Benchmark Logo.

AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Published by
AR Conolly & Company

Friday, 6 February 2015

Case Summaries

Miao v Michell [2015] FCA 22
Federal Court of Australia
Beach J
Bankruptcy - applicant applied pursuant to s178(1) Bankruptcy Act 1966 (Cth) to review trustee’s to refuse consent for her to overseas travel in accordance with s272(1)(c) - Federal Circuit Court judge refused application - held: consent to overseas travel should be given - reasons for overseas travel were genuine - trip was only for short time - applicant prepared to give undertaking to Court to return to Australia on request by trustee - not a situation where there might be considered to be incentives for applicant not to return - given applicant had now completed Statement of Affairs, overseas trip would not unduly impede administration of estate - although trustee’s decision on material before him was reasonable, changed circumstances justified setting aside decision - applicant permitted to leave Australia subject to undertakings and conditions.
Miao (B G)
[From Benchmark 4 February 2015]
Read full summaries »
    Coffey Information Pty Ltd v Cullen [2015] FCA 28
    Federal Court of Australia
    Farrell J
    Preliminary discovery - prospective applicant sought order for discovery against prospective respondents on basis of alleged use of confidential information by departing employees - r7.23 Federal Court Rules 2011 (Cth) - reasonable belief of right to obtain relief - reasonableness of enquiries - conduct relied upon - sufficiency of information to start proceedings - held: necessary for Court to consider position of each individual respondent - applicant had used proceedings as an alternative to enquiries which were necessary to satisfy requirements of r7.23 - applicant did not satisfy requirements of r7.23 - application dismissed.
    Coffey Information Pty Ltd (I B)
    [From Benchmark 5 February 2015]
     
    Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7
    Kenny, Besanko & White JJ
    Judicial review - appellant was senior coach of football club licensed by AFL to enter team in competition - CEO of Australian Sports Anti-Doping Authority (ASADA) made decision to issue notices under cl4.07A National Anti-Doping Scheme (NAD Scheme) to current and former players for football club as part of investigation in cooperation with AFL into supplements program implemented by club - primary judge dismissed applications for judicial review - held: investigation conducted by ASADA in cooperation with AFL was authorised by the Australian Sports Anti-Doping Authority Act 2006 (Cth), Regulations made under that Act, and NAD Scheme - manner in which ASADA conducted investigatory interviews was within contemplation of legislative scheme - no improper purpose - no unlawful disclosure of NAD Scheme personal information by ASADA to the AFL - CEO did not facilitate abrogation of interviewees’ common law rights to privileges against self-incrimination or exposure to penalty - no practical unfairness to appellant or players - appellant failed to establish that information on which CEO based decision to issue notices under cl4.07A was unlawfully obtained - challenge to notices failed - appeal dismissed.
    Hird (I B G)
    [From Benchmark 3 February 2015]
     
    Zheng v Wallace [2015] NSWSC 3
    Supreme Court of New South Wales
    Price J
    Negligence - motor vehicle accident - contributory negligence - plaintiff driver injured in collision at intersection with prime mover driven by defendant - plaintiff obliged to give way to prime mover - plaintiff claimed driver of prime mover negligent in failing to moderate operation of prime mover after motor vehicle moved into intersection - ss5B, 5C, 5K Civil Liability Act 2002 (WA) - Motor Vehicle (Third Party Insurance) Act 1943 (WA) - held: defendant breached duty of care to plaintiff by failing to sound prime mover’s horn to alert plaintiff to his oncoming vehicle - reasonable driver in plaintiff’s position would not have proceeded onto highway and would have remained at give way line - plaintiff grossly negligent by proceeding onto highway - plaintiff’s very high degree of departure from standard of care prime reason for collision - contributory negligence 80% - judgment for plaintiff.
    Zheng (I)
    [From Benchmark 2 February 2015]
     
    Steiner v Strang [2015] NSWSC 14
    Supreme Court of New South Wales
    Ball J
    Wills - plaintiff beneficiary of deceased mother’s estate sought pursuant to s84 Probate and Administration Act 1898 (NSW) that defendant executors make further distributions of plaintiff’s pecuniary legacy - effect of unresolved Court proceedings on potential size of estate - unquantified liabilities of estate - held: prudent for executors to retain balance of pecuniary legacy payable to plaintiff until remaining court proceedings resolved and precise liabilities of estate could be determined - interim distribution refused.
    Steiner (B)
    [From Benchmark 5 February 2015]
     
    Baldwin v Icon Energy Ltd [2015] QSC 12
    Supreme Court of Queensland
    P McMurdo J
    Pleadings - contract - parties entered memorandum of understanding (MOU) to the end of entering into gas supply agreement - no gas supply agreement concluded - plaintiff sued defendants, claiming they did not negotiate as they promised in MOU - defendants sought to strike out statement of claim on basis it disclosed no reasonable cause of action or was otherwise an abuse of process -  rr171(1)(a) & 171(1)(e) Uniform Civil Procedure Rules 1999 (Qld) - held:  promises within clauses of MOU were uncertain and unenforceable - promises within one clause taken alone were enforceable - open to plaintiff to make claim for damages for breach of terms in that clause but plaintiff had made no distinct claim - claim for loss and damage deficiently pleaded - statement of claim struck out.
    Baldwin (I B C)
    [From Benchmark 5 February 2015]
     
    Z487 Ltd v Skelton [2014] QSC 309
    Supreme Court of Queensland
    Atkinson J
    Private international law - first defendant was horticulturalist who bred kiwifruit in New Zealand - horticulturalist entered licence agreement with plaintiff company - director of company who negotiated agreement lived and worked in Australia - company sought declaration license agreement not validly terminated - horticulturalist sought declaration pursuant to s17 Trans-Tasman Proceedings Act 2010 (Cth) that claim not properly starte­­­d for want of jurisdiction, order setting aside claim, and stay of proceeding, on ground New Zealand court was more appropriate forum - held: there was exclusive choice of court agreement between parties which designated Australian court to determine matters in issue - exclusive choice of court agreement not null and void - pursuant to s20(1)(b) Court must not stay proceeding before it - horticulturalist not entitled to any relief - application dismissed.
    Z487 Ltd (I B)
    [From Benchmark 4 February 2015]
     
     
     
    Tipene v The Owners Strata Plan 9485 [2015] WASC 30
    Supreme Court of Western Australia
    Corboy J
    Strata titles - parties owned townhouses which formed two buildings - registered proprietors of nine lots under strata plan formed strata company - appellants were registered proprietors of lots in building B - appellants sought approval from strata company to demolish building B and contract new townhouses - respondents were registered proprietor of lots in Building A - respondents objected to application - State Administrative Tribunal dismissed application for order under s103F Strata Titles Act 1985 (WA) that approval for purpose of s7(2) STA be deemed to have been given by strata company - SAT claimed it did not have jurisdiction to make order as redevelopment proposal required building B to be demolished -held: SAT did not have jurisdiction over application because of effect that demolition of a building that formed boundaries or part of the boundaries of a lot would have on proprietary interests of lot owners who comprised affected strata scheme - appeal dismissed.
    Tipene (I C G)
    [From Benchmark 3 February 2015]
     
    Gluyas v Canby [2015] VSC 11
    Supreme Court of Victoria
    J Forrest J
    Defamation - undefended trial - plaintiff alleged defendant defamed him in series of internet blogs - defendant was resident of United States - held: Court satisfied publications made by defendant - imputations defamatory of plaintiff - plaintiff entitled to award of damages to vindicate reputation and standing - evidence established only few people had seen publications but Court conscious there might by grapevine effect - claim for economic loss for ‘mental harm’ dismissed as it was not raised in statement of claim.
    Gluyas (I)
    [From Benchmark 2 February 2015]
     
    Wilson v Ferguson [2015] WASC 15
    Supreme Court of Western Australia
    Mitchell J
    Equity - breach of confidence - parties were formerly in romantic relationship - plaintiff alleged defendant posted photographs and video on Facebook depicting explicit images of her as result of her decision to terminate relationship - plaintiff claimed injunction restraining defendant from further publication of photographs and videos and damages - s25(1) Supreme Court Act 1935 (WA) - O34 r2 & O34 r4 Rules of the Supreme Court 1971 (WA) - held: Court satisfied publication occurred in breach of equitable obligation of confidence owed by defendant to plaintiff to maintain confidentiality of images - injunction granted prohibiting further publication of images - plaintiff granted equitable compensation including for the humiliation, anxiety and distress which resulted from the publication.
    Wilson (I)
    [From Benchmark 2 February 2015]

« Read Less

Podcast Archive