| PT Bayan Resources TBK v BCBC Singapore Pte Ltd (HCA) - contract - freezing orders - Supreme Court of Western Australia had power to make freezing order in relation to prospective judgment of foreign court - appeal dismissed (I B C) |
| Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (HCA) - contract - construction of contract - ore mined in Mount Bruce Mining Pty Ltd’s (MBM’s) area by entities deriving title through or under MBM - MBM obliged to pay royalty to respondents - appeal dismissed (I B C) |
| Zhai v Luo (FCAFC) - bias - primary judge heard respondent’s applications while judgment reserved following completion of trial - bias not established - appeal dismissed (I B) |
| Bailey v Director-General, Department of Natural Resources NSW (NSWCA) - malicious prosecution - planning and environment - clearing of native vegetation without consent - malicious prosecution not established - no error in award of indemnity costs - appeal dismissed (I B C) |
| BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd (NSWCA) - contract - commercial agreement - amount of borrowings was “organic debt” in terms of issue - appeal allowed - cross-appeal dismissed (I B C) |
| Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (NSWCA) - negligence - student injured attempting dive into shallow end of pool - School not liable - appeal allowed (I) |
| EPS Constructions Pty Ltd v Mass Holdings Pty Ltd (NSWCA) - contract - partnership - joint venture - challenges to factual findings - no error in finding partners entered oral agreement - appeal dismissed (I B C) |
| Allianz Australia Insurance Ltd v Rutland (NSWCA) - motor accidents compensation - psychiatric injury - denial of procedural fairness - failure to exercise statutory function - decision of Medical Review Panel set aside - appeal dismissed (I B) |
| Small Business Consortium Lloyd’s Consortium No 9056 v Angas Securities Ltd (NSWSC) - insurance - subrogation - insurer entitled to amount owing pursuant to deed of release - parties to bring in short minutes of order (I B) |
| Jetobee Pty Ltd (in liquidation) v Smith & Young Pty Ltd (No 3) (NSWSC) - debt - letters and confirmation relied upon as evidence for agreement were concocted - no agreement for plaintiff to assume creditor’s debt - judgment for plaintiff (I B) |
| Broadlex Services v RCR Resolve FM (NSWSC) - contract - estoppel - damages - contract for supply of cleaning services - plaintiff entitled to value of outstanding invoices - defendant entitled to verdict on cross-claim (I B C) |
| Abdul-Rahman v WorkCover Authority of NSW (NSWSC) - workers compensation insurance - Authority’s cause of action barred by s18 Limitation Act 1969 (NSW) - appeal allowed (I B G) |
| Summs of Qld Pty Ltd v Boon (QCA) - security for costs - negligence - respondent stabbed in hand with Leatherman knife by applicant’s employee during lunchbreak - neither employee nor applicant found liable - applicant refused security for costs of respondent’s appeal (I C) |
| Diploma Construction (WA) Pty Ltd v CIMC Modular Building Systems (Australia) Pty Ltd (WASC) - subpoena - insurer’s objection to inspection of insurance policy dismissed (I B C) |
| Summaries With Link (Five Minute Read) |
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Freezing orders - corporations - appellant incorporated in Indonesia - appellant owned shares in Australian company (KRL) - respondent incorporated in Singapore - parties owned all shares in company incorporated in Indonesia (KSC) - parties rights as shareholders in KSC subject of joint venture agreement governed by law of Singapore - respondent commenced proceedings against appellant in High Court of Singapore claiming damages for breach of joint venture agreement - proceeding was pending - BCBC sought freezing orders against appellant and KRL in respect of appellant’s shares in KRL - freezing orders sought in Supreme Court of Western Australia pursuant to O 52A Supreme Court Rules 1971 (WA) - whether Supreme Court of Western Australia had power to make freezing order in relation to prospective judgment of foreign court registrable under Foreign Judgments Act 1991 (Cth) - held: Supreme Court had inherent power to make freezing order within authority to adjudicate conferred by s39(2) Judiciary Act 1903 (Cth) - exercise of power regulated by O 52A r5 validly made under s167(1)(a) Supreme Court Act 1935 (WA) and applied by S79 Judiciary Act - no inconsistency with Foreign Judgments Act - appeal dismissed.
PT Bayan (I B C)
[From Benchmark Friday, 16 October 2015]
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Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Contract - Wright Prospecting Pty Ltd (WPPL), Hancock Prospecting Pty Ltd (HPPL) (together Hanwright), Hamersley Iron Pty Ltd (Hamersley Iron) and appellant (MBM) entered agreement (1970 Agreement) - dispute concerned construction of provision agreement in respect of payment of royalties by MBM in relation to ore mined from areas of land subject of agreement - Hanwright commenced proceedings against Hamersley Iron and MBM in Supreme Court of New South Wales - Hanwright claimed royalties payable by MBM in respect of iron ore won from two areas (Eastern Range and Channar) - trial judge upheld Hanwright's claim against MBM - Court of Appeal of New South Wales allowed appeal in part - whether Eastern Range and Channar A were within MBM area - if yes then whether ore mined in those parts of MBM area was mined by entities "deriving title through or under" MBM - common ground that if Eastern Range within MBM area then royalty payable - ss48, 50, 53, 276 & 277 Mining Act 1904 (WA) - held: "MBM area" in 1970 Agreement was physical area indicated on map attached to 1970 Agreement - Ore had been mined in MBM area (which included Eastern Range and Channar A) by entities deriving title through or under MBM - MBM obliged, under 1970 Agreement to pay Hanwright a royalty on ore being won from MBM area - appeal dismissed.
Mount Bruce (I B C)
[From Benchmark Friday, 16 October 2015]
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Zhai v Luo [2015] FCAFC 144
Full Court of the Federal Court of Australia
Rares, McKerracher & Gleeson JJ
Bias - appellant sought to appeal from orders of primary judge on basis of a reasonable apprehension of bias - complaint related to fact primary judge heard two applications by respondent while judgment in proceedings reserved - first application was to amend statement of claim to allege fraud against appellant - second application was for freezing order against appellant and others - application for freezing order allowed against appellant in part only - application to amend statement of claim refused - complaint of apprehended bias also related to remarks made by primary judge in second application - Conveyancing Act 1919 (NSW) - held: Court did not consider that hearing of application to amend pleading with or without application for freezing order could have created reasonable apprehension of bias in the circumstances - appeal dismissed.
Zhai (I B)
[From Benchmark Monday, 19 October 2015]
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Bailey v Director-General, Department of Natural Resources NSW [2015] NSWCA 318
Court of Appeal of New South Wales
Basten, Gleeson & Leeming JJA
Malicious prosecution - planning and environment - appellants owned rural property - first appellant arranged for contractors to clear native vegetation - Director-General, Department of Land and Water Conservation issued summons in Land and Environment alleging breach of s21(2)(a) Native Vegetation Conservation Act 1997 (NSW) - first appellant contended clearing undertaken to construct “farm dam” which was purpose permitting clearing without development consent - charges dismissed - appellants sought damages from respondents for malicious prosecution, negligent misrepresentation, breach of duty and misfeasance in public office - trial judge dismissed proceedings and subsequently awarded costs in defendants’ favour on indemnity basis from date of offer of compromise - dismissal of malicious prosecution action challenged on appeal - held: at trial appellant had failed to establish fundamental propositions necessary to succeed on claim of malicious prosecution - appellant failed to establish any error on part of trial judge or basis for interfering with trial judge’s judgment in respect of costs - appeal dismissed.
Bailey (I B C)
[From Benchmark Thursday, 15 October 2015]
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BB Retail Capital Pty Ltd v Alexandria Landfill Pty Ltd [2015] NSWCA 319
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Macfarlan JA
Contract - appellant (BBRC), first respondent/cross-appellant (ALF) and second respondent/cross-appellant entered deed by which BBRC became holder of $30 million of convertible notes issued by ALF - notes matured and converted into preference shares in ALF - BBRC claimed it was entitled to be issued with number of preference shares dictated by conversion formula in clause of Terms of Issue of convertible notes - respondents accepted that $10 million of BBRC's convertible notes were converted into preference shares at that rate but that remaining $20 million of BBRC's notes converted on a "$1.00 for 1 share" basis - on conversion issue primary judge found in BBRC’s favour, also finding documents of correspondence between ALF and BB inadmissible on question of contractual construction - primary judge found in favour of ALF on issue concerning determination of amount of "Organic Debt" in ALF group on conversion date - primary judge found that amount of borrowings by ALF to raise funds to redeem convertible notes was not organic debt - held: borrowings fell within definition of organic debt in Terms of Issue for purposes of formula in clause of contract - appeal allowed - cross-appeal in relation to conversion issue and admissibility of documents dismissed.
BB Retail Capital (I B C)
[From Benchmark Monday, 19 October 2015]
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Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council [2015] NSWCA 320
Court of Appeal of New South Wales
Basten, Leeming & Simpson JJA
Negligence - school student injured when she attempted to perform ‘track-start dive’ into shallow end of swimming pool run by Council - - plaintiff sued Council and operator of school (School) for breach of duty of care - primary judge held immediate cause of plaintiff’s injury was slippage of foot and that is was unreasonable for School to encourage student to dive into shallow end of pool with lack of gripping facilities - primary judge found no breach of duty by Council and School liable for failure to warn student of risks of what she was doing and because it actively encouraged student to do what she was doing - primary judge found School’s negligence caused plaintiff’s injuries - Pt 1A, ss5B, 5C, 5D, 5G, 5H, 5I, 5L & 5M Civil Liability Act 2002 (NSW) - held: student’s tragic accident - student entirely blameless but failed to establish injury caused by breach of duty by School or Council - School’s appeal allowed.
Uniting (I)
[From Benchmark Monday, 19 October 2015]
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EPS Constructions Pty Ltd v Mass Holdings Pty Ltd [2015] NSWCA 317
Court of Appeal of New South Wales
Leeming & Simpson JJA; Sackville AJA
Contract - first respondent was one of four members of partnership or joint venture - first appellant (EPS) was company associated with one of the partners - first respondent sued on alleged oral agreement between partners and EPS - primary judge found EPS and partners entered into an oral agreement as alleged by respondent and entered judgment for first respondent - appellants challenged factual findings by primary judge - appellants contended primary judge erred in finding partners and EPS reached binding agreement - appellants contended primary judge did not grapple with evidence showing no consensus reached and that an objective observer could not conclude partners reached final agreement - appellants also contended consensus, if it was reached, did not extend to all essential elements of binding agreement - held: primary judge carefully analysed evidence and resolved conflicts to determine whether parties reached consensus - primary judge did not erroneously overlook material evidence or misuse advantage or make findings glaringly improbably or inconsistent with incontrovertible facts - appeal dismissed.
EPS Constructions (I B C)
[From Benchmark Monday, 19 October 2015]
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Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328
Court of Appeal of New South Wales
McColl & Meagher JJA; Macfarlan JA
Motor accidents compensation - respondent’s younger sister killed in motorcycle accident - respondent sued insurer for psychiatric injury and nervous shock - respondent challenged decision of Medical Review Panel to set aside medical Assessor’s certificate and certify that respondent’s whole person impairment was not greater than 10% - primary judge found Review Panel failed to discharge its statutory function pursuant to s63 Motor Accidents Compensation Act 1999 (NSW) because it failed to assess all matters afresh in respect of respondent’s whole person impairment - primary judge found Review Panel failed to cause enquiries to be made of claimant as to what her job duties actually involved and failed to accord procedural fairness - primary judge set aside certificate of Review Panel - held: primary judge did not err in concluding that Review Panel failed to exercise its statutory function, or in concluding respondent denied procedural fairness in relation to assessment of extent of impairment - appeal dismissed.
Allianz (I B)
[From Benchmark Wednesday, 21 October 2015]
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Small Business Consortium Lloyd’s Consortium No 9056 v Angas Securities Ltd [2015] NSWSC 1511
Supreme Court of New South Wales
Ball J
Insurance - subrogation - contract - defendant provided loans to borrowers secured by mortgages over real property - plaintiff insurer provided defendant with mortgage indemnity and impairment insurance which covered defendant for losses as result of defaults by borrowers - defendant provided loan to borrowers secured by mortgage over property - two other entities associated with defendant’s directors made further loans to borrowers on security of second and third mortgages - borrowers defaulted - defendant exercised its power of sale - property sold resulting in shortfall - mortgagees sued valuer seeking to recover amount of their loss - following sale of property plaintiff paid defendant sum which it was agreed was amount due under policy - plaintiff agreed to contribute proportion of costs incurred in pursuing claim against valuer in return for share of recovery - mortgagees successful -defendant received certain amount - question was who was entitled to that amount - plaintiff relied on deed of release to claim it was entitled to recover full amount it paid to defendant - construction of deed of release - held: construction of clause of deed for which plaintiff contended was correct - no breach of utmost good faith for plaintiff to rely on deed of release - no misleading conduct - plaintiff entitled to judgment for balance of amount owing to it - parties to bring in short minutes of order to give effect to judgment
Small Business Consortium (I B)
[From Benchmark Tuesday, 20 October 2015]
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Jetobee Pty Ltd (in liquidation) v Smith & Young Pty Ltd (No 3) [2015] NSWSC 1526
Supreme Court of New South Wales
Beech-Jones J
Debt - loans and mortgages - plaintiff was in liquidation - director of plaintiff was Mr Young - directors and shareholders of defendant (Smith & Young) borrowed sum from bank under commercial bill facility - Smith & Young’s obligations secured by mortgage over real property and guarantee and indemnity from plaintiff also secured by a mortgage over property - after liquidation plaintiff took an assignment of bank’s debt under Smith & Young facility and mortgage - plaintiff sought recovery of principal advanced under Smith & Young facility and possession of Smith & Young properties - Smith & Young contended it was not indebted to plaintiff - Smith & Young claimed Mr Young bound companies to agreement that plaintiff acquired Smith & Young's liability under Smith & Young facility or agreed to indemnify it for liability and that its liability had been discharged - plaintiff contended there was no agreement and certain letters and confirmations relied upon as evidence for agreement were concocted by Mr Young - ss12(2) & 17 Duties Act 1997 (NSW) - s57(2) Real Property Act 1900 (NSW) - s 57(2) - held: allegation that Mr Young concocted documents said to prove existence of agreement invoked s140(2) Evidence Act 1995 (NSW) and principle in Briginshaw v Briginshaw - Court satisfied letters and confirmations concocted and no agreement entered - plaintiff succeeded in claim.
Jetobee (I B)
[From Benchmark Tuesday, 20 October 2015]
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Broadlex Services v RCR Resolve FM [2015] NSWSC 1514
Supreme Court of New South Wales
McDougall J
Contract - estoppel - damages - plaintiff contracted with defendant to supply cleaning services at centre and facility - defendant had not paid plaintiff value of invoices for services - plaintiff did not claim services not performed or not performed appropriately - defendant defended claim by confession and avoidance together with claimed set off and a cross-claim - construction of contract - conventional estoppel - “omitted services” - damages in respect of omitted services - standard of performance - loss - held: plaintiff succeeded in claim to be paid value of outstanding invoices and claim to interest - defendant entitled to verdict on cross-claim and interest.
Broadlex (I B C)
[From Benchmark Wednesday, 21 October 2015]
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Abdul-Rahman v WorkCover Authority of NSW [2015] NSWSC 1483
Supreme Court of New South Wales
Hamill J
Workers compensation insurance - appellant sought to appeal under s53(3) Crimes (Appeal and Review) Act 2001 (NSW) from Magistrate’s decision that Local Court had jurisdiction to determine statement of claim brought by WorkCover Authority of New South Wales pursuant to s156(1) Workers Compensation Act 1987 (NSW) (Workers Compensation Act) which alleged appellant failed to maintain current policy of workers compensation insurance in breach of s155(1) Workers Compensation Act - appellant contended cause of action statute barred by s 247 Workplace Injury Management and Workers Compensation Act 1998 (NSW) or 18 Limitation Act 1969 (NSW) (Limitation Act) - time at which debt under s156(1) Workers Compensation Act accrued to Authority for purpose of s18 Limitation Act - held: cause of action accrued when appellant (allegedly) committed breach of s155(1) which was 31 March 2012 at latest - cause of action accrued to Authority more than two years prior to commencement of proceedings - cause of action barred by s18 Limitation Act - appeal upheld.
Abdul-Rahman (I B G)
[From Benchmark Wednesday, 21 October 2015]
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Summs of Qld Pty Ltd v Boon [2015] QCA 174
Court of Appeal of Queensland
Fraser JA
Security of costs - negligence - respondent stabbed in hand with Leatherman knife by applicant’s employee during lunch break at construction site - respondent employed by company (Globe) which was contracted by another company (Downer) to provide workers at construction site controlled and monitored by Downer - applicant company subcontracted by Downer to remove and replace asphalt at construction site - respondent sued applicant company for breach of duty to take reasonable care not to expose him to a foreseeable risk of injury and/or claimed appellant vicariously liable for employee’s negligent acts - primary judge found it was not established applicant’s employee was negligent and was not satisfied reasonable employer in position of applicant company would have taken steps argued by respondent to avoid the risk of injury applicant sought security for costs of respondent’s appeal - held: respondent had very strong argument on liability on appeal - Court satisfied there was significant risk applicant would not be able to recover costs if successful on appeal - some risk making order for security would stifle appeal - it was very unusual case - no security should be ordered.
Summs (I C)
[From Benchmark Monday, 19 October 2015]
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Diploma Construction (WA) Pty Ltd v CIMC Modular Building Systems (Australia) Pty Ltd [2015] WASC 384
Supreme Court of Western Australia
Allanson J
Subpoena - plaintiff claimed damages and indemnity for loss, damage and expenses from defendant alleging breach of contract and common law duties - defendant filed defence and counterclaim - insurer obliged by subpoena to produce all policies of insurance maintained under general condition of contract - insurer produced one policy and copy with parts obscured - defendant objected to inspection and copying of policy but not to inspection of redacted copy - masking done to enable reader of redacted copy to see what categories of information deleted - objection based on commercial sensitivity and irrelevance of obscured material - onus - held: no question policy relevant and plaintiff had legitimate forensic purpose - edited information related to identity of party and terms of commercial agreement - no evidence insurer was trade rival of either party to action - no evidence of any prejudice to insurer if inspection permitted - general claim that masked content was commercially sensitive not enough - objection to inspection dismissed.
Diploma [From Benchmark Friday, 16 October 2015]
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| CRIMINAL |
| Executive Summary |
| Elshani v R (NSWCCA) - criminal law - sentence appeal - trafficking marketable quantity of heroin - misapplication of State legislation rather than Commonwealth legislation - sentencing discretion exercised afresh - non-parole period quashed - non-parole period of 3 years and 3 months imposed |
| Batcheldor v R & Walsh v R - criminal law - specially aggravated kidnapping - murder - constructive murder - inadequate directions to jury - one appellant’s convictions quashed - new trial - other appellant’s appeal dismissed |
| Summaries With Link |
Elshani v R [2015] NSWCCA 254
Court of Criminal Appeal of New South Wales
Gleeson JA; Adams & Beech-Jones JJ
Criminal law - applicant pleaded guilty in Local Court to offence of trafficking marketable quantity of heroin under s302.3 Criminal Code Act 1995 (Cth) - maximum penalty was 25 years imprisonment - applicant sentenced to overall sentence of 6 years with non-parole period of 4 years - discount of 25% allowed for his early plea - applicant sought to appeal - whether mistaken application of Crimes (Sentencing Procedure) Act 1999 (NSW) - proper construction of s16A(2)(p) Crimes Act 1914 (Cth) - whether only family hardship that could be characterised as exceptional could be taken into account in determining sentence - held: sentencing judge erred in sentencing applicant in accordance with Crimes (Sentencing Procedure) Act 1999 (NSW) rather than Pt IB Crimes Act 1914 (Cth) - Court required to exercise sentencing discretion afresh in accordance with of s6(3) Criminal Appeal Act 1912 (NSW) - non-parole period quashed - non-parole period of 3 years and 3 months imposed
Elshani |
Batcheldor v R & Walsh v R [2014] NSWCCA 252
Court of Criminal Appeal of New South Wales
Bathurst CJ; Hidden & Hulme JJ
Criminal law - appellants charged jointly with specially aggravated kidnapping of Mr Digby and murder of Mr Digby - Walsh alleged to have killed Mr Digby - Batcheldor said to have been complicit - both found guilty and sentenced to imprisonment.- Batcheldor has appealed against conviction and sought leave to appeal against sentence - Walsh appealed against conviction - constructive murder - adequacy of directions to jury - held: trial judge erred in failing to direct jury as to mental element that Batcheldor contemplated infliction of actual bodily harm upon deceased as possible incident of kidnapping offence - deficiency not in relation to elements of constructive murder but in directions about Batcheldor’s complicity in specially aggravated kidnapping - directions inadequate to convey notion of being “in company” for purpose of establishing count of kidnapping - Batcheldor’s convictions set aside - new trial - Walsh’s appeal against conviction dismissed.
Batcheldor |
| Poem for Friday (Recitation here by Thomas Hellier) |
A Complaint
By William Wordsworth
There is a change—and I am poor;
Your love hath been, nor long ago,
A fountain at my fond heart's door,
Whose only business was to flow;
And flow it did; not taking heed
Of its own bounty, or my need.
What happy moments did I count!
Blest was I then all bliss above!
Now, for that consecrated fount
Of murmuring, sparkling, living love,
What have I? shall I dare to tell?
A comfortless and hidden well.
A well of love—it may be deep—
I trust it is,—and never dry:
What matter? if the waters sleep
In silence and obscurity.
—Such change, and at the very door
Of my fond heart, hath made me poor.
William Wordsworth |
