Weekly Law Review Friday, 13 March 2015 View in browser

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)
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (HCA) - ACMA empowered to find person committed criminal offence in determining whether licensee breached condition under Broadcasting Services Act 1992 (Cth) (I G)
Korda v Australian Executor Trustees (SA) Ltd (HCA) - trusts and trustees - investment scheme - investors did not hold beneficial interest in companies’ sale proceeds on receipt by companies - appeal allowed (B)
Ramsay Health Care Australia Pty Ltd v Compton (NSWSC) – contract - signatures on signing pages bound party to guarantee – plea of non est factum failed (I B)
Wright by his tutor Wright v Optus Administration Pty Ltd (NSWSC) - negligence - worker contracted out to Optus by labour hire company - worker injured in attack by co-worker - Optus liable (I)
Zealley v Liquorland (Aust) Pty Ltd (VSC) - work injury damages - worker injured while unloading truck - employer’s liability 40% - truck owner-operator’s liability 60% (I)
Oliver Hume (Australia) Pty Ltd v Land Source Australia Pty Ltd (VSC) - pleadings - claim for unpaid real estate commission - leave granted to file amended writ and statement of claim (I B)
Boroondara City Council v 1045 Burke Road Pty Ltd (VSCA) - environment and planning - permit for demolition of heritage place - no error in Tribunal’s determination (I C G)
Schultz v Bank of Queensland Ltd (QCA) - possession - Yerkey principle - stay of orders pending appeal (B)
Simmons v Love (WASC) – contract for sale of land – buyers’ claim for damages for late settlement dismissed (I B C)
Summaries With Link (Five Minute Read)
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7
High Court of Australia
French CJ; Hayne, Kiefel, Bell, Gageler & Keane JJ
Administrative law - statutory interpretation - commercial radio broadcast of hoax call to UK hospital at which Duchess of Cambridge was a patient - ACMA conducted investigation and prepared report pursuant to ss170 & 178(1) Broadcasting Services Act 1992 (Cth) (BSA) - primary judge dismissed Today FM’s application for declaration that ss10 &12 Australian Communications and Media Authority Act 2005 (Cth) and ss5, 178(2) & Sch 2, Pt 4, cl8(1)(g) BSA prevented ACMA from finding commercial radio licence-holder breached licence condition unless and until a competent court adjudicated that licensee had used broadcasting service in commission of offence against another Act or law of State or Territory - Full Court of Federal Court found primary judge erred in construction of relevant provisions of BSA and set aside determination that Today FM breached licence condition in cl8(1)(g) - ACMA appealed - held: ACMA had power to make administrative finding that person committed criminal offence for purpose of determining licence-holder had breached licence condition prescribed by cl 8(1)(g) - appeal allowed.
Australian Communications and Media Authority (I G)
[From Benchmark 6 March 2015]
Korda v Australian Executor Trustees (SA) Ltd [2015] HCA 6
High Court of Australia
French CJ; Hayne, Kiefel, Gageler & Keane JJ
Korda v Australian Executor Trustees (SA) Ltd [2014] VSCA 65
Court of Appeal of Victoria
Maxwell P, Osborn JA & Robson AJA
Trusts - equity - investment scheme - investors funded commercial enterprise of timber growing and harvesting carried on by companies - companies went into administration before sale proceeds paid to trustee to hold for investors - receivers of companies sought leave to appeal from decision that investors held beneficial interest in balance of proceeds before they were handed to trustee - Court of Appeal of Victoria held by majority that parties intended proceeds from harvesting of timber or from sale of plantation lands to be held on trust for investors on receipt by companies - held: scheme documentation did not support existence of trust or trusts over proceeds in hands of companies - proceeds were not subject to an express trust in favour of the scheme investors - appeal allowed.
Korda (B)
[From Benchmark 6 March 2015]
Ramsay Health Care Australia Pty Ltd v Compton [2015] NSWSC 163
Supreme Court of New South Wales
Hammerschlag J
Contract – non est factum – plaintiff sued second defendant pursuant to guarantee and indemnity – plaintiff alleged second defendant bound himself as guarantor in terms of written agreement – second defendant appended signature to document headed Signing page – plaintiff later signed an electronically transmitted copy of same page bearing signature – second defendant appended signature to a second Signing page in same form – plaintiff claimed that by signatures second defendant bound himself to guarantee - second defendant denied signature on Signing pages were assent as Signing pages did not pertain to guarantee but were signed as stand-alone documents intended to signify assent to different proposed guarantee under which he had no personal liability to plaintiff – held: objectively viewed both Signing pages were assent by second defendant to guarantee – plea of non est factum failed – second defendant’s mind went with his signature - judgment for plaintiff.
Ramsay Health Care Australia Pty Ltd (I B)
[From Benchmark 10 March 2015]
Wright by his tutor Wright v Optus Administration Pty Ltd [2015] NSWSC 160
Supreme Court of New South Wales
Campbell J
Negligence - plaintiff was employed by labour hire company - plaintiff and co-worker were undertaking training by Optus for work in call centre - plaintiff and co-worker employed to work for Optus by different agencies - plaintiff sued Optus for damages for injury suffered in attack by co-worker - plaintiff claimed that, at time of attack, Optus owed him a duty analogous to that owed by employer to employee - Optus denied it owed duty and contended the only relevant relationship was of occupier of premises and lawful entrant - applicability of personal agency agreement between labour hire company and Optus - application of s151Z Workers Compensation Act 1987 (NSW) - Pt 3 Civil Liability Act 2002 (NSW) - psychological injury - held: Optus owed duty of care to plaintiff - Optus breached duty of care by failing to take precautions against risk of harm - but for Optus’s failure to take precautions, the harm suffered would not have occurred - no contributory negligence - judgment for plaintiff.
Wright by his tutor Wright (I)
[From Benchmark 11 March 2015]
Zealley v Liquorland (Aust) Pty Ltd [2015] VSC 62
Supreme Court of Victoria
J Forrest J
Work injury damages - negligence - worker injured when unloading truck  - worker developed psychiatric condition in which she continued to experience pseudo epileptic fits described as pseudo seizures - worker settled claims against employer and owner-operator of delivery truck - contribution dispute arose - responsibility of each defendant injuries pursuant to Part IV Wrongs Act 1958 (Vic) - held: truck owner-operator should bear lion’s share of responsibility for injuries - its acts and omissions both greater in culpability and causal potency than those employer - there was some substance to truck owner-operator’s allegation that part of worker’s damage related to employer requiring her to carry out work beyond certified medical capacity when she returned to work - however allegation was of minor significance when compared to injury and damage suffered as result of unloading accident - parties apportioned 40% to employer and 60% to truck owner-operator.
Zealley (I)
[From Benchmark 9 March 2015]
Oliver Hume (Australia) Pty Ltd v Land Source Australia Pty Ltd [2015] VSC 77
Supreme Court of Victoria
Cameron J
Pleadings - claim by estate agent for unpaid commission - agent sought leave to file and serve an amended writ and an amended statement of claim - proposed pleading contained rectification claims - agent sought to plead that even if Court found it failed to comply with Estate Agents Act 1980 (Vic), under equitable doctrine of rectification Court could order that agreement be rectified to accord with common intention - ss49A & 50 Estate Agents Act 1980 (Vic) - whether Act precluded Court from granting leave - held: agent should not be denied opportunity to file amended writ and amended statement of claim, including claims based on rectification of sales agreement, in face of provisions of the Act.
Oliver Hume (Australia) Pty Ltd (I B)
[From Benchmark 9 March 2015]
Boroondara City Council v 1045 Burke Road Pty Ltd [2015] VSCA 27
Court of Appeal of Victoria
Warren CJ, Santamaria JA & Garde AJA
Planning - heritage policy - demolition of significant heritage place - applicant sought leave to appeal against decision of trial judge concerning considerations to be taken into account by responsible authority when determining whether to exercise discretion to allow demolition of heritage buildings - whether responsible authority or tribunal was entitled only to take into account considerations relating to Heritage Conservation Policy - held: considerations of non-heritage nature could be taken into account provided that they were relevant matters under provisions of Planning and Environment Act 1987 (Vic) or purposes, objectives or decision guidelines relating to, or incorporated into Heritage Overlay - Tribunal took into account consideration of non-heritage nature but did not stray from matters it was permitted to consider - no error in Tribunal’s determination that it was satisfied a permit should issue under each applicable planning control on basis of conditions it specified - appeal dismissed.
Boroondara City Council (I C G)
[From Benchmark 11 March 2015]
Schultz v Bank of Queensland Ltd [2015] QCA 019
Court of Appeal of Queensland
Gotterson JA
Stay - possession - applicant sought stay of orders under r716(2) Uniform Civil Procedure Rules 1999 (Qld) requiring possession of applicant’s properties to bank - applicant had sought to have guarantee and mortgages set aside on bases of Yerkey principle and Garcia principle - applicant’s claim dismissed - applicant sought to appeal in relation to Yerkey principle - held: notice of appeal raised good arguable point - disadvantages of stay to each stay relatively evenly balanced - risk of loss to bank could be ameliorated to some extent by relatively early hearing date for appeal - stay granted to operate until conclusion of hearing of appeal.
Schultz (B)
[From Benchmark 5 March 2015]
Simmons v Love [2015] WASC 79
Supreme Court of Western Australia
Beech J
Contract for sale of land – buyers initially sued for specific performance of contract for sale of land – seller initially defended action on basis contract unenforceable because it contravened Planning and Development Act 2005 (WA) and that general condition not fulfilled - parties settled on sale and purchase transaction but were in dispute over amount claimed by buyers as damages for late settlement, costs of action and costs of earlier proceedings brought by buyers – held:  on date of settlement  buyers were not ready, willing and able to settle on contract in accordance with its terms – buyers’ claim dismissed – sellers’ counterclaim also dismissed.
Simmons (I B C)
[From Benchmark 10 March 2015]
Executive Summary
Cox v The Queen (VSCA) - evidence - no error in ruling coincidence reasoning open to jury - appeal dismissed
Skinner (a Pseudonym) v The Queen (VSCA) - cross-examination of accused resulting in substantial miscarriage of justice - retrial
Slipper v Turner (ACTSC) - offences against government - failure to exclude rational inferences consistent with innocence - appeals upheld
Summaries With Link
Cox v The Queen [2015] VSCA 28
Court of Appeal of Victoria
Weinberg, Priest & Beach JJA
Evidence - coincidence evidence - appellant convicted of five charges of rape and six charges of indecent assault - offences committed against three complainants (GF, WL and SK) - appellant contended trial judge erred in finding there was evidence in relation to GF that was admissible on coincidence basis in relation to WL and SK - appellant also contended trial judge’s refusal to sever the charges relating to GF from charges relating to WL and SK resulted in substantial miscarriage of justice - ss 98 and 101 Evidence Act 2008 (Vic) - held: trial judge did not err in ruling coincidence reasoning was open to jury - notwithstanding some differences in complainants’ accounts, there was sufficient underlying unity to form basis for availability of coincidence reasoning - no basis for contending trial judge wrong to decline to sever charges relating to GF from indictment - appeal dismissed.
Skinner (a Pseudonym) v The Queen [2015] VSCA 26
Court of Appeal of Victoria
Weinberg, Priest & Beach JJA
Cross-examination - appellant sought to appeal against convictions for offences of indecent assault and sexual penetration against four complainants - appellant contended there had been substantial miscarriage of justice as result of his cross-examination, that trial judge erred in failing to direct jury they should not use certain evidence as evidence of consciousness of guilt, and erred in relation to tendency evidence - held: prosecutor put questions to appellant that invited him to agree that complainants’ sexual allegations against him were lies - there was repetition in prosecutor’s questions of proposition that appellant claimed (or agreed) complainants were lying in their accounts - accused had given evidence-in-chief without branding complainants liars - proposition that complainants lying was matter first raised by prosecutor in cross-examination - cross-examination of accused to effect that accused could not suggest any reason why complainant might be lying impermissible - cross-examination led to substantial miscarriage of justice - appeal allowed - conviction quashed - retrial.
Skinner (a Pseudonym)
Slipper v Turner [2015] ACTSC 27
Supreme Court of the Australian Capital Territory
Burns J
Offences against government - appellant convicted of dishonestly claiming travel expenses for parliamentary business - prosecution case against appellant was purely circumstantial - whether Magistrate entitled to find beyond reasonable doubt that appellant undertook each of three journeys the subject of the charges for purely personal reasons - parliamentary business - absence of direct evidence - held: evidence before Magistrate capable of raising inference appellant undertook journeys for purposes unrelated to parliamentary business – however, Magistrate was obliged to exclude any hypothesis consistent with innocence - parliamentary business was to be given broad interpretation - prosecution could not exclude other rational inferences consistent with innocence - guilt of appellant not the only rational inference available on evidence - not open to the Magistrate, viewing evidence as a whole, to convict - appeals upheld - convictions and penalties set aside.
by Carl Sandburg
Out of your many faces
Flash memories to me
Now at the day end
Away from the sidewalks
Where your shoe soles traveled
And your voices rose and blent
To form the city’s afternoon roar
Hindering an old silence.
I remember lean ones among you,
Throats in the clutch of a hope,
Lips written over with strivings,
Mouths that kiss only for love,
Records of great wishes slept with,
        Held long
And prayed and toiled for:
Written on
Your mouths
And your throats
I read them
When you passed by.
Carl Sandburg