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


Monday, 27 October 2014
Executive Summary (One Minute Read)
Firebird Global Master Fund II Ltd v Republic of Nauru (NSWCA) - registration of foreign judgment against Nauru invalid
Douglas Aerospace v Indistri Engineering Albury (NSWSC) - security of payments - challenges to adjudicator's determination failed
Villella v Telstra Corporation Ltd (VSCA) - negligence - legal practitioners - competency of appeal - security for costs
Brazis v Rosati (VSCA) - arbitration - leave to appeal against stay of part of proceeding and referral of dispute to arbitration
Dale v Clayton Utz (a firm) (No 2) (VSC) - partnership - privileges against self-incrimination - rule of practice in Protean Holdings - proceedings split
Summaries With Link (Five Minute Read)
Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360
Court of Appeal of New South Wales
Bathurst CJ; Beazley P & Basten JA
Judgments and orders - sovereign immunity - Firebird obtained judgment against Nauru in Japan - Firebird sought to register Japanese judgment in NSW Supreme Court pursuant to Foreign Judgments Act 1991 (Cth) - application was by summons - summons not served on Nauru - Japanese judgment registered - Firebird obtained garnishee order - primary judge held judgment should not have been registered and garnishee order should be set aside - held: service requirements set out in Foreign Judgments Act and Foreign States Immunities Act 1985 (Cth) could be read harmoniously so that the former did not impliedly repeal requirements in the latter - failure to adhere to service requirements set out in Immunities Act meant registration of Japanese judgment should be set aside - proceeding in s9 of the Immunities Act covered application to register a foreign judgment and therefore immunity operated - Nauru did not waive its immunity - exception to immunity did not apply because proceedings concerned application to register foreign judgment not a commercial transaction - appeal dismissed.
Firebird Global Master Fund II Ltd
Douglas Aerospace v Indistri Engineering Albury [2014] NSWSC 1445
Supreme Court of New South Wales
McDougall J
Security of payments - plaintiff sought to quash determination made by adjudicator pursuant to Building and Construction Industry Security of Payment Act 1999 (NSW) in respect of construction contract made between first defendant and plaintiff (Stage 2 contract) - plaintiff contended there was no construction contract and that first defendant did not give plaintiff notice pursuant to s17(2)(a) of intention to seek adjudication - plaintiff also claimed first defendant had not served copy of adjudication application as required by s17(5) - held: contracting parties were plaintiff and first defendant - it had not been suggested that Stage 2 contract was anything other than a construction contract and such suggestion could not be sustained - plaintiff had received s17(2)(a) notice - no jurisdictional error in making adjudication application after time for provision of payment schedule in accordance with s17(2)(b) had expired - adjudication application was made within ten business days after end of the s17(2)(b) period - even if requirements of s17(5) regarded as jurisdictional they had not been infringed - challenges to determination failed.
Douglas Aerospace
Villella v Telstra Corporation Ltd [2014] VSCA 263
Court of Appeal of Victoria
Kyrou JA & Ginnane AJA
Negligence - legal practitioners - security for costs - competency of appeal - appellant was proprietor of house - appellant received insurance payments in respect of water damage to property - appellant complained to respondent about water damage allegedly caused by works negligently performed - respondent denied it carried out the works and denied liability - County Court judge found in favour of respondent - respondent sought dismissal of appellant's appeal for incompetence and security for costs - appellant's solicitors sought leave to file notice that firm had ceased to act for appellant - held: certain grounds of appeal dealt with interlocutory rulings in respect of which appellant had not sought leave to appeal - notice of appeal also raised substantive grounds of appeal - application to dismiss appeal as incompetent referred for hearing by Court constituted to hear appeal - application to file notice of ceasing to act granted - there was risk that appellant's financial obligations would deplete her net assets and render her incapable of meeting future costs order - security for costs granted.
Brazis v Rosati [2014] VSCA 264
Court of Appeal of Victoria
Kyrou JA & Ginnane AJA
Arbitration - applicants sought relief under oppression and derivative action provisions of Corporations Act 2001 (Cth) - applicants sought leave to appeal against trial judge's order staying claim pursuant to s8 Commercial Arbitration Act 2011 (Vic) - trial judge held parties to proceeding who were also parties to a Shareholders' and Unitholders' Agreement containing an arbitration clause could not continue oppression claim because it fell within arbitration clause - held: application for leave to appeal raised important questions of law relating to interrelationship between Corporations Act and Commercial Arbitration Act - on basis of nature and importance of matters raised in proposed notice of appeal, Court satisfied trial judge's decision attended with sufficient doubt to justify grant of leave to appeal - inappropriate for Court to analyse parties' submissions on correctness of judge's reasoning and on grounds of appeal - leave to appeal granted.
Dale v Clayton Utz (a firm) (No 2) [2014] VSC 517
Supreme Court of Victoria
Croft J
Partnership - privileges against self-incrimination - former partner of firm sought to challenge decision made by Board requiring plaintiff to leave partnership - plaintiff made claim for breach of partnership agreement - plaintiff sought orders for split of proceedings on basis of principle in Protean Holdings - reasonable likelihood of criminal or civil penalty proceedings - held: Court satisfied orders sought by plaintiff to split proceedings should be granted - defendant directly alleged serious professional misconduct which could lead to obvious civil penalties and also serious criminal conduct which could lead to criminal charges - privileges available even though it was a non-penalty proceeding - privilege against witness being compelled to answer questions which may tend to incriminate witness extended to pleadings and other interlocutory process - orders made.