| Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (HCA) - employment law - s357(1) Fair Work Act 2009 (Cth) prohibited employer from misrepresenting to employee that employee performed work as independent contractor under contract for services with third party - appeal allowed (I B C G) |
| Macoun v Commissioner of Taxation (HCA) - income tax - monthly pension payments not exempt from liability to tax - appeal dismissed (I B C G) |
| Firebird Global Master Fund II Ltd v Republic of Nauru (HCA) - public international law - foreign state immunity - registration of foreign judgment not set aside - appeal dismissed (I B C G) |
| Martin v Comcare (FCAFC) - administrative law - workers compensation - “adjustment disorder” - erroneous decision by Administrative Appeals Tribunal - appeal allowed - matter remitted (I G) |
| Westrupp v BIS Industries Ltd (FCAFC) - workers compensation - physical assault outside tavern in remote mining town - injury occurred in course of employment - appeal allowed (I C) |
| QBE Insurance (Australia) Ltd v Mordue (NSWCA) - motor accidents compensation - insurer not bound by notice admitting liability for respondent’s claim - appeal allowed (I) |
| KRNJULAC v LINCU (NSWCA) - equity - natural justice - fraud - trusts and trustees - findings of primary judge went beyond case pleaded and run at trial - appeal allowed (I B G) |
| Alexander v Burne (NSWCA) - corporations - resolution approving merger of accounting firms invalid under unit-holders deed - appeal allowed (I B) |
| Chel v Fairfax Media Publications Pty Ltd (No 2) (NSWCA) - defamation - respondents not entitled to revoke election for trial to be heard by jury - appeal allowed (I) |
| Saad v Fares (NSWCA) - personal injury - dog attack - statutory liability - credit - appeal allowed - findings of liability set aside - retrial ordered on all issues (I) |
| Margan v Manias (NSWCA) - human rights - homosexual vilification - dismissal of summons for review of Tribunal’s decision in relation to incidents of verbal abuse and physical attack - appeal dismissed (I G) |
| Bay Bon Investments Pty Ltd v Sultana (NSWSC) - real property - possession - forged mortgages and indefeasibility - plaintiff entitled to possession of property against defendants (I B C) |
| Melenewycz v Whitfield (NSWSC) - motor accident compensation - blameless accident - collision between motorcycle and kangaroo - judgment for plaintiff (I) |
| Alexander v Perpetual Trustee Company Ltd (NSWSC) - judicial advice - trusts and trustees - ‘the interpretation of the trust instrument’ - judicial advice granted (B) |
| Bonavia v Transport Accident Commission (VSCA) - negligence - evidence - leave to appeal against jury’s verdict refused - no error in admission of evidence by trial judge - appeal dismissed (I G) |
| Jackson v Abram (SASCFC) - negligence - accounting and taxation services - erroneous failure to find liability for losses - appeal allowed - appeal in relation to costs also allowed (I B) |
| Benchmark Television |
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| Angus Stewart and Catherine Gleeson on Admiralty Law |
| Something we should all know – how to arrest a ship! |
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| Summaries With Link (Five Minute Read) |
Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45
High Court of Australia
French CJ; Kiefer, Bell, Gageler & Nettle JJ
Employment law - respondent provided serviced apartments and employed housekeepers - respondent and labour hire business entered “triangular contracting” arrangement - labour hire business purported to engage housekeepers as independent contractors under contracts for services and purported to provide the services to respondent under a labour hire agreement between it and respondent - respondent represented to housekeepers they were performing work for respondent as independent contractors of labour hire company appellant sought pecuniary penalty orders against respondent for contraventions of s357(1) Fair Work Act 2009 (Cth) - whether s357(1) prohibited an employer from misrepresenting to employee that employee performed work as an independent contractor under contract for services with third party - Full Court of the Federal Court had held that to contravene provision, employer’s representation must mischaracterise contract of employment that existed between them "as a contract for services made between the employee and the employer" - statutory interpretation - "contract for services" - "independent contractor" - "sham arrangement" - held: Full Court of Federal Court erred in construction of provision - misrepresentation was squarely within scope of s357(1) - appeal allowed.
Fair Work Ombudsman (I B C G)
[From Benchmark Friday, 4 December 2015]
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Macoun v Commissioner of Taxation [2015] HCA 44
High Court of Australia
French CJ; Bell, Gageler, Nettle & Gordon JJ
Income tax - appellant former sanitary engineer with International Bank for Reconstruction and Development (IBRD) received monthly pension payments from Retirement Fund established under Staff Retirement Plan when he no longer held office in IBRD - Commissioner sought to include monthly pension payments in assessable income - whether exempt under s6-20(1) Income Tax Assessment Act 1997 (Cth) due to International Organisations (Privileges and Immunities) Act 1963 (Cth) (IOPI Act) and Specialized Agencies (Privileges and Immunities) Regulations (Cth) (SAPI Regulations) - s27H Income Tax Assessment Act 1936 (Cth) - held: 6(1)(d)(i) and Fourth Schedule IOPI Act and reg 8(1) SAPI Regulations did not together confer taxation exemption - monthly pension payments fell outside "salaries and emoluments received from the organisation" in Item 2 of Pt I of Fourth Schedule IOPI Act - Convention on the Privileges and Immunities of the Specialized Agencies did not require Australia not to tax monthly pension payments - appeal dismissed.
Macoun (I B C G)
[From Benchmark Friday, 4 December 2015]
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Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43
High Court of Australia
French CJ; Kiefel, Gageler, Nettle & Gordon JJ
Public international law - foreign state immunity - respondent sought to set aside registration of foreign judgment and garnishee order - immunity from jurisdiction - implied repeal - service - immunity from execution - held: s9 Foreign States Immunities Act 1985 (Cth) applied to proceedings for registration of foreign judgment under Foreign Judgments Act 1991 (Cth) - respondent was immune from jurisdiction of Australian courts subject to exceptions under Immunities Act - exception in s11(1) Immunities Act applied because proceedings concerned commercial transaction - respondent’s immunity from jurisdiction lost - however respondent immune from execution against its property represented by bank accounts in Australia because accounts’ purpose or purpose of money in accounts were not commercial purposes - appeal dismissed - orders below varied to reflect Supreme Court of New South Wales’ jurisdiction to register foreign judgment.
Firebird (I B C G)
[From Benchmark Friday, 4 December 2015]
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Martin v Comcare [2015] FCAFC 169
Full Court of the Federal Court of Australia
Siopis, Flick & Murphy JJ
Administrative law - workers compensation - appellant diagnosed with “adjustment disorder” claimed compensation pursuant to Safety, Rehabilitation and Compensation Act 1988 (Cth) - Comcare rejected liability on basis “injury” was “result” of appellant’s failure to be promoted - appellant claimed condition worsened by realisation she would be returning to position of working under certain supervisor - Administrative Appeals Tribunal set aside Comcare’s decision- primary judge allowed appeal and remitted matter to Tribunal - appellant appealed - ss44 & 44(7) Administrative Appeals Tribunal Act 1975 (Cth) - ss5A, 5A(1), 5A(2)(f), 5B, 14 & 20B Safety, Rehabilitation and Compensation Act 1988 (Cth) - Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) - held (by majority): Tribunal erred in approach to issue whether adjustment disorder was “suffered as a result of” the administrative action and issue whether administrative action was taken in reasonable manner - appeal allowed - matter remitted to Tribunal.
Martin (I G)
[From Benchmark Tuesday, 8 December 2015]
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Westrupp v BIS Industries Ltd [2015] FCAFC 173
Full Court of the Federal Court of Australia
Buchanan, McKerracher & Katzmann JJ
Workers compensation - appellant employed as silo operator by first respondent in mining town operated by BHP Billiton - appellant worked on two-week roster followed by one week off - appellant injured shoulder when assaulted after day shift and before night shift by first respondent’s employee outside entrance to tavern - appellant would be entitled to compensation under s14 Safety, Rehabilitation and Compensation Act 1988 (Cth) Act if he sustained “injury” within of s14 - claim for compensation rejected by first respondent - Administrative Appeals Tribunal affirmed first respondent’s decision - “arising out of, or in the course of, the employee’s employment” in s 5A - liability of employers of “fly in/fly out workers” to pay compensation for injuries in remote locations where employees required to live and work but incurred when employees not engaged in work - consideration of Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 as explained by Comcare v PVYW [2013] HCA 41 - held: injury occurred during interval between actual periods of work but in overall period or episode of work - first respondent induced or encouraged appellant to spend time between shifts in camp vicinity - appellant did not act to take himself outside course of employment or guilty of serious and wilful misconduct disentitling him to compensation - injury arose in course of employment - appellant entitled to compensation - appeal allowed
Westrupp (I C)
[From Benchmark Wednesday, 9 December 2015]
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QBE Insurance (Australia) Ltd v Mordue [2015] NSWCA 380
Court of Appeal of New South Wales
Beazley P; Ward & Simpson JJA
Motor accidents compensation - respondent claimed against QBE under Motor Accidents Compensation Act 1999 (NSW) (MACA) for injuries suffered in motor car rally accident - respondent was passenger in vehicle driven by son - unregistered vehicle permit under Road Transport (Vehicle Registration) Act 1997 (NSW) issued in respect of vehicle attached a third party insurance policy issued by QBE - QBE first admitted liability then denied indemnity to driver - respondent sought to quash Claims Assessor’s conclusion claim must be exempted from determination on basis QBE had denied indemnity - s81 MACA - primary judge found QBE bound by its notice admitting liability and that there was no room for exercise of discretion to exempt claim - held (by majority): primary judge erred finding QBE bound for all purposes by s81 notice admitting liability - not apparent that assessor could not reasonably form view claim should be exempt even leaving aside s81 issue - Court should not preclude any further claim for exemption - appeal allowed.
QBE Insurance (I)
[From Benchmark Thursday, 3 December 2015]
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KRNJULAC v LINCU [2015] NSWCA 367
Court of Appeal of New South Wales
Bathurst CJ, Leeming JA & Emmett AJA
Equity - natural justice - fraud - trusts and trustees - proceedings arising from transfer of property from first and second respondents and Mr Laza Krnjulac, to Mr Laza Krnjulac and appellants, and mortgage of property to credit union - primary judge found transfer procured by Mr Laza Krnjulac’s fraudulent breach of trust - primary judge ordered appellants to transfer interests in property to first, second and fourth respondents, as trustees for trust for religious purposes, and entered judgment in respondents’ favour - held: primary judge’s findings concerning appellants went beyond pleaded case run at trial - primary judge’s orders against appellants set aside - appellants had not paid for transfer and were volunteers - appellants could only be liable to extent they retained interest in property or interest could be traced - Mr Laza Krnjulac’s liability unaffected - appeal allowed.
KRNJULAC (I B G)
[From Benchmark Friday, 4 December 2015]
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Alexander v Burne [2015] NSWCA 377
Court of Appeal of New South Wales
Ward & Gleeson JJA; Tobias AJA
Corporations - BDO and Grant Thornton were accounting firms - meeting of Unitholders of Trust called by trustee of Trust was to consider resolution that approval be given to proposed merger between Grant Thornton and offices of BDO - resolution passed after two-thirds of those present voted in its favour - appellant unit holders of trust claimed resolution invalid as number of votes was less than two-thirds of total unitholders as required operation of certain clause of unitholders deed and definition of Special Majority in another clause - separate question ordered for determination: “Was the resolution to approve a proposed merger between Grant Thornton and Capital BDO identified in paragraph 25 of the further amended statement of claim filed 11 January 2013 (FASC) passed by a special majority vote of the Unitholders within the meaning of clause 6.1(b) of the Unitholders Deed identified in paragraph 16 of the FASC?” - primary judge answered in affirmative - appellants contended primary judge ought to have answered in negative - held: primary judge erred in answering question in affirmative - combined operation of clauses required two-thirds of total unitholders must vote in favour of resolution - resolution passed by only two-thirds of those present at meeting invalid - separate question should be answered in negative - appeal allowed.
Alexander (I B)
[From Benchmark Friday, 4 December 2015]
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Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379
Court of Appeal of New South Wales
Macfarlan & Meagher JJA; Tobias AJA
Defamation - Court granted interim relief in relation to Supreme Court’s decision to hear defamation proceedings without jury - primary judge had held respondents were entitled to withdraw their earlier election under s21(1) Defamation Act 2005 (NSW) to have proceedings tried by jury - held: respondents not entitled to withdraw their election - proceedings should be tried by a jury unless Court made order under s 21 dispensing with a jury trial on application of a party - nothing in Defamation Act to suggest that legislature intended “elect” to be understood differently to its understanding under general law - election for jury trial should be regarded as irrevocable - a trial judge empowered under r1.12 Uniform Civil Procedure Rules 2005 (NSW) to extend the time limits under r 29.2A for party to make election for jury trial - appeal allowed.
Chel (I)
[From Benchmark Friday, 4 December 2015]
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Saad v Fares [2015] NSWCA 385
Court of Appeal of New South Wales
Beazley P, Leeming JA & Emmett AJA
Personal injury - dog attack - statutory liability - credit - appellants appealed from judgments against them obtained by members of family after one family member attacked by dog or dogs at premises owned by second and third appellants - family members claimed two or three of the dogs owned by first appellant bit one family member causing other family members to suffer nervous shock - defence was that it was fourth dog owned by another person which bit the family member - primary judge found in favour of family members - principal challenge was as to finding of fact as to which dog or dogs bit the family member - whether primary judge failed to give adequate reasons for accepting evidence - ss5B-5E Civil Liability Act 2002 (NSW) - ss25 & 34 Companion Animals Act 1998 (NSW) - r51.53 Uniform Civil Procedure Rules 2005 (NSW) - held: Court could not resolve controversy between parties’ and witnesses’ competing recollections - findings of liability on set aside - appeal allowed - retrial on all issues ordered.
Saad (I)
[From Benchmark Tuesday, 8 December 2015]
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Margan v Manias [2015] NSWCA 388
Court of Appeal of New South Wales
Macfarlan & Gleeson JJA; Tobias AJA
Human rights - homosexual vilification - statutory construction - appellant was victim of two incidents during he was first verbally abused (first incident) then physically attacked (second incident) by respondent - appellant complained to Anti-Discrimination Board alleging unlawful homosexual vilification and serious homosexual vilification under ss49ZT & 49ZTA Anti-Discrimination Act 1977 (NSW) - Tribunal found first incident constituted unlawful homosexual vilification but second incident did not - Appeal Panel upheld Tribunal’s decision - primary judge dismissed summons for review - appellant contended primary judge erred in construing ss49ZS & 49Z - “public act” - whether for purposes of s49ZT ordinary member of relevant audience to whom public acts directed ought to be assumed to have had knowledge of acts - held: assumption contended for by appellant inconsistent with facts found by Tribunal and unsupported by proper construction of s49ZT - “common witness” argument failed - appeal dismissed.
Margan (I G)
[From Benchmark Wednesday, 9 December 2015]
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Bay Bon Investments Pty Ltd v Sultana [2015] NSWSC 1797
Supreme Court of New South Wales
Davies J
Summary judgement - real property - possession - fraud - forgery - plaintiff sought summary judgment for possession of a property on basis of default under mortgage - first and second defendants were registered proprietors - second defendant’s estate sequestrated - first defendant contended he did not sign mortgage or its variations and did not know or acquiesce in signature being placed on documents - first defendant claimed signature was forged by his wife (second defendant) - whether indefeasibility provisions of Real Property Act 1900 (NSW) resulted in plaintiff’s entitlement to possession of first defendant’s interest in land - forged mortgages and indefeasibility - s41 - whether liability of defendants joint or several - held: plaintiff entitled to possession of land against both defendants - first defendant may have rights to claim against Torrens Assurance Fund.
Bay Bon Investments (I B C)
[From Benchmark Friday, 4 December 2015]
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Melenewycz v Whitfield [2015] NSWSC 1482
Supreme Court of New South Wales
Hamill J
Motor accident compensation - blameless accident - statutory interpretation - plaintiff riding friend’s motor cycle injured in collision with kangaroo - plaintiff sued owner of motorcycle and third-party insurer - Pt 1.2 Motor Accidents Compensation Act 1999 (NSW) -“no-fault claims” - whether blameless accident provisions could ever apply to a driver or driver involved in single vehicle accident - held: Div 1 did not exclude drivers or drivers involved in single car accidents - Court satisfied no act or omission of plaintiff caused collision or injuries - judgment for plaintiff.
Melenewycz (I)
[From Benchmark Monday, 7 December 2015]
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Alexander v Perpetual Trustee Company Ltd [2015] NSWSC 1815
Supreme Court of New South Wales
Pembroke J
Judicial advice - trusts and trustees - trustees sought advice concerning ‘the interpretation of the trust instrument’ question was whether the trustees ‘would be justified’ in acting in accordance with senior counsel’s advice - principal question in proceedings involved disputed issue of construction of affecting beneficiaries’ rights - held: there was utility in giving judicial advice - interests of justice would be not be served if Court refrained from giving advice because minds had differed on question of construction - Court not required to resolve question of construction - judicial advice granted.
Alexander (B)
[From Benchmark Tuesday, 8 December 2015]
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Bonavia v Transport Accident Commission [2015] VSCA 324
Court of Appeal of Victoria
Warren CJ; Santamaria & Ferguson JJA
Negligence - evidence - appellant apprentice bricklayer working for company - appellant was driving vehicle to get lunch for workers - appellant injured when vehicle collided with a truck - appellant claimed accident caused by another car which contacted his car causing him to lose control - appellant could not identify driver of other vehicle and sued Transport Accident Commission - jury found there no negligence on part of driver of an unidentified vehicle which caused injury, loss and damage - appellant contended jury’s verdict perverse, unreasonable or not in accordance with evidence - appellant also challenged admission of evidence that appellant had been charged, tried for and acquitted rape - appellant claimed evidence was of no probative value or outweighed by danger it might be unfairly prejudicial - ss55(1), 56(2) and 135(a) Evidence Act 2008 (Vic) - held: leave to appeal refused on ground in relation to jury’s verdict - evidence about rape charge, trial and acquittal could rationally affect probability appellant’s psychiatric condition partly caused by event unrelated to accident - trial judge balanced probative value and prejudice and put protections in place to contain prejudice - appeal dismissed.
Bonavia (I G)
[From Benchmark Tuesday, 8 December 2015]
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Jackson v Abram [2015] SASCFC 175
Full Court of the Supreme Court of South Australia
Peek, Stanley & Lovell JJ
Negligence - accounting and taxation services - appellants engaged respondents for accounting and taxation services - appellants alleged they suffered loss as result of negligent advice and breaches of statutory duty - trial judge dismissed most of appellant’s claims in relation to respondents’ advice to invest in schemes but awarded damages against respondent for negligence for failure advise appellant of need to diversify his investments - held: judge erred in not finding respondent liable to appellant for loss from investment in 2006 cattle project and loss for amount invested in 2007 beef cattle project - appellant had benefit of taxation deductions in respect of investments which were to be brought to account in assessment of damages but judge erred in calculating amount lost due to respondent’s negligence - appeal allowed - appeal in relation to costs also allowed.
Jackson (I B)
[From Benchmark Wednesday, 9 December 2015]
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| CRIMINAL |
| Executive Summary |
| DPP v O'Neill (VSCA) - criminal law - convictions of murder and arson - sentences not manifestly inadequate - no error established on part of sentencing judge - appeal dismissed |
| R v Baden-Clay (QCA) - criminal law - conviction of murder of wife - jury could not have been satisfied beyond reasonable doubt that element of intent to kill or do grievous bodily harm proved - appeal allowed - verdict of manslaughter substituted |
| Summaries With Link |
DPP v O'Neill [2015] VSCA 325
Court of Appeal of Victoria
Warren CJ; Redlich & Kaye JJA
Criminal law - respondent convicted of one count of murder and one count of arson - DPP contended sentences for murder and arson manifestly inadequate and therefore total effective sentence of 18 years imprisonment manifestly inadequate - DPP also contended sentencing judge erred in finding that setting fire to apartment was not an aggravating feature of murder, in categorising offence of murder as falling at ‘lower end’ of scale and in fixing ‘lower than usual’ non-parole period - held: manifest inadequacy not established - grounds of appeal alleging specific error not appropriate grounds for Crown appeal as they alleged only errors in particular case - no error demonstrated in decision of sentencing judge - appeal dismissed.
DPP |
R v Baden-Clay [2015] QCA 265
Court of Appeal of Queensland
Holmes CJ; Fraser & Gotterson JJA
Criminal law - appellant convicted of murder of wife - appellant appealed against conviction on ground verdict unreasonable and grounds concerning summing up of trial judge - whether open to jury to conclude that when appellant caused wife’s death he intended to do so, or to cause grievous bodily harm - held: post-offence conduct evidence was neutral on issue of intent - there remained reasonable hypothesis consistent with innocence of murder - jury could not have been satisfied beyond reasonable doubt element of intent to kill or do grievous bodily harm proved while there was another reasonable possibility available on evidence - appeal against conviction allowed - verdict of guilty of murder set aside - verdict of manslaughter substituted.
Baden-Clay |
| Poem for Friday (Recitation here by Thomas Hellier) |
The Mower to the Glow-Worms
BY ANDREW MARVELL
Ye living lamps, by whose dear light
The nightingale does sit so late,
And studying all the summer night,
Her matchless songs does meditate;
Ye country comets, that portend
No war nor prince’s funeral,
Shining unto no higher end
Than to presage the grass’s fall;
Ye glow-worms, whose officious flame
To wand’ring mowers shows the way,
That in the night have lost their aim,
And after foolish fires do stray;
Your courteous lights in vain you waste,
Since Juliana here is come,
For she my mind hath so displac’d
That I shall never find my home.
ANDREW MARVELL |
