| Stephenson v Parkes Shire Council; Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Ltd v Essential Energy (formerly Country Energy); Parkes Shire Council v South West Helicopters Pty Ltd (No 2) (NSWSC) - damages - nervous shock - compensation to relatives - joint tortfeasors - assessment of damages - apportionment (I) |
| Bannister v Allianz Australia Insurance Ltd (NSWSC) - administrative law - motor accidents compensation - referral for further medical assessment set aside - medical assessor’s decision set aside (I G) |
| NSW Trustee and Guardian v Lagana (NSWSC) - possession - deed of family arrangement - trustee entitled to possession of property (B) |
| Goldie Marketing Pty Ltd v Financial Ombudsman Services (VSC) - dispute resolution - contract - FOS exercised discretion to exclude dispute in accordance with Terms of Reference - judgment for defendants (B) |
| Packer v Tall Ship Sailing Cruises Australia Pty Ltd (QCA) - negligence - assault on ship on return from Christmas party - trial judge correct to find operator of cruise not liable - appeal dismissed (I) |
| Lewin v Gould (QCA) - damages - whiplash injury - no substantial injustice or reasonable argument error to be corrected - leave to appeal refused (I) |
| Nalos Pty Ltd v Robert Bird Group Pty Ltd (QSC) - pleadings - contract - negligence - permission refused to add new causes of action under Trade Practices Act 1974 (Cth) (I B C) |
| Summaries With Link (Five Minute Read) |
Stephenson v Parkes Shire Council; Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Ltd v Essential Energy (formerly Country Energy); Parkes Shire Council v South West Helicopters Pty Ltd (No 2) [2015] NSWSC 719
Supreme Court of New South Wales
Bellew J
Damages - nervous shock - compensation to relatives - joint tortfeasors - apportionment - actions arising out of helicopter accident - Court delivered judgment in proceedings in relation to issues of liability - determination of damages and apportionment - claims for nervous shock - claim under Compensation to Relatives Act 1897 (NSW) - Civil Aviation (Carriers’ Liability) Act 1959 (Cth) - Civil Liability Act 2002 (NSW) - damages sought by operator/bailee of helicopter - breach of duty by three parties - comparison of culpability and causal potency for purposes of apportionment - statutory indemnity - limitations - employer’s claim against other tortfeasor to recover compensation made in favour of deceased worker - parties to bring in short minutes reflecting conclusions on liability, damages and apportionment.
Stephenson (I)
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Bannister v Allianz Australia Insurance Ltd [2015] NSWSC 796
Supreme Court of New South Wales
Hall J
Administrative law - motor accidents compensation - permanent impairment - plaintiff sought review of decision of Proper Officer to refer plaintiff’s case for further medical assessment under s62 Motor Accidents Compensation Act 1999 (NSW) - plaintiff also sought review of medical assessor’s decision following referral for further medical assessment - held: decision of Proper Officer made in absence of additional information sufficient to establish preconditions under s62 - certificate and reasons of assessor set aside on basis that referral of Proper Officer was contrary to law, and that the medical assessment was made contrary to legal requirements prescribed for medical assessments by AMA Guidelines- decisions set aside.
Bannister (I G)
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NSW Trustee and Guardian v Lagana [2015] NSWSC 779
Supreme Court of New South Wales
Garling J
Possession - trustee was registered proprietor of property - trustee claimed it was entitled to vacant possession as consequence of Court’s orders pursuant to Criminal Assets Recovery Act 1990 - defendants claimed they were entitled to remain in possession because of arrangement made by their late mother with prior registered proprietor of property, who was late mother’s brother - deed of family arrangement - circumstances of resolution of criminal assets recovery proceedings - held: Court not satisfied there was any arrangement between prior registered proprietor and defendants’ late mother which was sufficient to give any right to defendants to occupy property - trustee entitled to possession of property - judgment for trustee.
NSW (B)
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Goldie Marketing Pty Ltd v Financial Ombudsman Services [2015] VSC 292
Supreme Court of Victoria
Cameron J
Contract - dispute resolution - second defendant ANZ provided financial facilities to first plaintiff - second and third plaintiffs were directors of first plaintiff who guaranteed first plaintiff’s indebtedness to ANZ and provided further security over properties - defaults occurred under facilities - ANZ cancelled facilities and served notice that no further drawings permitted - plaintiffs lodged dispute with Financial Ombudsman Service Limited (FOS) - FOS excluded dispute from jurisdiction pursuant to its general discretion in cl 5.2 of Terms of Reference - whether FOS exercised discretion in accordance with Terms of Reference - held: Terms of Reference constituted entire contract between parties - FOS had broad discretion to exclude disputes under Terms of Reference which did not prevent it from taking into account staffing or resourcing issues - decision provided comprehensive, rational, cogent and persuasive reasons - decision to exclude dispute valid and should not be disturbed - judgment for defendants.
Goldie (B)
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Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108
Court of Appeal of Queensland
Gotterson JA; Boddice & Flanagan JJ
Negligence - employer held annual Christmas party for employees and families on a day cruise - shortly after boarding ship for return voyage, appellant employee injured when he was assaulted by another passenger - employee sued operator of ship/licensee of licensed premises and employer for breach of duty of care to act with reasonable skill and care to protect him against risk of assault - trial judge dismissed claims - appellant appealed against dismissal of claim against operator of ship - held: trial judge made no material factual error or error of law - trial judge correctly concluded that appellant’s claim against operator should be dismissed - appeal dismissed.
Packer (I)
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Lewin v Gould [2015] QCA 107
Court of Appeal of Queensland
Morrison JA; Mullins & Martin JJ
Damages - appellant born in 2000 - when appellant about nine and a half years she suffered whiplash injury in car accident - appellant sued for damages - primary judge relied on the evidence of an orthopaedic specialist to hold that appellant experienced symptoms from accident for two to three months, and that later and ongoing symptoms not related to accident - primary judge refused appellant’s claim for future economic loss and awarded general and special damages amounting to $2,483.24 - appellant sought leave to appeal - whether appeal necessary to correct a substantial injustice - whether there was a reasonable argument that there was an error to be corrected - held: there was solid evidentiary foundation for preference of doctor’s evidence - no error in rejection of economic loss claim - evidentiary findings open - no substantial injustice - leave to appeal refused.
Lewin (I)
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Nalos Pty Ltd v Robert Bird Group Pty Ltd [2015] QSC 174
Supreme Court of Queensland
Burns J
Pleadings - plaintiffs claimed damages for breach of contract and negligence in connection with design and construction of commercial building - plaintiffs sought leave to add new causes of action under Trade Practices Act 1974 (Cth) against first and second defendants - whether appropriate to give leave to make proposed amendments - whether adequate explanation for delay - whether fair trial could be secured - held: Court not persuaded that fair trial could be secured if new causes of action added - Court satisfied there would be significant risk of injustice to first and second defendants if new causes of action allowed to proceed - no explanation for delay in seeking to prosecute claims - Court refused to exercise discretion under r376 Uniform Civil Procedure Rules 1999 to permit causes of action to be added - application dismissed.
Nalos (I B C)
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