| Endeavour Energy v Precision Helicopters Pty Ltd (No 2) (NSWCA) - helicopter crash - damages - negligence - workers compensation - apportionment - indemnity - declarations, judgments and orders made (I B C) |
| Ashton Coal Operations Pty Ltd v Hunter Environment Lobby Inc (NSWCA) - environment and planning - conditional approval of open-cut coal mine project - appeal dismissed (I B C) |
| North Coast Conveyancing Pty Ltd v Bradbury (NSWCA) - negligence - conveyancing - failure to make critical findings of fact in relation to causation - appeal allowed (I B C) |
| Commonwealth Bank of Australia v Ian Robert Clapham; Byron Bay Holdings Pty Ltd v Commonwealth Bank of Australia (NSWSC) - loans and mortgages - guarantee - no wrongful conduct by bank - cross-claim dismissed (B) |
| Vella v Cardona (VSCA) - accident compensation - jury verdict - assessment of damages for pain and suffering - leave to appeal refused (I) |
| Trkulja v Google Inc (VSC) - defamation - publication of material on internet generated by search engine - prospects of success - application to set aside service of writ and amended statement of claim dismissed (I) |
| Rexel Electrical Supplies Pty Ltd v Morton (as liquidator of South East Queensland Machinery Manufacturing and Distribution (Mining No. 1) (in liq) (QCA) - corporations - winding up - unfair preferences transactions voidable - leave to appeal refused (I B C) |
| Kennedy v Queensland Alumina Ltd (QSC) - work injury damages - admission of liability by employer - contributory negligence established - damages assessed (I) |
| A, DC v Prince Alfred College Inc (SASCFC) - negligence - school vicariously liable for damage to boarder due to abuse by boarding master - appeal allowed - extension of time to bring proceedings granted (I) |
| Napier v BHP Billiton (Worsley Alumina) Pty Ltd (WASCA) - workers compensation - entitlement to recover expenses - required nexus between compensable injury or resulting incapacity, and medical or surgical treatment - leave to appeal refused - appeal dismissed (I B C) |
| Gunns Ltd v State of Tasmania (TASSC) - negligence - claim against State in relation to handling of water licence application - causes of action in negligence, negligent misstatement and estoppel failed (I B C) |
| Summaries With Link (Five Minute Read) |
Endeavour Energy v Precision Helicopters Pty Ltd (No 2) [2015] NSWCA 357
Court of Appeal of New South Wales
Basten & Macfarlan JJA; Sackville AJA
Damages - negligence - workers compensation - plaintiff injured in helicopter crash sued employer (Endeavour Energy), owner and operator of helicopter (Precision) and Telstra - plaintiff’s claims settled - claims of family members settled with some outstanding issues as to quantification and apportionment - proceedings involved apportionment of liability, claim for indemnity under Workers Compensation Act 1987 (NSW) and whether statutory cap applied to Precision’s liability - principal judgment in Court of Appeal varied trial judge’s decision by finding Telstra liable for accident and that statutory cap applied - apportionment of liability - indemnity - proportionate liability principle - Pt IV, ss36 & 37 Civil Aviation (Carriers’ Liability) Act 1959 (Cth) - Pt 4, ss34 & 35 Civil Liability Act 2002 (NSW) - s100 Civil Procedure Act 2005 (NSW) - ss 149, 150, 151Z Workers Compensation Act 1987 (NSW) - s64 Workers’ Compensation Act 1926 (NSW) - s6 Workmen’s Compensation Act 1906 (UK) - held: declarations, judgments and orders made.
Endeavour (I B C)
[From Benchmark Monday, 23 November 2015]
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Ashton Coal Operations Pty Ltd v Hunter Environment Lobby Inc [2015] NSWCA 358
Court of Appeal of New South Wales
Beazley P; Macfarlan & Gleeson JJA
Environment and planning - Minister conditionally approved appellant’s open-cut coal mine project - first respondent appealed against approval - in first judgment primary judge found approval should be granted with conditions to be determined - second judgment determined conditions - appellant appealed pursuant to s57 Land and Environment Court Act 1979 (NSW) against condition that it must not carry out development work on site until it had purchased, leased or licensed property from owner - held: imposition of condition not an unreasonable exercise of power on basis of inconsistency between the two judgments - condition not inconsistent with s8F(1)(c) Environmental Planning and Assessment Regulation 2000 (NSW) - primary judge’s reason for imposing condition was proper and reasonable planning purpose fairly related to development approved in conformity with Newbury test - appeal dismissed.
Ashton (I B C)
[From Benchmark Tuesday, 24 November 2015]
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North Coast Conveyancing Pty Ltd v Bradbury [2015] NSWCA 361
Court of Appeal of New South Wales
Basten & Leeming JJA; Emmett AJA
Negligence - conveyancing - respondents entered deed of option for purchase of property - option fee was 10% of purchase price - deed required option to be exercised by certain date and time - option not exercised - respondents forfeited fee - respondents had occupied premises subject of option for weekly fee - respondents also incurred expenditure by improving property - respondents sued appellant which acted for them with respect to deed of option and proposed agreement for sale, seeking to recover option fee, interest, fees, disbursements and amount spent on improvements - trial judge gave judgment for respondents - trial judge rejected claim for expenditure by improvements - appellants appealed - appellant contended trial judge failed to make necessary findings with respect to causation- held: appeal allowed in light of respondents’ concessions - it was ultimately common ground trial judge did not make critical findings of fact on causation - judgment in favour of respondent set aside.
North Coast Conveyancing (I B C)
[From Benchmark Wednesday, 25 November 2015]
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Commonwealth Bank of Australia v Ian Robert Clapham; Byron Bay Holdings Pty Ltd v Commonwealth Bank of Australia [2015] NSWSC 1714
Supreme Court of New South Wales
Darke J
Loans and mortgages - guarantee - proceedings concerning acquisition by company (Yarraluma) of macadamia farm - bank (CBA) provided finance to Yarralumla for acquisition of farm and earlier acquisition of smaller farm - security included property mortgages over farms and property owned by husband and wife directors of Yarraluma, who also gave personal guarantees - Yarraluma defaulted under terms of finance - bank sought to enforce deed of guarantee - directors alleged ban provided negligent advice and engaged in misleading or deceptive conduct- bank obtained judgment - cross-claim adjourned - amended cross-claim introduced claims of unconscionable conduct and claim under Contracts Review Act 1980 (NSW) - cross-claim subject of present hearing - bank denied wrongful conduct - assessment of what took place between director and officer of bank during conversations and meetings - held: no claims of wrongful conduct by bank established - cross-claim dismissed.
Commonwealth Bank of Australia (B)
[From Benchmark Friday, 20 November 2015]
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Vella v Cardona [2015] VSCA 306
Court of Appeal of Victoria
Beach & Kyrou JJA; Cavanough AJA
Accident compensation - applicant injured in transport accident - applicant claimed damages against respondent for injuries - respondent admitted negligence - jury assessed applicant’s pain and suffering damages in sum of $130,000 - jury rejected claim for pecuniary loss damages - appellant sought leave to appeal against award of pain and suffering damages - appellant contended verdict against evidence and weight of the evidence, that no jury could or should have assessed pain and suffering damages at $130,000, that jury should have found plaintiff’s hip injury resulted from transport accident and that damages were manifestly unjust - held: contention that jury bound to find accident was cause of hip injury rejected - Court not persuaded jury’s award of damages manifestly inadequate or outside range of damages reasonably open on evidence - leave to appeal refused.
Vella (I)
[From Benchmark Thursday, 19 November 2015]
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Trkulja v Google Inc [2015] VSC 635
Supreme Court of Victoria
McDonald J
Defamation - plaintiff alleged defendant defamed him by publishing material on internet generated by its search engine - defendant sought to set aside service of writ and amended statement of claim on basis proceeding had no real prospect of success - ss63(1) & 64 Civil Procedure Act 2010 (Vic) - held: defendant’s primary contention it could not be a publisher not supported by any authority - defendant failed to establish plaintiff had no real prospect of success in establishing search engine results defamatory - defendant’s contention it should have benefit of immunity was invitation for court to adopt role of legislature and rejected - application dismissed.
Trkulja (I)
[From Benchmark Friday, 20 November 2015]
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Rexel Electrical Supplies Pty Ltd v Morton (as liquidator of South East Queensland Machinery Manufacturing and Distribution (Mining No. 1) (in liq) [2015] QCA 235
Court of Appeal of Queensland
Fraser & Philippides JJA; A Lyons J
Corporations - winding up - applicant sought to appeal against order that applicant pay respondent amount representing unfair preference transactions which were voidable pursuant to s588FE Corporations Act 2001 (Cth) - s95A, 588C, 588E, 588FA, 588FC, & 588FG - s118 District Court of Queensland Act 1967 (Qld) - s4 Magistrates Courts Act 1921 (Qld) - proposed appeal concerned trial judge’s findings that company insolvent at time of payments and that they were not part of a running account for purposes of s 558FA(3) - held: primary judge’s reasons not inadequate - applicant did not succeed in contending primary judge erred in finding company insolvent - no error in findings as to running account - leave to appeal refused
Rexel (I B C)
[From Benchmark Tuesday, 24 November 2015]
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Kennedy v Queensland Alumina Ltd [2015] QSC 317
Supreme Court of Queensland
McMeekin J
Work injury damages -contributory negligence - damages - plaintiff sued defendant employer for workplace injury which occurred when caustic solution came into contact with his left heel and ankle - defendant admitted liability but contended plaintiff was contributorily negligent - damages in issue - s10(1)(b) Law Reform Act 1995 (Qld) - ss237(1)(a), 305H & 306J Workers’ Compensation and Rehabilitation Act 2003 (Qld) - Sch 8, Sch 9 & Sch 12 Workers’ Compensation and Rehabilitation Regulation 2014 (QSC) - held: employer discharged onus to show contributory negligence - appropriate apportionment was 50/50 - damages assessed - judgment for plaintiff in sum of $191,061.91.
Kennedy (I)
[From Benchmark Tuesday, 24 November 2015]
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A, DC v Prince Alfred College Inc [2015] SASCFC 161
Full Court of the Supreme Court of South Australia
Kourakis CJ; Gray & Peek JJ
Negligence - appellant was boarder at respondent college - teacher employed by college appointed as boarding house master - teacher sexually abused appellant and was dismissed shortly after college became aware of abuse - appellant claimed college liable for loss and damage he sustained from abuse - trial judge found appellant failed to establish liability on part of college and refused to exercise discretion to extend the time to bring proceedings under Limitation of Actions Act 1936 (SA) - ss45 & 48 Limitation of Actions Act 1936 (SA) - held: liability for employee’s intentional criminal wrongdoing appropriately dealt with through vicarious liability not non-delegable duty - respondent vicariously liable for damage suffered by appellant due to consequence of teacher’s sexual abuse - time for appellant to bring proceedings should be extended- matter remitted for assessment of damages - appeal allowed.
A, DC (I)
[From Benchmark Thursday, 19 November 2015]
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Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Court of Appeal of Western Australia
McLure P; Buss & Newnes JJA
Workers compensation - appellant sought to appeal against primary judge’s refusal of leave to appeal from decision of WorkCover arbitrator - proper construction and application of cl17(1) of Sch 1. Workers' Compensation and Injury Management Act 1981 (WA) - nature and extent of nexus required between compensable injury or resulting incapacity and medical or surgical treatment for injured worker to be entitled to recover expenses - held: appellant's case on appealmaterially different to case run below - appellant’s case not supported by medical evidence or arbitrator's findings of fact - no basis to interfere with primary judge’s decision - leave to appeal refused - appeal dismissed.
Napier (I B C)
[From Benchmark Monday, 23 November 2015]
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Gunns Ltd v State of Tasmania [2015] TASSC 52
Supreme Court of Tasmania
Pearce J
Negligence - plaintiff applied under Water Management Act 1999 (Tas) to build dam on to irrigate a planned vineyard development for its business - plaintiff sought licence to take water for dam from watercourse - dam permit was approved - dam constructed - plaintiff notified that without further information it would be allocated less water than amount it had applied - plaintiff claimed damages against State arising from the manner in which water licence application dealt with - held: defendant did not owe duty of care to plaintiff - causes of action in negligence, negligent misstatement and estoppel failed - action dismissed.
Gunns (I B C)
[From Benchmark Thursday, 19 November 2015]
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| CRIMINAL |
| Executive Summary |
| Aravena v R (NSWCCA) - criminal law - recklessly inflicting actual bodily harm with intent to have sexual intercourse - appeal dismissed in relation to admission of tendency evidence - leave to appeal refused in relation to miscarriage of justice |
| El-Hilli v R; Melville v R (NSWCCA) - criminal law - obtaining financial advantage through deception - coincidence evidence - appeals against convictions dismissed - leave granted to one applicant to appeal against sentence - appeal dismissed |
| Summaries With Link |
Aravena v R [2015] NSWCCA 288
Court of Criminal Appeal of New South Wales
Beazley P; Hall & Wilson JJ
Criminal law - tendency evidence - appellant charged with recklessly inflicting actual bodily harm with intent to have sexual intercourse pursuant to s61K(a) Crimes Act 1900 (NSW), alternatively with indecent assault and assault occasioning actual bodily harm - Crown adduced tendency evidence pursuant to s97 Evidence Act 1995 (NSW) of incident in 2006 in respect of which appellant had pleaded guilty to indecent assault - jury found appellant guilty of s61K(a) offence - sentence of 5 years imposed with non-parole period of 3 years and 9 months - appellant sought to appeal on basis trial judge erred in admitting tendency evidence and failed to put defence case to jury occasioning miscarriage of justice - held: no error admission of evidence under s101 Evidence Act - probative value of evidence very high as critical issues for jury’s determination were nature of assault and question of appellant’s intention - appeal dismissed - trial judge adequately put appellant’s case to jury and instructed it on relevant law - appellant did not establish possibility real injustice occurred - leave to appeal refused.
Aravena |
El-Hilli v R; Melville v R [2015] NSWCCA 289
Court of Criminal Appeal of New South Wales
Basten JA; Hall & Wilson JJ
Criminal law - self-represented applicants convicted on two counts of obtaining financial advantage through deception under s178BA(1) Crimes Act 1900 (NSW) - trial conducted before judge without jury - one applicant (Melville) sentenced to effective term of two years three months imprisonment with non-parole period of one year three months - one applicant (El-Hilli) sentenced to effective term of five years with a non-parole period of four years two months - applicants sought to appeal against convictions and sentences - held: leave to appeal granted to appeal against convictions concerning admission and reliance on coincidence evidence - trial judge did not rely on coincidence reasoning with El-Hilli’s previous convictions - no prejudice to applicants from fact that ruling on admission of evidence made only in judgment disposing of case - no error in trial judge’s approach to sentence in relation to El-Hilli - El-Hilli refused leave to appeal against sentence - Melville granted leave to appeal against sentence but dismissed appeal with effect from date of release on parole.
El-Hilli |
| Poem for Friday (Recitation here by Thomas Hellier) |
Modern Love: XXII
BY GEORGE MEREDITH
What may the woman labour to confess?
There is about her mouth a nervous twitch.
'Tis something to be told, or hidden:—which?
I get a glimpse of hell in this mild guess.
She has desires of touch, as if to feel
That all the household things are things she knew.
She stops before the glass. What sight in view?
A face that seems the latest to reveal!
For she turns from it hastily, and tossed
Irresolute, steals shadow-like to where
I stand; and wavering pale before me there,
Her tears fall still as oak-leaves after frost.
She will not speak. I will not ask.
We are League-sundered by the silent gulf between.
Yon burly lovers on the village green,
Yours is a lower, and a happier star!
GEORGE MEREDITH |
