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

Weekly Civil Law Review

Friday, 26 September 2014
Executive Summary (One Minute Read)
Essendon Football Club v CEO of the Australian Sports Anti-Doping Authority (FCA) - administrative law - ASADA and AFL investigated Essendon - investigation complied with the rule of law (I G)
Eagle v Civil Aviation Safety Authority (FCA) - negligence - breach of statutory duty - claim by pilot against CASA - CASA owes no duty to pilots not to delay in issuing medical certificates - claim dismissed (I G)
ACCC v Safe Breast Imaging Pty Ltd (No 2) (FCA) - consumer law - misleading or deceptive conduct by company and director - declarations, injunctions, pecuniary penalties, and banning orders made (I)
Ball v McInerney (NSWCA) - negligent construction claim - defendant allegedly succeeded at trial on case not pleaded - trial will only miscarry on this basis where there is real practical injustice - appeal dismissed (I C)
Bendigo and Adelaide Bank v Stamatis (NSWSC) - unconscionable conduct - son forged immigrant parents' signature - parents estopped from denying loan - unconscionable to enforce loan - special disadvantage (I B)
Higashida v Sato (NSWSC) - equity - plaintiff bought car and boat in de facto partner's name with own money - presumption of resulting trust - presumption not rebutted (B)
Mainieri v Cirillo (VSCA) - equity - mother partially paid son's debt secured over son's property - parol evidence rule not applicable - son's property subject to equitable lien in mother's favour (B)
Vasco Investment Managers Ltd v Morgan Stanley Australia Ltd (VSC) - confidential information - Morgan Stanley used Vasco's confidential information in formulating recapitalisation plan - payment of quantum meruit ordered (I B)
Prestige Lifting Services Pty Ltd v Wood (VSC) - solicitors' costs - claim for unpaid fees for acting for company - no contract between solicitor and company - appeal allowed (I B)
Waratah Coal Pty Ltd v Seeney (QSC) - judicial review - government refused to compulsorily acquire rail corridor for mining project - discretion not improperly fettered by government policy - judicial review refused (B C G)
JV Pub Group Pty Ltd v Red Carpet Real Estate Pty Ltd (QSC) - contract - option had lapsed - lessor incorrectly gave notice to lessee of further time to exercise option - lessee purported to exercise option - new lease as if option validly exercised (B)
Civil Mining & Construction Pty Ltd v Isaac Regional Council (QSC) - security of payments - concurrent dispute resolution under contract and statute - injunction refused (C)
Moran v Schwartz Publishing Pty Ltd (WASC) - injunction sought against book allegedly accusing Moran of murdering girlfriend - balance of convenience - public interest in freedom of speech - injunction refused (I)
Summaries With Link (Five Minute Read)
Essendon Football Club v CEO of the Australian Sports Anti-Doping Authority [2014] FCA 1019
Federal Court of Australia
Middleton J
Administrative law - Australian Sports Anti-Doping Authority Act 2006 (Cth) - ASADA and AFL jointly investigated Essendon - ASADA had no statutory power to compel provision of information - AFL used its contractual powers to do so - ASADA issued notices of possible doping violations to 34 players - Essendon and its coach sued to have notices set aside - alleged ASADA had no statutory power for joint investigation with AFL - alleged ASADA had unlawfully communicated confidential information to AFL - alleged joint investigation was for improper purpose of enabling AFL to use its contractual power where ASADA had no statutory power - held: ASADA has statutory power to do all things convenient to be done in connection with its functions - includes calling on AFL to assist or cooperate - no unlawful disclosure of information - information communicated to the AFL directly, not via ASADA - statutory power must be exercised for the purpose for which it was conferred - ASADA’s purpose is to investigate doping - ASADA acted for this purpose - use of AFL’s contractual power to compel provision of information did not frustrate ASADA’s statutory purpose - ASADA could not, and did not, compel provision of any information - no abrogation of privilege against self-incrimination - ASADA complied with the rule of law - application dismissed.
Essendon Football Club (I G)
[From Benchmark 23 September 2014]
Eagle v Civil Aviation Safety Authority [2014] FCA 1016
Federal Court of Australia
Bennett J
Negligence - Eagle was a Qantas Boeing 737 Captain - required Class 1 Medical Certificate - diagnosed with sleep disorder - CASA delayed issuing Medical Certificate - Eagle sued CASA - breach of statutory duty - negligence - CASA applied to have statement of claim struck out - held: statutory duty to issue Medical Certificate without undue delay not established - CASA may have a common law duty of care in some circumstances - however, under its statutory regime, CASA acts for the safety of the public generally, rather than for the benefit of pilots - alleged duty of care not to delay unreasonably would be inconsistent with CASA's statutory imperative to place safety first - would divert decision-makers' attention from their duties - statement of claim disclosed no reasonable cause of action - further, no reasonable cause of action was available - proceedings dismissed.
Eagle (I G)
[From Benchmark 23 September 2014]
ACCC v Safe Breast Imaging Pty Ltd (No 2) [2014] FCA 998
Federal Court of Australia
Barker J
Consumer law - the Court earlier found a company had contravened s18 Australian Consumer Law (Cth) and s52 Trade Practices Act 1974 (Cth) - director also found liable as accessory - misleading or deceptive representations about the risk of breast cancer and alternatives to mammography - Court now to decide appropriate relief - held: no real dispute declarations should be made - injunctions appropriate to communicate to the respondents and the public generally the misleading or deceptive conduct was serious and should not be repeated - pecuniary penalties should be high enough to be more than an acceptable cost of doing business, but not crushing - company should send corrective letters to its customers - director remained defensive about the contraventions - she should be banned from managing companies - banning order was punitive, as well as protective of the public.
[From Benchmark 19 September 2014]
Ball v McInerney [2014] NSWCA 331
Court of Appeal of New South Wales
Beazley P, Emmett & Gleeson JJA
Construction - Ball and Carey retained McInerney to design and develop horse riding and training facilities - drainage problems - Ball and Carey sued - primary judge dismissed claim - found defects did not arise from faulty design or construction, but from failure of maintenance by Ball and Carey - Ball and Carey appealed - claimed maintenance issue had not been pleaded at trial - held: denial of procedural fairness depends on circumstances of each case - ultimate focus is on practical rather than theoretical injustice - issue is unfairness, not whether an expectation has been disappointed - appellants had to show a substantial wrong or miscarriage - maintenance issue had been clearly articulated prior to trial in McInerney's response to Scott Schedule - also raised in McInerney's experts' reports - appellants not taken by surprise - no procedural unfairness - appellants bound by conduct of case at trial where no objection to tender of further evidence - no error shown in findings of primary judge - appeal dismissed.
Ball (I C)
[From Benchmark 24 September 2014]
Bendigo and Adelaide Bank v Stamatis [2014] NSWSC 1233
Supreme Court of New South Wales
R S Hulme AJ
Unconscionable conduct - defendants born in Greece, had limited education, limited understanding of English - defendants' son borrowed money on the security of defendants' home - son forged defendants' signatures - Bank sued defendants for breach of loan agreement and mortgage - held: son had no authority to sign the defendants' names - a forged signature cannot be ratified - however, defendants had continued to make repayments after son arrested for supply of large commercial quantity of drugs, and had delayed denying liability to Bank's detriment - defendants were therefore estopped from denying they had signed and were bound by the loan agreement - nonetheless, loan agreement and mortgage should be set aside - defendants were at a special disadvantage - Bank should have been aware there was a substantial risk that son would take advantage of his parents - unconscionable for the Bank to enforce loan agreement - loan agreement may also have been unjust under s9 Contracts Review Act 1980 (NSW).
Bendigo and Adelaide Bank (I B)
[From Benchmark 19 September 2014]
Higashida v Sato [2014] NSWSC 1291
Supreme Court of New South Wales
Darke J
Equity - Hagashida claimed his former de facto partner Sato held a car and a boat on resulting trust for him - Hagashida had used his own money to purchase those assets in Sato's name - Sato claimed assets were gifts - held: there was a presumption of resulting trust, as Hagashida had entirely used his own money to purchase the assets - presumption was that Hagashida did not intend Sato to have a beneficial interest in either asset - this presumption can be rebutted - presumption not rebutted on the evidence for either asset - declarations of resulting trust made - Hagashida to reimburse Sato for any reasonable costs incurred in holding the assets.
Higashida (B)
[From Benchmark 24 September 2014]
Mainieri v Cirillo [2014] VSCA 227
Court of Appeal of Victoria
Nettle AP, Hansen & Santamaria JJA
Equity - husband and wife had pressing debt - husband's mother sold her home and applied proceeds to reducing the debt - written document between the parties described payment as a gift - husband and wife said the mother could live with them indefinitely - relationship broke down and cohabitation became impossible - trial judge held mother had benefit of constructive trust over the husband and wife's home - held: primary judge correct to rule evidence of prior oral communications admissible - evidence of events before execution of written document showed parties did not intend document to contain all the terms of their agreement - parol evidence rule therefore did not apply - although the written document used the word gift, evidence showed the parties did not intend the payment to be a gift - declaration of constructive trust was excessive - mother's equity best satisfied by an equitable lien or charge to secure repayment with interest.
Mainieri (B)
[From Benchmark 19 September 2014]
Vasco Investment Managers Ltd v Morgan Stanley Australia Ltd [2014] VSC 455
Supreme Court of Victoria
Vickery J
Confidential information - Morgan Stanley recapitalised Orchard, a large fund manager - Vasco shared details of its own Orchard recapitalisation plan with Morgan Stanley - Vasco claimed it was entitled to be paid - held: Vasco's plan was sufficiently developed and complete to attract equitable protection of confidentiality -Vasco's plan possessed the required quality of confidence - Vasco's plan was disclosed to Morgan Stanley in circumstances which imported an obligation of confidence - Morgan Stanley had no permission to use Vasco's plan without payment - Morgan Stanley used Vasco's plan as the starting point for its recapitalisation - Morgan Stanley's changes to Vasco's plan did not prevent equity protecting Vasco's confidential information - Morgan Stanley made unauthorised use of Vasco's confidential information - evidence was insufficient to support any entitlement to equitable compensation or an account of profits - however, it was unjust for Morgan Stanley to accept Vasco's services without payment - payment of quantum meruit ordered.
Vasco Investment Managers Ltd (I B)
[From Benchmark 22 September 2014]
Prestige Lifting Services Pty Ltd v Wood [2014] VSC 465
Supreme Court of Victoria
Ginnane J
Solicitors' costs - solicitor sought unpaid fees for acting for company - instructions to act for company given by only one of its two directors - directors in dispute about conduct and control of company - Magistrate gave judgment for solicitor - no dispute about quantum of fees - whether solicitor had been validly retained by or authorised on behalf of company to perform work for it - ss3.4.17, 3.4.19 & 3.4.26 Legal Profession Act 2004 (Vic) - held: Magistrate erred by finding a contract between company and solicitor - error affected Magistrate's decision - appeal allowed - company's counterclaim remitted to Magistrate's Court.
Prestige Lifting Services Pty Ltd (I B)
[From Benchmark 25 September 2014]
Waratah Coal Pty Ltd v Seeney [2014] QSC 226
Supreme Court of Queensland
Daubney J
Judicial review - Waratah mined coal in Galilee Basin - granted significant project status under State Development and Public Works Organisation Act 1971 (Qld) - this empowered compulsory acquisition of land by government - government had identified preferred Galilee Basin rail corridors - government policy was generally not to approve rail corridors outside preferred corridors - Waratah applied for rail corridor outside preferred corridors - application refused - Waratah sought judicial review - held: decision-maker had not erred in identifying relevant government policy - decision required value judgment - could not take place in a policy vacuum - decision-maker did not merely apply policy without regards to merits of application - had not fettered his discretion - had not taken irrelevant considerations into account - had not failed to take relevant considerations into account - no Wednesbury unreasonableness - application for judicial review dismissed.
Waratah Coal Pty Ltd (B C G)
[From Benchmark 23 September 2014]
JV Pub Group Pty Ltd v Red Carpet Real Estate Pty Ltd [2014] QSC 232
Supreme Court of Queensland
Mullins J
Contract - lessor had to exercise option in lease by 31 August 2013 - option not exercised by that date - on 26 November 2013, lessor gave notice under s46 Retail Shop Leases Act 1994 (Qld) that option had to be exercised by 28 February 2014 - lessee purported to exercise option on 19 December 2013 - lessor claimed option had lapsed - held: time was of the essence under the lease - option lapsed completely on 31 August 2013 - no room for operation of doctrine of waiver - correct characterisation of situation was that parties had agreed to a new lease - notice under s46 should be taken as an offer of a new lease on the same terms as if the lapsed option had been exercised - purported exercise of option should be taken as acceptance of that offer - declaration that new lease existed.
JV Pub Group Pty Ltd (B)
[From Benchmark 24 September 2014]
Civil Mining & Construction Pty Ltd v Isaac Regional Council [2014] QSC 231
Supreme Court of Queensland
P McMurdo J
Security of payments - parties entered contract for road works to be constructed by CMC for Council - Council challenged payment claim served by CMC under Building and Construction Industry Payments Act 2004 (Qld) - Council contended claim was abuse of statutory scheme - Council contended nearly all of claim's components were subject of previous adjudications - those adjudications had been set aside - Council also submitted it had invoked dispute resolution provisions of contract -mediation under contract was expected to result in arbitration of same matters to be decided by adjudicator under statutory scheme - Council sought final injunction to prevent claim's progress under statutory scheme - ss17(5) & 17(6) - held: setting aside adjudicators' decisions put parties in same position as if there had been no adjudication - no impediment to concurrent process under both dispute resolution clause of contract and under the statutory scheme - injunction refused.
Civil Mining & Construction Pty Ltd (C)
[From Benchmark 25 September 2014]
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Supreme Court of Western Australia
Kenneth Martin J
Defamation - Moran sought an urgent injunction to restrain publication of book about the death of his former girlfriend - Moran contended book carried a clear imputation he had murdered girlfriend - previous media reports had asserted Moran had murdered girlfriend - foreshadowed defence was that publisher would justify lesser imputation that there were reasonable grounds to suspect Moran had murdered girlfriend - held: not possible to mop up all the reputational spilt milk flowing from other media reports accusing Moran of murder - Moran retained the right to seek damages at trial after publication - publisher would suffer a potentially non-recoupable economic loss if publication were restrained - balance of convenience favoured refusing injunction - in the light of the foreshadowed defence of justification, public interest in freedom of speech also an important consideration - application for injunction dismissed.
Moran (I)
[From Benchmark 22 September 2014]

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.