Daily Insurance: Tuesday, 29 March 2016
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

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Executive Summary (One Minute Read)
Balaev v University of Adelaide (FCA) - discovery - employment agreement - application for further discovery dismissed except in relation to documents conceded by respondents
Bilaczenko v Bochner (FCA) - administrative law - abuse of process - application for review of Registrars' refusals to accept documents lodged for filing - application dismissed
Buckworth v Gladio Pty Ltd (NSWCA) - contract - corporations - contract for sale of shares carrying right to exclusively occupy company title home unit in building - purchaser entitled to rescind for breach of contract - appeal dismissed
Averkiou v CIC Allianz Australia Insurance Ltd (NSWSC) - judicial review - motor accidents compensation - decision of medical panel quashed
Nelmeer Ashfield Pty Ltd v Farah (NSWSC) - contract - corporations - leases and tenancies - defendant not entitled to occupy premises pursuant to retail shop lease - appeal allowed
Dias v Oakleigh Centre Industries (VSC) - judicial review - no inadequacy of reasons for medical panel's decision that plaintiff did not have no work capacity - proceedings dismissed
VWA v Probuild (VSC) - accident compensation - recovery proceedings - calculation of Factor X - defendants liable to indemnify plaintiff - apportionment
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1. This Benchmark is published at 4.50 PM Thursday 24 March for Tuesday 29 March as tomorrow is Good Friday and Monday is a public holiday.

2. This Benchmark Television broadcast is on The Australian Constitution – a discussion on the possibility of Australia as a Republic.

3. At 10.30 AM on Tuesday the 29th of March – which is the first day back after Easter – Benchmark will broadcast a free live production for the first time. It is a trial broadcast only but you may be able to tune in – the subject is domain names and trademarks. An edited version will be broadcast in due course. The subject of this session is particularly interesting. It is a CLE session also.

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11. We wish everyone a safe Easter.

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Benchmark Television
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The Australian Constitution and Australia as a Republic
The Australian Constitution - discussion on the possibility of a republic - 35 minute discussion. This is an introduction to a series on the constitution.
Summaries With Link (Five Minute Read)
Balaev v University of Adelaide [2016] FCA 278
Federal Court of Australia
Besanko J
Discovery - employment agreement - applicant alleged respondent's employees or agents made representations constituting misleading or deceptive conduct in relation to employment position resulting in loss and damage - applicant also alleged termination of employment breached Fair Work Act 2009 (Cth) resulting in loss and damage, hurt and humiliation - applicant sought further discovery - rr20.14, 20.21 Federal Court Rules 2011 (Cth) - relevance - fishing - held: orders made in relation to certain paragraphs of Annexure conceded by respondents - application otherwise dismissed.
Bilaczenko v Bochner [2016] FCA 275
Federal Court of Australia
White J
Administrative law - unrepresented litigant - applicant sought judicial review of District Registrars' decisions not to accept documents he lodged for filing principally on basis proposed proceedings were abuse of process - ss3, 5 &11(3)(a) Administrative Decisions (Judicial Review) Act 1977 (Cth) - s17A(2) Federal Circuit Court Act 2001 (Cth) - r13.10 Federal Circuit Court Rules 2001 (Cth) - r2.26 Federal Court Rules 2011 (Cth) - held: applicant seeking to relitigate issue determined against him in earlier proceedings - proceedings were abuse of process - no error in Registrars' decisions - application dismissed.
Buckworth v Gladio Pty Ltd [2016] NSWCA 54
Supreme Court of New South Wales
Beazley P, Bergin CJ in Eq & Emmett AJA
Contract - corporations - appellant vendor and first respondent purchaser entered contract for sale of shares - ownership of shares carried right to exclusively occupy company title home unit in building - second respondent owed building - purchaser rescinded on basis second respondent did not provide requisite approval - contract primary judge found in purchaser's favour against vendor for recovery of deposit - primary judge found requisite approval not given and that even if it was purchaser entitled to rescind for breach of contractual provision requiring that books which law required second respondent to keep were properly kept - held: second respondent had given approval of purchaser - purchaser not entitled to rescind under clause in relation to requisite approval - no error in finding there was breach contract concerning keeping of books which entitled purchaser to rescind or terminate - appeal dismissed.
Averkiou v CIC Allianz Australia Insurance Ltd [2016] NSWSC 311
Supreme Court of New South Wales
Harrison AsJ
Motor accidents compensation - judicial review - plaintiff sought to quash certificate and medical assessment of review panel of State Insurance Regulatory Authority made pursuant to ss61 & 63 Motor Accidents Compensation Act 1999 (NSW) - plaintiff also sought remittal of medical assessment to differently constituted panel - Motor Accidents Compensation Act 1999 (NSW) - State Insurance and Care Governance Act 2015 (NSW) - attribution of injuries caused by first motor vehicle accident to second accident - pre-existing injuries - held: panel asked itself wrong question wrongly applied clauses 1.33 and 1.34 of Permanent Impairment Guidelines - decision quashed.
Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279
Supreme Court of New South Wales
Adamson J
Contract - corporations - leases and tenancies - plaintiff purported to terminate defendant's right of occupation of premises - premises located on property owned by company which leased premises to plaintiff - plaintiff had contracted with defendant to give right to occupy premises - Civil and Administrative Tribunal found plaintiff entitled to occupy premises pursuant to retail shop lease - Appeal Panel dismissed plaintiff's appeal - plaintiff sought leave to appeal - ss3, 29, 32, 36, 38, 80, 82 & 83 Civil and Administrative Tribunal Act 2013 (NSW) - s127(1) Conveyancing Act 1919 (NSW) - s33 Interpretation Act 1987 (NSW) - ss3, 7, 16, 63, 70, 71 Retail Leases Act 1994 (NSW) - held: leave to appeal granted in relation to ground of summons contending Appeal Panel erred by failing to find s16 Retail Leases Act did not apply to agreement - due to inconsistency between Head Lease's terms and five-year retail shop lease s16 did not apply - defendant did not have benefit of five year shop lease - appeal allowed.
Dias v Oakleigh Centre Industries [2016] VSC 115
Supreme Court of Victoria
Cavanough J
Judicial review - worker's compensation - plaintiff sought to establish entitlement to continuation of weekly payments for injury suffered at work - plaintiff sought judicial review of medical panel's decision that plaintiff did not have no current work capacity - ss5, 93C Accident Compensation Act 1985 (Vic) - ss274, 313 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) - held: no inadequacy of reasons given by medical panel - proceedings dismissed.
VWA v Probuild [2016] VSC 102
Supreme Court of Victoria
Zammit J
Accident compensation - recovery proceedings - VWA sought to recover compensation payments made to worker for work injury subject of contribution proceeding - proportion of defendants' liability of defendants under Factor X of the formula in s138(3) Accident Compensation Act 1985 (Vic) - held: Court assessed Factor X at 75% - Factor A agreed by consent - defendants liable to indemnify the VWA under s138(1) - Factor X was 50% as against one defendant (Probuild) and 25% against other defendant (Tubeway).
Poem for Friday (Recitation here by Thomas Hellier)
from Don Juan: Canto 1, Stanzas 217-221

Ambition was my idol, which was broken
Before the shrines of Sorrow and of Pleasure;
And the two last have left me many a token
O'er which reflection may be made at leisure:
Now, like Friar Bacon's brazen head, I've spoken,
'Time is, Time was, Time's past', a chymic treasure
Is glittering youth, which I have spent betimes—
My heart in passion, and my head on rhymes.

What is the end of Fame? 'tis but to fill
A certain portion of uncertain paper:
Some liken it to climbing up a hill,
Whose summit, like all hills', is lost in vapour;
For this men write, speak, preach, and heroes kill,
And bards burn what they call their 'midnight taper,'
To have, when the original is dust,
A name, a wretched picture, and worse bust.

What are the hopes of man? old Egypt's King
Cheops erected the first pyramid
And largest, thinking it was just the thing
To keep his memory whole, and mummy hid;
But somebody or other rummaging,
Burglariously broke his coffin's lid:
Let not a monument give you or me hopes,
Since not a pinch of dust remains of Cheops.

But I being fond of true philosophy,
Say very often to myself, 'Alas!
All things that have been born were born to die,
And flesh (which Death mows down to hay) is grass;
You've pass'd your youth not so unpleasantly,
And if you had it o'er again—'twould pass—
So thank your stars that matters are no worse,
And read your Bible, sir, and mind your purse.'

But for the present, gentle reader! and
Still gentler purchaser! the bard—that's I—
Must, with permission, shake you by the hand,
And so your humble servant, and good bye!
We meet again, if we should understand
Each other; and if not, I shall not try
Your patience further than by this short sample—
'Twere well if others follow'd my example.