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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

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AR Conolly & Company

Benchmark Podcast: Friday, 24 April 2015

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Case Summaries

Independent Commission Against Corruption v Cunneen [2015] HCA 14
High Court of Australia
French CJ; Hayne, Kiefel, Gageler & Nettle JJ              
Administrative law - statutory interpretation - ICAC decided to investigate first respondent Deputy Senior Crown Prosecutor - Prosecutor challenged inquiry on basis allegations could not constitute corrupt conduct under s8(2) Independent Commission Against Corruption 1988 (NSW) - meaning of expression adversely affects, or that could adversely affect ... the exercise of official functions by any public official in definition of corrupt conduct in s8(2) - ss2A, 8, 9, 12A -  held (by majority; Gageler J dissenting): preferred meaning of adversely affect was “adversely affect or could adversely affect the probity of the exercise of an official function by a public official” -  not disputed that if expression had this meaning then the alleged conduct was not corrupt conduct within meaning of s8(2) - Commission had no power to investigate alleged conduct - special leave to appeal granted - appeal dismissed.
ICAC (I B G)
[From Benchmark 16 April 2015]

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    Duncan v NSW; NuCoal Resources Ltd v NSW; Cascade Coal Pty Ltd v NSW [2015] HCA 13
    High Court of Australia
    French CJ; Hayne, Kiefel, Bell, Gageler, Keane & Nettle JJ
    Constitutional law - special case - questions for determination - three proceedings challenging validity of provisions of Sched 6A Mining Act 1992 (NSW) inserted into Mining Act by Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) which cancelled three exploration licences without compensation - Amendment Act was enacted following consideration by New South Wales Parliament of reports of ICAC investigations - proceedings brought by the corporate licensees of two of the cancelled exploration licences, their parent company and one of its former directors, and the parent company of the corporate licensee of the other cancelled exploration licence - held: validity of provisions upheld - Amendment Act was a law within competence of New South Wales Parliament - Amendment Act did not involve exercise of judicial power so the existence and scope of an implied limitation on the ability to exercise judicial power did not arise for consideration.
    Duncan (I B C G)
    [From Benchmark 17 April 2015]

    Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94
    Court of Appeal of New South Wales
    Bathurst CJ, Beazley P & Barrett JA
    Trade practices - consumer protection - franchisees operated owner managed branches of bank in New South Wales - franchisees operated owner - branches closed or were taken over by bank - franchisees claimed bank engaged in misleading or deceptive conduct or unconscionable conduct in contravention of Trade Practices Act 1974 (Cth) or Fair Trading Act 1987 (NSW) as in force at the relevant time and that they thereby suffered loss or damage - claims also brought in negligence including negligent misstatement, and claims based on Industrial Relations Act 1996 (NSW) - primary judge found no franchisees entitled to relief - “with respect to any future matter”- silence - “pre-opening non-disclosure” - held: “target statements” and “break-even statements” made by bank were not representations as to future matters within meaning of s51A Trade Practices Act - no reasonable expectation in the circumstances that information about actual financial performance of established owner managed branches in New South Wales - franchisees did not establish error in primary judge’s conclusions that bank contravened s52 Trade Practices Act or s42 -  the Fair Trading Act - appeal dismissed.
    Traderight (I B)
    [From Benchmark 16 April 2015]

    Rockdale City Council v Simmons [2015] NSWCA 102
    Court of Appeal of New South Wales         
    Beazley P; McColl & Barrett JJA
    Negligence - respondent injured while riding bicycle through carpark adjacent to club when he struck boom gate which was closed across entrance - plaintiff sued council and club - primary judge found council liable - contributory negligence assessed at 20% - s5B Civil Liability Act 2002 (NSW) - held: primary judge did not err in finding council owed duty of care to respondent or that it breached duty of care - no error in finding of causation or in finding council was not exercising “special statutory power” under s43A - no error in refusal to find club owed duty of care to respondent - primary judge erred in finding of contributory negligence - appeal dismissed - cross-appeal allowed in part.
    Rockdale (I)
    [From Benchmark 20 April 2015]

    Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd[2015] NSWCA 100
    Court of Appeal of New South Wales
    Macfarlan, Emmett & Gleeson JJA
    Real property - equity - corporations - mortgages - applicant was registered proprietor of land resumed by second respondent (Transport NSW) - proceeding concerned entitlement to compensation under Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (JTA) - at time of acquisition applicant had been deregistered under s601AB(2)Corporations Act 2001 (Cth) - prior to acquisition first respondent contracted to buy resumed land from company (Stacks) which was exercising power of sale under registered mortgage over resumed land granted by applicant (first mortgage) - dispute between applicant and first respondent concerned which of them was entitled to compensation under JTA - part of compensation had been paid by Transport NSW to Stacks and to another company (RTS), which was mortgagee under a second registered mortgage over resumed land granted by applicant - held: trial judge erred in dealing with question whether Stacks breached duty to applicant in exercising power of sale under first mortgage - leave to appeal granted - appeal allowed - matter remitted to Land and Environment Court to determine respective interests that applicant and first respondent had in resumed land.
    Golden (I B C)
    [From Benchmark 20 April 2015]

    Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99
    Court of Appeal of New South Wales
    McColl, Macfarlan & Barrett JJA
    Damages - defamation - action arising out of review published by respondents of restaurant conducted by appellants  - judgment given in respondents’ favour (liability judgment) - Court of appeal upheld appellants’ appeal - matter remitted for assessment of damages - appellants contended primary judge’s award of damages was inadequate and that primary judge erred by not back-dating judgment to date of liability judgment - respondents contended primary judge erred in consideration of plea in mitigation of damages and that award of damages excessive - held: primary judge erred in award of aggravated damages by failing to take into account respondents’ failure to apologise and imputations’ falsity - primary judge erred in failing to back-date judgment - primary judge erred by not ordering first respondent to pay exemplary damages for continuing publication of review - primary judge erred in failing to conclude certain statements by reviewer were statements of fact relevant to appellants’ reputations and contextual background - compensatory damages and exemplary damages increased - damages reduced for mitigation factors - appeal allowed - cross-appeal allowed.
    Gacic (I)
    [From Benchmark 20 April 2015]

    State of New South Wales v Shaw [2015] NSWCA 97
    Court of Appeal of New South Wales
    Beazley P; Ward & Gleeson JJA
    Contract - respondents appointed as probationary teachers assigned to school - NSW deemed to be employer under s42 Teaching Services Act 1980 (NSW) - respondents’ probationary appointments annulled pursuant to s48(2) - determination made pursuant to s48(4) that they ceased to be employed by NSW Education Teaching Service - respondents claimed damages against NSW for breach of employment contracts - primary judge found NSW breached term of mutual trust and confidence implied into the contracts of employment but awarded no damages - primary judge rejected appellants’ claim contracts were repudiated and found that even if they were repudiated,  respondents’ conduct was inconsistent with acceptance of repudiation - primary judge awarded costs in respondents’ favour - parties appealed and cross-appealed - held: no term of mutual trust and confidence or duty of good faith  implied into contracts - primary judge erred in finding provisions of Teacher’s Handbook incorporated into contracts - appeal allowed - cross-appeal dismissed. 
    Shaw (I B)
    [From Benchmark 21 April 2015]

    Riverwood Legion & Community Club Ltd v Repaja & Co Pty Ltd [2015] NSWSC 383
    Supreme Court of New South Wales
    Stevenson J
    Equity - fourth defendant was CEO of plaintiff club - proceedings arising out of payment CEO caused club to make into bank account of first defendant company - second defendant was director of company - club claimed CEO had no authority from club to make payment and acted in breach of contractual duty of fidelity to club, fiduciary duties of loyalty to club and and his obligations pursuant to ss180, 181 and 182 Corporations Act 2001 (Cth) - in effect club contended CEO stole the money from the club - held: Court satisfied CEO stole the money - funds belonged to club -  director and company knew CEO misappropriated the money -  director did not invest stolen funds on CEO’s behalf but used them to pay amount at fifth defendant’s direction purportedly in “repayment” of funds fifth defendant advanced to director -  club entitled to relief sought against director of company, company, CEO and fifth defendant - club and fifth defendant were both victims of director’s fraudulent activities - club also victim of CEO’s fraudulent activities - fifth defendant must bear burden of loss caused by fraudulent conduct subject to right of recovery from director and company
    Riverwood (I B)
    [From Benchmark 16 April 2015]

    White v The Local Health Authority [2015] NSWSC 417
    Supreme Court of New South Wales
    Slattery J
    Mental health - habeas corpus - plaintiff being kept against will in Adult Mental Health Unit since November 2013 - plaintiff neither “mentally ill person” or “mentally disordered person” under Mental Health Act 2007 (NSW) - plaintiff with assistance of tutor sought order in nature of habeas corpus under s61 Supreme Court Act 1970 (NSW) for release and alternatively under s166 Mental Health Act - operation of Guardianship Act 1987 (NSW) and Mental Health Act - whether Public Guardian authorised under Guardianship Act and Mental Health Act to make decision to admit plaintiff to facility - whether power validly exercised on the evidence - held: plaintiff entitled to be released - Court had grave misgivings about releasing plaintiff without plan for immediate future - Court prepared to grant short stay to enable parties to consult concerning plan for plaintiff.
    White (I B)
    [From Benchmark 17 April 2015]

    Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd[2015] NSWSC 435
    Supreme Court of New South Wales
    Campbell J
    Negligence - work injury damages - plaintiff part-time merchandiser sued Woolworths and employer in separate proceedings for injuries suffered in course of employment in collision with trolley at supermarket -  Woolworths and employer cross-claimed against the other -  5B Civil Liability Act 2002 (NSW) - held: no breach of duty of care by Woolworths as occupier - collision occurred because neither customer or plaintiff looked where they were going as ordinary care usually required - employer not negligent - plaintiff’s accident resulted from failure of her and customer to see each other - judgment for defendants. 
    Vincent (I)
    [From Benchmark 21 April 2015]

    Blue Concept Pty Ltd v Farnan [2015] VSC 125
    Supreme Court of Victoria
    McDonald J
    Real property - restrictive covenant - plaintiff property developer was registered proprietor of land - plaintiff wished to erect multi-apartment development on land - defendants opposed development - plaintiff sought declaration that obligations created by covenant expired prior to it becoming registered proprietor - s84  Property Law Act 1958 (Vic) - held: obligations created by covenant continued to bind plaintiff - amendments to covenant were in lieu of those created by original covenant - amended covenant precluded construction of multi-apartment development - application dismissed.
    Blue (B C)
    [From Benchmark 22 April 2015]

    Matton Developments Pty Ltd v CGU Insurance Ltd (No 2) [2015] QSC 72
    Supreme Court of Queensland
    Flanagan J
    Insurance policy - contractors and plants insurance - insurance company refused to indemnify crane owner for damage to crane when boom collapsed - competing hypotheses concerning circumstances in which boom collapsed - construction of policy - operation of exclusion clauses - ss13 & 54 Insurance Contracts Act 1984 (Qld) - held: policy did not respond to plaintiff’s claim - allegation that insurance company breached the contract of insurance failed - claim dismissed.
    Matton (I B C)
    [From Benchmark 16 April 2015]

    Hayes v Hayes [2015] QSC 88
    Supreme Court of Queensland
    Boddice J
    Succession - plaintiff claimed provision from estate of deceased father pursuant to s41 ofSuccession Act 1981 (Qld) - plaintiff also sought declaration that at date of death father had interest in real property - separate determination of claim for declaratory relief - plaintiff submitted that money paid by parents for construction of house on the second defendant sister’s property were advanced by way of loan and consequently, father had equitable interest in the property - equitable considerations arising from advancing of funds by parent to child - characterisation of parents’ payments - held: Court satisfied funds advanced to second defendant for construction of house and its ongoing costs were gift subject to common endeavour - property owned by the second defendant, legally and beneficially, in its entirety - conclusion consistent with terms of the deceased’s Wills - declaratory relief refused.
    Hayes (B)
    [From Benchmark 22 April 2015]

    Brozinic v The Federal Capital Press Pty Ltd t/as The Canberra Times [2015] ACTCA 8
    Court of Appeal of the Australian Capital Territory
    Burns & Gilmour JJ; Cowdroy AJ
    Negligence - appellant cleaning supervisor injured while entering premises of company when struck by fire door being opened by company’s employee - plaintiff settled claim against employer in relation to injuries suffered in door incident and previous work injury - plaintiff alleged company negligent by not installing door with window through which persons approaching the door might be viewed - Master found no breach of duty by company - appellant appealed - held: Master correctly applied test for negligence in s 42Civil Law (Wrongs) Act 2002 (ACT) - mere fact that risk of injury present on company’s premises not sufficient to render company liable - there was absence of evidence to justify conclusion company could have, or should have, taken measures to avoid risk of injury when risk was not significant on evidence - appeal dismissed. 
    Brozinic (I)
    [From Benchmark 22 April 2015]

    Criminal
    Gall v R; Gall v R [2015] NSWCCA 69
    Court of Criminal Appeal of New South Wales
    Hoeben CJ at CL, R A Hulme J & Davies J
    Criminal law - Bruce and Kevin Gall convicted and sentenced in relation to murder and attempted shooting of two members of motorcycle club - Kevin Gall (KG) convicted for murder and sentenced to 33 years imprisonment with non-parole period of 24 years - KG appealed against conviction on basis trial judge failed to properly direct jury, and against sentence on basis it was manifestly excessive, that elements of provocation not sufficiently taken into account, and that there should have been greater concurrency in sentences - Bruce Gall appealed against his conviction as accessory after fact to murder on basis jury not sufficiently directed as to requirements for conviction for accessory to murder as opposed to manslaughter - BG also appealed against sentence of 6 years imprisonment with non-parole period of 4 years and 6 months on grounds relating to trial judge’s findings and degree of accumulation of three sentences -  held: primary judge gave clear, accurate and comprehensive directions in relation to KG’s conviction - despite error in directions to jury in relation to BG’s conviction BG had not lost real chance of being convicted of lesser offence - no substantial miscarriage of justice - findings on sentencing open to primary judge - appeals dismissed. 
    Gall

    R v Wallace [2015] QCA 62
    Court of Appeal of Queensland
    McMurdo P, Gotterson JA & Douglas J
    Criminal law - applicant pleaded guilty to six counts of fraud over $30,000 as an employee and one count of fraud over $30,000 - applicant sentenced to effective term of 12 years imprisonment with parole eligibility after five years - applicant sought leave to appeal contending sentence is manifestly excessive - applicant also sought to adduce evidence not adduced at sentence - held: applicant was exhibiting behavioural disturbances following prolonged and significant physical and emotional abuse, which took offending behaviour out of worst category of fraudulent offending in which sentencing judge placed it - further evidence raised possibility some other sentence may be warranted - if so its exclusion would result in a miscarriage of justice - most compelling mitigating feature was that applicant’s offending was committed whilst her thinking was disordered because she was victim of sustained spousal abuse -  sentence of 11 years imprisonment should be imposed to reflect objective seriousness of offending but with parole eligibility after three years to reflect various significant mitigating features - appeal allowed.
    Wallace
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