| May v Military Rehabilitation and Compensation Commission (FCAFC) - administrative law - workers compensation - ‘injury’ - appeal allowed - matter remitted |
| Hockey v Fairfax Media Publications Pty Ltd (FCA) - defamation - Sydney Morning Herald poster and tweets published by The Age defamatory of Federal Treasurer - damages |
| State of New South Wales v Sticker (NSWCA) - negligence - vicarious liability - teacher injured in fall at school when child pulled her back through doorway by the hand - appeal allowed - judgment against State set aside - retrial |
| Cavric v Willoughby City Council (NSWCA) - highways - negligence - customer injured in shopping centre - car park did not constitute a public road - appeal allowed |
| Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (No 3) (NSWSC) - costs - offer did not comply with new r20.26 UCPR 2005 (NSW) but offered real compromise - offer capable of admission under s131 Evidence Act 1995 (NSW) - unreasonable rejection of offer - indemnity costs granted |
| Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) (NSWSC) - equitable compensation - transfer of shares at undervalue - Referee’s report adopted - defendants to pay equitable compensation |
| Health Administration Corporation v CJL Haulage Pty Ltd (NSWSC) - motor vehicle accident - collision between ambulance and truck - ambulance driver negligent - appeal dismissed |
| Ransley v Chubb Insurance Company of Australia Ltd (NSWSC) - contract - insurance - Directors and Officers Liability policy - insurer’s maximum liability - maximum aggregate liability - separate questions answered |
| Summaries With Link (Five Minute Read) |
May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93
Full Court of the Federal Court of Australia
Allsop CJ; Kenny, Besanko, Robertson & Mortimer JJ
Administrative law - workers compensation - appellant joined Royal Australian Air Force (RAAF) and shortly after suffered from symptoms or condition - Administrative Appeals Tribunal concluded appellant had not suffered an ‘injury’ for purposes of s14 Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and that respondent Military Rehabilitation and Compensation Commission was not liable to pay him compensation under the SRC Act - primary judge found appellant had not identified any legal error in the AAT’s decision - appellant appealed from primary judge’s decision and sought judicial review - held: appellant established error in primary judge’s decision - certain questions of law identified by appellant should be answered favourably to appellant - appropriate for another Tribunal to consider whether appellant had suffered injury within meaning of s4 SRC Act and whether injury arose out of or in the course of his employment - appeal allowed.
May
[From Benchmark Friday, 3 July 2015]
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Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Federal Court of Australia
White J
Defamation - action arising from articles published by newspapers in print and online regarding Federal Treasurer - Federal Treasurer sued publishers of newspapers alleging that articles and Sydney Morning Herald (SMH) poster conveyed defamatory imputations - publishers denied articles conveyed pleaded imputations and contended defence of qualified privilege was applicable in any event - Pt XX Commonwealth Electoral Act 1918 (Cth) - s22 Defamation Act 1974 (NSW) - s30 Defamation Act 2005 - Defamation Amendment Act 2002 - held: Federal Treasurer’s claim that SMH poster and two matters published on Twitter by The Age with words “Treasurer for Sale” and “Treasurer Hockey for Sale” were defamatory - publishers did not make out claims of qualified privilege - even if defence of qualified privilege had been available it would have been defeated by malice actuating publication - remaining claims not established - damages awarded to Federal Treasurer in sum of $120,000 for SMH poster and $80,00 in respect of the two tweets.
Hockey
[From Benchmark Thursday, 2 July 2015]
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State of New South Wales v Sticker [2015] NSWCA 180
Court of Appeal of New South Wales
McColl, Gleeson & Leeming JJA
Negligence - vicarious liability - teacher was leading 7 year old student by the hand through door - teacher fell and was injured when student pulled her back - primary judge gave judgment for teacher - primary judge found child should have been either suspended or removed from school and that teacher would not have been injured had that occurred - State challenged findings of breach and causation and contended primary judge failed to give adequate reasons - State also challenged award of damages - held: primary judge made material error in findings of primary fact leading to erroneous findings of breach - some matters left unresolved by primary judge could not be resolved on appeal - there were also errors in assessment of damages - retrial necessary unless parties could otherwise resolve dispute - appeal allowed - judgment set aside - matter remitted for determination in accordance with law.
StateofNewSouthWales
[From Benchmark Thursday, 2 July 2015]
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Cavric v Willoughby City Council [2015] NSWCA 182
Court of Appeal of New South Wales
Basten, Meagher & Emmett JJA
Highways - negligence - real property - appellant wheeling trolley laden with shopping and child - front wheel on trolley hit “pothole” - trolley tilted - appellant inured when she fell seeking to stop trolley overturning - appellant sued Council for negligent maintenance of car park - trial judge dismissed claim on basis car park was public road by operation of s249(1) Roads Act 1993 with result Council protected by s45 Civil Liability Act 2002 - if car park did not constitute public road appeal must be upheld - statutory scheme - continued operation of common law - whether conveyance effected dedication of a road - evidence of public use - ‘is evidence that the place is or forms part of a public road’ - held: trial judge misunderstood s249(1) as providing freestanding test as to whether place was public road - s249 was no more than an evidentiary provision describing evidence which was admissible to prove a place was or formed part of that public road - s249 was subject to constraint imposed by s178 Conveyancing Act 1919 - in circumstances where there was no other evidence besides public use, trial judge should have found status of place where accident occurred as a public road was not established - appeal allowed.
Cavric
[From Benchmark Tuesday, 7 July 2015]
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Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (No 3) [2015] NSWSC 857
Supreme Court of New South Wales
Schmidt J
Costs - Court made orders in favour of doctor - doctor sought order for costs and also indemnity costs on basis of offer of compromise - Pel-Air claimed offer did not comply with r20.26 Uniform Civil Procedure Rules 2005 - doctor claimed words of offer made on his behalf were words ‘uniformly used in a judgment’ and could be used in a judgment disposing of claim - held: proposed orders for disposal of doctor’s claim not specified in order made as r20.26 required - r20.26 did not apply - however this did not mean offer could not be relied on - offer did not technically comply with requirements of new r20.26 but it offered a real compromise accompanied by reasonable period for acceptance - offe capable of acceptance and admissible under s131 Evidence Act 1995 on a costs application - rejection of offer was unreasonable - indemnity costs granted
Casey
[From Benchmark Thursday, 2 July 2015]
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Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2015] NSWSC 851
Supreme Court of New South Wales
Bergin CJ in Eq
Equitable compensation - Referee’s report - parties disagreed whether report of referee should be adopted - report concerned inquiry into existence and quantum of loss to company due to transfer of shares at undervalue for purposes of making orders for equitable compensation - Referee determined that defendants were required to pay $2,596,039 in equitable compensation - liquidator sought order that report be adopted pursuant to r20.24 Uniform Civil Procedure Rules 2005 and sought orders including order for payment of compensation - held: Court not satisfied there was any requirement imposed on Referee by Court in respect of date for assessment of equitable compensation - contentions concerning market for shares failed - no error in valuation of property - complaints regarding Referee’s analysis and conclusions in respect of evidence not made out - Referee’s approach to loss to company not a reason to reject report - Court not satisfied Referee erred in exercise of discretion - report adopted - defendants to pay equitable compensation.
Cassegrain
[From Benchmark Friday, 3 July 2015]
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Health Administration Corporation v CJL Haulage Pty Ltd [2015] NSWSC 858
Supreme Court of New South Wales
Button J
Motor vehicle accident - collision between truck and ambulance - truck driver and ambulance driver each alleged the other was negligent - Magistrate found ambulance driver negligent and that truck driver not negligent - held: contention rejected that there was failure to determine pleaded issues of negligence and contributory negligence rejected - not incumbent upon Magistrate, having found siren was not on, to provide affirmative hypothesis as to how that came to be - parties had been content for Magistrate to decide establishment of negligence based on Road Rules 2008 - contention rejected that to extent Magistrate made adverse evaluation of ambulance driver’s driving, Magistrate should have put adverse proposition to ambulance driver for comment - no error in finding no evidence about details of emergency to which ambulance driver travelling - contention rejected that Magistrate erred in finding ambulance vehicle’s siren was not activated shortly prior to the collision - appeal dismissed.
Health
[From Benchmark Friday, 3 July 2015]
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Ransley v Chubb Insurance Company of Australia Ltd [2015] NSWSC 854
Supreme Court of New South Wales
Ball J
Contract - insurance - plaintiff was former director of company required to give evidence at public inquiry by ICAC into grant to company of licence coal mining tenement - plaintiff sought declaration that insurer was liable to indemnify him for legal costs incurred under Directors and Officers Liability policy issued to company - insurer did not dispute it was liable to indemnify director but claimed that its maximum aggregate liability for all claims for costs under Policy was $2,000,000 of which it had already paid $1,248,377.83 leaving $751,622.17 to meet all outstanding claims, including director’s - determination of separate questions - insurer’s maximum liability under Policy in respect of each claim made by Insured under Insuring Clause 1D of Policy? - maximum aggregate liability under Policy in respect of claims made by Insureds under Insuring Clause 1D of Policy - held: insurer’s maximum liability depended on extent to which Limit of Liability specified in Schedule had been eroded by claims for Legal Representation Expenses already paid by insurer - insurer’s liability did not exceed $1 million in aggregate - separate questions answered.
Ransley
[From Benchmark Monday, 6 July 2015]
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From: Auguries of Innocence
By William Blake
To see a World in a Grain of Sand
And a Heaven in a Wild Flower
Hold Infinity in the palm of your hand
And Eternity in an hour
William Blake |
