Dear Subscribers,

Today Benchmark celebrates its 7th birthday.

We thank our subscribers for their support. We love to hear from you also.

Are you aware that Benchmark Civil Weekly can be listened to on your mobile phone and other devices as a podcast? To listen to our most recent podcast click here.

Kind regards,

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

Insurance, Banking, Construction & Government

Thursday, 20 November 2014

Executive Summary (One Minute Read)
Chapple v Wilcox (NSWCA) - succession - community standards and expectations did not require provision for grandson out of grandfather's estate (B)
Liverpool Catholic Club Ltd v Moor (NSWCA) - negligence - ice-skater injured in fall on stairs while wearing boots - occupier not liable (I)
Riske v Oxley Insurance Brokers Pty Ltd (No 2) (NSWSC) - defamation - further publications pleaded - extension of limitation period (I)
Hunter Quarries Pty Ltd v State of NSW (Dept of Trade & Investment) (NSWSC) - administrative law - death of employee at quarry - powers of inspectors to obtain information (C G)
Setka v Abbott (VSCA) - defamation - defences of justification and contextual truth not struck out - appeal dismissed (I)
Ghan v Ghan (SASC) - Wills - Will was valid - subsequent letter not a testamentary document (B)
Great Southern Finance Pty Ltd (in liq) v Rhodes (WASC) - pleadings - directors' duties - statutory business rule - paragraphs of defence struck out - leave to replead (I B)
Summaries With Link (Five Minute Read)
Chapple v Wilcox [2014] NSWCA 392
Court of Appeal of New South Wales
Basten, Barrett & Gleeson JJA
Succession - respondent made claim for family provision order in respect of grandfather's estate pursuant to Ch 3 Succession Act 2006 (NSW) - under Will, whole estate left to respondent's mother who was deceased's only child - primary judge found that community standards and expectations required that provision be made for respondent out of the estate and ordered provision - mother submitted that primary judge failed to give adequate reasons and erred in his statutory discretion in making the family provision order - held: in light of factual circumstances there was no basis for primary judge's view that community standards and expectations required any provision for grandson out of estate so that Court could be justified in interfering with testator's clearly stated testamentary wishes - decision was unreasonable and plainly unjust - failure to properly exercise judicial discretion - appeal allowed.
Chapple (B)
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Court of Appeal of New South Wales
Meagher & Emmett JJA; Tobias AJA
Negligence - respondent attended ice rink located in sporting complex occupied by appellant - respondent wearing skating boots hired from occupier - respondent injured when he fell on stairs providing access to rink - primary judge found occupier negligent in failing to take reasonable precautions against risk of injury from slipping or falling when descending wet stairs whilst wearing skates - held: - primary judge erred in not finding that risk of harm was "obvious" within the meaning of s5F Civil Liability Act 2002 (NSW) - each of the two warnings which primary judge held would have been sufficient to discharge occupier's duty of care were forms of warning of a risk of injury in descending stairs with skating boots on - that risk was an obvious risk within s 5F(1) - effect of s5H(1) was that appellant did not owe duty of care to the respondent to warn of obvious risk - appeal allowed.
Liverpool Catholic Club (I)
Riske v Oxley Insurance Brokers Pty Ltd (No 2) [2014] NSWSC 1611
Supreme Court of New South Wales
McCallum J
Limitation of actions - defamation - plaintiffs commenced action against employer arising out of allegedly defamatory publications - limitation period prescribed in respect of certain further publications expired before pleading was amended - plaintiffs sought extension of that period - amended statement of claim filed 16/4/14 - common ground plaintiffs not aware of new matters complained of until they received defendants' further answers to interrogatories on 14/3/14 - defendants claimed there were periods of inactivity and delay such that plaintiffs had not discharged onus of establishing it was not reasonable for them to sue on the four new causes of action until 16/4/14 - ss14B & 56A Limitation Act 1969 (NSW) - held: plaintiffs acted reasonably at all stages - no prejudice to defendants if limitation period extended - plaintiffs made many requests for information as to any further publications which were ignored - interests of justice plainly required extension - limitation period extended until 16/4/14.
Riske (I)
Hunter Quarries Pty Ltd v State of NSW (Dept of Trade & Investment) [2014] NSWSC 1580
Supreme Court of New South Wales
Schmidt J
Administrative law - Hunter Quarries sought declaratory relief as to proper construction of Work Health and Safety Act 2011 (NSW) and order restraining Department of Trade and Investment and all inspectors appointed under Mine Health and Safety Act 2004 (NSW) and/or Work Health and Safety (Mines) Act 2013 (NSW) from obtaining information by exercise of powers granted under s171 Work Health and Safety Act - application arose out of investigation into death of one of Hunter Quarries' employees while working at quarry which it operated - how inspectors' powers were to be exercised - held: once an inspector had exercised statutory power of entry at a workplace, he or she empowered by s171 Work Health and Safety Act to require a person to tell him or her who had custody of or access to a document; to require that person to produce document and to require a person at the workplace to answer questions which inspector put - that power not displaced, limited or circumscribed by powers granted to regulators by s155 Work Health and Safety Act - summons dismissed.
Hunter Quarries Pty Ltd (C G)
Setka v Abbott [2014] VSCA 287
Court of Appeal of Victoria
Warren CJ; Ashley & Whelan
Defamation - defences - union official sued Tony Abbott, at the material time Leader of Federal Opposition, and Australian News Channel Pty Ltd - action arising from words spoken by Abbott in answer to a question which he was asked at a conference of an employer's organisation - applicant sought leave to appeal from primary judge's refusal to strike out justification defence pleaded in reliance on Hore-Lacy and contextual truth defence pleaded pursuant to s26 Defamation Act 2005 (Vic)- ss6, 8, 24, 25 & 26 - held: leave to appeal granted on certain grounds - legal and factual submission rejected - appeal dismissed.
Setka (I)
Ghan v Ghan [2014] SASC 176
Supreme Court of South Australia
Gray J
Wills - deceased made Will in 1985 - validity of 1985 Will not in dispute - deceased also authored letters in 2004 and 2005 - parties reached compromise and agreed 1985 will should be admitted in solemn form - parties further sought order pronouncing against validity of most recent of letters - held: Will duly executed in 1985 was valid Will and should be admitted in solemn form - letter did not satisfy requirements of s8 Wills Act 1936 (SA) as it was only witnessed by one person - letter did not satisfy the requirements of s12(2) as evidence did not establish that it was intended to be a testamentary document.
Ghan (B)
Great Southern Finance Pty Ltd (in liq) v Rhodes [2014] WASC 431
Supreme Court of Western Australia
Beech J
Pleadings - directors' duties - GSF claimed defendant directors breached their duties in approving certain uncreditworthy loans by GSF - GSF sought to strike out three paragraphs of defence on grounds they were vague, embarrassing, and disclosed no reasonable defence, that they may prejudice, embarrass or delay fair trial, or were otherwise an abuse of process - statutory business judgment rule - ss1317S & 1318 Corporations Act 2001 (Cth) - held: defendant required to identify in his pleading any decision he made in reliance on business judgment rule - greater specificity required in identifying case to ensure fairness to GSF - paragraphs of defence struck out - leave to replead.
Great Southern Finance Pty Ltd (I B)