| Allen v Chadwick (HCA) - negligence - injured passenger not prevented from wearing seatbelt by appellant’s bad driving - contributorily negligence established - appeal allowed in part (I) |
| Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate (HCA) - civil penalties - adjournment of proceedings - Court not precluded from receiving and accepting civil penalty submission - appeals allowed (I B C) |
| Goodricke v Comcare (No 2) (FCA) - administrative law - workers compensation - cessation of aggravation of work-related injury with result payments would also cease - appeal dismissed (I G) |
| Pitt Street Pty Ltd v Universal 1919 Pty Ltd (NSWCA) - contract - landlord and tenant - independent valuer complied with lease - parties bound by determination - appeal and cross-appeal dismissed (I B C) |
| MacDougal v Mitchell (NSWCA) - damages - assault - applicant entitled to exemplary and aggravated damages but not to “cushion” for future economic loss - appeal allowed in part (I) |
| Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd (NSWCA) - contract - issue estoppel - dismissal of application for permanent injunction - procedural decision binding appellant to construction of joint venture agreement and denying permission to seek relief for breach - leave to appeal refused (I B) |
| Brown v Hewson (NSWCA) - negligence - fall or jump from balance beam at child care centre - proprietors liable - erroneous award of “buffer” for past and future economic loss - appeal allowed in part (I) |
| French v Fraser (No 3) (NSWSC) - damages - defamation - broader campaign of stalking harassment and intimidation - verdict in plaintiff’s favour for damages, including aggravated damages, of $300 000 (I) |
| NSW Commissioner of Police v Folkes (NSWSC) - public assembly and procession - holding of public assembly prohibited pursuant to s25(1) Summary Offences Act 1988 (NSW) (I B C G) |
| Chan v Acres (NSWSC) - negligence - damages - purchase of renovated house with serious defects - breach of statutory warranties by vendor - breach of duty of care by Council - apportionment (I B C) |
| ACN 005 057 349 Pty Ltd v Commissioner of State Revenue (VSCA) - taxation - limitations - refusal to refund excess payments made as result of assessments - dismissal of proceedings for judicial review and restitution at common law - appeal allowed in both proceedings (B C) |
| Pearson v Martin (VSC) - administrative law - equal opportunity - substantial reason for termination of teacher’s employment was his lawful sexual activity with former student - appeal dismissed (I G) |
| Kalabakas v Chubb Insurance Company of Australia Ltd (VSC) - insurance - fire causing damage to home and property - fraudulent non-disclosure and misrepresentation - insurer entitled to avoid renewed policy (I B C) |
| Carbone Bros Pty Ltd v Shire of Harvey (WASCA) - environment and planning - Shire had power to impose conditions in planning consents requiring payment of road levies for use of land for 'extractive industries' (I B C) |
| Summaries With Link (Five Minute Read) |
Allen v Chadwick [2015] HCA 47
High Court of Australia
French CJ; Kiefel, Bell, Keane & Gordon JJ
Negligence - respondent injured when thrown from seat of a car being driven by appellant - appellant’s blood alcohol level around 0.229 per cent - not in dispute appellant’s negligent driving caused injuries - whether respondent contributorily negligent for choosing to travel in car and failing to engage her seatbelt - ss47(2)(b) & 49 Civil Liability Act 1936 (SA) - held: respondent in circumstances could not have been expected to avoid risk of driving with appellant - failure to wear seatbelt constituted contributory negligence - no reason to interfere with trial judge's finding that respondent was not prevented from fastening her seatbelt by respondent’s bad driving - appeal allowed in part.
Allen (I)
[From Benchmark Friday, 11 December 2015]
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Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Civil penalties - appeals from Full Court of the Federal Court’s adjournment of civil penalty proceedings under Building and Construction Industry Improvement Act 2005 (Cth) in which parties sought imposition of agreed penalties - whether Full Court erred in adjourning proceedings on basis decision in Barbaro v The Queen [2014] HCA 2.applied to civil penalty proceeding - whether Barbaro precluded court from receiving submission as to pecuniary penalty to be imposed - held: Barbaro did not apply to civil penalty proceedings - Court not precluded from receiving and accepting agreed or other civil penalty submission - appeal allowed.
Commonwealth of Australia (I B C)
[From Benchmark Friday, 11 December 2015]
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Goodricke v Comcare (No 2) [2015] FCA 1401
Federal Court of Australia
Collier J
Administrative law - workers compensation - constitutional law - appellant sought judicial review of Comcare’s decisions proposing to cease payment of compensation pursuant to Safety Rehabilitation and Compensation Act 1988 (Cth) and determination of amount at which normal weekly earnings should set - appellant also gave Notice of a Constitutional Matter under s78B Judiciary Act 1903 (Cth) arising from withholding of payments while reconsideration of entitlements underway - primary judge dismissed application - whether aggravation of work-related injury had ceased - whether decision-maker could be satisfied appellant no longer suffering injury for which he should be compensated - ss5(1)(h) & 5(3) Administrative Decisions (Judicial Review) Act 1977 (Cth) - held: .grounds of appeal failed - no error in primary judge’s decision concerning application of s 51(xxxi) Constitution - there was material before respondent from which it could be satisfied appellant no longer suffered injury and was therefore no longer entitled to compensation - appeal dismissed.
Goodricke (I G)
[From Benchmark Friday, 11 December 2015]
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122 Pitt Street Pty Ltd v Universal 1919 Pty Ltd [2015] NSWCA 390
Court of Appeal of New South Wales
Bathurst CJ; Macfarlan & Meagher JJA
Contract - landlord and tenant - lessor leased part of building to defendant lessee - lease was for term of 10 years with option for further 10 years - lessee exercised option - lease provided for market review of base rent upon exercise of option to renew - lessor proposed new base rent - lessee engaged rent dispute mechanism under lease resulting in appointment of independent valuer - valuer determined market rent approximately $500,000 less than figure proposed by lessor - if valuer complied with lease by disregarding value of fitout parties accepted they were bound by determination - primary judge found valuer complied with lease - lessor challenged determination - whether primary judge erred in finding that “to take into account an obligation about ‘Fitout Work’ did not involve taking anything into account about ‘fitout’” - whether primary judge erred in finding valuer disregarded value of the “fitout” - held: nothing in clause of lease or elsewhere in lease to suggest “the Tenant’s Fixtures or fitout” included reference not only to premises’ condition at relevant time but also to future work likely to be carried - lessor did not establish valuer took value of future work into account - appeal and cross-appeal dismissed.
122 Pitt Street (I B C)
[From Benchmark Thursday, 10 December 2015]
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MacDougal v Mitchell [2015] NSWCA 389
Court of Appeal of New South Wales
Meagher JA; Bergin CJ in Eq & Tobias AJA
Damages - assault - applicant sought to appeal against decision ordering judgment for applicant against respondents for $80,500.45 - applicant contended award of damages inadequate by failure to award aggravated and/or exemplary damages, or “cushion” for future economic loss - s3B Civil Liability Act 2002 (NSW) - Suitors’ Fund Act 1951 (NSW) - whether primary judge erred in failing to award aggravated and/or exemplary damages even though he had found respondents’ assaults on applicant were “intentional acts to cause injury”, “without lawful excuse nor in self-defence” - held: applicant succeeded with respect to claim for aggravated and exemplary damages, but failed in claim for cushion for future economic loss - appellant is entitled to judgment of $110,500.
MacDougal (I)
[From Benchmark Friday, 11 December 2015]
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Polo Enterprises Australia Pty Ltd v Pinctada Hotels and Resorts Pty Ltd [2015] NSWCA 397
Court of Appeal of New South Wales
Bathurst CJ, Ward JA & Tobias AJA
Contract - joint venture agreement - appellant sought leave to appeal from two decisions in Equity Division of Supreme Court - first decision dismissed appellant’s application for permanent injunction to restrain first respondent from staging beach polo event in or within 50km of Broome - second decision ruled appellant was bound by issue estoppel in relation to construction of parties’ joint venture agreement and refused them permission to seek relief for a claimed breach - Civil Procedure Act 2005 (NSW) - ss101 & 103 Supreme Court Act 1970 (NSW) - r28.2 Uniform Civil Procedure Rules 2005 (NSW) - held: there had been delay and there was no point of principle or general importance raised - there may have been argument concerning construction of agreement relating to whether clause gave appellant exclusive right to stage beach polo event but decision not more than arguably wrong - in any argument relied upon was first raised on appeal - appeal against decision in relation to issue estoppel was hopeless - leave to appeal refused - summons dismissed.
Polo Enterprises (I B)
[From Benchmark Wednesday, 16 December 2015]
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Brown v Hewson [2015] NSWCA 393
Court of Appeal of New South Wales
Macfarlan JA; Sackville AJA & Adamson J
Negligence - three and a half year old respondent injured when he fell or jumped from balance beam at child care centre - respondent sued appellant proprietors of child care centre - case heard sixteen years after accident - appellants denied liability and disputed respondent suffered head injury - appellants also disputed that any ongoing neurological or behavioural problems were caused by accident - primary judge found appellants breached duty of care but did not accept plaintiff injured head - primary judge found plaintiff not entitled to damages for any neurological or behavioural problems - appellants challenged finding of negligence - Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 (NSW) - Children (Care and Protection) Act 1987 (NSW) - Civil Liability Act 2002 (NSW) - held: no error in finding appellants failed to exercise reasonable care in supervising respondent’s activities - causation established - not open to primary judge to award a “buffer” for past and future economic loss - appeal allowed in part.
Brown (I)
[From Benchmark Wednesday, 16 December 2015]
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French v Fraser (No 3) [2015] NSWSC 1807
Supreme Court of New South Wales
McCallum J
Damages - defamation - broader campaign of stalking harassment and intimidation - action arising out of defamatory publications concerning plaintiff - publications were website post, email and Facebook post - defendant had abandoned defence prior to hearing and consented to entry of judgment against him - ss34 & 35 Defamation Act 2005 (NSW) - assessment of damages - held: defendant would not have means to satisfy judgment debt but that was irrelevant to assessment of quantum - plaintiff suffered significant, lasting damage to reputation as result of publication of matters complained of and also suffered immense emotional pain - “primary vector” for compensation was damage from publication but it was permissible to have regard to defendant’s whole conduct to extent it aggravated hurt - Court awarded verdict for plaintiff for damages, including aggravated damages, in the sum of $300,000.
French (I)
[From Benchmark Thursday, 10 December 2015]
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NSW Commissioner of Police v Folkes [2015] NSWSC 1887
Supreme Court of New South Wales
Adamson J
Public assembly and procession - plaintiff sought order under s25 Summary Offences Act 1988 (NSW) prohibiting holding of public assembly arranged by Party for Freedom - defendant Chairman of the Party for Freedom had signed Notice of Intention to Hold a Public Assembly - plaintiff contended that if public assembly took place there was substantial risk that it would degenerate into violent event - Sch 1 Pt 4, ss23, 24, 25 & 27 - balance between participants’ rights to freedom of speech and association and other persons’ rights not to have activities impeded by exercise of the rights - held: Court accepted Chief Inspector’s unchallenged evidence that potential for conflict and public disorder was high - public assembly and associated gatherings likely to present significant challenge to police officers to keep peace - order made under s25.
Folkes (I B C G)
[From Benchmark Tuesday, 15 December 2015]
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Chan v Acres [2015] NSWSC 1885
Supreme Court of New South Wales
McDougall J
Negligence - damages - plaintiffs bought house from first defendant and former wife - before plaintiffs bought house they procured pre-purchase inspection report from second defendant - claim against second defendant settled - plaintiff claimed on basis of report they decided to buy house knowing of some defects but that after they moved in they discovered very serious defects, particularly in first defendant’s work - first defendant had engaged third defendant to prepare structural drawings - fourth defendant was Council - whether third or fourth defendants owed and/or breached duty of care to plaintiffs - whether first defendant breached statutory warranties - whether work defective - costs of rectification - apportionment - held: first defendant breached statutory warranties under Home Building Act 1989 (NSW) - third defendant did not owe plaintiffs a duty of care - Council as Principal Certifying Authority (PCA) owed duty of care to plaintiffs in performance of inspections and issuing final occupation certificate - duty of care coextensive with duty Council owed to first defendant under PCA Agreement - substantial allegations of breach of duty against Council proved - parties to bring in draft orders to give effect to reasons.
Chan (I B C)
[From Benchmark Tuesday, 15 December 2015]
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ACN 005 057 349 Pty Ltd v Commissioner of State Revenue [2015] VSCA 332
Court of Appeal of Victoria
Hansen & Tate JJA; Robson AJA
Taxation - limitation of actions - applications for leave to appeal dismissal of two proceedings brought by appellant - one proceeding was for judicial review of Commissioner’s determination not to refund excess payments made as result of assessments - other proceeding was for restitution at common law - question raised by appeal was whether, where Commissioner had raised land tax liability under Land Tax Act 1958 (Vic) twice for same landholding, excess payments could be recovered by proceeding for mandamus - held: Court answered question in affirmative - Commissioner’s statutory power to ensure assessments of land tax were complete and accurate gave rise to duty to direct excess payments be repaid which could be enforced by mandamus - any relevant limitation period satisfied - Court allowed appeal in both proceedings
ACN 005 057 349 Pty Ltd (B C)
[From Benchmark Thursday, 10 December 2015]
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Pearson v Martin [2015] VSC 696
Supreme Court of Victoria
Garde J
Administrative law - equal opportunity - College terminated defendant teacher’s employment - defendant filed application with Victorian Civil and Administrative Tribunal - defendant alleged College discriminated against him contrary to s18(b) Equal Opportunity Act 2010 (Vic) because substantial reason for dismissal was his sexual activity with former student of College - College claimed sexual activity was not a substantial reason for termination of employment - Tribunal found sexual activity was substantial reason for termination of employment and that principal treated defendant unfavourably due to attribute of lawful sexual activity - Tribunal awarded compensation - College contended Tribunal erred in determining whether circumstances fell within relevant statutory description and inin making an adverse finding as to principal’s credibility - held: College’s grounds of appeal in relation to finding of discrimination and claim for past economic loss failed - appeal dismissed.
Pearson (I G)
[From Benchmark Monday, 14 December 2015]
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Kalabakas v Chubb Insurance Company of Australia Ltd [2015] VSC 705
Supreme Court of Victoria
McMillan J
Insurance - plaintiff own property on which home was constructed - plaintiff had insured the property with defendant for 7 December 2010 to 7 December 2011 - plaintiff renewed initial policy for 7 December 2011 to 7 December 2012 - dwelling and contents on property damaged by fire on 6–7 July 2012 - defendant declined plaintiff’s claim under renewed policy on basis of fraudulent misrepresentations and non-disclosures by plaintiff pursuant to s28(2) Insurance Contracts Act 1984 (Cth) - ss21(1), 26 & 28 - held: plaintiff’s failure to disclose four relevant matters to defendant was fraudulent and plaintiff’s misrepresentations to defendant were also fraudulent - defendant entitled to avoid renewed policy pursuant to s28(2) or to reduce its liability to nil pursuant to s28(3).
Kalabakas (I B C)
[From Benchmark Tuesday, 15 December 2015]
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Carbone Bros Pty Ltd v Shire of Harvey [2015] WASCA 248
Court of Appeal of Western Australia
McLure P, Murphy JA & Corby J
Environment and planning - appeal concerned validity of conditions in planning consents requiring appellant to pay road levies for use of land in Shire for 'extractive industries' - appellant contended s6.15 Local Government Act 1995 (WA) (LGA) was exhaustive statement of local government’s source of power of to impose revenue or income raising obligation, that Shire's District Planning Scheme and Shire's Extractive Industries Local Law 2007 were not a source of power,that levies were fees or charges within Local Government Act to which s 6.17 applied, and that the levies were invalid because they were not struck in accordance with s6.17 - held: appellant’s contentions rejected - Shire had power to impose conditions under Scheme - power wide enough to allow Shire to impose conditions requiring financial contributions to its revenue or income - appeal dismissed.
Carbone (I B C)
[From Benchmark Thursday, 10 December 2015]
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| CRIMINAL |
| Executive Summary |
| R v Peart; R v Sorokin (NSWCCA) - criminal law - drug-related offences - preliminary issue - finding that MDMC was not capable of being a drug analogue of Methcathinone - appeal allowed - orders quashing counts in indictment set aside |
| Regina v Moore (NSWCCA) - criminal law - stay - manslaughter by criminal negligence - duty of care to deceased established - appeal allowed |
| Summaries With Link |
R v Peart; R v Sorokin [2015] NSWCCA 321
Court of Criminal Appeal of New South Wales
Ward JA, R A Hulme & Fagan JJ
Criminal law - drug related offences - respondents charged in 2014 with three counts of drug-related offences - respondents pleaded not guilty - preliminary issue was whether importation offences sustainable with regard to s301.9(2) Criminal Code 1995 (Cth) following amendments - trial judge concluded MDMC not capable of being a drug analogue of Methcathinone and quashed relevant counts on indictment - “drug analogue” - construction of s301.9(2) - ss5AA, 15AB Acts Interpretation Act 1901 (Cth) - Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth) - s5C Criminal Appeal Act 1912 (NSW) - ), ss11.2A, 300.2, 301.1, 301.4, 301.9, 302.4 & 307.3 Criminal Code 1995 (Cth) - Criminal Code Regulations 2002 (Cth) - held: construction for which Crown contended was correct - orders quashing counts in indictments set aside - appeal allowed.
R v Peart; R v Sorokin |
Regina v Moore [2015] NSWCCA 316
Court of Criminal Appeal of New South Wales
Bathurst CJ, Simpson JA & Bellew J
Criminal law - stay - manslaughter Director appealed against stay of indictment that charged respondent with manslaughter of deceased - issue was whether respondent could be held to have owed duty of care to deceased - Crown contended duty arose either pursuant to ss20(1) and/or (2) Occupational Health and Safety Act 2000 (NSW), at common law or and/or pursuant to novel duty to take reasonable care for deceased’s safety - held (by majority): trial judge erred in determination that respondent did not oweduty of care sufficient for finding of liability for manslaughter by criminal negligence - appeal allowed.
Regina |
| Poem for Friday (Recitation here by Thomas Hellier) |
De Profundis
BY CHRISTINA ROSSETTI
Oh why is heaven built so far,
Oh why is earth set so remote?
I cannot reach the nearest star
That hangs afloat.
I would not care to reach the moon,
One round monotonous of change;
Yet even she repeats her tune
Beyond my range.
I never watch the scatter'd fire
Of stars, or sun's far-trailing train,
But all my heart is one desire,
And all in vain:
For I am bound with fleshly bands,
Joy, beauty, lie beyond my scope;
I strain my heart, I stretch my hands,
And catch at hope.
CHRISTINA ROSSETTI |
