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

Insurance, Banking, Construction & Government

Wednesday, 29 October 2014
Executive Summary (One Minute Read)
Richardson v Oracle Corporation Australia Pty Ltd (No 2) (FCAFC) - costs - sexual harassment proceedings - presumptive entitlement to indemnity costs (I)
Jones v TCN Channel Nine Pty Ltd (NSWSC) - defamation - defences - contextual truth - imputations struck out (I)
Ahmet v Chief Commissioner of Police (VSCA) - subpoena - public interest immunity - failure to weigh competing considerations - appeal allowed (I)
Wilson v Liquorland Australia Pty Ltd (VSC) - administrative law - significant injury - erroneous determination by medical panel quashed (I G)
Austructures Pty Ltd v Makin (VSC) - corporations - pleadings - leave to amend certain paragraphs of statement of claim (B C)
Ristic v Maroti (No 2) (VSC) - funds in court - proceeds of sale of property - failure to prove contribution to relationship - payment out less admitted sum owing (B)
Oram v BHP Mitsui Coal Pty Ltd (VSC) - limitation of actions - psychiatric injury arising out of mine disaster in 1994 - prejudice (I C)
Summaries With Link (Five Minute Read)
Richardson v Oracle Corporation Australia Pty Ltd (No 2) [2014] FCAFC 139
Full Court of the Federal Court of Australia
Kenny, Besanko & Perry JJ
Indemnity costs - Full Court determined appellant entitled to increase in damages awarded to her in sexual harassment proceedings - appellant sought pre-judgment interest and indemnity costs on basis of offer of compromise - held: respondent did not oppose order for pre-judgment interest - respondent did not accept offer - appellant succeeded in obtaining judgment sum larger than offer - Court not satisfied presumptive entitlement of appellant to indemnity costs should be displaced - mere fact that something unexpected or unforeseen happened during litigation unlikely to provide reasons justifying displacement - Court's decision had effected a change to level of awards for damages in sexual harassment cases - however Court's decision was not other than orderly development of pre-existing principle - indemnity costs ordered.
Richardson (I)
Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453
Supreme Court of New South Wales
McCallum J
Defamation - defences - contextual truth - action arising out segment on television programme - plaintiff objected to two contextual implications specified by defendants - requirement that contextual imputation be one carried in addition to the defamatory imputations complained of by plaintiff - s16 Defamation Act 1974 (NSW) - s26 Defamation Act 2005 (NSW) - held: one contextual imputation struck out on basis it was not capable of meeting the requirements of s26 - other contextual imputation struck out on basis it was not capable of arising.
Jones (I)
Ahmet v Chief Commissioner of Police [2014] VSCA 265
Court of Appeal of Victoria
Nettle JA & Sloss AJA
Subpoena - public interest immunity - applicant alleged police assaulted him, that he was falsely imprisoned, battered and maliciously prosecuted - trial judge set aside applicant's subpoena for production of documents held by Commissioner concerning police officers - trial judge found public interest in preserving confidentiality of documents outweighed public interest in permitting disclosure - applicant sought extension of time to appeal - r64.20(1) Supreme Court (General Civil Procedure) Rules 2005 (Vic) - held: trial judge failed to weigh or balance competing interests between public interest in keeping subpoenaed documents confidential and public interest in proper administration of justice - trial judge erred in acting on basis of general statements made by a sergeant, rather than by inspecting subpoenaed documents for himself and forming view about whether any damage might result from disclosure - appeal allowed.
Ahmet (I)
Wilson v Liquorland Australia Pty Ltd [2014] VSC 545
Supreme Court of Victoria
Rush J
Administrative law - plaintiff injured arm and neck when she slipped and fell at Liquorland's premises - plaintiff sought judicial review of determination of medical panel that degree of impairment from her injury did not meet threshold level for significant injury under Wrongs Act 1958 (Vic) - ss28LJ & 28LL - held: by disregarding a level of impairment which it determined was due to a pre-existing, asymptomatic condition, the Panel relied upon an irrelevant consideration, applied a wrong legal test and reached an erroneous conclusion which invalidated its decision - Panel fell into jurisdictional error - determination quashed.
Wilson (I G)
Austructures Pty Ltd v Makin [2014] VSC 544
Supreme Court of Victoria
Almond J
Corporations - pleadings - limitations - plaintiffs alleged contraventions by first defendant of duties under ss180(1), 181(1), 182(1) & 183(1) Corporations Act 2001 (Cth) - statement of claim also set out limited claims against second defendant - plaintiffs sought to amend statement of claim - plaintiffs submitted proposed amendments expanded existing claims based on breaches of the Act to include claims against second defendant - plaintiff also submitted amendments would allow plaintiffs to seek extension of time, if necessary, for commencing proceeding for breach of statutory obligations, and that they claimed from second defendant any benefit it received from first defendant's breaches of fiduciary obligations - addition of statute-barred causes of action - discretion to extend time - ss1317K & 1322(4) - no later than - held: Court did not have discretion to extend time for commencing claim for compensation order under s1317H - leave to amend pleadings in respect of new claims of knowledge of contravening conduct refused - leave to amend concerning claims of advantage obtained by second defendant allowed so that question of first defendant's legal capacity between himself and second defendant at relevant times could be determined at trial.
Austructures Pty Ltd (B C)
Ristic v Maroti (No 2) [2014] VSC 540
Supreme Court of Victoria
Lansdowne AsJ
Funds in court - trusts - entitlement to sum of money deposited into the Court - sum was balance proceeds of sale of property registered in plaintiff's name - plaintiff claimed whole of funds that remained - defendant sought payment out to her of half of sum paid in on basis she and plaintiff were in de facto relationship - financial and non-financial contributions she had made to relationship - defendant claimed plaintiff should be found to hold one half of balance of proceeds of sale on constructive trust for her - held: defendant bore onus of proof on issue of contribution and failed to discharge it - Court not satisfied defendant made financial or non-financial contributions such that the plaintiff should be held to hold balance of the funds after sale of his home on constructive trust for her, with exception of sum of $3000 he admitted that he owed her early in dispute - defendant's claim for alteration of property interests remained - first issue to be determined in respect of that claim, if it were pursued, was whether leave should be granted to allow it to be brought out of time - payment out to plaintiff of the remaining funds in Court, less $3000.
Ristic (B)
Oram v BHP Mitsui Coal Pty Ltd [2014] QSC 230
Supreme Court of Queensland
McMeekin J
Limitation of actions - applicant sought damages in 2011 from employer for psychiatric illness arising from mine disaster which occurred in 1994 - applicant sought to extend limitation period - ss30 & 31 Limitation of Actions Act 1974 (Qld) - employer's liability for psychiatric harm - delay - applicant's onus of showing that the justice of the case required the exercise of discretion - held: applicant had reasonable prospect of persuading tribunal of fact that psychiatric injury to surviving employee was foreseeable outcome of exposure to disaster - however prejudice to employer was sufficiently great that Court could not be satisfied that fair trial could be held - applicant had not discharged onus - proceedings left on foot to allow applicant to pursue issue of expiration of limitation period - application dismissed unless submissions are received on or before 4pm on 26 September 2014.
Oram (I C)