we need to find and read some more cases from paper i attached brian orr moot court so that we can identify the possible Rati

Case name and Citation:

Zanner v Zanner [2010] NSWCA 343

Court:

New South Wales Court of Appeal

Judges:

Allsop P at 1; Tobias JA at 14; Young JA at 108

Procedural History:

Judgment Date:

15 December 2010

Fact:

Issue:

Legislation:

Civil Liability Act 2002

Motor Accidents Compensation Act 1999

Road Transport (Driver Licensing) Act 1998

Cases:

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Chappel v Hart (1998) 195 CLR 232

Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134

Cook v Cook (1986) 162 CLR 376

Elayoubi v Zipser [2008] NSWCA 335

Graham v Hall [2006] NSWCA 208; (2006) 67 NSWLR 135

Harvey v PD [2004] NSWCA 97; (2004) 59 NSWLR 639

Henville v Walker [2001] HCA 52; (2001) 206 CLR 459

Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510

Insurance Commissioner v Joyce (1948) 77 CLR 39

Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552

Mackenzie v The Nominal Defendant [2005] NSWCA 180; (2005) 43 MVR 315

March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

McHale v Watson (1966) 115 CLR 199

Mobbs v Kain [2009] NSWCA 301

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572

Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492

Ruddock v Taylor [2003] NSWCA 262; (2003) 58 NSWLR 269

Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

Tambree v Travel Compensation Fund [2004] NSWCA 24; (2004) Aust Contract Reports 90-195

Travel Compensation Fund v Tambree t/as Tambree and Associates [2005] HCA 69; (2005) 224 CLR 627

Woolworths Limited v Strong [2010] NSWCA 282

Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25

Submission

Ratio:

1. The factual causation occurred (s5(D)(1)(a)

2. The scope of liability that they were not liable: as the respondent created a situation that ought never to have existed. Therefore, for the purpose of the negligence action’s damage element, the respondent ought to be considered to be the sole cause of the accident (ss5D(1)(b) and (4)) of the Civil Liability Act 2002 (NEW)).

Submission

Obiter:

‘[t]here may be circumstances in which a person who takes control of a motor car is so lacking in competence that the act of taking control is itself negligent’ – such that no duty might be

owed to one instructing or permitting the act.

Decision:

(a) Appeal allowed in part.

(b) Set aside the verdict and judgment of the District Court of 27 November 2009 in favour of the respondent against the appellants in the sum of $350,000 and substitute therefor a verdict and judgment for the respondent against the appellants in the sum of $140,000.

(c) The appellants to pay 80% of the respondent’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951 if otherwise qualified.

1. the standard of care owed by a child should be ‘attenuated’, which was breached by the first appellant’s failure to exercise reasonable care to ‘keep his foot on the brake’ – an activity the importance of which was not ‘beyond the understanding of an 11-year-old’.

2. When one evaluates the justice and equity of the situation, it cannot be the case that the respondent was wholly responsible and therefore should bear full legal responsibility for the harm suffered by her due to her ability to direct her son’s conduct.

3. Not open to the primary judge to find that the culpability of each of the first appellant and the respondent was equal because the first appellant’s conduct was inadvertence while the respondent was also subjected to the standard of care – permitting an 11yo to drive, unnecessarily and inappropriately placing herself in significant danger, particularly by standing in front of the vehicle.

Case name and Citation:

Russell v Rail Infrastructure Corporation [2007] NSWSC 402, [80]-[98]

Court:

Judges:

Procedural History:

Judgment Date:

Fact:

Issue:

Legislation:

Cases:

Submission

Ratio:

Submission

Obiter:

Decision:

A typical moot starts with APPEARANCES:

· Judge: May I have appearances, please?

· Senior Counsel for Appellant: Your Honour(s), my name is Smith, initial A, and I appear with my learned colleague/junior/co-counsel, Jones, initial B, for Joe Soap, the Appellant in this matter. I will be speaking for 10 minutes, and my co-counsel/junior/colleague will speak for a further 10 minutes. May it please the court.

· Judge: And for the Respondent?

· Senior Counsel for Respondent: Your Honour(s), my name is Cheung, initial F (Flora), and I appear with my co-counsel, Tawfik, initial S, for M. Mario, the Respondent in this matter. I will be speaking for 10 minutes, and my co-counsel will speak for a further 10 minutes. May it please the court.

· Judge: Thank you, Ms Cheung. Could you please spell the last name of your co-counsel?

· Senior Counsel for Respondent: Certainly Your Honour. It is T – A – W -F – I – K

· Judge: Thank you, Counsel

After appearances, a typical moot may progress as follows

· Judge: I’ll hear submissions now / Counsel – when you are ready.

· Senior Counsel for Appellant (optional): Your Honour(s), would your Honours like me to give a summary of the facts?

· Judge: No thank you, you can take it that the bench has read the materials/Yes please – just a brief summary.

· Senior Counsel for Appellant: Thank you, Your Honour. Your Honour(s), the Appellant was seriously injured because of the failure of the Respondent to observe the requisite safety procedures. ….. The Appellant has two submissions: First …..; and second, …. Moving to our first submission. …..

· Moving to our second submission …..

· If there are no further questions, my co-counsel will not address the issue of the availability of damages for the Appellant’s loss. May it please the court.

Ending off submissions could be done in this way:

· Senior Counsel: Your Honour(s), if there are no further questions, my co-counsel will now address the issue of the availability of damages. May it please the Court.

· Junior Counsel: Your Honour(s), if I can be of no further assistance, that concludes the submissions on behalf of the Respondent

Answering yes/no questions:

If a judge asks a question to which there is a yes or no answer, try to answer in a way that deals with that question directly:

· Yes, Your Honour, that is our submission…

· Yes, Your Honour, the Appellant does submit that the point is supported by authority…

· Yes, Your Honour, the Appellant pointed the pothole out to the Respondent …

· —————————————————————————————————————————-

· No, Your Honour, there was no discernible ratio in that case…

· No, your Honour, the Appellant did not see the 50 km per hour speed limit sign. This is evident from page 2 of the facts, where it is stated that ….

· No, Your Honour, that is not our submission. We submit that

Answering a question if counsel is not sure of the answer:

If necessary, you can ask to consider your answer for a moment:

· Your Honour, may I take a moment to consider your Honour’s question…

In a moot, one cannot really take more than 5 – 10 seconds (and that will feel like a long time!), but that is often enough to have a think and compose an answer. If you genuinely do not know the answer (eg. the Judge has asked “what are the facts of that case?” and you do not know), admit it and do not be tempted to make it up. Simply say:

· I apologise, Your Honour, I cannot assist the Court on that point Then move on.

Answering requests for authority from the bench:

· Your Honour(s), the case of Wolf v Jackal, heard in the Queensland Supreme Court of Appeal in 2007, is directly on point, and highly persuasive. In that case, …..

· Your Honour(s), there is no case authority that is directly on point. However, in the case of Moon v Struck, 2010, heard in the NSWSC, the court had to consider ….. It is our submission that a similar line of reasoning should be adopted here.

· Your Honour(s), there is no binding authority for that proposition/ no authority that is directly on point. However, we submit that such an interpretation of the statute would be in line with the intention of the statute, which was to …

· Yes, Your Honour(s), those were the words used by Chief Justice French at paragraph 111 of the case. He specifically mentioned …..

· No, Your Honour(s), that was not a unanimous decision. However, the majority, consisting of Justices Kiefel, Bell and Gageler, held that …. on page …..

Disagreeing with a Judge:

· With all due respect, Your Honour, that is a valid point, however the court in the precedent case of Sun v Shine arrived at a different conclusion.

· I understand your point, Your Honour, however I respectfully disagree.

Difficulties in understanding a Judge’s question:

· Your Honour, could Your Honour please repeat the question?

· Your Honour, could I please clarify? Would your Honour like me to address …?

· Your Honour, did I understand Your Honour’s question correctly? Would Your Honour like to know whether there is any High Court authority?

· My apologies, Your Honour, but I have forgotten the second part of Your Honour’s question. Could Your Honour please repeat it?

Dealing with time:

· Your Honour(s), I note that my time has expired. That concludes the Appellant’s submissions in respect of the dangerous recreational activity.

· Your Honour(s), in the interest of time, I will now turn to our second submission, namely that there was no contributory negligence …

· Your Honour(s), I note that my time is about to expire. Would your Honour(s) grant me a brief extension to (finish this point/conclude my submissions on this point/answer Your Honour’s question/conclude our submissions)?

Red flag phrases and other pitfalls (avoid!):

· When making a submission, don’t say ‘I think/I believe’

o Rather use: We submit that …

OR The Appellant suggests that instead …

· No, Your Honour. I will be dealing with that point later. (and then continuing with the current point) [Answer the question even if your submissions are taken out of the planned sequence]

· Asking the bench a direct question – ‘Do you mean in the case of Stone v Rock’? [Rephrase – ‘May I please clarify, Your Honour. Is Your Honour referring to the case of Stone v Rock?’]

Red flag behaviours (behaviours to avoid):

· Fumbling through the opening

· Reading your submissions

· Breaking eye contact during questions when a judge addresses counsel [Keep eye contact, and look up details on your notes once the judge has finished speaking]

· Not making enough eye contact

· Not sharing eye contact between judges [Share the love!]

· Not addressing the bench properly (being rude or disrespectful)

· Not showing respect for the bench or tribunal (orally, in dress, appearance etc)

· Talking over a judge [Judges may be rude and interrupt – when a judge speaks, counsel has to just stop and stay quiet.]

· Talking too fast

· Using ums and ah’s and other fillers and place-holders

· Not signposting clearly

· Confusing the judge (usually because of poor signposting, change in sequencing etc)

· Showing anger, annoyance, haughtiness

· Becoming aggressive or impatient or defensive or cocky

· Showing a lack of confidence • Sounding ‘scripted’

· Not being flexible

· Not answering a question directly (judges may insist on a direct answer and may repeat the question until you give a direct answer)

· Not knowing the facts

· Not showing good teamwork or coordination of arguments between counsel

· Speaking with an annoying/irritating/unconvincing pitch/intonation

· Speaking too loudly or too softly

· Flipping through files or documents – looking unprepared

· Following notes with fingers

· Fiddling, clicking pens or folders

· Asking for a bit of extra time and then taking lots of time

· Asking time to conclude and then launching into a whole new submission

· Looking up or away when trying to think

· Using hyperbole or emotional adjectives to support case rather than reasoning

· Poor ‘bench manner’ – looking bored or fidgeting when others are speaking, a messy bench

· Staring/glaring at or being disrespectful to opposing counsel