Dear subscriber,

  1. In this weekly edition we are now including a section on criminal law.
  2. It will be very select. We anticipate we will be reporting 2-3 cases per week of the judgments delivered in superior courts across Australia.

Warm regards
Alan Conolly

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

Weekly Law Review

Friday, 13 February 2015

Executive Summary (One Minute Read)
Cassegrain v Gerard Cassegrain & Co Pty Ltd (HCA) - real property - Torrens system land - indefeasibility of title - fraud - agency - appeal allowed in part (I B C)
Krok v Commissioner of Taxation (FCA) - legal professional privilege - waiver - applicant required to discover documents in disputed categories (I B)
Munsie v Dowling (No 4) (NSWSC) - pleadings - defamation - amended defence struck out - leave to replead (I)
Andtrust v Andreatta (NSWSC) - trusts and trustees - trustee’s power under trust deed to extend vesting date - declaration (B)
Nominal Defendant v Mokbel (NSWCA) - motor vehicle accident - evidence - Nominal Defendant not liable - appeal allowed (I)
AIG Australia Ltd v Jaques (No 2) (VSCA) - costs - indemnity costs sought in respect of appeal on basis of Calderbank offer made at trial - application refused (I)
Mules v Ferguson (QCA) - medical negligence - patient suffered injuries from meningitis - doctor liable - patient awarded damages of $6.7 million (I)
Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone (QSC) - negligence - hotel patron injured in fall downstairs when removed from hotel - hotel owners not liable (I)
Tasmanian Perpetual Trustees Ltd v Attorney-General (TASSC) - Wills - trusts - cy-prés scheme - limited variation to purposes specified in trust approved (B)
Summaries With Link (Five Minute Read)
Cassegrain v Gerard Cassegrain & Co Pty Ltd [2015] HCA 2
High Court of Australia
French CJ; Hayne, Bell, Gageler & Keane
Real property - Torrens system land - fraud - agency - respondent company transferred land to appellant wife and husband as joint tenants - husband was company’s director - consideration to be satisfied by debiting husband’s loan account with company - husband knew company did not owe money in loan account - debit not recorded in company's books until after transfer registered - husband subsequently transferred land to wife for nominal consideration - company sought to recover title from wife as sole registered proprietor - ss42(1), 100(1), 118(1)Real Property Act 1900 (NSW) - appellant’s title as joint proprietor with husband not defeasible on account of husband’s fraud - husband not appellant’s agent - registration as joint tenant did not mean that appellant’s title defeasible - appellant not a bona fide purchaser for value of husband’s interest in land - company could recover interest which appellant derived from husband, which was an interest as tenant in common as to half - appeal allowed in part.
Cassegrain (I B C)
[From Benchmark 6 February 2015]
Krok v Commissioner of Taxation [2015] FCA 51
Federal Court of Australia
Wigney J
Privilege - Commissioner sought discovery of categories of documents - applicant opposed discovery of some categories on basis of legal professional privilege - Commissioner did not dispute documents caught by categories would attract legal professional privilege - Commissioner maintained documents discoverable because it had been impliedly waived- held: partial disclosure of advice provided to applicant, or disclosure of gist, substance or effect of it, was inconsistent with confidentiality that would otherwise attach to communications recording advice - privilege waived - applicant required to discover documents that fell within disputed categories.
Krok (I B)
[From Benchmark 11 February 2015]
Munsie v Dowling (No 4) [2015] NSWSC 37
Supreme Court of New South Wales
Hoeben CJ at CL
Pleadings - defamation - action arising out of publication of material on website - plaintiffs sought that amended defence be struck out on basis no reasonable defence disclosed or it had tendency to cause prejudice, embarrassment or delay - defendant not legally represented - scandalous material - non-compliance with Uniform Civil Procedure Rules 2005 (NSW) - held: imputations raised in statement of claim prima facie defamatory of plaintiffs - allowance made for fact that defendant not legally qualified - defendant failed to establish basis for amended defence to be allowed to remain in present form - amended defence struck out with leave to replead.
Munsie (I)
[From Benchmark 12 February 2015]
Andtrust v Andreatta [2015] NSWSC 38
Supreme Court of New South Wales
McDougall J
Equity – trusts and trustees - plaintiff was trustee appointed under deed of trust - vesting date defined as expiration of forty years from execution of deed - trustee sought declaration that its power under the deed to vary empowered it to extend vesting date but not so as to infringe rule against perpetuities - construction of deed - held: relief under s81 Trustee Act 1925 (NSW) not available - power to vary trusts set out in deed included power to vary them by extending time for which they were to enure - power could not operate to permit trustee to infringe rule against perpetuities, but that eventuality was covered by clause - declaration made as to trustee’s power under trust deed to extend vesting date.
Andtrust (B)
[From Benchmark 11 February 2015]
Nominal Defendant v Mokbel [2015] NSWCA 3
Court of Appeal of New South Wales
Basten & Ward JJA; Adamson J
Motor vehicle accident - respondent injured when lost control of car and collided with street pole - respondent sued Nominal Defendant on basis there was unidentified vehicle and that negligent driving of vehicle had caused him to lose control of car - trial judge found in favour of respondent and assessed contributory negligence at 30% - Nominal Defendant challenged finding on liability - both parties challenged decision on contributory negligence - objective evidence - descriptive evidence - held: Court should not have been satisfied an unidentified vehicle cut across respondent’s vehicle without warning, forcing him to take evasive action - appeal on liability upheld - evidence did not establish negligence on part of any other driver so no question of contributory negligence arose - cross-appeal dismissed.
Nominal Defendant (I)
[From Benchmark 10 February 2015]
AIG Australia Ltd v Jaques (No 2) [2015] VSCA 3
Court of Appeal of Victoria
Warren CJ & Neave JA
Costs - Court of Appeal dismissed appellant’s appeal - respondent sought costs on indemnity basis - respondent relied on fact that trial judge had awarded indemnity costs on basis of Calderbank offer made prior to trial - respondent submitted that appeal costs should also be awarded on indemnity basis to ensure benefits he obtained as result of trial judge’s order not undermined by additional costs incurred in meeting appeal - respondent also submitted degree of unreasonableness of appellant’s rejection of offer to compromise supported application - held: offers of compromise made pursuant to Pt2 O26 Supreme Court (General Civil Procedure) Rules 2005 (Vic) were confined to compromise of claim at trial - Rules now provided for offers of compromise to be made to compromise appeal pursuant to r26.12 - not suggested such offer made by respondent - evidence of unreasonableness insufficient to warrant departing from usual order - appellant to pay respondent’s costs on standard basis.
AIG Australia Ltd (I)
[From Benchmark 9 February 2015]
Mules v Ferguson [2015] QCA 5
Court of Appeal of Queensland
M McMurdo P; Applegarth & Boddice JJ
Medical negligence - appellant suffered injuries and disabilities after contracting meningitis - appellant sued doctor for failure to undertake proper examination or make proper enquires as to symptoms - primary judge assessed damages at $6.7 million but dismissed appellant’s claim - appellant contended judge erred in finding doctor’s breach of care did not cause her injuries and in finding doctor had a defence under s22 Civil Liability Act 2003 (Qld) - held (by majority): trial judge’s findings that respondent breached duty of care open on evidence - trial judge’s findings as to likely outcome of consultations had respondent not breached duty against weight of evidence - no evidence sufficient to satisfy respondent’s onus in respect of s22 - appeal allowed - judgment for appellant for $6.7 million.
Mules (I)
[From Benchmark 9 February 2015]
Carlyon v Town & Country Pubs No. 2 Pty Ltd T/A Queens Hotel Gladstone [2015] QSC 13
Supreme Court of Queensland
A Lyons J
Negligence - plaintiff injured as result of a fall down front steps of hotel as he was being evicted by security staff - plaintiff sued hotel owners on basis injuries were result of assaults and negligence of the security staff during eviction, and failure of defendants to provide a safe system of security - s 92(1)(a) Evidence Act 1977 (Qld) - Liability Regulation 2003 (Qld) (Reprint 1A) - ss165(1) 165(2) & 165(3) Liquor Act 1992 (Qld) - held: Court not satisfied failures, which may or may not have existed in hotel’s security policies in relation to use of restraints, caused or contributed to fall - most likely cause of fall was plaintiff’s resistance to being removed - claim dismissed.
Carlyon (I)
[From Benchmark 6 February 2015]
Tasmanian Perpetual Trustees Ltd v Attorney-General [2015] TASSC 1
Supreme Court of Tasmania
Wood J
Wills - trusts - executors of testatrix’s estate sought pursuant to s6 Variation of Trusts Act 1994 (Tas) that trust created by Will and regarded as charitable trust be varied - applicant contended trust’s original purposes had become impracticable and impossible to carry out - cy-prés scheme - charitable purpose - proposed scheme and spirit of the gift - held: Court satisfied that a limited variation to purposes specified in trust should be approved.
Tasmanian Perpetual Trustees Ltd (B)
[From Benchmark 10 February 2015]
Executive Summary (One Minute Read)
Hermanus (a pseudonym) v The Queen (VSCA) - criminal law - allegations of indecent assault on complainant in 1975 - stay of proceedings refused - leave to appeal refused
R v Violi (SASCFC) - criminal law - commercial drug offending - cumulative sentences not manifestly excessive - appeal dismissed
Summaries With Link (Five Minute Read)
Hermanus (a pseudonym) v The Queen [2015] VSCA 2
Court of Appeal of Victoria
Maxwell P & Priest JA
Criminal law - applicant sought leave to appeal against interlocutory decision to refuse to permanently stay proceedings in County Court - two charges in indictment - alleged applicant indecently assaulted complainant in 1975 when complainant was 5 years old - applicant contended trial judge erred by refusing to rule that forensic disadvantage to applicant was such that the only remedy available was a stay - held: trial judge satisfied that some forensic disadvantage to applicant would probably flow from the long delay - in order to ameliorate disadvantage, judge excluded evidence of uncharged acts and delay, and resolved to give forensic disadvantage direction - no error in trial judge’s approach - open to judge to conclude loss of police brief would not render trial unacceptably unfair -  applicant failed to demonstrate trial judge’s decision to refuse a permanent stay was not open - leave to appeal refused.
Hermanus (a pseudonym)
R v Violi [2015] SASCFC 2
Full Court of the Supreme Court of South Australia
Kourakis CJ; Bampton & Parker JJ
Criminal law - sentencing - deterrence - appellant convicted in respect of manufacture of drugs for sale and trafficking - appellant pleaded guilty to 22 counts of possession of firearm without licence - drugs and firearms found in workshop and sheds leased by appellant -  appellant sentenced for all offences of which he was convicted - sentence of four years imprisonment for drug related offences - three years imprisonment for firearms offences - judge ordered sentences be served cumulatively - fixed non-parole period of four years - appellant claimed sentence was manifestly excessive, that judge erroneously sentenced appellant on basis he was a principal, and that judge erred in failing to direct sentences operate at least partly concurrently - importance of general deterrence regarding commercial drug offending - held:  acquittal of one count of trafficking did not detract from the jury’s finding that the appellant was a principal in the manufacture and trafficking of drugs - sentence was not manifestly excessive - no reason to order partial concurrence, as conduct comprising each offence was distinctly different and also aggravated the overall offending - appeal dismissed.

Song of the Witches: “Double, double toil and trouble”
By William Shakespeare

(from Macbeth)

Double, double toil and trouble;
Fire burn and caldron bubble.
Fillet of a fenny snake,
In the caldron boil and bake;
Eye of newt and toe of frog,
Wool of bat and tongue of dog,
Adder's fork and blind-worm's sting,
Lizard's leg and howlet's wing,
For a charm of powerful trouble,
Like a hell-broth boil and bubble.

Double, double toil and trouble;
Fire burn and caldron bubble.
Cool it with a baboon's blood,
Then the charm is firm and good.

William Shakespeare