Monthly Archive September 2012

Richardson v Laing O’Rourke (BMC) Pty Ltd (2012)

In this matter, Greg Walsh acted for Julian Richardson – a Plaintiff in an action against his employer.

On 13 November 2007, whilst conducting his duties as an employed “Linesman” and working on the Epping to Chatswood rail tunnel, the Plaintiff was struck in his left cheek and left eye by a copper wire. The wire was inadequately fixed to a “D” shackle system and the tension built up in the string line caused it to whip towards the Plaintiff’s face.

The Plaintiff sustained serious injury – virtually complete loss of sight in left eye – and sought damages.

The matter was fixed for hearing in the District Court, Sydney, for two days but was ultimately settled. The Plaintiff received considerable damages pursuant to both the Common Law and the Workers Compensation Act.

 

R v John Edward Saffin (2012) NSWDC per Black QC DCJ

On 7 September 2012, Greg Walsh appeared for Mr Edward John Saffin in sentencing proceedings before his Honour Judge Black QC at District Court, Lismore.

Edward John Saffin had pleaded guilty to a charge of “Accessory After the Fact of Armed Robbery”. He had been remanded in custody for a period of approximately six and a half months and admitted to an intensive rehabilitation program for a period of seven and a half months. His Honour granted a remand pursuant to s.11 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) on condition that the offender undertake supervision by the Adult Probation and Parole Service and continue to undertake supervision by the Adult Probation and Parole Service, as well as continued psychiatric and drug and alcohol treatment.

The Offender faithfully complied with conditions imposed by His Honour, including regular attendances upon his treating psychiatrist, psychologist and counsellor. His Honour imposed a sentence of two (2) years wholly suspended on the condition that the Offender continue to attend upon his treatment.

Commonwealth DPP v Moffat (2012) (NSWDC, per Dick DCJ)

On 6 September 2012, Greg Walsh appeared for Edward John Moffat at the District Court, Mackay in respect of his plea to a count contrary to s. 474.19(1)(1) of the Criminal Code Act 1995 (CTH).

The sentencing proceedings were heard by her Honour Judge Dick SC.

The offender had a prior conviction of ‘Indecent Dealing’ and also an extensive subjective history. He had entered a plea at the earliest opportunity and had fully cooperated with investigating police. At the time of the execution of the search warrant the offender made admissions as to his conduct. The total number of images accessed by the offender amounted to 1,640 of which 98.5% were at level 1 on the Child Exploitation Tracking System (CETS) scale. His Honour sentenced the offender to a term of imprisonment of eight (8) months with an actual term of imprisonment of three (3) months and then a period of supervision for fifteen (15) months.

McMaster v State of NSW; Karakizos v State of NSW (2012) NSWDC 108

In this matter Greg Walsh acted for the Plaintiffs in proceedings heard before P Taylor SC DCJ.

The Defendant made an application for a stay of proceedings during related criminal proceedings.  An application was also made by the Defendant to restrict access to subpoena documents arising out of related criminal proceedings.

Greg Walsh acted for each of the Plaintiffs in respect of an incident that occurred on Monday 26 September 2011 at Colyton.  Two police officers attended this address when one of the Plaintiffs, Mr McMaster was shot in the abdomen by one of the police officers in the presence of the other two Plaintiffs.

Mr Walsh swore an affidavit opposing that the documents produced by the State of NSW “have not been accessed, uplifted or copied by” he or any of his staff or to his knowledge “any other person on behalf of the Plaintiff.”

In our argument the Plaintiff’s position was supportive of the criminal proceedings which arose out of the invasion of the home of the Plaintiffs and which had occurred just prior to the shooting of the incident in which Mr McMaster was shot by police.

The Defendant asserted that each of the Plaintiffs should not have access even to their own statements.  Further that Mr McMaster had not yet given a formal statement to police.

His Honour held that neither of these reasons could have given rise to a stay of proceedings.  The fact that Mr McMaster had not given a statement to police was not relevant to the proceedings.

The Defendant argued that the documents produced could only be used in the course of the proceedings.  In that context such statements were provided in the criminal proceedings and as such they could not be accessed in the civil proceedings.

His Honour rejected this contention and noted that it was misconceived.  There was no authority provided by Mr Saidy in support of the contentions nor was any privilege claimed in the proceedings on behalf of the Defendant.

His Honour observed that there was no longer, a rule that civil proceedings should be stayed whilst related criminal proceedings are pending.  See Griffin v Sogelease Australia Ltd & Ors [2003] NSWCA 158; Roshfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

The Defendant submitted that the Accused in the criminal proceedings would be at risk in terms of self incrimination in seeking to defend themselves in the civil proceedings.

However the problem with such an argument was the offenders are not even parties to the proceedings.  His Honour made a finding that he was not persuaded that it was likely the Defendant would cross-claim against them.

The Defendant further asserted that it would be contrary to the interests of justice or Mr McMaster or the other Plaintiffs to give a priority in pursuing their own interests in the civil proceedings to the detriment of criminal proceedings.  His Honour rejected this assertion.  It was contrary to well established authorities.

His Honour made orders that the proceedings be consolidated and that first access would be granted to defend subpoenaed documents so such documents could be marked “successful by Plaintiff’s solicitors” and grant access to the Plaintiff’s solicitors to those documents on the undertaking not to provide a copy of same to the Plaintiff other than providing to each Plaintiff a copy of their own statements.

The Defendant was ordered to pay the Plaintiff’s costs of the Notice of Motion.

 

Padria v Padria [2012] FAMILY COURT

In this matter Greg Walsh acted for the mother who had received information and documents from the father in financial proceedings in the Family Court. She had sent that information and those documents to the Child Support Registrar with a departure application.

It would agree that the information in those documents attracted the operation of a Harman obligation, being an obligation to prevent the use of information by a third party who is aware of its provenance. The issue that arose was whether the Registrar had breached the Harman obligation and also whether the mother had breached that obligation. It was contended by the father that the Registrar had aided and abetted the mother in breaching the Harman obligation. It was argued on behalf of the mother and the Registrar that the Harman obligation must yield to a statutory provision, namely provisions of the Child Support (Assessment) Act (CSAA) involving the nature of disclosure in the departure application to the Registrar.

The mother and the Registrar relied upon extensive case law in respect of these issues in the hearing before Justice Watts. His Honour held that neither the Registrar nor the mother were in breach of the Harman obligation and a declaration was made that the Registrars and officers and employees of the Department of Human Services are not prohibited by reason of any undertaking to the Family Court from using information in the exercise of their statutory functions and powers namely the information in the documents sent by the mother to the Department as part of her application.

An application by the Father that a case be started before Court was also dismissed by Watts J.