Daily Banking: Friday, 19 February 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Banking

Executive Summary (One Minute Read)
Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) (FCA) - consumer law - breaches of ss18, 21, 29 & 31 Australian Consumer Law in relation to recruitment consulting service - ACCC entitled to relief sought
Brewer v AAL Aviation Ltd (FCA) - superannuation - negligence - claim that Qantas was liable for TAA’s conduct in blocking entry to superannuation schemes - applications dismissed
Elachi v Council of the City of Shoalhaven (NSWCA) - environment and planning- appellant’s vegetation clearing work breached Environmental Planning and Assessment Act 1979 (NSW) - appeal dismissed
Hoff v City of Mitcham (SASCFC) - environment and planning - limitations - application for review of categorisation decision was out of time - appeal dismissed
Christie v Christie (WASC) - succession - family provision - disentitling conduct - violence by claimant son against deceased mother - claim for provision refused
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Benchmark Television
Click here to watch the video
Sangeetha Pillai on recent reforms to Citizenship-stripping legislation
Sangeetha Pillai of Monash University, discusses the Australian Citizenship Amendment (Allegiance to Australia) Act 2015 and the changes that the legislation has brought to Australian law.
Summaries With Link (Five Minute Read)
Australian Competition and Consumer Commission v Clinica Internationale Pty Ltd (No 2) [2016] FCA 62
Federal Court of Australia
Mortimer J
Consumer law - ACCC sought declarations, injunctions orders, non-party redress orders and pecuniary penalties for contraventions of ss18, 21, 29 & 31 Australian Consumer Law by respondents in relation to recruitment consulting service - admissions of contraventions - s1323 Corporations Act 2001 (Cth) - s191 Evidence Act 1995 (Cth) - reg 5.19(4)(h)(ii), Sch 1, Item 1114C, Sch 2, Item 187 Migration Regulations 1994 (Cth) - Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Cth) - held: ACCC had made out alleged contraventions and was entitled in substance to the relief it sought.
Clinica Internationale
Brewer v AAL Aviation Ltd [2016] FCA 93
Federal Court of Australia
Buchanan J
Superannuation - negligence - limitations - applicants employed by TransAustralia Airlines (TAA) and then by Qantas - applicants claimed respondent liable for TAA’s conduct in blocking entry to superannuation schemes - negligent misrepresentation - time at which claimed loss arose - ss6, 17, 18, 31A, 42, 43, 63 Australian National Airlines Act 1945-1973 (Cth) - s18 Australian Consumer Law - s4 Superannuation Act 1922-1973 (Cth) - ss3, 11, 12, 13, 16, 80, 137 Superannuation Act 1976 (Cth) - s52 Trade Practices Act 1974 (Cth) - s38 Limitation Act 2005 (WA) - s55 Limitation Act 1969 (NSW) - s27 Limitation of Actions Act 1958 (Vic) - held: no causes of action succeeded - applications dismissed.
Elachi v Council of the City of Shoalhaven [2016] NSWCA 15
Court of Appeal of New South Wales
Basten & Ward JJA; Sackville AJA
Environment and planning - respondent sought declaration in Land and Environment Court that appellant’s vegetation clearing work contravened s76A(1) Environmental Planning and Assessment Act 1979 (NSW) - respondent also sought to restrain appellant from undertaking clearing and that appellant restore property - primary judge granted declaration and restraining order - rectification order made by consent - appellant appealed - s109 Constitution - Divs 1, 2 & 6, Pt 4 & Pt 5, ss4, 5, 13, 18, 21, 26, 33A, 74, 74C, 76A, 76B Environmental Planning and Assessment Act 1979 (NSW) - Pt 3, Divs 2, 3 & 4, ss11, 12, 16, 19, 20, 21 & 22 Native Vegetation Act 2003 (NSW) - relationship between cl 5.2.3 Shoalhaven Development Control Plan 2014 and cl 5.9(8) & (9A) Shoalhaven Local Environmental Plan 2014 - held: trial judge correct to determine there was breach of s76A(1) - appeal dismissed.
Hoff v City of Mitcham [2016] SASCFC 3
Full Court of the Supreme Court of South Australia
Kourakis CJ, Bampton & Parker JJ
Environment and planning - limitations - appellants’ home adjacent to site of proposed development - Council assigned development to Category 2 - appellants sought declaration that development should have been declared a Category 3, not a Category 2 development - ss35, 38, 38(4), 86(1), 86(4) & 88 Development Act 1993 (SA) - issue concerned when time began to run for application for review of categorisation - held: time began to run at time categorisation decision made - application for review of categorisation was out of time - appeal dismissed.
Christie v Christie [2016] WASC 45
Supreme Court of Western Australia
Master Sanderson
Succession - family provision - plaintiff son of deceased sought provision from deceased’s estate - ‘disentitling conduct’ provision in s6(3) Family Provision Act 1972 (WA) - community’s current attitudes and expectations - held: Court satisfied that while plaintiff resided with deceased he was physically violent and abusive towards her - plaintiff did not attempt to reconnect with deceased after moving out of home in 1987 - plaintiff did not contribute to assets - person who was violent towards testator could not expect to receive proportion of estate - claim dismissed.
Poem for Friday (Recitation here by Thomas Hellier)
Songs for the People

Let me make the songs for the people,
Songs for the old and young;
Songs to stir like a battle-cry
Wherever they are sung.

Not for the clashing of sabres,
For carnage nor for strife;
But songs to thrill the hearts of men
With more abundant life.

Let me make the songs for the weary,
Amid life’s fever and fret,
Till hearts shall relax their tension,
And careworn brows forget.

Let me sing for little children,
Before their footsteps stray,
Sweet anthems of love and duty,
To float o’er life’s highway.

I would sing for the poor and aged,
When shadows dim their sight;
Of the bright and restful mansions,
Where there shall be no night.

Our world, so worn and weary,
Needs music, pure and strong,
To hush the jangle and discords
Of sorrow, pain, and wrong.

Music to soothe all its sorrow,
Till war and crime shall cease;
And the hearts of men grown tender
Girdle the world with peace.