pty Ltd v Permanent Custodians Limited (3 May 2007) [2007] FCAFC 60; (2007) 240 ALR 519; BC200703244... PCL relied on valuation by T, but valuation erroneous. T aware of claim but did not notify insured while 2003-04 policy current. Proposal for 2004-05 cover did not disclose error, but ICA s33 made non-disclosure ineffective, resulting in leave against insurer (reasons ICA s54 has caused past difficulty). T not included in 2003-04 policy, so no leave for that year/policy.
stephen.bourne.lawyer/VE2KP2011:AUCOMCan My Invention Be Patented? (13 May 2011) Stephen G Bourne... Patent for up to 20 years - inventive step required - applicant must be first in time - no prior disclosure - alternatively, in Australia, innovative patent available for 8 years if only an innovative step - renewal required to maintain monopoly right arising from patent.
stephen.bourne.lawyer/NMGUM2016:AUCOMUlster & Viney (28 July 2016) Strickland J, Ainslie-Wallace J & Ryan J [2016] FamCAFC 133... From when the parents separated in 2014, the children (aged 7 and 9 at the time of the first hearing) lived primarily with the mother in Melbourne, but spent significant time with their father. The mother then found new employment in Gippsland, and subsequently without giving the father any warning she moved herself and the children to Gippsland. The Federal Circuit Court at first instance made orders for equal shared parental responsibility, and that the children would live with the father alternate weeks in the school term – i.e., 6 nights each fortnight with the father, 8 with the mother – and equal time in holidays. In this appeal by the father, the Full Court found that the first instance orders satisfied s.65DAA, and that the primary judge had also considered the elements of "substantial and significant time" [102]. The primary judge had considered that it was in the children's best interests for them to be allowed to live in Gippsland with their mother. The plurality concurred, and the father's appeal was dismissed with costs against the father. Strickland J disagreed with the majority, believing that the relocation would affect the quality of the father's time with the children. His Honour would have remitted the matter for rehearing.
stephen.bourne.lawyer/NU2RK2016:AUNSWInsurance Australia Ltd t/a NRMA Insurance v Milton (5 July 2016) Leeming JA & Simpson JA [2016] NSWCA 156... Mr Milton was badly injured in a motor accident. Third party insurer NRMA said it should not pay for Mr Milton's treatment because he was eligible under a statutory scheme covering catastrophic injuries. However, NRMA's applications were rejected. Moreover, the Court of Appeal commented that the appeal documentation filed on behalf of NRMA (estimated at over 20,000 pages) was a "waste [that] may fairly be described as extravagant" and found it hard to contemplate any situation where filing this much material -- the bulk of which was not referred to in the hearing -- could be justified. The court noted that it had the power under s.99, Civil Procedure Act 2005 (NSW), and under its supervisory jurisdiction, to make an order that the solicitor be barred from billing his client for the costs of copying that documentation.
stephen.bourne.lawyer/8QSY52010:AUCOMSpencer v Commonwealth of Australia (1 September 2010) [2010] HCA 28... Plaintiff's farm rendered nonviable by restrictions on clearing vegetation; first instance and first appeal in Federal Court dismissed due to 'no reasonable prospect' of success, relying on FCA s31A(2), but in meantime High Court decided ICM v Cth; Cth legislation may be invalid, leave granted.
stephen.bourne.lawyer/N5GMB2011:AUNSW"Three Strikes" and you are off the Road for a Long Time (4 November 2011) Bourne, S. & Kane, D.... If you are facing your third (or greater) conviction for a serious traffic offence, and your latest offence is a qualifying one under s198 of the Road Transport (General) Act 2005 (NSW) then, regardless of the disqualification imposed in relation to that offence, you will receive an automatic five years further disqualification as a habitual offender. It is also possible to accumulate more than one habitual offender declaration, so there are many (non-drivers) out there who are currently disqualified for 10 years or more. However, when the offence which leads to the habitual offender declaration is considered by a Magistrate or Judge, the court may quash the declaration, so that it does not take effect. The court also has jurisdiction to shorten the period of a declaration. Habitual offender declarations are regarded as a way of keeping more serious offenders off the roads for extended periods.
stephen.bourne.lawyer/6JG872011:NZB v The Queen (25 February 2011) [2011] NZSC 9... Application for leave to appeal, granted on the ground that the admissibility of the evidence of complaints to two family members deserved further consideration in appeal.
stephen.bourne.lawyer/RNKU42016:AUNSWA short introduction to adoption law in New South Wales (10 August 2016) Bourne, S.G.... Legal adoption goes back to Roman times, but not in the common law jurisdictions. Massachusetts was the first common law state to legislate for adoption. NSW passed its first adoption legislation in 1923. Evidence shows that adoption has better outcomes than fostering. In NSW the current legislation is the Adoption Act 2000 and the Adoption Regulation 2015. Since 2010, same sex couples have been able to adopt in NSW. Applicants for adoption are rigorously assessed, and the application must be approved by the Supreme Court before an adoption order is made. Consent by the child and/or birth parents is required, or must be formally dispensed with, and the adoption must promote the child's best interests. Matters such as contact with birth parents may be addressed in an adoption plan, which becomes enforceable if registered by the court.
stephen.bourne.lawyer/MJYKV2011:AUNSWSummer Hill Business Centre v Equititrust Limited (7 February 2011) [2011] NSWCA 8... A court may allow the use of a propounded guarantee as security for costs if the parties agree to it. In determining the appropriate amount of security required, if any, a court will look to, among other things, the solvency of a party, whether the risk of all costs are borne by a single party, and whether ordering the security will "stifle" the litigation.
stephen.bourne.lawyer/FTBZY2006:AUCOMA and D Douglas Pty Ltd ACN 008 404 180 v Lawyers Private Mortgages Pty Ltd ACN 010 556 751 (15 May 2006) (2006) 14 ANZ Ins Cas 61-709; [2006] FCA 520; BC200603233... Investors relied on promotional material, promoters negligent, failure to notify insurer within required period for 1999 policy was 'act' under ICA s54, insurer not entitled to avoid payment under 1999 policy, but no liability under 1998 policy (promoters not aware of claims, s54 not relevant) or 2000 policy (claim notified in 1999).
stephen.bourne.lawyer/R6FJN2010:AUNSWRe Timothy (19 May 2010) 2009/291406... Declaration after care circle, mediator should not judge cause, unfair or ultra vires, only D-G can seek interim order, application under s90 required to alter interim order, parens patriae limited to exceptional circumstances.
stephen.bourne.lawyer/7YPN52016:AUNSWRogerson verdict: What it's like to be an old bloke in jail (5 September 2016) Bourne, S.G.... Former police officers Rogerson and McNamara were sentenced to life in prison for killing student Jamie Gao. The pair are being held in protective custody. Rogerson was aged 75 at time of sentencing. The incarceration of men over 65 has grown much faster than other age groups in NSW, but frail inmates struggle in prison due to bunk beds with no railings or ladders, uneven surfaces, steep gradients, narrow doorways, and tripping hazards. Being 55 or older (45 or older if Aboriginal or Torres Strait islander) makes an inmate "eligible for identification as aged and frail" but non-urgent medical and psychiatric needs may not be met, or there may be considerable waiting time. Nearly half of NSW prisons are over-capacity, and difficulties are exacerbated by lockdowns. Rogerson has found a piano inside and bangs away at Beatles songs.
stephen.bourne.lawyer/XQP7T2010:AUNSWRuttley v R (4 June 2010) Simpson J [2010] NSWCCA 118... Although R and KR were involved in the same criminal acts, KR received a suspended custodial order in the Children's Court, while R received a much harsher sentence as an adult in the District Court. On appeal, R's sentenced could not be disturbed on basis of parity, but could be reduced because it was disproportionate to his crime.
stephen.bourne.lawyer/GKXQG2010:AUNSWIntervening In a Child's Life ... Starting a Proceeding in the NSW Children's Court (25 November 2010) Stephen G Bourne... Director-General must provide services and facilities for welfare of children and young people, and may also be required to intervene in accordance with Children & Young Persons (CP) Act where risk of serious harm and/or child in need of care and protection; parents etc may also commence proceedings in some circumstances.
stephen.bourne.lawyer/NRJ8T2013:AUNSWRe June (9 July 2013) [2013] NSWSC 969... Children's Court, foster carers joinder refused, magistrate subsequently failed to consider foster carers views, and failed to give adequate reasons for decision to restore to natural father. In Supreme Court, parens patriae invoked, magistrate's decision quashed under section 69 SC Act, despite foster carers having no standing to bring application for certiorari. Foster carers entitled to be heard in CC per s87 CYP(CP) Act.
stephen.bourne.lawyer/YKQKD2011:NZRobert Erwood v Janet Maxted & Ors (18 March 2011) [2011] NZSC 23... Mr Erwood challenged a Court of Appeal decision striking out two of his appeals due to his nonpayment of security on only one of those appeals. The Supreme Court reinstated the appeal for which Mr Erwood had paid security for costs.
stephen.bourne.lawyer/W7YNT2006:NZBaulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (formerly GIO Insurance Limited) & Ors (12 April 2006) (2006) 14 ANZ Ins Cas 61-701; [2006] NSWSC 223; BC200602856... Airport runway, failure of reinforced earth walls, underlying insurer HIH insolvent, claim neither paid nor unconditionally admitted, excess of loss cover did not engage.
stephen.bourne.lawyer/QRX4Y2011:AUNSWJohn Wilson v The Attorney General of New South Wales (8 February 2011) [2011] NSWCA 10... John Wilson earlier banned from instituting proceedings in NSW, as a 'vexatious litigant' - This was his application for leave to appeal that ban - No challenge by Wilson to first instance analysis, but rather reiteration of 'underlying theme' that actions must be tried by jury, and that judicial officers not properly appointed - Appeal dismissed with costs.
stephen.bourne.lawyer/G5QSM2011:AUACTBailiff v R (25 February 2011) Marshall J, Nield AJ, Teague AJ [2011] ACTCA 7... Defendant appealed court's finding that he was mentally fit to plead to a criminal charge, asserting that the judge (1) improperly based the decision on the defendant's courtroom behaviour, and (2) misapplied statutory criteria for such a finding. The defendant said he could not follow the course of the proceeding, but the trial judge found that "Mr Bailiff was paying close attention to the proceedings and identifying in a deliberate, even calculating way the point at which to interrupt for maximum effect." The appeal court dismissed the appeal.
stephen.bourne.lawyer/MY2N21978:AUNSWMcMahon-Winter v Larcombe and Others (16 October 1978) Yeldham J [1978] 2 NSWLR 155... In relation to allegations of indecently assaulting his 5 year old son, the plaintiff faced criminal charges for hearing the next year. In the meantime, the Department of Youth and Community Services said the boy and his siblings were neglected, and brought care proceedings in the Children's Court. The plaintiff argued that the care proceedings should be adjourned until the outcome of the criminal proceedings, to avoid prejudice to the plaintiff. Yeldham J in this current proceeding – following upon the Children's Court's refusal to adjourn – did not see prejudice as a problem for the plaintiff, because the plaintiff could refuse to answer questions where he considered the answers may be incriminating. His Honour also referred to "the eminent desirability of a speedy determination of the issues before the magistrate in the interests of the infant children, and... the policy of the Child Welfare Act that matters concerning neglected children should be dealt with expeditiously." Summons dismissed with costs against the plaintiff.
stephen.bourne.lawyer/HS7GT2011:AUCOMHow treatment for a minor medical condition may affect your travel insurance cover for more serious conditions (22 February 2011) Stephen G Bourne... Most travel insurance policies exclude pre-existing medical conditions, and this may include conditions that appear minor at the time of travel, but which turn out to be serious and require treatment during the trip.
stephen.bourne.lawyer/XNJT32011:USKelly Harrington, Warden, Petitioner v Joshua Richter (19 January 2011) [2011] USSC (19 January 2011)... Federal Court of appeals found a prisoner could file a federal habeas corpus petition on the same grounds as those in his unsuccessful state petition, because the state petition was summarily dismissed and based on an unreasonable interpretation of federal law. However, prisoner had failed to show that the state court's decision did not involve a determination of the merits of his claim - Federal appeal decision reversed by US Supreme Court.
stephen.bourne.lawyer/8UJRA2016:AUNSWAre you a mandatory reporter in New South Wales? (17 July 2016) Bourne, S.G.... In NSW, a mandatory reporter includes a person who delivers services to children, or manages delivery of such services, which includes doctors and other health professionals, and also teachers and early childhood care workers. Failing make a required report can lead to professional misconduct charges. Making a report is not a breach of ethical standards, and reporters are protected from professional misconduct charges, defamation proceedings, and civil proceedings, and the reporter's identity is not disclosed. A report is required if a mandatory reporter has reasonable grounds to suspect that a child is at risk of significant harm (ROSH). Mandatory reporters should always be alert to the possibility of a child being at risk of harm. The Department receives well over 100,000 ROSH reports each year.
stephen.bourne.lawyer/4Q4MN2011:AUNSWSwansson v R (16 February 2011) [2011] NSWCCA 29... Unfair and prejudicial closing statement by Crown Prosecutor, and issue of whether verdict unreasonable due to a deficiency of evidence - However, fulsome withdrawal of the disputed comments, reinforced by defence counsel and trial judge - No basis to discharge jury - No request for immediate cure - Crown entitled to cast doubt on testimonial evidence - Circumstantial evidence (including use of false names and 'unusual features' of the Appellant's account) weighed in, appeal dismissed.
stephen.bourne.lawyer/JWRDM2016:AUNSWCriminal Law: 8 years jail for selling "cheeseburgers" and "meal deal" (2 July 2016) Bourne, S.G.... Benjamin Miles given 8 years jail for selling 'cheeseburgers' (MDMA aka ecstasy) 'drinks' (cocaine) & 'fries' (methamphetamine); ecstasy popular with young adults in Australia; perception of low risk is wrong; tablets may contain other toxic substances; ecstasy itself can be harmful.
stephen.bourne.lawyer/EFSUR1998:NZPolice v David Oliver Stewart (15 July 1998) CRN: 7031007111... Defendant confronted by three louts, who had confronted defendant on an earlier occasion - defendant feared for his safety and, seeing no exit option, punched complainant - act of defendant was pre-emptive strike in self defence, information dismissed.
stephen.bourne.lawyer/38DUM2011:AUNSWAllan v R (No 2) (2 March 2011) [2011] NSWCCA 27... Application under s59 of Crimes (Sentencing Procedure) Act 1999, seeking to have sentences commencement date varied following reduction in term of another sentence, even though no gap between sentences - Crown argued that s59 applies only when a sentence is quashed on appeal, leaving a gap between sentences - Court said s59 not limited in that way - Commencement date varied.
stephen.bourne.lawyer/9DHVW2010:AUNSWInterlock driver licence for PCA and DUI offenders (30 March 2010) Stephen G Bourne... Alcohol Interlock Program - opportunity for drink-drivers to rehabilitate themselves - medical clearance required - disqualification compliance period - interlock driver licence - vehicle immobilised by approved interlock device if alcohol detected - program not available if outstanding unpaid traffic fines.
stephen.bourne.lawyer/E5E5C2010:AUCOMSelected Seeds Pty Ltd v QBEMM Pty Limited and Ors (3 November 2010) [2010] HCA 37... Land contaminated by 'weed' in grass seed - claim for decontamination and loss of land use - insurance covered liability for property damage, but excluded liability arising from failure of product to fulfil intended use or function - HC held contamination not a failure of product - exclusion clause to be read in context of insuring clause.
stephen.bourne.lawyer/VYGR42014:AUCOMThe forensic implications of synthetic drugs in the community (20 April 2014) Bourne, S.G.... Drug synthesis started in 1911; globalisation and improved information technology has led to a worldwide explosion of synthetic drugs; users of synthetic cannabinoids more likely to experience psychosis; confusion between drug names leads to misunderstanding of risks; biggest challenge for regulators is detection.
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