| CGU Insurance Ltd v Blakeley (HCA) - joinder - Supreme Court of Victoria had authority to join insurer and grant relief sought - appeal dismissed
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| Mbuzi v Griffith University (FCAFC) - consumer law - contract - termination of doctoral candidature - appeal dismissed
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| Australian Competition and Consumer Commission v Australian Egg Corporation Ltd (FCA) - consumer law - allegations of cartel conduct against egg producers - one egg producer admitted conduct - allegations against other producers not made out
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| Roads and Maritime Services v Allandale Blue Metal Pty Ltd (NSWCA) - environment and planning - compensation to owner of acquired land - appeal against award upheld in part - award reduced
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| South Sydney Junior Rugby League Club Ltd v Gazis (NSWCA) - negligence - workplace injury - security guard injured at work when moving trolleys - club and employer not liable - appeals allowed
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| Bignill v DPP (NSWCA) - administrative law - applicant could not rely on blood analysis result to prevent conviction based on breath analysis - appeal dismissed
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| Stankovic v State of NSW (NSWSC) - summary dismissal - plaintiff claimed State vicariously liable for tort of Land and Environment Court - claim unarguable and doomed to fail- proceedings abuse of process - proceedings dismissed
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| Forge Group Power Pty Ltd (in liq)(receivers and managers appointed) v General Electric International Inc (NSWSC) - personal property securities (PPS) law - lease was a PPS lease - defendants’ interests in turbines vested in plaintiff before appointment of administrators - plaintiffs interest superior - declarations
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| Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd (NSWSC) - building contract - negligence - plaintiff entitled to damages in relation to defective concrete paving at container terminal
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| Sheehan v Brett-Young (No. 3) (VSC) - pleadings - misfeasance in public -office - malicious prosecution - plaintiff’s claims not assigned to trustee in bankruptcy and could be maintained in proceedings against State and regulatory defendants
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| Philippiadis v Transport Accident Commission (VSCA) - transport accident - refusal of leave to commence proceedings in respect of transport accidents - leave to appeal refused
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| Edwards v Romaguera (QCA) - pleadings - motor vehicle accident - no error in refusal of leave to amend pleadings or refusal of reimbursements of costs - appeal dismissed
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| Farnham v Pruden (QCA) - damages - negligence - motor vehicle accident - assessment of damages in accordance with Civil Liability Act 2003 (Qld) - leave to appeal from award of damages refused
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| Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia (WASC) - private nuisance - determination of preliminary issue concerning ‘substantial interference’ element of tort of private nuisance
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Dear Subscriber
1. Become a foundation Benchmark CLE subscriber and claim your CLE points using the web based programs of Benchmark Television to 31 December 2016 for $330 (inclusive of GST).
2. This is a historic presentation for Benchmark from a new generation of lawyers. It is great to watch. We love this discussion of the new citizenship-stripping legislation. Sangeetha Pillai of Monash University is interviewed by Jaimee Burke, Solicitor.
3. All the programs are accessible on your mobile devices and computers. Papers and questions and answers will be provided on request to CLE subscribers.
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5. We have three options available to track CLE subscribers usage.
6. To assist you in assessing your obligations and the CLE rules, Benchmark has prepared a national analysis of the rules, which we are posting to the Benchmark Television website. What are CLE/CPD Requirements.
7. Watch Benchmark CLE productions
8. Pay $330 (inc GST) for Benchmark Television CLE until 31 December 2016. For this price you are effectively getting two years CLE.
9. For Benchmark CLE subscribers we have prepared notes which we will forward to you at your request.
10. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Benchmark Television |
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| 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. |
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| Summaries With Link (Five Minute Read) |
CGU Insurance Ltd v Blakeley [2016] HCA 2
High Court of Australia
French, Kiefel, Bell & Keane JJ
Joinder - corporations - insurance - claim under s588M Corporations Act 2001 (Cth) in which plaintiffs were liquidators and company in liquidation who alleged company’s directors breached s588G by failing to prevent company from incurring debts when it was insolvent - defendants’ insurer sought leave to appeal against order joining it as a defendant - Court of Appeal of Victoria dismissed appeal - insurer appealed - whether Supreme Court of Victoria authorised to entertain claim for declaration that defendant’s insurer liable to indemnify defendant - held: Supreme Court of Victoria had federal jurisdiction authorising it to entertain claim - Supreme Court of Victoria had power to grant relief sought in respect of insurance contract between directors and insurer - appeal dismissed.
CGU Insurance
[From Benchmark Friday, 12 February 2016]
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Mbuzi v Griffith University [2016] FCAFC 10
Full Court of the Federal Court of Australia
Logan, Griffiths & Pagone JJ
Consumer law - contract - self-represented litigant - respondent terminated appellant’s doctoral candidature - primary judge rejected appellant’s causes of action against respondent and found appellant to be vexatious litigant - primary judge found termination of candidature did not contravene implied freedom of political communication and “due process” rights, did not constitute unconscionable conduct or involve misleading or deceptive conduct contrary to Australian Consumer Law, and did not breach of alleged contract between parties - ss18, 20, 21, 22 Australian Consumer Law - ss37AM, 37 AO, 37AO(1)(a), 37AO(2)(a), 37AO(2)(b), 37AO(3)(c), 37AO(3)(d), 37AO(6) & 51 Federal Court of Australia Act 1976 (Cth) - held: appellant failed to make out any grounds of appeal - appeal dismissed.
Mbuzi
[From Benchmark Monday, 15 February 2016]
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Australian Competition and Consumer Commission v Australian Egg Corporation Ltd [2016] FCA 69
Federal Court of Australia
White J
Consumer law - cartel conduct - ACCC alleged six respondents attempted to induce 19 egg producers in competition with at least one other, to limit egg supply in contravention of s44ZZRJ Competition and Consumer Act 2010 (Cth) - ACCC alleged conduct called for coordinated and consolidated action to reduce egg supply and sought relief including declarations, penalties and injunctions - fourth respondent admitted he made attempt of kind alleged - crown immunity - actual or apparent authority - conduct on body corporate’s behalf - held: ACCC failed to establish allegations - claims dismissed.
ACCC
[From Benchmark Monday, 15 February 2016]
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Roads and Maritime Services v Allandale Blue Metal Pty Ltd [2016] NSWCA 7
Court of Appeal of New South Wales
Basten & Ward JJA; Sackville AJA
Environment and planning - predecessor to appellant acquired land - respondent (ABM) owned acquired land which it leased to quarrying company (QPN) - ABM and QPN claimed compensation - appellant appealed against judgment in which primary judge ordered payment of $3,387,796 to ABM - s88E Conveyancing Act 1919 (NSW) - s115B Environmental Planning and Assessment Act 1979 (NSW) - ss4, 55, 56, 57, 58, 59 & 61 Land Acquisition (Just Terms Compensation) Act 1991 (NSW) - ss19, 24, 57 Land and Environment Court Act 1979 (NSW) - s117 Public Works Act 1900 (NSW) - ss10, 46, 49 Roads Act 1993 (NSW) - held: appeal upheld against award for reduction in value of timbered land - amount awarded to ABM reduced to $3,115,171 - appeal allowed in part.
Roads and Maritime Services
[From Benchmark Thursday, 11 February 2016]
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South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8
Court of Appeal of New South Wales
Basten, Macfarlan & Simpson JJA
Negligence - workplace injury - appellant club contracted with company (Sermacs) to provide security - Sermacs obtained services of respondent from company (MPS) to work as security guard - respondent injured while working at club when moving trolleys - respondent sued Sermacs and club in negligence and later sued employer (MPS) for workplace injury under Workers Compensation Act 1987 (NSW) - claim against Sermacs settled - club and MPS cross-claimed against Sermacs for contribution - MPS in liquidation - proceedings continued against Workers Compensation Nominal Insurer - Sermacs changed name and went into liquidation - proceedings continued against insurer (HCC) - primary judge found for respondent against club and employer - Sermacs found not liable for contribution - club and MPS appealed - held: club owed duty of care to respondent as occupier - exercise of reasonable care did not require direction to desist from moving trolleys - club not negligent - MPS owed non-delegable duty of care to its employee - MPS breached duty of care by not investigating respondent’s work environment but breach did not cause harm - MPS not liable - judgment against Workers Compensation Nominal Insurer set aside - appeals allowed.
South Sydney Junior Rugby League Club Ltd
[From Benchmark Thursday, 11 February 2016]
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Bignill v DPP [2016] NSWCA 13
Court of Appeal of New South Wales
Bathurst CJ, Ward JA & Emmett AJA
Administrative law - applicant driving vehicle was pulled over by constable - constable required applicant to submit to random breath test - alcohol above statutory limit detected - applicant arrested and taken to police station - blood analysis produced result below statutory limit - Supreme Court held applicant could not rely on blood analysis result to prevent conviction based on breath analysis - held: no statutory basis for preferring blood analysis results to breath analysis results - offence under s110 of the Act established once either breath or blood analysis showing alcohol over statutory limit was tendered - there was rebuttable presumption alcohol concentration was above statutory limit - defendant’s onus not satisfied by tendering blood test result below statutory limit - defendant required to prove alcohol concentration below statutory limit at time he was required to take breath test - appeal dismissed.
Bignill
[From Benchmark Wednesday, 17 February 2016]
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Stankovic v State of NSW [2016] NSWSC 18
Supreme Court of New South Wales
Davies J
Summary dismissal - negligence - plaintiff claimed State vicariously liable for tort committed by Land and Environment Court - defendants sought dismissal of statement of claim pursuant to r13.4 Uniform Civil Procedure Rules 2005 (NSW) - plaintiff sought directions in relation to Notice to Produce and declaration proceedings in Land and Environment Court dismissed and not reinstated - plaintiff also sought refund of filing fees paid to commence present proceedings and application for leave to Court of Appeal - whether order made by judge was a nullity - judicial immunity - abuse of process - doctrine of extended estoppel - held: proceedings were attempt to re-litigate matters decided adversely to plaintiff - proceedings were collateral attack on Court of Appeal’s judgment - claim unarguable and doomed to fail - proceedings dismissed - plaintiffs’ notices of motion dismissed.
Stankovic
[From Benchmark Friday, 12 February 2016]
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Forge Group Power Pty Ltd (in liq)(receivers and managers appointed) v General Electric International Inc [2016] NSWSC 52
Supreme Court of New South Wales
Hammerschlag J
Personal property securities law - dispute arising from installation of turbine generator sets (turbines) - plaintiff entered lease with first defendant for rent of turbines for fixed term, and for provisions of services to plaintiff in relation to turbines - plaintiff went into voluntary liquidation after installation of turbines - plaintiff sought declaration pursuant to s267(2) Personal Property Securities Act 2009 (Cth) (PPSA) that defendants’ interests in turbines vested in plaintiff before administrators’ appointment and that its interest in turbines was superior to defendants’ - whether PPSA engaged - whether lease a PPS lease - held: lease was PPS lease - defendants’ interests in turbines vested in plaintiff immediately before administrators’ appointment - plaintiff’s interest superior to defendants’ - declarations granted.
Forge
[From Benchmark Monday, 15 February 2016]
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Tzaneros Investments Pty Ltd v Walker Group Constructions Pty Ltd [2016] NSWSC 50
Supreme Court of New South Wales
Ball J
Building contract - negligence - plaintiff sued defendants for defective concrete paving at container terminal - first defendant cross claimed against second defendant for same damage - contractual warranties - assignment - apportionment - estoppel - estoppel by convention - ascertainment of parties to contact - damages - Competition and Consumer Act 2010 (Cth) - Civil Liability Act 2002 (NSW) - Home Building Act 1989 (NSW) - Trade Practices Act 1974 (Cth) - held: plaintiff entitled to damages from first defendant for costs in relation to replacement of pavement - second defendant liable to pay to first defendant amount which first defendant was liable to pay to plaintiff.
Tzaneros
[From Benchmark Tuesday, 16 February 2016]
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Sheehan v Brett-Young (No. 3) [2016] VSC 39
Supreme Court of Victoria
John Dixon J
Pleadings - misfeasance in public office - malicious prosecution - plaintiff sought to file substitute proposed statement of claim - plaintiff claimed misfeasance in public office against regulatory defendants and malicious prosecution against State - plaintiff claimed damages and loss - regulatory and State defendants contested application - State contended proposed malicious prosecution claim had ‘no real prospect of success’ and should not be permitted - effect of plaintiff’s bankruptcy on claims - whether maintainable claims - ss58, 60(4), 116(1), 116(2)(c) & 116(2)(g) Bankruptcy Act 1966 (Cth) - held: claims not assigned to plaintiff’s trustee in bankruptcy by ss58 &116 - claims may be maintained by plaintiff subject to issues yet to be determined as to form of pleading.
Sheehan
[From Benchmark Friday, 12 February 2016]
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Philippiadis v Transport Accident Commission [2016] VSCA 1
Court of Appeal of Victoria
Redlich & Kyrou JJA; Ginnane AJA
Transport accident - County Court judge refused leave under s93(4)(d) Transport Accident Act 1986 (Vic) for applicant to commence proceedings in respect of two transport accidents in which he was injured - applicant contended judge gave too much weight to general practitioner’s notes and failed to take all evidence into account - applicant also claimed judge’s reasons inadequate - held: applicant failed to demonstrate decisions attended with sufficient doubt to warrant leave - applicant failed to demonstrate appeals had real prospect of success - application for leave to appeal refused.
Philippiadis
[From Benchmark Monday, 15 February 2016]
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Edwards v Romaguera [2016] QCA 16
Court of Appeal of Queensland
Holmes CJ, McMurdo P & Gotterson JA
Pleadings - motor vehicle accident - reimbursement of costs - appellant injured in motor vehicle accident in which liability was admitted - appellant appealed against refusal of leave to amend statement of claim and for reimbursement of costs pursuant to ss42(1) & 51 Motor Accident Insurance Act 1994 (Qld) - r22 Motor Accident Insurance Regulation 2004 (Qld) - Uniform Civil Procedure Rules 1999 (Qld) - held: no error in primary judge’s exercise of discretion to refuse leave to amend - no basis for primary judge to have adjourned application - no error in refusal of application for costs - appeal dismissed.
Edwards
[From Benchmark Thursday, 11 February 2016]
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Farnham v Pruden [2016] QCA 18
Court of Appeal of Queensland
M McMurdo P; Gotterson & Morrison JJA
Damages - negligence - motor vehicle collision - applicant employed as community support worker injured when car collided with rear of applicant’s car - applicant developed anxiety disorder - liability not in issue - primary judge found Civil Liability Act 2003 (Qld) applied and assessed damages at $47,389.75.7 - primary judge awarded no damages for future economic loss or loss of capacity to develop alternative careers - applicant sought to appeal - s 5(1)(b) Civil Liability Act 2003 (Qld) - ss32(1), 34(1)(c), 35 & 108 Workers’ Compensation and Rehabilitation Act 2003 (Qld) - whether there was necessity to correct substantial injustice - whether reasonable argument there was error - held: proposed grounds of appeal failed to demonstrate error by primary judge - leave to appeal refused.
Farnham
[From Benchmark Tuesday, 16 February 2016]
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Shogunn Investments Pty Ltd v Public Transport Authority of Western Australia [2016] WASC 42
Supreme Court of Western Australia
K Martin J
Private nuisance - action in private nuisance brought by plaintiff company, which operated car parking business, against defendant Public Transport Authority - plaintiff sought to restrain defendant from removing traffic turn scenario - determination of preliminary issue concerning plaintiff’s commercial car parking location and ’substantial interference’ element of private nuisance - East Perth Redevelopment Act 1991 (WA) (Repealed) - Land Administration Act 1997 (WA) - Metropolitan Redevelopment Authority Act 2011 (WA) - Public Transport Authority Act 2003 (WA) - held: preliminary issue answered in favour of defendant - permanent removal of right hand turning lane not capable of interfering with plaintiff’s use and enjoyment of leasehold interest or rights over premises sufficiently to form basis for private nuisance action.
Shogunn
[From Benchmark Wednesday, 17 February 2016]
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| Poem for Friday (Recitation here by Thomas Hellier) |
Songs for the People
BY FRANCES ELLEN WATKINS HARPER
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.
FRANCES ELLEN WATKINS HARPER
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