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

Weekly Civil Law Review

Friday, 21 November 2014

Executive Summary (One Minute Read)
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (HCA) - negligence - mentally ill man killed friend after discharge from hospital - health authority not liable for relatives' psychiatric injury (I)
Julstar Pty Ltd v Hart Trading Pty Ltd (FCAFC) - trade mark - delay in giving judgment - no error in findings - appeal dismissed (B)
Eptec Pty Ltd v Alaee (NSWCA) - negligence - motor accidents compensation - worker's injuries not caused by driving of vehicle - employer not liable (I C)
Chapple v Wilcox (NSWCA) - succession - community standards and expectations did not require provision for grandson out of grandfather's estate (B)
Dallas Buyers Club, LLC v iiNet Ltd (No 1) (FCA) - preliminary discovery - third party access to evidence filed by film copyright owner refused (I B)
Liverpool Catholic Club Ltd v Moor (NSWCA) - negligence - ice-skater injured in fall on stairs while wearing boots - occupier not liable (I)
Ng v Filmlock Pty Ltd (NSWCA) - contract - repudiation of contract for sale of land by purchaser - erroneous calculation of damages - appeal allowed (B C)
In the matter of Stansfield DIY Wealth Pty Limited (in liquidation) (NSWSC) - corporations - judicial advice - liquidator's power of sale did not extend to trust assets (B)
Oxley v Oxley (NSWSC) - succession - release of rights to apply for family provision order approved (B)
In the Matter of Dennis (SASC) - Wills - testatrix lacked testamentary capacity - order authorising making of statutory Will (B)
Summaries With Link (Five Minute Read)
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44
High Court of Australia
French CJ; Hayne, Bell, Gageler & Keane JJ
Negligence - mentally ill man from Victoria involuntarily detained in hospital under Mental Health Act 1990 (NSW) - after doctor reviewed medical history, spoke with mentally ill man, friend and mother in Victoria, it was agreed mentally ill man would be kept in hospital overnight and that friend would drive him back to mother's home in Victoria where he would receive continuing medical treatment - in course of journey, mentally ill man killed friend - relatives sued health authority in negligence for psychiatric injury - NSW District Court found there was no breach of duty of care and entered judgment for the health authority - Court of Appeal set aside decision - held: hospital and doctor did not owe alleged common law duty of care to friend's relatives - Mental Health Act prohibited detention, or continuation of detention, of mentally ill person unless medical superintendent of hospital formed opinion that no other less restrictive care was appropriate and reasonably available - performance of that statutory obligation would not be consistent with duty of care alleged by relatives of friend - appeals allowed.
Hunter and New England Local Health District (I)
[From Benchmark 14 November 2014]
Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151
Full Court of the Federal Court of Australia
Dowset, Rares & Logan JJ
Trade mark - evidence - appellants claimed declarations and damages under ss82 & 87 Trade Practices Act 1974 (Cth) arising out of purchase of two franchises - primary judge dismissed proceedings - appellants contended reasons for resolving factual contest did not sufficiently link his findings to evidence because there had been a delay between time primary judge saw and heard the witnesses and delivery of his lengthy reasons - held: there was unfortunate delay between conclusion of trial and delivery of reasons - primary judge carried out more comprehensive statement of evidence than normally required because of lengthy delay and to demonstrate delay had not affected decision - Court satisfied findings not against evidence or weight of evidence - findings not erroneous or insufficiently justified - appeal dismissed.
Julstar Pty Ltd (B)
[From Benchmark 17 November 2014]
Dallas Buyers Club, LLC v iiNet Ltd (No 1) [2014] FCA 1232
Federal Court of Australia
Perram J
Discovery - owner of copyright in film sought preliminary discovery of documents - internet service providers were respondents to application - copyright owner was seeking to show it had identified IP addresses of persons who had been involved in file-sharing of film - copyright owner had filed affidavits and expert report in support of application - material had not been used in open court - third parties sought access to documents on Court file - r7.22 Federal Court Rules 2011 (Cth) - held: no reason why access should not be granted to unrestricted documents presently on the file - in relation to restricted documents, it was Court’s usual practice to release material which had been used in open court - notions of justice did not require release of material in relation to evidence which had not been utilised at time of third party application - applications for access to evidence refused, except in relation to material used in Court.
Dallas Buyers Club, LLC (I B)
[From Benchmark 19 November 2014]
Eptec Pty Ltd v Alaee [2014] NSWCA 390
Court of Appeal of New South Wales
McColl & Macfarlan JJA; Sackville AJA
Negligence - motor accidents compensation - worker and co-worker inside bucket of cherry picker - co-worker operating cherry picker - worker injured when bucket began to shake causing him to collide with pipe - primary judge found worker's injuries were within s3A(1) Motor Accidents Compensation Act 1999 (NSW) and thus employer was liable in negligence - employer contended primary judge erred in holding it was liable, or that the award of damages for past and future economic loss was excessive and should be set aside - held: primary judge erred in finding worker's injuries were the result of and caused during the driving of the cherry picker - requirements of s3A(1) not satisfied - appeal allowed.
Eptec Pty Ltd (I C)
[From Benchmark 18 November 2014]
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)
[From Benchmark 20 November 2014]
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)
[From Benchmark 20 November 2014]
Ng v Filmlock Pty Ltd [2014] NSWCA 389
Court of Appeal of New South Wales
Emmett & Gleeson JJA; Tobias AJA
Damages - contract - purchaser and guarantor challenged primary judge’s quantification of damages payable by purchaser to vendor under contract for sale and purchase of land following repudiation by purchaser - underlying facts concerning contract for sale and termination by vendor for breach not in dispute - extent to which price realised on sale of land 13 months after repudiation was relevant to assessment of loss suffered by vendor - held: primary judge erred in concluding that difference between price payable under sale contract and price realised under resale contract represented appropriate measure of damages - measure of damages could not be calculated without evidence as to market value of land - appeal allowed.
Ng (B C)
[From Benchmark 19 November 2014]
In the matter of Stansfield DIY Wealth Pty Limited (in liq) [2014] NSWSC 1484
Supreme Court of New South Wales
Brereton J
Corporations - winding up - trusts - official liquidator of company sought directions pursuant to s479(3) Corporations Act 2001 (Cth, s312 Superannuation Industry (Supervision) Act 1993 (NSW) and s63 Trustee Act 1925 (NSW) to effect that company in liquidation be permitted to sell or otherwise deal with property of regulated self-managed superannuation fund of which it was trustee - held: liquidator's statutory power of sale did not extend to trust assets - company ought not remain as trustee when by doing so it committed an offence against superannuation law - liquidator would be justified in causing company to resign as trustee, and in applying to be appointed as receiver of super fund assets with powers that a liquidator had in respect of property of a company under s477(2) Corporations Act for purposes of enforcing company's right of indemnity as trustee of fund.
In the matter of Stansfield DIY Wealth Pty Limited (in liq) (B)
[From Benchmark 17 November 2014]
Oxley v Oxley [2014] NSWSC 1606
Supreme Court of New South Wales
Hallen J
Succession - mother sought Court’s approval pursuant to s95 Succession Act 2006 (NSW) of release by son of his rights to apply for family provision order out of her estate, or notional estate, on basis they may be the subject of a claim for such an order upon her death - held: Court acknowledged application not to be taken lightly and that son had not appeared and had not provided any evidence - Court of view that release ought to be approved - son had not suggested any objection to making order approving release - Court satisfied each party's intention was that there would be no litigation by son in regard to claim for family provision - release approved.
Oxley (B)
[From Benchmark 19 November 2014]
In the Matter of Dennis [2014] SASC 158
Supreme Court of South Australia
Gray J
Wills - testamentary capacity - application for order authorising making of will pursuant to s7 Wills Act 1936 (SA) - testatrix had advanced Alzheimer's disease - son sought to rectify her Will which, due to a drafting error, would not have disposed of estate according to her intentions - application developed to include other proposed changes to Will - held: testatrix lacked testamentary capacity although she had ability to express general views concerning testamentary wishes - numbering error in existing Will should be corrected to reflect testatrix's intention at time of making Will, which remained her likely intention if she had capacity - other proposed changes to Will were consistent with testatrix's intentions at time of making her last will, consistent with testamentary wishes she was currently able to express and consistent likely intentions if she had testamentary capacity - proposed order reasonable in the circumstances.
In the Matter of Dennis (B)
[From Benchmark 18 November 2014]

The Snow-Storm
By Ralph Waldo Emerson

Announced by all the trumpets of the sky,
Arrives the snow, and, driving o'er the fields,
Seems nowhere to alight: the whited air
Hides hills and woods, the river and the heaven,
And veils the farmhouse at the garden's end.
The steed and traveler stopped, the courier's feet
Delayed, all friends shut out, the housemates sit
Around the radiant fireplace, enclosed
In a tumultuous privacy of storm.

Come see the north wind's masonry
Out of an unseen quarry evermore
Furnished with tile, the fierce artificer
Curves his white bastions with projected roof
Round every windward stake, or tree, or door.
Speeding, the myriad-handed, his wild work
So fanciful, so savage, nought cares he
For number or proportion. Mockingly,
On coop or kennel he hangs Parian wreaths;
A swan-like form invests the hidden thorn;
Fills up the farmer's lane from wall to wall,
Maugre the farmer's sighs; and, at the gate,
A tapering turret overtops the work.
And when his hours are numbered, and the world
Is all his own, retiring, as he were not,
Leaves, when the sun appears, astonished Art
To mimic in slow structure, stone by stone,
Built in an age, the mad wind's night-work,
The frolic architecture of the snow.

Ralph Waldo Emerson