Construction Tuesday, 17 March 2015 View in browser

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


Executive Summary (One Minute Read)
Zdziarski v Telstra Corporation Ltd (FCA) – workers compensation – Tribunal applied incorrect standard of causation – appeal allowed 
Khouzame v All Seasons Air Pty Ltd (FCAFC) – bankruptcy – adjudication certificate not accompanied by affidavit – judgment debt unenforceable – bankruptcy notice set aside 
Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd (No 2) (Costs) (VSC) – costs – offer of compromise – defendant not unable to properly assess offer – plaintiff entitled to indemnity costs 
Palermo v Palermo (WASCA) – contract – alleged inferred agreement concerning share in over-all profit – failure to consider merits of claim – appeal allowed – new trial 
Summaries With Link (Five Minute Read)
Zdziarski v Telstra Corporation Ltd [2015] FCA 207
Federal Court of Australia
Perram J
Workers compensation - former employee of Telstra injured at work in 2001 – claim for compensation accepted by Comcare – employee made further claim for compensation on Telstra for depression, emotional stress and physical stress which Telstra rejected  - AAT affirmed refusal of claim – whether worker suffering from emotional disorder and whether caused by employment with Telstra – test for causation - held: question of which test of causation applied could only be answered by asking questions in ss7(4)(a) or 7(4)(b) concerning when employee first sought treatment or when disease first impaired him - Tribunal did not address either question -  Tribunal applied incorrect standard of causation in assessing whether employee’s substance abuse problem was caused by employment– appeal allowed.
Khouzame v All Seasons Air Pty Ltd [2015] FCAFC 28
Full Court of the Federal Court of Australia
Robertson, Wigney & Gleeson JJ
Bankruptcy – respondent was subcontractor retained by appellant – payment dispute arose – adjudication carried out pursuant to Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication concluded respondent entitled to payment – adjudication certificate issued – Local Court entered judgment for respondent – bankruptcy notice issued on application of respondent – primary judge dismissed application to set aside bankruptcy notice – primary judge found respondent’s failure to file affidavit at time of seeking entry of judgment as required by s25 did not rise as high as abuse of process for bankruptcy law purposes – statutory construction - held: adjudication certificate only became enforceable as judgment for debt when it may be filed and it cannot be filed unless accompanied by affidavit specified in s 25(2) – appeal allowed – bankruptcy notice set aside.
Victorian WorkCover Authority v The Australian Steel Company (Operations) Pty Ltd (No 2) (Costs) [2015] VSC 81
Supreme Court of Victoria
Kaye JA
Costs – offer of compromise - plaintiff obtained judgment against defendant in claim under s138 Accident Compensation Act 1985 (Vic) for indemnity for compensation payments made to employee for injury sustained while working for employer – effect of plaintiff’s offer of compromise which defendant did not accept – effect of plaintiff’s lack of success on one basis upon which it sought to make defendant liable – held: defendant not  genuinely unable to properly assess offer of compromise at time served because it lacked relevant information – Court not persuaded to otherwise order under r26.08 Supreme Court (General Civil Procedure) Rules 2005 (NSW) - offer made allowance for prospect plaintiff might not succeed on part of its claim - not appropriate to apportion costs payable to the plaintiff according to issues on which parties respectively succeeded – plaintiff entitled to costs of indemnity basis from date of offer.
Palermo v Palermo [2015] WASCA 49
Court of Appeal of Western Australia
Buss, Newnes & Mazza JJA
Contract - parties were brothers involved in business activities - dispute arose as to basis on which businesses undertaken - appellant contended it was to be inferred from conduct there was agreement that businesses to be conducted on basis they would share equally in overall after-tax profit – appellant claimed primary judge erred in finding alleged agreement inconsistent with corporate and trust structure and failed to have regard to evidence supporting existence of agreement – held: primary judge failed to consider substantive merits of appellant’s claim and to make necessary findings of fact and law – primary judge’s conclusion that appellant had not made out case not the only conclusion open on evidence – appeal allowed – new trial.