Weekly Law Review: Friday, 11 March 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Law Review

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CIVIL (Insurance, Banking, Construction & Government)
Executive Summary (One Minute Read)
Victoria v Tatts Group Ltd (HCA) - contract - Tatts not entitled to terminal payment from State under agreement - State's appeal allowed (I B C G)
Tabcorp Holdings Ltd v Victoria (HCA) - statutory interpretation - Tabcorp not entitled to terminal payment provided for in s4.3.12(1) Gambling Regulation Act 2003 (Vic) - appeal dismissed (I B C G)
Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) (UKSC) - negligence - home-carer injured when she slipped on snow-covered icy foot path outside client's house - employer's failure to provide footwear attachments was breach of Personal Protective Equipment at Work Regulations 1992 and negligence at common law - appeal allowed (I B C)
JR Consulting & Drafting Pty Limited v Cummings (FCAFC) - contract - copyright - ownership and control of software used in design and manufacture of items used in construction of buildings - appeal dismissed - cross-appeal allowed in part (I B C)
Seymour v Commissioner of Taxation (FCAFC) - taxation - AAT's decision to allow appellants in tax appeals to give evidence by video-link from overseas quashed - appeal dismissed (B)
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd (NSWCA) - corporations - statutory demand - applicant not entitled to commence proceedings because it had not complied with Pt 7, Div 1, r 7.1. I Uniform Civil Procedure Rules 2005 (UCPR) - leave to appeal refused (I B)
Lee v Elgammal (NSWCA) - professional negligence - primary judge erred in concluding client suffered any loss or damage due to solicitor's advice - appeal allowed (I B)
Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (NSWCA) - contract for sale of land - vendor not entitled to terminate contract for purchaser's breach of essential time stipulation - appeal dismissed - cross-appeal allowed (I B C)
Bartlett v Australia & New Zealand Banking Group Ltd (NSWCA) - contract - employment contract - wrongful dismissal - bank not entitled to terminate appellant's contract for alleged serious misconduct - appeal allowed (I B)
ANZ v Loftus (VSC) - mortgage - fraud - bank could enforce judgment debt against mortgagor - mortgage was valid - bank's security interest not defeasible for fraud (I B C)
Gee Dee Nominees Pty Ltd v Ecosse Property Holdings Pty Ltd (VSCA) - contract - farm lease extensively amended before execution - liability for costs of rates taxes assessments and outgoings levied on landlord - ambiguity - construction of lease - appeal allowed (I B C)
McGreevy v Cannon Hill Services Pty Ltd (QSC) - negligence - meat boner injured during course of employment at meat processing plant - employer liable (I)
Fleming v Advertiser-News Weekend Publishing Co P/L (No 2) (SASC) - defamation - defamatory imputation conveyed by publications that plaintiff engaged in criminal sexual behaviour was substantially true - plaintiff's claim dismissed - judgment for defendants (I)
Rankilor v City of South Perth (WASCA) - negligence - trip and fall on protruding paver - no breach of duty of care by City - appeal dismissed (I C)
Dear Subscriber

1. This Benchmark Television broadcast is with Peter Taylor SC on when a local council owes a duty of care concerning town planning and consents with Ian Benson.

2. This presentation is important not only for lawyers, but also developers, town planners and architects. It is brilliant. I’ve watched it twice and look forward to a third viewing with my friends.

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. We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.

6. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.

7. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards
Alan Conolly for Benchmark
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Benchmark Television
Click here to watch the video
 
Peter Taylor SC on when a local council owes a duty of care concerning town planning and consents with Ian Benson
This presentation is important not only for lawyers, but also developers, town planners and architects. It is brilliant. I’ve watched it twice and look forward to a third viewing with my friends.
Summaries With Link (Five Minute Read)
Victoria v Tatts Group Ltd [2016] HCA 5
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Contract - appeal concerning parties' entry into agreement in 1995 after privatisation of TAB - agreement provided for terminal payment to be made to respondent (Tatts) "[i]f the Gaming Operator's Licence expires without a new gaming operator's licence having issued to [Tatts]" - whether Tatts entitled to payment under clause of agreement due to State's allocation of gaming machine entitlements under Gambling Regulation Act 2003 (Vic) - meaning of "new gaming operator's licence" in clause of agreement - held: "new gaming operator's licence" meant a gaming operator's licence granted under Pt 3 Gaming Machine Control Act 1991 (Vic) - a "new gaming operator's licence" was never issued - respondent not entitled to payment under clause of agreement - appeal allowed.
Victoria (I B C G)
[From Benchmark Friday, 4 March 2016]
Tabcorp Holdings Ltd v Victoria [2016] HCA 4
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Statutory interpretation - appellant (Tabcorp) claimed entitlement to terminal payment under s4.3.12(1) Gambling Regulation Act 2003 (Vic) - Tabcorp contended allocation of gambling machine entitlements was "grant of new licences" under of s4.3.12(1) as the entitlements were "substantially similar" to Tabcorp's licences - meaning of "grant of new licences" in s4.3.12(1) - statutory construction - held: "grant of new licences" meant “grant of wagering licence and gaming licence” issued under Pt 3 of Ch 4 Gambling Regulation Act 2003 (Vic) - Tabcorp not entitled to terminal payment - appeal dismissed.
Tabcorp (I B C G)
[From Benchmark Friday, 4 March 2016]
Kennedy (Appellant) v Cordia (Services) LLP (Respondent) (Scotland) [2016] UKSC 6
Supreme Court of the United Kingdom
Lady Hale, Deputy President; Lord Wilson, Lord Reed, Lord Toulson & Lord Hodge
Negligence - appellant employed by respondent as home carer - appellant injured wrist when she slipped on sloping public footpath covered in snow overlying ice outside client's house - appellant was wearing flat boots with ridged soles when she slipped and fell - employer's duty of care - risk assessments - precautions - causation - admissibility of expert evidence on health and safety practice - held: employer's failure to provide footwear attachments to appellant constituted both a breach of Personal Protective Equipment at Work Regulations 1992 and negligence at common law - appeal allowed.
Kennedy (I B C)
[From Benchmark Wednesday, 9 March 2016]
JR Consulting & Drafting Pty Limited v Cummings [2016] FCAFC 20
Full Court of the Federal Court of Australia
Bennett, Greenwood & Besanko JJ
Contract - proceedings relating to ownership and control of software used in design and manufacture of items used in construction of buildings - primary judge determined Deed of Agreement between first appellant and first respondent abandoned and termination of licence agreement between second appellant and second respondent invalid - construction of contract - doctrine of abandonment - principles in relation to copyright in computer software - ss236, 237 Australian Consumer Law - ss10(1), 13(2), 14(1), 22(1), 29(1) & (2), 31(1), 32(1) and (2), 36(1), 36(1A), 115 &135AQ(2) Copyright Act 1968 (Cth) - s126 Trade Marks Act 1995 (Cth) - appeal dismissed - cross-appeal allowed to extent of variation of restraint orders and declaration to be made.
JR Consulting (I B C)
[From Benchmark Monday, 7 March 2016]
Seymour v Commissioner of Taxation [2016] FCAFC 18
Full Court of the Federal Court of Australia
Siopis, Griffiths & Pagone JJ
Taxation - Commissioner sought judicial review of Administrative Appeals Tribunal's decision to allow appellants to give evidence in tax appeals by video link from outside Australia - primary judge quashed decision on basis AAT's interlocutory decision erroneous because AAT took irrelevant considerations in account, failed to apply s39 Administrative Appeals Tribunal Act 1975 (Cth) and denied Commissioner procedural fairness - held (by majority): no error in decision of primary judge - appeal dismissed.
Seymour (B)
[From Benchmark Monday, 7 March 2016]
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 23
Court of Appeal of New South Australia
McColl & Meagher JJA
Corporations - statutory demand - respondent issued statutory demand to applicant under s459E Corporations Act 2001 (Cth) - proceedings commenced by applicant's director to set demand aside - director not separately a plaintiff in proceedings pursuing cause of action - applicant did not retain solicitor to commence claim - respondent sought declaration applicant not entitled to commence proceedings because it failed to comply with Div 1, Pt 7, r7.1 Uniform Civil Procedure Rules 2005 (UCPR), and stay of proceedings following which proceedings would be dismissed if rule not complied with - primary judge stayed proceeding to enable applicant to obtain legal representation - applicant indicated it did not propose to retain solicitor - primary judge dismissed proceeding - whether company a “person under legal incapacity” - whether director a “tutor” and “plaintiff” - held: applicant's proposed appeal did not have arguable prospects of success - leave to appeal refused.
Tanamerah (I B)
[From Benchmark Thursday, 3 March 2016]
Lee v Elgammal [2016] NSWCA 26
Court of Appeal of New South Wales
Gleeson JA; Tobias & Emmett JJA
Professional negligence - evidence - appeal concerning whether appellant solicitor liable to respondent client for liability client incurred under guarantee he gave in bank's favour for loan made by bank to customer - client had retained solicitor to advise him on liabilities and obligations under guarantee and contended solicitor failed to advise him properly - solicitor admitted breach of retainer and negligence but disputed client suffered loss - primary judge gave judgment in client's favour - whether client would have signed guarantee if liability limited to certain amount - whether bank would not have released term deposit if provided with guarantee with client's liability limited - held: primary judge erred in concluding client suffered any loss or damage due to solicitor's advice - appeal allowed.
Lee (I B)
[From Benchmark Friday, 4 March 2016]
Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd [2016] NSWCA 32
Court of Appeal of New South Wales
Beazley P; Sackville & Emmett AJJA
Conveyancing - equity - appellant vendor and respondent purchaser entered contract for sale of land - agreed completion date passed - vendor issued notice to complete with time of the essence - vendor failed to provide transfer pursuant to s27 Corporations Act 2001 (Cth) at settlement - vendor served notice of termination on purchaser - purchaser sought specific performance and damages for delay - primary judge held contract validly terminated for breach of essential time stipulation but ordered equitable relief in purchaser's favour - vendor appealed against grant of equitable relief to purchaser and sought declaration contract terminated and vendor entitled to forfeit deposit - purchaser sought declaration that contract was not terminated and remittal of matter for determination of damages - “preventing principle” - held: a vendor who failed to provide transfer to purchaser in registrable form was not willing and able to complete - a vendor not willing and able to complete was not entitled to terminate for failure of purchaser to complete - vendor's termination was invalid - appeal dismissed - cross-appeal allowed.
Barrak (I B C)
[From Benchmark Tuesday, 8 March 2016]
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30
Court of Appeal of New South Wales
Macfarlan, Meagher & Simpson JJA
Contract - employment contract - wrongful dismissal - bank purported to terminate appellant's employment without notice on basis of serious misconduct - appellant sued bank for damages for breach of contract alleging he was not guilty of serious misconduct and that bank was not entitled to terminate his employment without notice - primary judge found appellant sent doctored email to journalist and that bank was entitled to terminate contract without notice on that basis- s140 Evidence Act 1995 (NSW) - s100 Supreme Court Act 1970 (NSW) - onus - held: bank failed to discharge onus to prove alleged misconduct - bank required to act reasonably - bank failed to act reasonably due to its deficiencies in investigating alleged misconduct - bank not entitled to summarily terminate appellant's employment - appellant entitled to damages for wrongful dismissal in sum of $110,000 with interest.
Bartlett (I B)
[From Benchmark Wednesday, 9 March 2016]
ANZ v Loftus [2016] VSC 58
Supreme Court of Victoria
Cameron J
Mortgage - fraud - defendant was registered proprietor of property - defendant defaulted on repayment pursuant to loan agreement with plaintiff bank - bank sought possession of property alleging that defendant agreed to grant registered mortgage over property as security - defendant contended he never signed mortgage, that signature was forged and bank's mortgage security was defeasible - Associate judge found in favour of bank and ordered payment of judgment debt - whether mortgage procured by fraud - whether bank could enforce judgment debt over property in reliance on mortgage - ss42, 76 & 78.Transfer of Land Act 1958 (Vic) - held: bank could enforce judgment debt - mortgage was valid - bank's security interest not defeasible for fraud - judgment for bank.
ANZ (I B C)
[From Benchmark Friday, 4 March 2016]
Gee Dee Nominees Pty Ltd v Ecosse Property Holdings Pty Ltd [2016] VSCA 23
Court of Appeal of Victoria
Santamaria, Kyrou & McLeish JJA
Contract - farm lease - printed standard form ‘farm lease' extensively amended before execution - lease entered in 1988 between company as landlord and Mr Morris as tenant - lease granted for 99 years - entire rental paid at lease's commencement - respondent acquired leasehold reversion - Mr Morris assigned and transferred term of lease to appellant - respondent sought payment of money for accrued rates taxes assessments and outgoings - appellant appealed against decision in which primary judge construed clause of lease in respondent's favour - ambiguity - parts of lease struck out but which were legible in executed document - held (by majority): appellant succeeded in contesting primary judge's interpretation of clause of lease - appeal allowed.
Gee Dee (I B C)
[From Benchmark Tuesday, 8 March 2016]
McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29
Supreme Court of Queensland
Boddice J
Negligence - plaintiff meat boner alleged he was injured at work at meat processing facility operated by defendant - defendant accepted incident occurred but denied negligence and that plaintiff suffered long term injury - ss305B, 305C, 305H & 306F Workers' Compensation and Rehabilitation Act 2003 (Qld) - sch 9, item 93 Workers' Compensation and Rehabilitation Regulation 2014 (Qld) - system of work - production line processes - held: plaintiff established incident arose due to defendant's failure to properly implement system of work and that injury was caused by breach of duty - no contributory negligence - damages assessed - judgment for plaintiff.
McGreevy (I)
[From Benchmark Wednesday, 9 March 2016]
Fleming v Advertiser-News Weekend Publishing Co P/L (No 2) [2016] SASC 26
Supreme Court of South Australia
Gray AJ
Defamation - defences - justification - contextual truth - action arising from publication of articles in newspapers with common theme that plaintiff was subject of Paedophile Task Force investigation - plaintiff's claim for damages included damages for personal injury arising from publication of defamatory matter - held: publications conveyed defamatory imputation that plaintiff engaged in criminal sexual behaviour while a priest - defendants established that defamatory imputation was substantially true - plaintiff's claim dismissed - judgment for defendants.
Fleming (I)
[From Benchmark Thursday, 3 March 2016]
Rankilor v City of South Perth [2016] WASCA 29
Court of Appeal of Western Australia
Buss, Newnes & Murphy JJA
Negligence - appellant injured when she fell after tripping on protruding paver - appellant sued respondent for failure to maintain footpath to prevent tree roots from lifting the pavers - ss5B & 5Z Civil Liability Act 2002 (WA) - ss9.56 & 9.57 Local Government Act 1995 (WA) - s5(4)(a) Occupiers' Liability Act 1985 (WA) - primary judge dismissed claim - held: open to primary judge to find respondent did not breach duty of care - appeal dismissed.
Rankilor (I C)
[From Benchmark Thursday, 3 March 2016]
CRIMINAL
Executive Summary
DPP v Garrett (a Pseudonym) (VSCA) - criminal law - refusal of application for advance ruling seeking leave under s38(1)(a) Evidence Act 2008 (Vic) to cross-examine own witness - appeal allowed
R v Coss (QCA) - criminal law - rape - failure to adequately direct jury resulting in miscarriage of justice - appeal allowed - convictions set aside - retrial
Summaries With Link
DPP v Garrett (a Pseudonym) [2016] VSCA 31
Court of Appeal of Victoria
Maxwell P; Redlich & Beach JJA
Criminal law - respondent charged with intentionally causing injury - Crown sought leave to appeal against judge's refusal of its application for advance ruling seeking leave under s 38(1)(a) Evidence Act 2008 (Vic) to cross-examine one of its witnesses - ‘unfavourable' - held: trial judge erred in interpreting meaning of evidence ‘unfavourable' to party who called witness - trial judge took incorrect approach to evaluating whether witness's evidence was unfavourable - leave to appeal granted - appeal allowed - ruling set aside.
Garrett
R v Coss [2016] QCA 44
Court of Appeal of Queensland
M McMurdo P; Gotterson & Morrison JJA
Criminal law - appellant convicted of two counts of rape - appellant appealed against conviction - appellant contended trial judge did not adequately direct jury in relation to crown prosecutor's comments in closing address resulting in miscarriage of justice - held: judge made error of law under s668E(1) Criminal Code 1899 (Qld) by failing to give comprehensive direction of kind in Van Der Zyden [2012] 2 Qd R 568 - there had been substantial miscarriage of justice under s668E(1A) - appeal allowed - convictions set aside - re-trial ordered.
Coss
Poem for Friday (Recitation here by Thomas Hellier)
Aspens
BY EDWARD THOMAS

All day and night, save winter, every weather,
Above the inn, the smithy, and the shop,
The aspens at the cross-roads talk together
Of rain, until their last leaves fall from the top.

Out of the blacksmith's cavern comes the ringing
Of hammer, shoe, and anvil; out of the inn
The clink, the hum, the roar, the random singing—
The sounds that for these fifty years have been.

The whisper of the aspens is not drowned,
And over lightless pane and footless road,
Empty as sky, with every other sound
Not ceasing, calls their ghosts from their abode,

A silent smithy, a silent inn, nor fails
In the bare moonlight or the thick-furred gloom,
In tempest or the night of nightingales,
To turn the cross-roads to a ghostly room.

And it would be the same were no house near.
Over all sorts of weather, men, and times,
Aspens must shake their leaves and men may hear
But need not listen, more than to my rhymes.

Whatever wind blows, while they and I have leaves
We cannot other than an aspen be
That ceaselessly, unreasonably grieves,
Or so men think who like a different tree.

BY EDWARD THOMAS