Daily Insurance: Tuesday, 12 May 2015 View in browser

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

Daily Insurance

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Executive Summary (One Minute Read)
Graham v Friswell t/as Ripcord Skydivers (NSWSC) - pleadings - trade practices - unconscionable conduct - rights of parties governed by law of ACT - causes of action not made out
Madden International Ltd v Lew Footwear Holdings Pty Ltd (VSCA) - trade practices - service - strongly arguable claim for misleading and deceptive conduct - writ not set aside - leave to appeal refused
Braham v Stephan (No 2) (VSC) - damages - breach of lease - costs where defendant successful on substantial issues
Midfield Meat Processing Pty Ltd v Fish (VSC) - judicial review - workers compensation - medical panel breached rules of natural justice - decision quashed
Summaries With Link (Five Minute Read)
Graham v Friswell t/as Ripcord Skydivers [2015] NSWSC 504
Supreme Court of New South Wales
Bellew J
Pleadings - plaintiff claimed damages for injuries sustained in sky-diving attempt - plaintiff transfer of proceedings to Supreme Court of Australian Capital Territory or leave to file third amended statement of claim - defendant contended no causes of action maintainable - defendant also submitted plaintiff originally intended to sue corporation and that amendment which correctly named defendant was filed after expiry of limitation period - whether failure to properly identify defendant should be viewed as mistake or whether plaintiff originally sought to sue different party such that amendment could only take effect from date it was made - held: failure to properly identify defendant was a case of misnomer - parties had agreed rights would be governed  by laws of ACT - causes of action on implied warranties under Trade Practices Act 1974 (NSW) and cause of action based on unconscionable conduct contrary to Fair Trading Act 1992 could not be made out - claim in negligence failed - parties to bring in short minutes in light of conclusions.
Madden International Ltd v Lew Footwear Holdings Pty Ltd [2015] VSCA 90
Court of Appeal of Victoria
Mandie & Beach JJA; Dixon AJA
Trade practices - service - applicant (Madden) supplied footwear to respondents (Lew) pursuant to written Licence Agreement - Lew alleged Madden engaged in misleading and deceptive conduct under Trade Practices Act 1974 (Cth) and claimed damages - Madden incorporated in Hong Kong and wholly owned subsidiary of company in New York - Madden had no offices or employees in Australia - statement of claim served on Madden in Hong Kong - Madden sought that writ be set aside - primary judge dismissed application on basis Lew’s claims fell within r7.01(1) Supreme Court (General Civil Procedure) Rules 2005 and that Lew had a ‘strong arguable case’ of misleading and deceptive conduct - Madden sought leave to appeal - held: Madden’s appeal did not have reasonable prospect of success - open to primary judge to conclude Lew’s misleading and deceptive conduct claim strongly arguable - leave to appeal refused.
Braham v Stephan [2015] VSC 194
Supreme Court of Victoria
Hargrave J
Damages - costs - Court refused to grant the specific relief sought by plaintiffs in originating motion but determined that plaintiffs had established breach of lease by defendant and were entitled to damages in respect of breach - held: first plaintiff awarded amount of adverse costs order awarded against him in Magistrate’s Court and certain legal costs arising from breach of lease - damages for distress unavailable - plaintiffs’ success was marginal - substantial justice between parties required that plaintiffs pay 70 % of defendant’s costs of proceeding - defendant had won the substantial issues but allowance must be made for costs plaintiffs incurred in proving breach and related submissions.
Midfield Meat Processing Pty Ltd v Fish [2015] VSC 195
Supreme Court of Victoria
Bell J
Judicial review - workers compensation - worker sought weekly payments of compensation from employer - employer sought judicial review of decision of medical panel on questions referred to it under Accident Compensation Act 1985 -employer contended panel breached rules of natural justice, failed to take into account relevant considerations, made decision no reasonable panel could have made and failed to provide adequate reasons - held: panel’s reasons did not explain what an ‘undifferentianted somatoform disorder’ was or identify basis for making diagnosis - employer could not reasonably have anticipated panel might adopt diagnosis - panel breached rules of natural justice - jurisdictional error - decision quashed - matter remitted.