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

Insurance, Banking, Construction & Government

Thursday, 13 November 2014

Executive Summary (One Minute Read)
Comcare v John Holland Pty Ltd (FCA) - occupational health and safety - employee fatally injured - early admission of breaches - contrition - penalties (I C G)
Smith bht Smith v NRMA Insurance Ltd (NSWSC) - negligence - van collided with car, injuring passenger - Court not satisfied van driver conscious - NRMA not liable (I)
Norman v Cowell (NSWSC) - defamation - pleadings - defence struck out - leave to replead - application to set aside subpoena stood over (I)
Pace v Calabro Real Estate Pty Ltd (NSWSC) - possession - competing orders of possession of same land - procedural fairness - stay of writ of execution (B)
Hodder v Hamilton & Fitzpatrick (VSCA) - accident compensation - refusal to discharge jury - refusal of permission to adduce evidence - appeal dismissed (I)
Wade v Frost (SASC) - Wills - deceased had testamentary capacity when making Will - probate granted - terms of compromise approved (B)
Siam Steel International PLC v Compass Group (Australia) Pty Ltd (WASC) - international arbitration - dispute arising under building supply contract referred to arbitration (B C)
Summaries With Link (Five Minute Read)
Comcare v John Holland Pty Ltd [2014] FCA 1191
Federal Court of Australia
Siopis J
Occupational health and safety - employee fatally injured while working on engineering site - applicant commenced proceeding alleging breaches of duties under Occupational Health and Safety Act 1991 (Cth) - parties agreed statement of facts and terms of proposed declarations - penalties which should be imposed in respect of admitted breaches - whether respondents should get 25% discount in respect of early admission of contraventions - held: task of Court was to impose penalty which reflected objective seriousness of contravention, gave effect to objects of Act and would maintain public confidence in Act - Court placed weight on fact respondents cooperated during investigation and admitted contraventions at very early stage - Court also took into account contrition - however Court did not accept respondents' contention that it should have 25% discount in respect of early plea and an additional 10% to 15% discount in respect of other factors - such an approach would be antithetical to flexible approach to the imposition of penalties endorsed by the Full Court - penalties imposed.
Comcare (I C G)
Smith bht Smith v NRMA Insurance Ltd [2014] NSWSC 1518
Supreme Court of New South Wales
Button J
Negligence - plaintiff child was passenger in motor vehicle - van drove onto wrong side of road colliding with motor vehicle - plaintiff injured - van driver pronounced dead at scene of accident having suffered heart attack - plaintiff sued NRMA as insurer of van driver - separate determination of liability - parties agreed that if van driver was conscious and in control of the van at the time of the collision, he was undoubtedly negligent, and, if unconscious or otherwise very incapacitated, he was not negligent - time at which van driver suffer the heart attack - held: Court not satisfied on balance of probabilities that van driver was conscious and driving at time of collision - separate question of liability determined in favour of NRMA.
Smith bht Smith (I)
Norman v Cowell [2014] NSWSC 1575
Supreme Court of New South Wales
McCallum J
Defamation - pleadings - subpoena - self-represented litigant - action arising in respect of series of cartoons with captions allegedly published by defendant on her Facebook page - plaintiff sought to strike out defence and set aside subpoena - held: defence filed in relevant Court form but attached pages of typed response which did not conform to requirements of pleading defence - not inappropriate to allow defendant to seek production of documents relevant to issues raised by way of subpoena to plaintiff - defence struck out - application in respect of subpoena stood over until amended defence filed - defendant referred to registrar for referral to a barrister or solicitor on pro bono panel for legal assistance in settling an amended defence.
Norman (I)
Pace v Calabro Real Estate Pty Ltd [2014] NSWSC 1166
Supreme Court of New South Wales
McCallum J
Possession - stay - competing orders for possession - land subject of possession claim registered in plaintiffs' name - land subject of contract for sale with defendant - stalling of completion of contract - defendant in occupation of premises as licensee - licensee sought stay of execution of writ - at time contract entered, plaintiffs in default of loan agreement secured by mortgage over the property and mortgagee had commenced proceedings against plaintiffs for possession - terms of agreement for sale with defendant enabled plaintiffs to make sufficient payment to mortgagee to forestall execution of an order for possession - plaintiffs entered into licence agreement with defendant pursuant to which regular payments were made by defendant to mortgagee - held: there ought to be opportunity to address Court as to potential conflict between there being an order for possession in favour of mortgagee against plaintiffs and a later writ of possession in favour of plaintiffs against licensee - not possible for two competing orders for possession to co-exist in respect of same property - in order to afford procedural fairness to mortgagee in what appeared to be a potential legal act which could be to its detriment, it was appropriate to grant stay.
Pace (B)
Hodder v Hamilton & Fitzpatrick [2014] VSCA 279
Court of Appeal of Victoria
Santamaria, Beach & Kyrou JJA
Accident compensation - occupiers liability - appellant injured at premises occupied by respondents - appellant sued respondents claiming they were negligent and that they breached occupiers' duties of care - County Court jury returned verdict for respondents - held: no error in primary judge's refusal to permit appellant to adduce a DVD showing a re-enactment of actions giving rise to accident as appellant believed they had occurred, or in refusal of permission to adduce opinion evidence as to the ease with which it was possible to perform the actions shown in the DVD - no error in primary judge's refusal to discharge the jury - appeal dismissed.
Hodder (I)
Wade v Frost [2014] SASC 162
Supreme Court of South Australia
Gray J
Wills - probate - testamentary capacity - plaintiffs appointed executors under Will made in November 2005 - first defendant was appointed executor under Will made in 1990 - second, third and fourth defendants were deceased's grandchildren - defendants alleged deceased did not have testamentary capacity at the time of making 2005 Will - parties reached compromise - allegation withdrawn - held: notwithstanding parties had reached compromise, Court must be satisfied deceased had testamentary capacity at time of making 2005 Will and of formal validity of 2005 Will itself before making a grant of probate - held: Court satisfied Will valid and that deceased had testamentary capacity when making her 2005 Will - Court satisfied 2005 Will was last Will and testament of deceased - terms of compromise approved.
Wade (B)
Siam Steel International PLC v Compass Group (Australia) Pty Ltd [2014] WASC 415
Supreme Court of Western Australia
Le Miere J
International arbitration - dispute arising under contract between parties for supply of accommodation building - defendant sought order that matter be stayed and referred to arbitration pursuant to s7(2) International Arbitration Act 1974 (Cth) held: contract contained an arbitration agreement which was not inoperative - at time arbitration agreement made, plaintiff was domiciled or ordinarily resident in a Convention country - s7 applied to the agreement - open to either party to give to other party a notice of dispute and, if dispute is not otherwise resolved, to refer dispute to arbitration in accordance with clause of contract - proceeding pending in Court involved determination of a matter capable of settlement by arbitration - proceeding stayed - parties referred to arbitration.
Siam Steel International PLC (B C)