Queensland Nickel Pty
Ltd v Commonwealth of Australia (HCA) - Constitutional law - special case - Div
48, Pt 3 Sch 1 Clean Energy Regulations
2011 (Cth) did not contravene s99 Constitution (I B C G) |
Paciocco
v Australia and New Zealand Banking Group Ltd (FCAFC)
– banking - consumer protection - Exception Fees were not penalties - no unconscionable
conduct by bank, unjust transactions or unfair terms - bank’s appeal allowed (I B) |
Fletcher v Nextra
Australia Pty Ltd (FCAFC) – consumer law – publication of article on internet blog was
misleading and deceptive conduct – appeal dismissed (I B) |
Dallas Buyers Club
LLC v iiNet Ltd (FCA) - preliminary discovery granted to owner of copyright in film on
conditions (I B) |
Coles
Supermarkets Australia Pty Ltd v Fardous (NSWCA) - negligence - slip
and fall at supermarket - erroneous assessment of damages for economic loss -
appeal allowed (I) |
Workplace
Safety Australia v Simple OHS Solutions Pty Ltd (NSWCA)
- trade practices - contract - equity - franchise agreement entered in
contravention of Competition and Consumer
Act 2010 - damages (I B) |
Perisher Blue Pty Ltd
v Nair-Smith (NSWCA) – negligence – skier injured when ski-lift chair struck her – Perisher’s
breach of duty did not cause skier’s injuries - appeal allowed (I B) |
Metaxoulis v
McDonald’s Australia Ltd (NSWCA) - negligence - appellant injured in slip and fall after rescuing
child from play equipment - McDonalds liable (I) |
Meldov
Pty Ltd v Bank of Queensland (NSWSC) – mortgage - “all moneys” clause - bank
entitled to full proceeds of sale under first mortgage (I B) |
Robbins v Hume (VSC) – succession – extension
of time to bring family provision claim refused (B) |
Westpac Banking
Corporation v Jamieson (QCA) – negligence – damages - investment advice – bank negligent and in
breach of contract – appeal and cross-appeals dismissed (I B) |
Ireland
v B & M Outboard Repairs (QSC)- negligence-contract
- injuries suffered in fire on boat - breach of duty of care and implied term -
outboard repairers liable (I B) |
Summaries (Five Minute Read) with Link |
Queensland
Nickel Pty Ltd v Commonwealth of Australia
[2015] HCA 12
High Court of Australia
French CJ; Hayne, Kiefel, Bell, Gageler,
Keane & Nettle JJ
Constitutional law - special case to
determine whether Div 48, Pt 3 Sch 1 Clean
Energy Regulations 2011 (Cth) was invalid in application to plaintiff as result
of giving preference to one State over another contrary to s99 Constitution - plaintiff
contended Jobs and Competitiveness Program contravened s99 because allocative
baselines it prescribed by were fixed by reference to industry averages and resulted
in same number of free carbon units per unit volume of production regardless of
differences between producers’ inputs, production processes and outputs - held:
validity of provisions of Regulations upheld - Div 48 did not give preference
to one State over another - no contravention of s99 Constitution.
QueenslandNickel
(I B C G)
[From Benchmark 9 April 2015] |
Paciocco v Australia and New
Zealand Banking Group Ltd
[2015] FCAFC 50
Full
Court of the Federal Court of Australia
Allsop
CJ; Besanko & Middleton JJ
Banking
- consumer protection - representative proceedings - plaintiffs sought to set
aside “Exception Fees” on basis they were penalties, or were product of unconscionable
conduct by bank, or were unjust under National Credit Code, or were unfair
contract terms - ss12BG, 12CA, 12CB, 12CC, 12GF & 12GM Australian Securities and Investments Commission Act 2001 (Cth) - Contracts Review Act 1980 (NSW) - Fair Trading Act 1999 (Vic) - held: it
was not proven that late payment fee was extravagant or unconscionable - no unconscionable conduct by bank - fees were
not penalties - transactions not unjust or terms unfair - statutory claims dismissed
- bank’s appeal allowed.
Paccioco
(I B)
[From Benchmark 13 April 2015] |
Fletcher v Nextra Australia
Pty Ltd
[2015] FCAFC 52
Full
Court of the Federal Court of Australia
Middleton,
McKerracher & Davies JJ
Consumer
law – appellant involved in newsagency industry – appellant appealed from
primary judge’s decision that appellant’s publication of article on internet
blog was misleading and deceptive conduct in contravention of s18 Australian Consumer Law – article
criticised contents of flyer circulated by respondent – respondent was competitor
of company of which appellant was director and 50% shareholder – appellant
contended publishing blog not conduct in trade or commerce and that respondent
did not establish representations – Sch 2 Competition
and Consumer Act 2010 (Cth) - s52 Trade
Practices Act 1974 (Cth) - held: publication of article occurred in trade
or commerce - at least one representation correctly found to be representation
of fact – representation false and misleading – appeal dismissed.
Fletcher
(I B)
[From Benchmark 14 April 2015] |
Dallas
Buyers Club LLC v iiNet Ltd
[2015] FCA 317
Federal Court of Australia
Perram J
Preliminary discovery - owner of
copyright in film sought preliminary discovery of documents - internet service providers
were respondents to application - applicants claimed they had identified 4,726
unique IP addresses from which their film was shared on-line their permission
contrary to Copyright Act 1968 (Cth)
- held: ISPs to divulge names and physical addresses of customers associated with
each of IP addresses identified by applicants on condition information only be
used for purposes of recovering compensation for infringements and not
otherwise disclosed without Court’s leave - Court also imposed condition that
applicants were to submit draft of any letter they proposed to send to account
holders associated with IP addresses.
Dallas
(I B)
[From Benchmark 9 April 2015] |
Coles Supermarkets Australia
Pty Ltd v Fardous
[2015] NSWCA 82
Court
of Appeal of New South Wales
Macfarlan
& Emmett JJA; Simpson J
Negligence
- occupier’s liability - respondent injured in slip and fall at appellant’s
supermarket - primary judge found in respondent’s favour against appellant on
liability and awarded damages - appellant challenged awards for past economic
loss, future economic loss and future out-of-pocket expenses - whether respondent
had any earning capacity at time of accident taking into account earlier work
accident - s13 Civil Liability Act 2002
(NSW) - held: primary judge erred in assessment of damages for economic loss - respondent
had significant prospect assessed at 65% of obtaining employment of 20 hours
per week at rate of $20 per hour - primary judge’s award of damages for past
and future economic loss reduced to reflect percentage - no error in assessment
of damages for future out-of-pocket expenses - appeal allowed.
Coles
(I)
[From Benchmark 10 April 2015] |
Workplace Safety Australia v
Simple OHS Solutions Pty Ltd
[2015] NSWCA 84
Court
of Appeal of New South Wales
Bathurst
CJ; Basten & Emmett JJA
Trade
practices - contract - equity - estoppel - distribution agreement between Workplace
Safety Australia Pty Ltd (WSA), Simply OHS Solutions Pty Ltd (Simple) and guarantor
- under agreement Simple agreed to distribute WSA’s online subscription
packages - WSA purported to terminate agreement for alleged breaches by Simple
- WSA sued Simple and guarantor for money owing under agreement and damages for
loss of further profits - Simple cross-claimed for damages for wrongful
repudiation and on basis WSA contravened s51AD Competition and Consumer Act 2010 (Cth) in entering agreement - common
ground that Trade Practices (Industry
Codes – Franchising) Regulations 1998 (Cth) contravened if agreement was franchising
agreement - held: primary judge did not err in concluding agreement was a
franchise agreement within meaning of Code - WSA not entitled to terminate
agreement on basis of Simple’s failure to pay instalment or meet sales target -
no error in assessment of damages under s82 - appeal dismissed.
Workplace
(I B)
[From Benchmark 10 April 2015] |
Perisher Blue Pty Ltd v
Nair-Smith
[2015] NSWCA 90
Court
of Appeal of New South Wales
Barrett
& Gleeson JJA; Tobias AJA
Negligence
– causation - appellant operated ski fields– respondent injured when ski-lift
chair struck her – respondent sued appellant for damages and breach of contract
– primary judge upheld claim - appellant appealed – held: lift operator’s
failure to observe condition of chair as it exited bullwheel constituted breach of appellant’s duty of care - not open
to primary judge to conclude appellant’s breach was necessary condition of
occurrence of harm - respondent’s injuries not materialisation of inherent risk
- limitations on damages imposed by Pt 2
were invalid under s109 Constitution - limitations directly inconsistent with right
to “full contractual liability” conferred by s74(1) Trade Practices Act 1975 (NSW) (TPA) - ticket contract was for supply
of “recreational services” under s68(2) TPA - term of ticket contract which excluded
liability for more than personal injury or death was void by operation of s68
TPA – appeal allowed.
Perisher
(I B)
[From Benchmark 14 April 2015] |
Metaxoulis
v McDonald’s Australia Ltd
[2015] NSWCA 95
Court of Appeal of New South
Wales
McColl, Basten & Macfarlan
JJA
Negligence - child got stuck on
playground equipment in McDonald’s restaurant while playing in back area of
playground where children were not supposed to play - appellant slipped and fell
from height of about two metres after climbing over equipment and rescuing
child - appellant suffered aggravation of pre-existing injury to wrist and a
minor rib injury-appellant sued McDonalds-primary judge found for McDonalds and
undertook hypothetical assessment of damages at $78,911.95 - ss5B, 5D, 13, 16; Pt
8 Civil Liability Act 2002 (NSW) - held:
McDonald’s breached duty of care by failing to prevent unauthorised access to
back area of playground-causation established - quantification of damages for
non-economic loss not manifestly inadequate-damages awarded for past economic
loss for period extending beyond initial three months - damages awarded for
future economic loss due to appellant’s diminution in ability to pursue
full-time employment-allowance awarded for domestic assistance at commercial
rates-appeal allowed.
Metaxoulis
(I)
[From Benchmark 15 April 2015] |
Meldov Pty Ltd v Bank of
Queensland
[2015] NSWSC 378
Supreme
Court of New South Wales
Slattery
J
Mortgage
- bank mistakenly advanced more money than it intended to advance to borrowers -
borrowers drew down on additional credit - bank exercised its powers of sale as
first mortgagee over mortgagors’ two properties - bank applied all proceeds of
sale of second property in discharge of borrowers’ obligations - plaintiff
company held second mortgage over second of two properties - company claimed portion
of proceeds of sale - whether bank’s mistaken advance to mortgagors was secured
under “all moneys” clause of bank’s first mortgage over property - held: borrowers’ restitutionary
obligation to repay Bank money mistakenly overpaid by bank was secured by bank’s
first mortgage - company’s claim failed - bank entitled to full proceeds of
sale under first mortgage.
Meldov
(I B)
[From Benchmark 13 April 2015] |
Robbins v Hume [2015] VSC 128
Supreme
Court of Victoria
McMillan
J
Wills
and estates – family provision – deceased left property to defendant and
personal estate equally between daughters – plaintiff daughter sought to
restrain defendant from dealing with proceeds of sale of property and order
pursuant to s99 Administration and
Probate Act 1958 (Vic) extending time to commence application for provision
– plaintiff contended defendant as executor and trustee of estate had fiduciary
duty to safeguard her interests and had failed to do so – alternatively
plaintiff claimed defendant had duty to be even-handed between all
beneficiaries – held: defendant in personal capacity or as executor had no duty
to safeguard plaintiff’s interests or duty of even-handedness of kind submitted
by plaintiff - defendant’s executorial duties had finished with estate finally
distributed – summons dismissed.
Robbins
(B)
[From Benchmark 14 April 2015] |
Westpac Banking Corporation v
Jamieson
[2015] QCA 50
Court
of Appeal of Queensland
McMurdo
P, Morrison JA & Applegarth J
Negligence
– investment advice – damages - primary
judge found bank in breach of contract and negligent in provision of investment
advice – primary judge also found bank’s conduct misleading or deceptive or likely
to mislead or deceive in contravention of s12DA(1) Australian Securities and Investments Commission Act 2001 (Cth) – parties
appealed and cross-appealed – held: bank’s appeal against finding of liability
in respect of superannuation investment dismissed - respondents’ cross-appeal
against decision to limit damages in relation to superannuation fund loan to
two years’ interest payments dismissed – first respondent’s cross-appeal concerning
methodology to gross-up his net loss dismissed.
Westpac
(I B)
[From Benchmark 14 April 2015] |
Ireland
v B & M Outboard Repairs
[2015] QSC 84
Supreme Court of Queensland
North J
Negligence - contract - implied term-defendants
were partners in business including maintenance, repair and modification of outboard
marine engines-plaintiff claimed he suffered injury including psychiatric
illness as a result of fire which broke out when he engaged ignition to start
outboard motor of boat in 2006 - defendants had replaced fuel lines of boat and
installed electric fuel pump in 2004 - plaintiff claimed fire and injury caused
by defendants’ breach of contract and duty of care to him - it was admitted on
pleadings defendants obliged under implied term of agreement with plaintiff to
act with reasonable skill and care and diligence in performing services under agreement
and that defendants owed plaintiff a duty of care to act with reasonable skill,
care and diligence - by recommending and installing non-marine grade electric
pump defendants breached implied term and duty of care - breaches necessary
condition of plaintiff’s injury, loss and suffering - judgment for plaintiff.
Ireland
(I B)
[From Benchmark 15 April 2015] |
CRIMINAL |
Executive Summary |
R
v Simmons; R v Moore (NSWSC) - criminal law - assumed identities - orders
to protect identities of undercover operatives - non-publication orders |
R
v Simmons (No 6) (NSWSC) - criminal law - evidence - privilege
against self-incrimination - witness required to give evidence |
Summaries With Link |
R
v Simmons; R v Moore [2015] NSWSC 73
Supreme Court of New South Wales
Hamill J
Criminal law - assumed
identities - New South Wales Commissioner of Police sought orders to protect identity
of witnesses who were undercover operatives - orders sought under Law Enforcement and National Security
(Assumed Identities) Act 2010 (NSW) - Commissioner also sought non-publication
orders under Court Suppression and
Non-publication Orders Act 2010 (NSW) - held: in interests of justice to do
what was necessary to protect witnesses’ identities - Court satisfied
non-publication order necessary to prevent prejudice to the proper
administration - orders made. RvSimmons |
R
v Simmons (No 6)
[2015] NSWSC 418
Supreme Court of New South
Wales
Hamill J
Criminal law - evidence -
privilege against self-incrimination - accused was on trial for murder - Crown called
witness who was previously co-accused to give evidence - witness’s charge
reduced to accessory after the fact to murder - whether witness should be required
to give evidence over anticipated objection pursuant to s 128 Evidence Act 1995 (NSW) on basis it
might tend to prove he committed offence - seriousness of charge of murder - potential
significance of evidence - no pending charges against witness - unlikelihood
that decision to discontinue would be revisited by DPP - X7 v Australian Crime Commission [2013] HCA 29 - held: there were
reasonable grounds for objection taken by witness - it was in interests of
justice that witness be required to give evidence
RvSimmonsNo.6 |
Tall
Nettles
By Edward Thomas
TALL nettles cover up, as they have done
These many springs, the rusty harrow, the plough
Long worn out, and the roller made of stone:
Only the elm butt tops the nettles now.
This corner of the farmyard I like most:
As well as any bloom upon a flower
I like the dust on the nettles, never lost
Except to prove the sweetness of a shower.
Edward Thomas
|