Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Liability in the absence of a therapeutic relationship

Posted on April 4th, 2018

The NSW Court of Appeal recently found a medical treatment provider was liable for personal injury, even though there was never a therapeutic relationship with the person who was injured.

Briefly, a Mr Mason suffered from psychological illness for which he was taking medication. He was remanded in custody on criminal charges, to Parklea Correctional Centre. It was privately operated by GEO Group under contract with the State Government. The contract required GEO to provide psychological and counselling services to inmates.

When Mr Mason was processed at Parklea, he told employees of GEO about his conditions and medications, but he was not prescribed any replacement drugs nor referred for counselling or other treatment. Days later, he jumped from a high level landing and suffered personal injury. He then sued GEO for those personal injuries. That case settled, but a related claim between GEO and its insurer continued because the insurer contended that its policy did not provide cover unless GEO had actually provided (medical) services. Read the rest of this entry »

Court costs – when do they not “follow the event”?

Posted on July 20th, 2016

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in commercial dispute resolution & litigation, and employment law.

Most of us are familiar with the expression “costs follow the event”; that is, in a litigated claim the loser usually is ordered to pay the winner’s costs. In some circumstances that rule can be varied. The NSW Civil and Administrative Tribunal (NCAT) recently dealt with an application to vary, based on two specific grounds.

A dentist was charged with, but acquitted of (under mental health legislation) indecent assaults against a patient. However the same facts resulted in disciplinary proceedings against him by the Health Care Complaints Commission. There was a finding of professional misconduct; and a declaration that, had the dentist not otherwise ceased to be registered, his registration would have been cancelled for a period of 18 months. The HCCC had sought a cancellation for 2 – 3 years. Read the rest of this entry »

Surrogacy Arrangements in NSW

Posted on February 25th, 2013

by David Gawthorne

David Gawthorne is a Senior Solicitor at Mullane & Lindsay in Newcastle and an Accredited Specialist in Family, Relationship and Matrimonial Law

A surrogacy arrangement is an arrangement under which a woman agrees to become pregnant and for parentage of the child born as a result to be transferred to the intended parent or parents. In NSW, since 2011, it has been possible to apply to the Supreme Court to formalise certain surrogacy arrangements by the making of a parentage order under the Surrogacy Act. By the order, the child becomes a child of the intended parents named in the order and the child stops being a child of the birth parent. The child of such surrogacy arrangements has the same rights in relation to the intended parents as a child born to them, and the intended parents have the same parental responsibility as the birth parent had before the order was made. Read the rest of this entry »

Can Dark Clothing be Associated with Motor Vehicle Accidents

Posted on November 3rd, 2011

by Tony Cavanagh

Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and is one of LawCover’s panel solicitors.

The NSW Court of Appeal recently reviewed a motor accident claim in which a pedestrian was awarded significant damages after being hit by a motor car; but whose damages were reduced for her own contributory negligence.  The essential basis of that reduction, was that the pedestrian was wearing a black ‘hijab’ (a full length garment covering both body and head)  and was crossing the road at dusk. Read the rest of this entry »

Can a Parent be Ordered to Immunise a Child?

Posted on September 13th, 2011

By Vivien Carty

Vivien Carty is a Solicitor at Mullane & Lindsay in Newcastle and specialises in our Family, Relationship & Matrimonial Law team.

There is no compulsion for children to be immunised inAustralia, other than in circumstances where a Court orders immunisation.  Sometimes parents are unable to agree on whether their child should be immunised.  Where an Application is made under the Family Law Act for an Order in relation to immunisation of a child the Court, having regard to the best interests of the child in the particular case, may order that the child be immunised. Read the rest of this entry »

CLASS ACTIONS: Things to know

Posted on October 9th, 2009

Published by Law Society of New South Wales

In the current economic climate it is not surprising that investor class actions are receiving increased attention.

There is some suspicion and confusion about class actions. Some people have an enduring belief that they must be taking on an unacceptable level of risk if they get involved. Equally, some may just have an aversion to continuing in a claim commenced without their express consent, despite the fact that it could benefit them financially to do so.

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Removal of same sex discrimation federally

Posted on June 19th, 2009

The Federal Attorney General has announced that legislation to remove same-sex discrimination from a wide range of Commonwealth laws will be introduced in the Winter Sittings of Parliament. This reform follows the report of HREOC, Same-Sex: Same Entitlements, which focused on financial and work-related legislation.

Areas where discrimination will be removed include:

  • Tax
  • Superannuation
  • Social security
  • Health
  • Aged care
  • Veterans’ entitlements
  • Workers’ compensation
  • Employment entitlements
  • Other areas of Commonwealth administration

The Government has begun introducing legislation in the Winter Sittings of Parliament. In areas such as social security, tax and veterans’ affairs, the reforms are expected to be phased in – to allow time for couples to adjust their finances, and for administrative arrangements to be implemented.

All of the changes are expected to be implemented by mid-2009.

If you have any queries relating to Family or Relationships law please do not hesitate to contact any of our Family and Relationships Law Team at Mullane and Lindsay: Mark Sullivan, Vivien Carty, Kristy Davis and Ashleigh John. Kristy Davis is present at our Tea Gardens office on Wednesday afternoons by appointment. (Tel: 4928 7300).

PROFESSIONAL RISK Failure to warn

Posted on June 7th, 2009

Professionals must be careful to fully inform clients to avoid accusations of negligence. A recent case considered a failure to warn a medical patient.

It was argued that a doctor was negligent by not adequately warning a woman that a sterilisation procedure might fail, exposing her to the risk of becoming pregnant again.

The doctor had described his personal failure rate using the procedure as one in 2,000, rather than referring to a professional publication which wrote of a risk of one in 500 women who had the operation becoming pregnant.

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