| Alcan Gove Pty Ltd v Zabic (HCA) - limitations - negligence - claim for damages for mesothelioma caused by inhalation of asbestos fibres - cause of action accrued before provisions of Workers Rehabilitation and Compensation Act (NT) came into force - respondent’s cause of action not statute-barred - appeal dismissed (I B C) |
| McCloy v New South Wales (HCA) - constitutional law - special case - implied freedom of communication on governmental and political matters - validity of provisions of Election Funding, Expenditure and Disclosures Act 1981 (NSW) upheld (I B C) |
| Scandinavian Tobacco Group Eersel BV v Trojan Trading Company Pty Ltd (FCA) - consumer law - trade marks - parallel importing of tobacco products - claims of infringement of trade mark, misleading and deceptive conduct and passing off not made out - application dismissed (I B) |
| Lowery v Insurance Australia Ltd (NSWCA) - subpoenas - refusal to set aside subpoenas issued by respondent insurer - suspicious circumstances - scope of subpoenas - leave to appeal granted - appeal allowed - subpoenas set aside in full (I) |
| Kubovic v HMS Management Pty Ltd (NSWCA) - negligence - work injury damages - no error in finding of contributory negligence, admission of surveillance evidence, or assessment of damages for future economic loss - appeal dismissed (I) |
| Kessly v Hasapaki (NSWCA) - contempt - not open to trial judge to make declaration of contempt in appellant’s absence when he had previously indicated intention to make practical orders - appeal allowed (I B C) |
| Wang v Kaymet Corporation Pty Ltd (NSWSC) - contract - purchase of units “off the plan” - draft Strata Documents not registered by date for Registration - vendors did not fail to use “reasonable endeavours”- vendors entitled to rescind contracts - proceedings dismissed (I B C) |
| National Australia Bank v Sayed (No. 3) (NSWSC) - real property - possession - equity - set-off - stay of orders for possession in mortgagee’s favour until hearing of mortgagor’s cross-claim refused (B) |
| Meridien Airlie Beach Pty Ltd (Receivers and Managers Appointed) (in liq) v Karamist Pty Ltd (QCA) - landlord and tenant - relief against forfeiture - no failure to give adequate reasons or misdirection as to legal test - appeal dismissed (B) |
| Registrar of Titles v MRSA (WASCA) - real property - transfer of land - deceit - fraud - dismissal of claim for contribution and indemnity - appeal allowed (I B) |
| NRW Pty Ltd as Trustee for NRW Unit Trust v Samsung C & T Corporation (WASC) - construction contract - determination that Samsung pay amount to NRW- certiorari refused - leave to enforce determination granted (I B C) |
| Gardam v WTH Pty Ltd (TASSC) - contract - insurance - vehicle rental agreement - loss damage waiver option - exclusion clause relating to blood alcohol level - hirer liable for damage to vehicle (I B) |
| Summaries With Link (Five Minute Read) |
Alcan Gove Pty Ltd v Zabic [2015] HCA 33
High Court of Australia
French CJ; Keifel, Bell, Keane & Nettle JJ
Limitations - respondent claimed damages in negligence for mesothelioma caused by inhalation of asbestos fibres in course of employment with appellant between 1974 and 1977 -- substantive provisions of Workers Rehabilitation and Compensation Act (NT), which abolished common law actions in negligence for workplace injuries and provided limited statutory rights to compensation, came into force on 1 January 1987 - if respondent’s cause of action accrued on or after 1 January 1987 it would be statute-barred - judge at first instance found cause of action did not accrue until after 1 January 1987 - Court of Appeal of the Northern Territory reversed decision - hindsight - nature of trigger - whether risk of mesothelioma sufficient to constitute compensable damage - held: Court of Appeal correct to find it was possible to say with benefit of hindsight that respondent's mesothelial cells so damaged shortly after respondent inhaled asbestos fibres between 1974 and 1977 as to lead to onset of malignant mesothelioma “inevitably and inexorably” - Court of Appeal correct to find damage done to the mesothelial cells shortly after inhalation was non-negligible compensable damage sufficient to found cause of action and malignant mesothelioma was part of damage arising in accrued cause of action - appeal dismissed.
Alcan (I B C)
[From Benchmark Thursday, 8 October 2015]
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McCloy v New South Wales [2015] HCA 34
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Constitutional law - special case - implied freedom of communication on governmental and political matters - plaintiffs contended provisions of Election Funding, Expenditure and Disclosures Act 1981 (NSW) which imposed cap on political donations, prohibited property developers from making donations, and restricted indirect campaign contributions, were invalid because they infringed freedom of political communication on governmental and political matters implied by Australian Constitution - Pt 6, Divs 2A, 4A, s96E- ss7, 24, 62, 64, 128 Constitution - held: Court upheld provisions’ validity - challenged provisions did not impose impermissible burden on the implied constitutional freedom - burdens imposed by donation caps in Div 2A not impermissible - anti-avoidance provision in s96E upheld on basis its validity depended on validity of Div 2A - prohibition on donations by property developers in Div 4A valid.
McCloy (I B C)
[From Benchmark Thursday, 8 October 2015]
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Scandinavian Tobacco Group Eersel BV v Trojan Trading Company Pty Ltd [2015] FCA 1086
Federal Court of Australia
Allsop CJ
Consumer law - trade marks - passing off - applicants (STG) claimed respondent infringed registered Australian trade marks of STG Eersel for certain word marks under Trade Marks Act 1995 (Cth) in respect of cigars, engaged in misleading or deceptive conduct in breach of the Australian Consumer Law and engaged in tort of passing off - STG sought injunctive and other relief - operation of ss120 & 123 in context of parallel importing of tobacco products - standing - held: STG Australia had standing under s26 to bring trade mark suit - uses by respondent of mark constituted infringing use as trade mark under s120 - prima facie infringement had occurred subject to s123 &122 - s123 engaged as defence and was answer to case under Act - defence under s122(1)(b) not made out - claims for passing off and under ss18 or 29 ACL not made out - application dismissed.
Scandinavian Tobacco (I B)
[From Benchmark Tuesday, 13 October 2015]
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Lowery v Insurance Australia Ltd [2015] NSWCA 303
Court of Appeal of New South Wales
Basten & Emmett JJA; Adamson J
Subpoena - applicants owned vehicle which was stolen and destroyed by fire - vehicle insured by respondent - respondent declined to make payments under policy - applicant sued respondent - applicants sought leave to appeal against interlocutory judgment which declined to set aside five subpoenas issued by respondent - subpoenas sought documents relating to applicants, their son and person who controlled car park from which vehicle taken - scope of subpoenas - legitimate forensic purpose - “fishing expedition” - whether terms of subpoenas went beyond investigating suspicious circumstances - ss296-299D Criminal Procedure Act 1986 (NSW) - District Court Act 1973 (NSW) - ss102, 103, 106 Evidence Act 1995 (NSW) - r15.3 Uniform Civil Procedure Rules 2005 (NSW) - held (by majority): leave to appeal granted - appeal allowed - subpoenas set aside in full.
Lowery (I)
[From Benchmark Thursday, 8 October 2015]
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Kubovic v HMS Management Pty Ltd [2015] NSWCA 315
Court of Appeal of New South Wales
McColl & Ward JJA; Adamson J
Negligence - work injury damages - contributory negligence - procedural fairness - appellant injured in accident in course of employment with respondent - appellant sued respondent in negligence for damages for injuries - primary judge found for appellant - claim confined to damages for past and future loss of earnings - damages assessed at $107,951 taking into account 20% deduction for contributory negligence - appellant appealed - ss3B, 5B, 5D &12 - 14 Civil Liability Act 2002 (NSW) - ss151G, 151H & 151N Workers Compensation Act 1987 (NSW) - held (by majority): no error in finding of contributory negligence - primary judge did not err in permitting surveillance evidence to be adduced - primary judge did not fall into error in assessing weight to be placed on opinions of appellant’s medical experts, or appellant’s evidence in light of surveillance evidence - no error in approach to assessment of damages for future economic loss by way of buffer - appeal dismissed
Kubovic (I)
[From Benchmark Monday, 12 October 2015]
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Kessly v Hasapaki [2015] NSWCA 316
Court of Appeal of New South Wales
Basten & Macfarlan JJA; Sackville AJA
Contempt - appellant sued respondent neighbour in Land and Environment Court after realising respondent’s home encroached on her land - consent orders made pursuant to which appellant agreed to grant easement to respondent in return for payment of amount - respondent sought to have appellant committed for contempt of court for not complying with the orders - appellant sought adjournment application on basis she could not attend hearing of motion due to a recent operation - trial judge refused application and found appellant guilty of contempt - appellant appealed - s94 Civil Procedure Act 2005 (NSW) - s57 Land and Environment Court Act 1979 (NSW), held: no error in the refusal of adjournment application but not open to trial judge to make declaration of contempt in appellant’s absence, after he had previously indicated an intention to make practical orders which did not involve such a declaration - appeal allowed - declaration of contempt and costs orders set aside.
Kessly (I B C)
[From Benchmark Tuesday, 13 October 2015]
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Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 145
Supreme Court of New South Wales
Stevenson J
Contract - plaintiff purchasers exchanged contracts with defendant vendors for purchase of units "off the plan" - contracts contained clause requiring completion 21 days after date on which defendants served notice of registration of strata plan on purchaser’s solicitors - contracts also contained condition that defendants use "reasonable endeavours" to register "draft Strata Documents" by the “Date for Registration” - contracts provided that either party could rescind if “for any reason” draft Strata Documents not registered by the Date for Registration - draft Strata Documents not registered by the Date for Registration or at all - defendants purported to rescind contracts - whether defendants were entitled to rescind - whether defendants used their reasonable endeavours to register draft Strata Documents by Date for Registration - held: plaintiffs established development delayed for want of reasonable endeavours by defendants’ in certain period in relation to piling but delay did not cause defendants to fail to register draft Strata Documents by Dates for Registration - plaintiffs failed to establish relevant breach of clause of contracts, nor that defendants were not entitled to rescind contracts - proceedings dismissed
Wang (I B C)
[From Benchmark Thursday, 8 October 2015]
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National Australia Bank v Sayed (No. 3) [2015] NSWSC 1473
Supreme Court of New South Wales
Davies J
Real property - possession - equity - set-off - first defendant mortgagor sought stay of orders for writ of possession of land in favour of plaintiff until his cross-claim was heard concerning sale of other land at under value - Conveyancing Act 1919 (NSW) - held: complaint about sale of a property at an under value did not impeach plaintiff’s title to land in question - plaintiff had judgment which first defendant had been given time to satisfy but had not satisfied - any award of damages in first defendant’s favour would merely provide source of funds to reduce judgment but not to satisfy it - no basis for grant of stay - notice of motion dismissed.
National Australia Bank (B)
[From Benchmark Tuesday, 13 October 2015]
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Meridien Airlie Beach Pty Ltd (Receivers and Managers Appointed) (in liq) v Karamist Pty Ltd [2015] QCA 192
Court of Appeal of Queensland
M McMurdo P; A Lyons & North JJ
Landlord and tenant - respondent obtained relief against forfeiture pursuant to s124 Property Law Act 1974 (Qld) in relation to subleases of two berths in a marina - appellants contended primary judge erred or misdirected himself by failing to give adequate reasons and finding against weight of evidence - appellant also contended primary judge fettered his discretion in requiring appellant to show “there were very exceptional or, at least, exceptional circumstances” for respondent’s application to fail - onus - held: primary judge did not fail to give adequate reasons - primary judge did not misdirect himself in relation to legal test - no basis for conclusion that primary judge reversed onus - primary judge was balancing all factors required to be considered in exercise of discretion - appeal dismissed.
Meridien (B)
[From Benchmark Wednesday, 14 October 2015]
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Registrar of Titles v MRSA [2015] WASCA 204
Court of Appeal of Western Australia
Martin CJ; Newnes & Murphy JJA
Real property - deceit - respondent (Ms MRSA) forged father’s signature on document appointing her as his attorney with power to sell land - respondent conveyed title to land to Western Australian Planning Commission and misappropriated money which Commission paid to obtain title - Mr Mrsa commenced proceedings against respondent and appellant - Mr MRSA died - respondent failed to file defence - judgment entered against her by default - Registrar claimed contribution and indemnity from respondent and from her sister who signed power of attorney as witness to father’s signature - trial judge declined to assess damages due from Ms Mrsa to Mr MRSA’s estate, upheld estate's claim against Registrar and ordered Registrar to pay damages to estate - trial judge dismissed Registrar's claims for contribution and indemnity - trial judge found statutory scheme for compensation created Transfer of Land Act 1893 (WA) impliedly excluded actions in deceit and any other claim in tort - trial judge considered State’s loss due to obligation to compensate Mr Mrsa’s estate not caused by respondent’s deceit and that Registrar was not the appropriate party to claim relief - ss195, 199, 201 & 205 - held: each of trial judge’s reasons for dismissing Registrar's claim was erroneous - appeal should be allowed - claim for contribution and indemnity upheld.
Registrar of Titles (I B)
[From Benchmark Wednesday, 14 October 2015]
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NRW Pty Ltd as Trustee for NRW Unit Trust v Samsung C & T Corporation [2015] WASC 369
Supreme Court of Western Australia
Mitchell J
Judicial review - construction contract - Samsung sought to quash adjudicator’ determination under Construction Contracts Act 2004 (WA) that Samsung amount to NRW - held: payment dispute arose when Samsung disputed payment claim made by NRW - adjudication application made within permissible time - adjudicator determined merits of dispute by reference to terms of construction contract - any error by adjudicator in construing certain contractual provisions was no more than misconstruction of construction contract and error within adjudicator's jurisdiction - Samsung's claimed set offs did not provide valid reason to refuse leave to enforce determination - certiorari refused - leave to enforce determination granted.
NRW (I B C)
[From Benchmark Friday, 9 October 2015]
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Gardam v WTH Pty Ltd [2015] TASSC 46
Supreme Court of Tasmania
Blow CJ
Contract - insurance - dispute between vehicle rental company and customer concerning damage to rented vehicle - appellant hired van from company - vehicle broke down - appellant contacted company and arranged for replacement vehicle to be sent to him - while waiting appellant and companions consumed alcoholic drinks - appellant failed to keep replacement vehicle on sealed portion of roadway - vehicle flipped and was damaged - appellant prosecuted and pleaded guilty to a charge on basis he was driving with blood alcohol concentration of 0.053% - it was offence to drive with blood alcohol concentration exceeding .05% - company sued appellant in Magistrates Court for damage to vehicle - Magistrate held that under parties' rental agreement appellant liable to pay company for damage - appellant appealed - loss damage waiver option - meaning of exclusion clause - applicability of s21 Road Safety (Alcohol and Drugs) Act 1970 (Tas) - held: Magistrate correctly applied contractual provisions - Magistrate correct to find s21 did not apply to case - appeal dismissed.
Gardam (I B)
[From Benchmark Monday, 12 October 2015]
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| CRIMINAL |
| Executive Summary |
| R v Ali (QCA) - criminal law - unlawfully and indecently dealing with teenage boy - failure to give direction to jury when video recording containing complainant’s evidence-in-chief replayed - substantial miscarriage of justice - appeal allowed - conviction set aside - retrial |
| Keenan v The Queen (ACTCA) - criminal law - armed robbery - trial judge did not err in ordering appellant to be hand-cuffed during trial - no miscarriage of justice - verdict not unreasonable - appeal dismissed |
| Summaries With Link |
R v Ali [2015] QCA 191
Court of Appeal of Queensland
Gotterson JA; P McMurdo & P Lyons JJ
Criminal law - appellant convicted of offence against s210(1)(a) Criminal Code (Qld) of unlawfully and indecently dealing with a teenage boy who was then 14 years old - appellant sentenced to release on entering into recognisance in amount $200 on condition he keep peace and be of good behaviour for two years - appellant appealed against conviction - held: respondent properly conceded ground of appeal concerning trial judge’s failure to direct the jury when video recording of interview, tendered pursuant to s93A Evidence Act 1977 (Qld), was replayed at jury’s request, not to place undue weight on it - interview contained complainant’s evidence-in-chief - respondent further conceded failure to give direction was substantial miscarriage of justice - appeal allowed in conformity with s668E(1) of the Code - conviction set aside - retrial ordered.
Ali |
Keenan v The Queen [2015] ACTCA 52
Court of Appeal of the Australian Capital Territory
Refshauge ACJ; Penfold & North JJ
Criminal law - appellant found guilty of armed robbery by jury - appellant appealed against conviction - s37O(2) Supreme Court Act 1933 (ACT) - ss23A(6) & 23F Crimes Act 1914 (Cth) - s 138 Evidence Act 2011 (ACT) - s43 Evidence (Miscellaneous Provisions) Act 1991 (ACT) - held: Court not satisfied jury’s verdict unreasonable or could not be supported having regard to evidence - Court not satisfied trial judge made wrong decision on question of law in ordering appellant to be handcuffed or in what trial judge said to the jury about the matter - no miscarriage of justice as result of appellant being handcuffed during trial or on any other ground - appeal dismissed.
Keenan |
La Belle Dame sans Merci: A Ballad
By John Keats
O what can ail thee, knight-at-arms,
Alone and palely loitering?
The sedge has withered from the lake,
And no birds sing.
O what can ail thee, knight-at-arms,
So haggard and so woe-begone?
The squirrel’s granary is full,
And the harvest’s done.
I see a lily on thy brow,
With anguish moist and fever-dew,
And on thy cheeks a fading rose
Fast withereth too.
I met a lady in the meads,
Full beautiful—a faery’s child,
Her hair was long, her foot was light,
And her eyes were wild.
I made a garland for her head,
And bracelets too, and fragrant zone;
She looked at me as she did love,
And made sweet moan
I set her on my pacing steed,
And nothing else saw all day long,
For sidelong would she bend, and sing
A faery’s song.
She found me roots of relish sweet,
And honey wild, and manna-dew,
And sure in language strange she said—
‘I love thee true’.
She took me to her Elfin grot,
And there she wept and sighed full sore,
And there I shut her wild wild eyes
With kisses four.
And there she lullèd me asleep,
And there I dreamed—Ah! woe betide!—
The latest dream I ever dreamt
On the cold hill side.
I saw pale kings and princes too,
Pale warriors, death-pale were they all;
They cried—‘La Belle Dame sans Merci
Thee hath in thrall!’
I saw their starved lips in the gloam,
With horrid warning gapèd wide,
And I awoke and found me here,
On the cold hill’s side.
And this is why I sojourn here,
Alone and palely loitering,
Though the sedge is withered from the lake,
And no birds sing.
John Keats |
