| Primary Health Care Limited v Commonwealth of Australia (FCA) - trademarks - grounds of opposition to registration of trademarks established - appeal dismissed (I B)
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| SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (NSWSC) - contract - rectification - parties common intention was that purchase price of land was amount plus GST - rectification granted (I B C)
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| Estate Cockell; Cole v Paisley (NSWSC) - wills and estates - probate - testamentary capacity - determination of competing claims in relation to small estate (B)
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| Yee v Yee (NSWSC) - succession - family provision - nephew's application for further provision from deceased's estate refused - summons dismissed (B)
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| IBM Australia Ltd v State of Queensland (QSC) - guarantee and indemnity - construction contract - applicant entitled to indemnity costs under clause of agreement (I B C)
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| Deputy Commissioner of Taxation v Rablin; Deputy Commissioner of Taxation v Shaw (QSC) - summary judgment - taxation - directors' penalties - Commissioner entitled to payment of amounts from directors of company (B)
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| CFMEU v BM Alliance Coal Operations Pty Ltd (QSC) - coal mining safety and health - statutory interpretation - declaration refused that criteria for drug testing in fitness for work procedure were unlawfully established (B C)
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Dear Subscriber
1. Today we rebroadcast a favourite production of a discussion between actor, writer, theatre director Colin McPhillamy and lawyer Catherine McDonald.
2. Colin identifies why some advocacy is so memorable and persuasive – it may be he has helped us identify the memorable moments when we are persuaded by the advocate. How is it every time Michael Kirby speaks we all wish to listen?
3. For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
4. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
5. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/cle
6. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
7. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
8. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Colin McPhillamy and Catherine McDonald on Advocacy and Theatre |
| Cases are won and lost in court by more than just the technical, legal argument. The skill of advocacy makes up the differential, which can easily be traced to the art of acting. |
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| Summaries With Link (Five Minute Read) |
Primary Health Care Limited v Commonwealth of Australia [2016] FCA 313
Federal Court of Australia
Jagot J
Trademarks - applicant provided services under name Primary Heath Care - applicant sought to register two trade marks for services, being a word mark and a logo - respondents opposed registration of marks pursuant to ss41, 42 & 43 Trade Marks Act 1995 (Cth) - Registrar of Trade Marks found respondents established opposition grounds under s43 which concerned marks likely to deceive or confuse - Registrar did not decide whether grounds relating to s41, which concerned trademarks distinguishing services and s42, concerning use of trade mark contrary to law, were established - applicant appealed against Registrar's decision - respondents by notice of contention opposed trade marks on basis of ss41 & 42 - held: respondents established opposition to registration of trademarks on basis of ss43, 41 & 42 - appeal dismissed.
Primary Health Care Limited (I B) |
SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2016] NSWSC 362
Supreme Court of New South Wales
Stevenson J
Contract - rectification - defendant vendor listed property for public auction - plaintiff purchaser sent its agent to auction to bid on its behalf - agent bid amount to purchase property - auctioneer accepted bid - contracts executed and exchanged - effect of contract was to provide for purchase price inclusive of GST - vendor alleged parties “clear and common intention” was that purchase price was amount plus GST and sought rectification - test of rectification - conflicting evidence - held: Court satisfied it was parties' common intention that purchase price would be amount plus GST - rectification of contract granted.
SAMM (I B C) |
Estate Cockell; Cole v Paisley [2016] NSWSC 349
Supreme Court of New South Wales
Lindsay J
Wills and estates - probate - succession - determination of competing claims in relation to deceased estate - whether deceased lacked testamentary capacity when he executed instruments - challenges to deceased's wills - whether wills invalid for lack of testamentary capacity - onus - mental illness - suspicious circumstances - Court's object of due and proper administration of estate - Guardianship Act 1987(NSW) - Succession Act 2006 (NSW) - Trustee Act 1925 (NSW) - Uniform Civil Procedure Rules 2005 (NSW) - held: admission of 2006 will to probate confirmed by grant in solemn form - Court ordered that grant of probate in common form was to be be confirmed by grant in solemn form to initial grant's recipient.
Estate (B) |
Yee v Yee [2016] NSWSC 360
Supreme Court of New South Wales
Slattery J
Succession - deceased's nephew lived with deceased for ten years - deceased's Will made no provision for plaintiff - plaintiff sought further provision under Ch 3 Succession Act 2006 (NSW) - no dispute plaintiff was eligible person under the Act - factors warranting provision from estate - family history - financial circumstances - held: plaintiff did not make out factors warranting order for provision - summons dismissed.
Yee (B) |
IBM Australia Ltd v State of Queensland [2016] QSC 70
Supreme Court of Queensland
Martin J
Guarantee and indemnity - construction contract - Court found applicant had been released from State's claims against it - release contained in agreement which parties entered and which contained clause providing that “If the State makes a claim against an IBM Party which is the subject of the State Covenant or State Release, then the State fully indemnifies each IBM Party against any liability (including the amount of any judgement [sic], settlement sum and legal and other costs) incurred by the IBM Party as a result of that claim” - applicant sought order giving effect to clause and order for costs - construction of clause - held: clause entitled IBM to indemnity costs - there was nothing to suggest indemnity costs order inappropriate - State to pay applicant's costs on indemnity basis.
IBM (I B C) |
Deputy Commissioner of Taxation v Rablin; Deputy Commissioner of Taxation v Shaw [2016] QSC 68
Supreme Court of Queensland
Bond J
Summary judgment - taxation - directors' penalties - in two proceedings Commission claimed money from a director of company in relation to amounts withheld by company for tax which were not paid to Commissioner - Commissioner sought summary judgment or order striking out parts of defences - ss269-30 & 269-35 Taxation Administration Act 1953 (Cth) - r292 Uniform Civil Procedure Rules 1999 (Qld) - held: judgment in favour of Commissioner - no prospects of success on defences that penalties had been remitted by operation of law or that defendants had taken all reasonable steps - unnecessary to consider pleading complaints - plaintiff to bring in minutes of order.
Deputy Commissioner (B) |
CFMEU v BM Alliance Coal Operations Pty Ltd [2016] QSC 69
Supreme Court of Queensland
Martin J
Coal mining safety and health - statutory interpretation - drug testing - assessment of workers - fitness for work procedure - respondent operated mine - Site Senior Executive of mine sought to change criteria for assessment for drug testing for fitness for work procedure - 45.66% of workers eligible to vote voted in favour of new criteria - 37.49% of workers voted against new criteria - applicant sought declaration criteria not lawfully established and proper criteria were in Recognised Standard 07 - whether workers who did not vote should be taken to have failed to agree to criteria - Coal Mining Safety and Health Act 1999 (Qld) - Coal Mining Safety and Health Regulation 2001 (Qld) - held: Court found it was not established that majority of workers at mine had disagreed with proposed criteria - application dismissed.
CFMEU (B C) |
