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Benchmark Podcast: Friday, 10 July 2015

Daily Composite

Daily Insurance

Weekly Law Review

Case Summaries

May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93
Full Court of the Federal Court of Australia
Allsop CJ; Kenny, Besanko, Robertson & Mortimer JJ
Administrative law - workers compensation - appellant joined Royal Australian Air Force (RAAF) and shortly after suffered from symptoms or condition - Administrative Appeals Tribunal concluded appellant had not suffered an ‘injury’ for purposes of s14 Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) and that respondent Military Rehabilitation and Compensation Commission was not liable to pay him compensation under the SRC Act - primary judge found appellant had not identified any legal error in the AAT’s decision - appellant appealed from primary judge’s decision and sought judicial review - held: appellant established error in primary judge’s decision - certain questions of law identified by appellant should be answered favourably to appellant - appropriate for another Tribunal to consider whether appellant had suffered injury within meaning of s4 SRC Act and whether injury arose out of or in the course of his employment - appeal allowed.
May (I G)
[From Benchmark Friday, 3 July 2015]

Read full summaries »

Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
Federal Court of Australia
White J
Defamation - action arising from articles published by newspapers in print and online regarding Federal Treasurer - Federal Treasurer sued publishers of newspapers alleging that articles and Sydney Morning Herald (SMH) poster conveyed defamatory imputations - publishers denied articles conveyed pleaded imputations and contended defence of qualified privilege was applicable in any event - Pt XX Commonwealth Electoral Act 1918(Cth) - s22 Defamation Act 1974 (NSW) - s30 Defamation Act 2005 - Defamation Amendment Act 2002 - held: Federal Treasurer’s claim that SMH poster and two matters published on Twitter by The Age with words “Treasurer for Sale” and “Treasurer Hockey for Sale” were defamatory - publishers did not make out claims of qualified privilege - even if defence of qualified privilege had been available it would have been defeated by malice actuating publication - remaining claims not established - damages awarded to Federal Treasurer in sum of $120,000 for SMH poster and $80,00 in respect of the two tweets.
Hockey (I)
[From Benchmark Thursday, 2 July 2015]

Chand v Commonwealth Bank of Australia [2015] NSWCA 181
Court of Appeal of New South Wales
Bathurst CJ, Beazley P & Ward JA
Contract - appellant claimed against bank for loss sustained following bank’s failure to implement redemption request in relation to investments he made through bank’s subsidiary - investments rated high risk and were highly geared - primary concluded appellant was not entitled to more than nominal damages for bank’s admitted breach of contract because no actual loss suffered and prospective loss could have been entirely avoided by appellant - primary judge dismissed claim - causation - mitigation - held: primary judge correctly analysed bank’s liability for actualisation of prospective loss - cause of prospective loss becoming real was appellant’s deliberate, voluntary and informed decision not to issue further redemption request - appeal dismissed.
Chand (B)
[From Benchmark Friday, 3 July 2015]

The Gateway at Ryde Pty Ltd v Ryde Ex-Services Memorial & Community Club Ltd[2015] NSWCA 184
Court of Appeal of New South Wales
Meagher JA
Corporations - applicant sought leave under s444E(3) Corporations Act 2001 (Cth) to appeal from decision of primary judge in Re Ryde Ex-Services Memorial & Community Club Limited [2015] NSWSC 226 - whether leave should be granted to enable applicant to proceed with its appeal so that if it was successful and obtained further grant of leave, it may then proceed to enforce alleged agreement it had with Club - held: no utility in granting leave to prosecute appeal unless Court satisfied there was sufficiently serious question to be tried in relation to applicant’s underlying claim - Court not satisfied there a serious question to be tried - notice of motion dismissed.
TheGateway (B)
[From Benchmark Monday, 6 July 2015]

Cavric v Willoughby City Council [2015] NSWCA 182
Court of Appeal of New South Wales
Basten, Meagher & Emmett JJA
Highways - negligence - real property - appellant wheeling trolley laden with shopping and child - front wheel on trolley hit “pothole” - trolley tilted - appellant inured when she fell seeking to stop trolley overturning - appellant sued Council for negligent maintenance of car park - trial judge dismissed claim on basis car park was public road by operation of s249(1) Roads Act 1993 with result Council protected by s45 Civil Liability Act 2002 - if car park did not constitute public road appeal must be upheld - statutory scheme - continued operation of common law - whether conveyance effected dedication of a road - evidence of public use - ‘is evidence that the place is or forms part of a public road’ - held: trial judge misunderstood s249(1) as providing freestanding test as to whether place was public road - s249 was no more than an evidentiary provision describing evidence which was admissible to prove a place was or formed part of that public road - s249 was subject to constraint imposed by s178 Conveyancing Act 1919 - in circumstances where there was no other evidence besides public use, trial judge should have found status of place where accident occurred as a public road was not established - appeal allowed.
Cavric (I C)
[From Benchmark Tuesday, 7 July 2015]

Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (No 3) [2015] NSWSC 857
Supreme Court of New South Wales
Schmidt J
Costs - Court made orders in favour of doctor - doctor sought order for costs and also indemnity costs on basis of offer of compromise - Pel-Air claimed offer did not comply with r20.26 Uniform Civil Procedure Rules 2005 - doctor claimed words of offer made on his behalf were words ‘uniformly used in a judgment’ and could be used in a judgment disposing of claim - held: proposed orders for disposal of doctor’s claim not specified in order made as r20.26 required - r20.26 did not apply - however this did not mean offer could not be relied on - offer did not technically comply with requirements of new r20.26 but it offered a real compromise accompanied by reasonable period for acceptance - offe capable of acceptance and admissible under s131 Evidence Act 1995 on a costs application - rejection of offer was unreasonable - indemnity costs granted
Casey (I)
[From Benchmark Thursday, 2 July 2015]

Cassegrain v Gerard Cassegrain & Co Pty Ltd (in liq) [2015] NSWSC 851
Supreme Court of New South Wales
Bergin CJ in Eq
Equitable compensation - Referee’s report - parties disagreed whether report of referee should be adopted - report concerned inquiry into existence and quantum of loss to company due to transfer of shares at undervalue for purposes of making orders for equitable compensation - Referee determined that defendants were required to pay $2,596,039 in equitable compensation - liquidator sought order that report be adopted pursuant to r20.24 Uniform Civil Procedure Rules 2005 and sought orders including order for payment of compensation - held: Court not satisfied there was any requirement imposed on Referee by Court in respect of date for assessment of equitable compensation - contentions concerning market for shares failed - no error in valuation of property - complaints regarding Referee’s analysis and conclusions in respect of evidence not made out - Referee’s approach to loss to company not a reason to reject report - Court not satisfied Referee erred in exercise of discretion - report adopted - defendants to pay equitable compensation.
Cassegrain (I B)
[From Benchmark Friday, 3 July 2015]

Ransley v Chubb Insurance Company of Australia Ltd [2015] NSWSC 854
Supreme Court of New South Wales
Ball J
Contract - insurance - plaintiff was former director of company required to give evidence at public inquiry by ICAC into grant to company of licence coal mining tenement - plaintiff sought declaration that insurer was liable to indemnify him for legal costs incurred under Directors and Officers Liability policy issued to company - insurer did not dispute it was liable to indemnify director but claimed that its maximum aggregate liability for all claims for costs under Policy was $2,000,000 of which it had already paid $1,248,377.83 leaving $751,622.17 to meet all outstanding claims, including director’s - determination of separate questions - insurer’s maximum liability under Policy in respect of each claim made by Insured under Insuring Clause 1D of Policy? - maximum aggregate liability under Policy in respect of claims made by Insureds under Insuring Clause 1D of Policy - held: insurer’s maximum liability depended on extent to which Limit of Liability specified in Schedule had been eroded by claims for Legal Representation Expenses already paid by insurer - insurer’s liability did not exceed $1 million in aggregate - separate questions answered.
Ransley (I B)
[From Benchmark Monday, 6 July 2015]

Laing O'Rourke Australia Construction Pty Ltd v Samsung C & T Corporation[2015] WASC 237
Supreme Court of Western Australia
Mitchell J
Construction contract - parties entered into a Subcontract - Samsung terminated subcontract for convenience - parties entered into an 'Interim Deed' which provided Samsung make payments to Laing O’Rourke - one payment made under Interim Deed - adjudicator appointed under Construction Contracts Act 2004 (WA) determined Samsung must pay Laing O’Rourke amount - Samsung sought to quash determinations for jurisdictional error - held: adjudicator committed jurisdictional error by failing to resolve payment disputes by reference to terms of Subcontract before him - adjudicator misapprehended nature of his function - determinations not authorised by Act and invalid - leave to enforce the determinations refused.
Laing (B C G)
[From Benchmark Wednesday, 8 July 2015]

CRIMINAL

Executive Summary

Wallam v The State of Western Australia (WASCA) - criminal law - stealing motor vehicle - aggravated assault with intent to rob - aggravated armed robbery - breach of conditional suspended imprisonment order - appeal against sentence allowed

Summaries With Link

Wallam v The State of Western Australia [2015] WASCA 132
Court of Appeal of Western Australia
Martin CJ, Mazza JA & Hall J
Criminal law - appellant sentenced to total effective sentence of 6 years and 6 months' imprisonment for conviction for three offences and breach of conditional suspended imprisonment order - offences were stealing a motor vehicle, aggravated assault with intent to rob and aggravated armed robbery - appellant sought to appeal against sentence - appellant contended primary judge erred in imposing total effective sentence that infringed first limb of principle of totality having regard to overall criminality and circumstances - appellant also contended sentence imposed for aggravated armed robbery was manifestly excessive in circumstances and that primary judge erred by failing to take into account appellant's cooperation with law enforcement authorities - held: primary judge erred by giving no discount at all for cooperation - primary judge erred in discount for pleading guilty - appeal allowed - appellant resentenced.
Wallam

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