| Blank v Commissioner of Taxation (FCAFC) - income tax - payments made by company to appellant following termination of employment assessable as ordinary income - appeal and cross-appeal dismissed (B) |
| Mitic v OZ Minerals Ltd (FCA) - legal professional privilege - representative proceedings - claim to legal professional privilege over redacted parts of contested documents upheld (I B C) |
| Australian Securities and Investments Commission v Superannuation Warehouse Australia Pty Ltd (FCA) - corporations - admitted breaches of Australian Securities and Investments Commission Act 2001 (Cth) - determination of appropriate penalty (B) |
| Zhang v Popovic (NSWSC) - pleadings - personal injury proceedings - leave to amend statement of claim granted (I) |
| Annetts v Twin Loop Binding Pty Ltd (NSWSC) - leases and tenancies - make good provision - erroneous construction of lease but no amount found to be owing to plaintiffs on correct construction - leave to appeal granted - summons dismissed (I B C) |
| Garrett v Legal Services Board (VSC) - trusts and trustees - bankruptcy - actions dismissed on basis of election by bankrupt’s trustee not to continue proceedings (I B G) |
| Von Marburg v Aldred (VSC) - pleadings - defamation - publications on Facebook - seventh attempt to plead viable claim - Court to hear further submissions on disposition of application (I) |
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| Mike Dudman and Paul Linsdell on the New Cost Rules |
| Mike Dudman and Paul Linsdell Blackstone Legal Costing discuss the costs implications of the new uniform legal profession rules. They cover the “public interest test” and the “fair and reasonable test” that has replaced the “grossly excessive test”. They also consider the more controversial aspects of the new costs rules. |
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| Summaries With Link (Five Minute Read) |
Blank v Commissioner of Taxation [2015] FCAFC 154
Full Court of the Federal Court of Australia
Kenny, Robertson & Pagone JJ
Income tax - primary judge held payments made by company (GI) to or at appellant’s direction were assessable as ordinary income and dismissed appellant’s application to re-open case to argue s23AG Income Tax Assessment Act 1936 (Cth) (ITAA 1936) resulted in part of payments being exempt - correct characterisation of payments made by GI following termination of appellant’s employment by resignation from wholly owned subsidiary of GI - whether payments assessable as ordinary income under s6-5 Income Tax Assessment Act 1997 (Cth) (ITAA 1997) or alternatively s6(e) of the ITAA 1936 or as capital gain by ending of CGT asset under s104-25 ITAA 1997 on appellant’s execution of Declaration of Assignment and General Release - held: primary judge correctly held payments assessable as ordinary income - no error in determination of related issues including refusal of leave to re-open - appeal and cross-appeal dismissed.
Blank (B)
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Mitic v OZ Minerals Ltd [2015] FCA 1152
Federal Court of Australia
Edelman J
Legal professional privilege - representative proceedings - company (Zinifex) merged with another company (Oxiana) - merged entity was company (OZ Minerals) - Mitic brought proceeding on behalf of former shareholders of Zinifex claiming damages from OZ Minerals for loss and damage arising from breaches of duty by OZ Minerals arising from its failure to disclose information relevant to merger - OZ Minerals and Zinifex claimed legal professional privilege over documents discovered by OZ Minerals - OZ Minerals claimed legal professional privilege over documents discovered by law firm (Clayton Utz) - Zinifex claimed legal professional privilege over documents discovered by another law firm (Allens) - numerous claims conceded or challenges not pressed - seven representative documents remained subject of contested claim - held: Court upheld claim to legal professional privilege over all redacted parts of contested documents except passage in documents over which OZ Minerals did not seek to maintain claim.
Mitic (I B C)
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Australian Securities and Investments Commission v Superannuation Warehouse Australia Pty Ltd [2015] FCA 1167
Federal Court of Australia
Beach J
Corporations - plaintiff alleged defendant liable for conduct contravening ss12DA(1), 12DB(1)(a) & 12DB(1)(i) Australian Securities and Investments Commission Act 2001 (Cth) relating to representations of “Free SMSF Setup” on its websites - SWA admitted liability for the contraventions - contested hearing to determine appropriate penalty - held: contraventions at lower end of offending - ASIC acknowledged it was appropriate case to have issued infringement notice - taking into account all considerations Court determined $25,000 appropriate for conduct contravening s12DB - amount close to maximum SWA had capacity to pay - amount two orders of magnitude lower than maximum penalty and maintained necessary relativity with amount stipulated in infringement notice - amount consistent with unlikelihood of any loss or damage from conduct - conduct unlikely to be repeated and SWA had agreed to compliance program - penalty consistent with totality principle
ASIC (B)
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Zhang v Popovic [2015] NSWSC 1593
Supreme Court of New South Wales
Button J
Pleadings - plaintiff injured when loading ramp at rear of semi-trailer fell on him - plaintiff sued defendants including driver of semi-trailer and driver’s employer - plaintiff sought to amend statement of claim - hearing date was 21/3/16 - evidence already served by seventh defendant - ss65 & 65(2)(c) Civil Procedure Act 2005 (NSW) - whether new or difference cause of action - whether forensic disadvantage - prejudice - held: no question of pleading new or different cause of action - no substantial change in plaintiff’s case proposed - no practical prejudice - plaintiff not prohibited from making changes sought - amendment soundly consonant with overarching principles of Civil Procedure Act - leave to amend statement of claim granted.
Zhang (I)
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Annetts v Twin Loop Binding Pty Ltd [2015] NSWSC 1605
Supreme Court of New South Wales
Fagan J
Leases and tenancies - plaintiffs sought to appeal from decision of Magistrate concerning cross-claim against defendant for make-good costs incurred on vacation of leased premises - construction of lease - held: Magistrate erred construing clause of lease containing make good provision and in failing to hold that other clauses imposed relevant obligations on defendant - applying clauses in accordance with Court’s construction, Court unable to find sum payable by defendant to plaintiffs - leave to appeal granted - summons dismissed.
Annetts (I B C)
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Garrett v Legal Services Board [2015] VSC 599
Supreme Court of Victoria
Riordan J
Trusts and trustees - bankruptcy - defendant sought stay or dismissal of three proceedings on basis of election by trustee of bankrupt’s estate to discontinue action pursuant to s60(2) Bankruptcy Act 1966 (Cth) - proceedings related to purported decisions of defendant with respect to Fidelity Fund claim - defendant submitted that for purposes of s 60(2) an ‘action’ included an application for leave to extend of time for appeal and that actions were not in respect of any personal injury or wrong within meaning of s60(4) - held: applications were application for leave to appeal, an appeal, and an application to review same decision - applications to be dealt with on approach of Young JA in Savage v Australian United Funds Management Ltd - proceedings dismissed.
Garrett (I B G)
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Von Marburg v Aldred [2015] VSC 467
Supreme Court of New South Wales
John Dixon J
Pleadings - defamation - plaintiff medical practitioner alleged he was defamed by publications on Facebook page - plaintiff alleged first defendant was an administrator of Facebook page and published publications - second defendant was also medical practitioner - plaintiff alleged second defendant was publisher of publications and leader and public spokesperson of ‘Rights to Privacy Albury’ - fifth attempt at pleading his claims was struck out - proposed pleading was plaintiff’s second further attempt since strike out order - operation of Facebook - primary publication - subordinate publication - held: considerable force in second defendant’s submission that Court should proposed pleading as plaintiff’s final opportunity to properly identify cause of action - pleading had embedded problems - impugned publications accessible for relatively short period of time - plaintiff did not allege a substantial publication - statement of claim only identified handful of people to whom publication made - Court tof hear from Counsel as to appropriate orders to be made.
Von Marburg (I)
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