Dear Subscribers

It has come to our attention that the Benchmark edition dated 26 September 2014 mistakenly included cases from 26 August 2014.

We have updated our archives and are now sending you the updated edition for your reference. 

We apologise for any inconvenience.

Kind regards 
The Benchmark Team

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


Friday, 26 September 2014
Executive Summary (One Minute Read)
Bailey v Director General, Department of Natural Resources (No 2) (NSWSC) - costs - offer of compromise - plaintiffs to pay successful defendants' costs on indemnity basis
AusNet Electricity Services Pty Ltd v Liesfield (VSC) - Black Saturday bushfires - no legal professional privilege in technical analysis documents - appeal dismissed
Vizovitis v Ryan (ACTSC) - solicitors' costs - costs agreements unreasonable and unfair - agreements not binding
Summaries With Link (Five Minute Read)
Bailey v Director General, Department of Natural Resources (No 2) [2014] NSWSC 1227
Supreme Court of New South Wales
Fullerton J
Costs - Court gave judgment for defendants - defendants sought indemnity costs from date of offer of compromise - plaintiffs contended defendants' offer of compromise did not comply with Uniform Civil Procedure Rules 2005 (NSW) and was not a genuine or reasonable offer - rr20.26 & 42.15 - held: Court satisfied offer of compromise genuine and reasonable - defendants obtained judgment on claims made by plaintiffs that was no less favourable to them than offer of compromise - no discretionary considerations to displace rule allowing defendants indemnity costs from date of offer.
AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474
Supreme Court of Victoria
Robson J
Legal professional privilege - class action arising out of Black Saturday bushfires - AusNet appealed against order for production of technical analysis documents it had created - ss118 & 119 Evidence Act 2008 (Vic) - held: open to primary judge to conclude AusNet failed to discharge onus to establish the dominant purpose of creating the technical analysis documents was a privileged purpose - primary judge did not err in finding there were other non-privileged purposes for production of the documents - appeal dismissed.
AusNet Electricity Services Pty Ltd
Vizovitis v Ryan [2014] ACTSC 243
Supreme Court of the Australian Capital Territory
Harper M
Solicitors' costs - solicitor acted for client in two personal injury matters - solicitor and client signed two costs agreements in 1999 and 2002 - client sought declaration that agreements were void and orders setting them aside - ss190 & 191 Legal Practitioners Act 1970 (ACT) - Legal Profession Act 2006 (ACT) - held: client not give explanation about effect of agreements - agreements applied increased hourly rates retrospectively - certain clauses difficult to understand - agreements were unreasonable and unfair - costs agreements not binding on parties - declaration and orders made - judgment for plaintiff.

The Wind Sleepers
By H. D.

than the crust
left by the tide,
we are stung by the hurled sand
and the broken shells.

We no longer sleep
in the wind-
we awoke and fled
through the city gate.

tear us an altar,
tug at the cliff-boulders,
pile them with the rough stones-
we no longer
sleep in the wind,
propitiate us.

Chant in a wail
that never halts,
pace a circle and pay tribute
with a song.

When the roar of a dropped wave
breaks into it,
pour meted words
of sea-hawks and gull
sand sea-birds that cry

H. D.