| Qasim v Health Care Complaints Commission (NSWCA) - administrative law - cancellation of registration as health practitioner - appeal dismissed - appeal against costs order allowed (I G) |
| Amprimo v Wynn (NSWCA) - succession - family provision order refused on basis appellant was not an ‘eligible person’ - appeal dismissed (B) |
| The Federal Capital Press of Australia Pty Ltd v Balzola (NSWCA) - pleadings - defamation - respondent permitted to further amend statement of claim to plead back contextual imputations - applicant’s contextual imputations struck out - leave to appeal refused (I) |
| Perera v Genworth Financial Mortgage Insurance Pty Ltd t/a Genworth (NSWSC) - pleadings - defamation - negligence - plaintiff refused leave to amend statement of claim - statement of claim struck out (I) |
| National Builders Group IP Holdings v ACN 092 675 165 Pty Ltd (In Liq) (VSCA) - discovery - defence struck out for failure to comply with orders for discovery - appeal allowed (I C) |
| Mirvac Queensland Pty Ltd v Shamrock Civil Engineering Pty Ltd (QSC) - pleadings - contract - negligence - improperly pleaded paragraphs of statement of claim struck out with leave to replead (I B C) |
| Anwar v Mondello Farms Pty Ltd (No 2) (SASCFC) - costs - failure to accept Calderbank offer did not justify order other than costs of action on party/party basis - respondent partially successful on appeal - respondent to pay 90% of appellant’s costs of appeal (I) |
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| Marcus Pesman SC and Charles Alexander on Equitable Contribution |
| Senior Counsel Marcus Pesman and Barrister Charles Alexander discuss the equitable doctrine of contribution, and a recent case in which the High Court clarified the notion of coordinate liabilities. |
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| Summaries With Link (Five Minute Read) |
Qasim v Health Care Complaints Commission [2015] NSWCA 282
Court of Appeal of New South Wales
McColl, Meagher & Ward JJA
Administrative law - costs - appellant was formerly a qualified endocrinologist and consultant physician - Occupational Division of New South Wales Civil and Administrative Tribunal cancelled appellant’s registration as health practitioner on basis appellant was not competent to practise due to mental impairment - appellant appealed against NCAT’s orders - Commission sought leave to appeal against NCAT’s costs order that appellant pay two tenths of Commission’s costs - s149C(1)(a) Health Practitioner Regulation National Law (NSW) - held: no error in finding appellant impaired by mental disorder, or in making cancellation order - NCAT’s costs discretion miscarried - NCAT approached discretion from starting point that each party should pay own costs when general rule was that costs followed event - appellant ordered to pay respondent’s costs of proceedings before NCAT.
Qasim (I G)
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Amprimo v Wynn [2015] NSWCA 286
Court of Appeal of New South Wales
McColl, Meagher & Gleeson JJA
Succession - appellant sought family provision order pursuant to s59 Succession Act 2006 (NSW) on basis she was living in de facto relationship with deceased at time of his death, or she was a person with whom deceased was living in a close personal relationship, or that he was a person on whom she was wholly or partly dependent - primary judge refused family provision order - appellant appealed - s21C Interpretation Act 1987 (NSW) - ss57, 59 Succession Act 2006 (NSW) - held: no error in primary judge’s findings that appellant and deceased were not living in a de factor relationship at time of deceased’s death, that the relationship did not constitute a close personal relationship, and that appellant was not wholly or partly dependent on deceased and at that or any other time, a member of same household as deceased - primary judge did not err in dismissing appellant’s claim on basis she was not an eligible person under s57 - appeal dismissed.
Amprimo (B)
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The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285
Court of Appeal of New South Wales
Emmett JA; Sackville AJA
Pleadings - defamation - Mahony DCJ granted respondent leave to further amend statement of claim to plead back imputations previously pleaded by applicant as contextual imputations - Gibson DCJ struck out contextual imputations from applicant’s defence to respondent’s further amended statement of claim - applicant sought to appeal against orders of Mahony DCJ and Gibson DJC - applicant contended exercise of Mahony DCJ’s discretion to permit respondent to further amend statement of claim miscarried because Mahoney DCJ paid insufficient attention to delay and to “harsh injustice” by depriving applicant of defence under s26 Defamation Act 2005 (NSW) - applicant also contended it should be permitted to challenge correctness of decision in Fairfax Media Publications v Kermode [2011] NSWCA 174 concerning whether defence of contextual truth permitted defendant to ‘plead-back’ any or all of a plaintiff’s imputations.- held: first ground of appeal did not raise issue of principle - grant of leave to appeal carried likelihood of further delay and expense without necessarily resolving real issue in dispute between parties - leave to appeal refused.
TheFederaCapitalPress (I)
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Perera v Genworth Financial Mortgage Insurance Pty Ltd t/a Genworth [2015] NSWSC 1357
Supreme Court of New South Wales
Slattery J
Pleadings - defamation - negligence - plaintiff valuer sued defendant mortgage insurer for damages for defamation and negligence - plaintiff sought to amend statement of claim - defendant sought to strike out statement of claim on basis pleaded causes of action either frivolous, vexatious or disclosed no reasonable cause of action, or had tendency to cause prejudice, embarrassment or delay in proceedings - rr13.41A, 14.28(1)(a) & (b) Uniform Civil Procedure Rules 2005 (NSW) - held: defendant’s complaints about statement of claim made out - no point allowing defendant any more time to repair pleadings - plaintiff had had 9 months to seek pro bono assistance and to amend statement of claim - plaintiff had failed to develop maintainable pleading within that time - proceedings should be struck out.
Perera (I)
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National Builders Group IP Holdings v ACN 092 675 165 Pty Ltd (In Liq) [2015] VSCA 260
Court of Appeal of Victoria
Maxwell P & Kaye JA
Discovery - primary judge struck out first defendant’s defence to first respondent’s claims on basis of persistent failure to comply with orders for discovery - first defendant sought leave to appeal on grounds primary judge erred by applying s56 Civil Procedure Act 2010 (Vic) in way that interfered with right to fair trial, that strike out order disproportionate sanction and it was unfair for it to be denied opportunity to litigate central issue concerning ownership of intellectual property - ss7(1) & 9 - held: if order allowed to stand it would lead to judgment against first defendant on basis which would be liable to be put in issue in claim by first respondent against second defendant - in addition to striking out defence primary judge had ordered first respondent be at liberty to enter judgment against first defendant - when that was done order would be made declaring first respondent the owner of disputed intellectual property - second defendant would however, be entitled to litigate question of ownership in proceeding against him and able to rely on same factual and legal arguments as first defendant would have advanced - possibility of Court’s declaration being contradicted could not be entertained - appeal allowed - order set aside.
NationalBuildersGroup (I C)
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Mirvac Queensland Pty Ltd v Shamrock Civil Engineering Pty Ltd [2015] QSC 271
Supreme Court of Queensland
Douglas J
Pleadings - negligence - contract - claims for damages arising out of failure of construction of stormwater harvesting system for landscaped area for project - defendants sought that paragraphs of statement of claim should be struck out - whether claims properly pleaded - adequacy of particulars - held: claims against defendants for breach of contract and in negligence not properly pleaded - certain paragraphs of statement struck out with leave to replead.
Mirvac (I B C)
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Anwar v Mondello Farms Pty Ltd (No 2) [2015] SASCFC 136
Full Court of the Supreme Court of South Australia
Kourakis CJ; Gray & Stanley JJ
Costs - Court allowed appellant’s appeal and increased award of damages - appellant sought costs of appeal and costs of action below on solicitor/client basis due to Calderbank offer - respondent sought appellant have costs of action and 90 per cent of costs of appeal - respondent opposed order that it pay costs of action on solicitor/client basis - s33 Civil Liability Act 1936 (SA) - s40(1) Supreme Court Act 1935 (SA) - ) rr264(1), 263(3) & 263(1) Supreme Court Civil Rules 2006 (SA) - held: respondent’s failure to accept Calderbank offer did not justify award of costs other than on usual party/party basis - respondent had been partly successful on appeal - appropriate award in respect of costs of appeal was that respondent should pay appellant 90 per cent of his costs.
Anwar (I)
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