| Corby v Comcare (FCA) - administrative law - refusal of claim for compensation - no failure by Tribunal to consider submission of substance - appeal dismissed |
| Fairfax Media Publications v Zeccola (NSWCA) - defamation - erroneous striking out of default contextual imputations - appeal allowed |
| Schultz v McCormack (NSWCA) - negligence - occupier’s liability - slip and fall on tiled floor - erroneous failure to find breach of duty of care - no contributory negligence - appeal allowed |
| Lazare v City of Sydney Council (NSWSC) - transfer of personal injury proceedings from District Court to Supreme Court refused |
| APX Projects Pty Ltd v The Owners – Strata Plan No. 64025 (No. 2) (NSWSC) - costs - letter was not offer of compromise - no basis for indemnity costs arising from late amendment of pleadings or failure to resolve dispute using mechanisms under Strata Schemes Management Act 1996 (NSWSC) |
| Toohey v Pumpa Engineering Pty Ltd (VSC) - costs - settlement of claim for injuries arising out of industrial accident - appropriate to fix counsel’s fees |
| Summaries With Link (Five Minute Read) |
Corby v Comcare [2015] FCA 1124
Federal Court of Australia
White J
Administrative law - Comcare refused applicant’s claims for compensation - Administrative Appeals Tribunal affirmed Comcare’s decisions -- whether AAT failed to consider a submission of substance which was capable of affecting outcome of case if accepted - whether failure to consider claim that applicant’s employment had contributed in significant degree to claimed conditions or their aggravation - s28 Administrative Appeals Tribunal Act 1975 (Cth) - ss5A, 5B, 7 & 14 Safety, Rehabilitation and Compensation Act 1988 (Cth) - held: AAT had addressed matters on which applicant had relied, and had rejected them - appeal dismissed.
Corby
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Fairfax Media Publications v Zeccola [2015] NSWCA 329
Court of Appeal of New South Wales
McColl & Macfarlan JJA; Sackville AJA
Defamation - contextual truth - respondents sued appellants for defamation in respect of article published in Australian Financial Review - appellants pleaded justification pursuant to s25 Defamation Act 2005 (NSW) in respect of imputations and also contextual truth to each matter complained of - respondents sought to strike out default contextual imputations and reasonable suspicion contextual imputations pursuant to r14.28 Uniform Civil Procedure Rules 2005 (NSW) - primary judge struck out default imputations on basis she was not persuaded they were more serious, different allegations than combination of plaintiffs’ imputations - primary judge struck out reasonable grounds to suspect imputations on basis they conflated concept of a sting of imputation and the force with which it was conveyed - construction of s26 - held: no error in striking out reasonable grounds to suspect imputations or in striking out contextual imputations in advance of trial - primary judge erred in striking out default contextual imputations because there was not a “difference in kind” from respondents’ imputations and sting was not of different kind - leave to appeal granted - appeal allowed.
Fairfax
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Schultz v McCormack [2015] NSWCA 330
Court of Appeal of New South Wales
McColl & Macfarlan JJA; Beech-Jones J
Negligence - occupier’s liability - appellant injured when she slipped and fell on tiled floor which was top step of verandah of respondents’ home - appellant failed in claim for damages for negligence against respondents - obvious risk - s5F(1) Civil Liability Act 2002 (NSW) - held: primary judge’s description of risk of harm sufficient - primary judge erred in is attributing the perception that the porch may have been wet due to wind-blown rain to reasonable person in the appellant’s position - primary judge erred in failing to find respondents breached duty of care - not open to primary judge to make finding of contributory negligence against appellant - appeal allowed - judgment for plaintiff in sum of $750, 000.
Schultz
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Lazare v City of Sydney Council [2015] NSWSC 1546
Supreme Court of New South Wales
Bellew J
Transfer of proceedings - plaintiff sought that two separate sets of personal injury proceedings she brought against four defendants in District Court be transferred to this Court - procedural history of proceedings - delay in bringing application - plaintiff’s failure to comply with Court orders - likely award of damages to plaintiff - ss140, 56 & 58 Civil Procedure Act 2005 (NSW) - held: delay and failures to comply with orders were not determinative - Court not satisfied it was likely plaintiff’s damages would exceed jurisdictional limit of District Court - transfer of proceedings refused - summons dismissed.
Lazare
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APX Projects Pty Ltd v The Owners – Strata Plan No. 64025 (No. 2) [2015] NSWSC 1572
Supreme Court of New South Wales
Slattery J
Costs - second defendant was treasurer of owners corporation - second defendant successfully defended plaintiff’s attempt to sue him in name of owners corporation - second defendant sought indemnity costs on basis of offer of settlement by letter, late amendment of pleading and Court’s finding that plaintiff should have brought claim before NCAT Adjudicator rather than Court - s98(1)(c) Civil Procedure Act 2005 (NSW) - s226 Strata Schemes Management Act 1996 (NSW) (Management Act) - rr15.3, 42.1 & 42.2 Uniform Civil Procedure Rules 2005 (NSWSC) - held: letter was not an offer of compromise or offer at all - late amendment did not provide basis for indemnity costs - no basis for indemnity costs arising from failure to resolve dispute using Management Act’s mechanisms - indemnity costs refused - defendant’s costs assessed on ordinary basis.
APX Projects
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Toohey v Pumpa Engineering Pty Ltd [2015] VSC 589
Supreme Court of Victoria
Riordan J
Costs - plaintiff claimed damages for injuries arising out of an industrial accident - claim settled - dispute concerned determination of counsel’s fees - whether brief fees for counsel should be fixed - rr63.07 & 63.82(1) Supreme Court (General Civil Procedure) Rules 2005 (Vic) - interaction between Appendix A, Ch 1 of the Rules and s134AB(29) Accident Compensation Act 1985 (Vic) - held: Court found it was appropriate to fix fees - orders made.
Toohey
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