| 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] |
| CRIMINAL |
| 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.
Cox |
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.
Slipper |
Passers-by
by Carl Sandburg
Passers-by,
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.
Passers-by,
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:
Yes,
Written on
Your mouths
And your throats
I read them
When you passed by.
Carl Sandburg
|
