A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Civil Law Review

Friday, 6 February 2015

Executive Summary (One Minute Read)
Miao v Michell (FCA) - bankruptcy - bankrupt permitted to travel overseas subject to undertaking and conditions (B G)
Coffey Information Pty Ltd v Cullen (FCA) - preliminary discovery on basis of alleged use of confidential information refused (I B)
Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (FCAFC) - judicial review - challenge to notices issued under National Anti-Doping Scheme failed - appeal dismissed (I B G)
Zheng v Wallace (NSWSC) - motor vehicle collision - injured driver failed to give way - driver of oncoming prime mover failed to sound horn - driver of prime mover liable - contributory negligence 80% (I)
Steiner v Strang (NSWSC) - wills - interim distribution of pecuniary legacy to beneficiary of estate refused (B)
Baldwin v Icon Energy Ltd (QSC) - pleadings - contract - claim for breach of memorandum of understanding struck out (I B C)
Z487 Ltd v Skelton (QSC) - private international law - contract - exclusive choice of court agreement - stay refused (I B)
Tipene v The Owners Strata Plan 9485 (WASC) - strata titles - State Administrative Tribunal had no jurisdiction to determine application under s103FStrata Titles Act 1985 (WA) - appeal dismissed (I C G)
Gluyas v Canby (VSC) - defamation - undefended trial - internet publications - damages (I)
Wilson v Ferguson (WASC) - equity - breach of confidence by publication of explicit images of ex-partner - injunction - compensation (I)
Summaries With Link (Five Minute Read)
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]
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]

Willow Poem
by William Carlos Williams

It is a willow when summer is over,
a willow by the river
from which no leaf has fallen nor
bitten by the sun
turned orange or crimson.
The leaves cling and grow paler,
swing and grow paler
over the swirling waters of the river
as if loath to let go,
they are so cool, so drunk with
the swirl of the wind and of the river-
oblivious to winter,
the last to let go and fall
into the water and on the ground.

William Carlos Williams