Date: Thu, 9 Nov 2006 16:03:31 -0800 (PST)

From: David Cheifetz

Subject: Claimants' contributory fault, policy, and public authority "impecuniosity"

Is there any truth to the rumour Australian superior court judges now have an option whereby they can elect to be paid by the word?

David

----- Original Message ----
From: Neil Foster
Sent: Thursday, November 9, 2006 5:28:27 PM
Subject: Re: ODG: Claimants' contributory fault, policy, and public authority "impecuniosity"

Dear David and All;

The fact situation reminds me to some extent of Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, where the original owners had been advised by a consultant to undertake certain work but declined to do so to save money. The later claim for defective premises by a later purchaser failed, one of the reasons being that there would have been no valid claim against the builders by the original purchaser due to failure to get the work done.

On the question of whether the courts can get involved in deciding whether a government body's allocation of funding is reasonable, there are some interesting comments by Ipp JA in the recent NSW Court of Appeal decision of Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [2006] NSWCA 101 at paras [268]-[279]. His Honour holds that a mere claim that a decision was affected by "budgetary constraints" is not enough to immunise it from judicial scrutiny.

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