| Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) (FCAFC) - insurance - financial advisor was covered by financial errors and omissions insurance policy - underwriters failed to discharge onus to prove exclusion applied - appeal allowed
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| 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
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| United Petroleum Pty Ltd v Pentaco Oil (Aust) Pty Ltd (FCA) - contract - estoppel - trade practices - correspondence did not constitute agreement for lease of sites - estoppel case succeeded - misleading and deceptive conduct case succeeded
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| Swindells v State of Victoria (VSCA) - misleading and deceptive conduct - employment law - no unlawful appointment and removal of mining warden - appeal dismissed
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| T & T Investments Australia Pty Ltd v CGU Insurance Ltd (NSWCA) - adjournment - costs - vacation of hearing granted - appellant to pay respondent’s costs thrown away - further security ordered - appeal stayed pending provision of security
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| Chu v Russell (TASFC) - negligence - motor vehicle collision - cyclist injured in collision with motor vehicle - motor vehicle driver liable - reduction for contributory negligence increased from 30% to 50%
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| Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd (WASC) - arbitration - dispute resolution clause - parties referred to arbitration - proceedings stayed
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| JMT Builders Pty Ltd v. Ryan (NTSC) - abuse of process - building contract - writ filed pursuant to deed of settlement - issuing proceedings in absence of genuine dispute was abuse of process - proceedings dismissed
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Dear Subscriber
1. This Benchmark Television broadcast is with Timothy Hale QC and Luke Waterson on Mining & Resources Law.
2. This discussion includes judicial review, rules of statutory interpretation, right to reasons for a decision, issue estoppel and Anshun estoppel.
3.
Although it’s about the Mining Act 1992 (NSW) this discussion is of general interest.
4.
You should watch on Wi-Fi to avoid excess data usage charges.
5.
For Benchmark CLE subscribers we have prepared notes which we will forward to them at their request.
6.
Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
7.
We also have a series of questions for Benchmark CLE subscribers which we will send to them at their request.
8. We will be in the next few days publishing some productions which are exclusively for Benchmark CLE subscribers.
Warm regards
Alan
Conolly for Benchmark
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| Benchmark Television |
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| Timothy Hale QC and Luke Waterson present on Mining and Resources Law - Appeal - Estoppel |
| This discussion includes judicial review, rules of statutory interpretation, right to reasons for a decision, issue estoppel and Anshun estoppel. Although it’s about the Mining Act 1992 (NSW) this discussion is of general interest. |
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| Summaries With Link (Five Minute Read) |
Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) [2016] FCAFC 15
Full Court of the Federal Court of Australia
Allsop CJ; Gleeson & Beach JJ
Insurance - financial services errors and omissions insurance policy (policy) - proceedings originally comprised two claims - claim by trustee of Sienkiewicz retirement fund - claim by trustee for AT Melville retirement fund - both claims for damages against former financial advisers, namely company and its representatives - company in liquidation - there was also claim against financial advisers’ professional indemnity insurers - applicants settled case against representatives and discontinued against company - one representative continued claim against insurers for indemnity - primary judge dismissed representative’s cross-claim against insurers - proper construction of policy - ss761A, 716G, 716GA, 766A, 766B, 912B, 913B, 916A & 917A-917E Corporations Act 2001 (Cth) - reg 7.6.02AAA Corporations Regulations 2001 (Cth) - Insurance Contracts Act 1984 (Cth) - held: representative undertook financial planning for claimants encompassing approved investment products - representative was covered by policy - underwriters failed to discharge onus of proof that exclusion in ‘Endorsement No. 002’ applied - appeal allowed.
Todd
[From Benchmark Wednesday, 24 February 2016]
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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.
Elachi
[From Benchmark Friday, 19 February 2016]
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United Petroleum Pty Ltd v Pentaco Oil (Aust) Pty Ltd [2016] FCA 118
Federal Court of Australia
Moshinksy J
Contract - estoppel - trade practices - applicant contended correspondence with respondents constituted agreement to lease sites - applicant sought specific performance of agreement - if Court found no agreement applicant contended it would be unconscionable to resile from representations and respondents were estopped from resiling - applicant also contended in alternative that respondents engaged in misleading and deceptive conduct contravening s18 Australian Consumer Law - Sch 2, ss2(2), 18(1), 131(1) & 232(1) Competition and Consumer Act 2010 (Cth) - Australian Consumer Law, Fair Trading Amendment (Australian Consumer Law) Act 2010 (Vic) - s126 Instruments Act 1958 (Vic) - s52 Trade Practices Act 1974 (Cth) - held: correspondence did not constitute agreement to lease - estoppel case succeeded - misleading and deceptive conduct case succeeded - injunctions granted.
United Petroleum
[From Benchmark Wednesday, 24 February 2016]
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Swindells v State of Victoria [2016] VSCA 9
Court of Appeal of Victoria
Warren CJ; Tate & Santamaria JJA
Misleading and deceptive conduct - employment law - applicant alleged he was unlawfully appointed to and removed from office of mining warden by State and Minister - applicant claimed damages for loss of salary and entitlements under employment contract, loss of earning capacity, reputational harm and emotional distress - primary judge found State and Minister did not contravene s13 Fair Trading Act 1999 (Vic) when appointing appellant and in removing plaintiff State and Minister did not repudiate or breach any term of employment contract, deny him procedural fairness, act for an improper purpose or with apprehended bias - applicant contended primary judge erred in holding respondents had not misled him by failing to disclose that Mineral Resources (Sustainable Development) Act 1990 was under review which could lead to abolition of mining warden’s office - applicant contended primary judge reversed onus of proof and erred in finding no denial of procedural fairness - held: application for leave had no reasonable prospects of success - application dismissed.
Swindells
[From Benchmark Thursday, 18 February 2016]
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T & T Investments Australia Pty Ltd v CGU Insurance Ltd [2016] NSWCA 16
Court of Appeal of New South Wales
Beazley P, Meagher JA & Sackville AJA
Adjournment - costs - corporations - appellant sought that hearing of appeal be adjourned so it could obtain legal representation - appellant’s previous solicitors had filed notice of ceasing to act - respondent sought that matter proceed - if Court granted adjournment respondent sought costs thrown away by adjournment on indemnity basis - respondent also sought lump sum order - respondent sought that costs be paid forthwith and provision for further security for costs - held: Court granted adjournment sought - appellant ordered to pay respondent’s costs thrown away on ordinary basis - appellant directed to pay further security for costs into Court - appeal stayed pending provision of security.
T & T
[From Benchmark Monday, 22 February 2016]
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Chu v Russell [2016] TASFC 1
Full Court of the Supreme Court of Tasmania
Blow CJ; Porter & Estcourt JJ
Negligence - motor vehicle collision - collision between motor vehicle and bicycle - respondent was riding bike when appellant driver collided with his bicycle from behind - respondent injured - primary judge held appellant liable in negligence - primary judge also found damages should be reduced by 30% for respondent’s contributory negligence - appellant challenged finding of liability - appellant also contended 30% reduction for contributory negligence manifestly inadequate - held (by majority): Court agreed with conclusion by primary judge that collision would not have occurred but for appellant’s failure to keep a proper lookout and speed - Court determined respondent’s damages be reduced by 50% for contributory negligence - appeal allowed.
Chu
[From Benchmark Friday, 19 February 2016]
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Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2016] WASC 52
Supreme Court of Western Australia
Mitchell J
Arbitration - parties entered agreement for design, supply and installation of navigation aids - parties executed supplemental agreement - plaintiff sought declaration supplemental agreement released it from obligations to defendant under agreement - defendant sought to stay action for plaintiff’s failure to comply with agreement’s dispute resolution clause - s8 Commercial Arbitration Act 2012 (WA) - O58 r10 Rules of the Supreme Court 1971 (WA) - art 8 UNCITRAL Model Law on International Commercial Arbitration - held: requirements of s8 satisfied - Court referred parties to arbitration - proceedings stayed until the process provided for in clause of agreement engaged and completed.
Australian Maritime Systems
[From Benchmark Tuesday, 23 February 2016]
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JMT Builders Pty Ltd v. Ryan [2016] NTSC 6
Supreme Court of the Northern Territory
Master Luppino
Abuse of process - building contract - plaintiff sued defendant for breach of building contract - plaintiff’s solicitors advised writ had been filed pursuant to deed of settlement entered between parties which fully settled claim - deed did not permit plaintiff to sue on initial dispute - whether proceedings were abuse of process - held: categories of abuse of process not closed - deed provided for dispute’s final resolution - proceedings were an ‘enforcement backup’ in event of default by defendants - there was no genuine dispute - issuing proceedings in absence of genuine dispute was abuse of process - proceedings were abuse of process.
JMT
[From Benchmark Tuesday, 23 February 2016]
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| Poem for Friday (Recitation here by Thomas Hellier) |
The Plain Sense of Things
BY WALLACE STEVENS
After the leaves have fallen, we return
To a plain sense of things. It is as if
We had come to an end of the imagination,
Inanimate in an inert savoir.
It is difficult even to choose the adjective
For this blank cold, this sadness without cause.
The great structure has become a minor house.
No turban walks across the lessened floors.
The greenhouse never so badly needed paint.
The chimney is fifty years old and slants to one side.
A fantastic effort has failed, a repetition
In a repetitiousness of men and flies.
Yet the absence of the imagination had
Itself to be imagined. The great pond,
The plain sense of it, without reflections, leaves,
Mud, water like dirty glass, expressing silence
Of a sort, silence of a rat come out to see,
The great pond and its waste of the lilies, all this
Had to be imagined as an inevitable knowledge,
Required, as a necessity requires.
BY WALLACE STEVENS
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