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Benchmark Podcast: Friday, 17 April 2015

Daily Composite

Daily Insurance

Weekly Law Review

Case Summaries

Queensland Nickel Pty Ltd v Commonwealth of Australia [2015] HCA 12
High Court of Australia
French CJ; Hayne, Kiefel, Bell, Gageler, Keane & Nettle JJ
Constitutional law - special case to determine whether Div 48, Pt 3 Sch 1 Clean Energy Regulations 2011 (Cth) was invalid in application to plaintiff as result of giving preference to one State over another contrary to s99 Constitution - plaintiff contended Jobs and Competitiveness Program contravened s99 because allocative baselines it prescribed by were fixed by reference to industry averages and resulted in same number of free carbon units per unit volume of production regardless of differences between producers’ inputs, production processes and outputs - held: validity of provisions of Regulations upheld - Div 48 did not give preference to one State over another - no contravention of s99 Constitution.
QueenslandNickel (I B C G)
[From Benchmark 9 April 2015]

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Paciocco v Australia and New Zealand Banking Group Ltd

[2015] FCAFC 50

Banking - consumer protection - representative proceedings - plaintiffs sought to set aside “Exception Fees” on basis they were penalties, or were product of unconscionable conduct by bank, or were unjust under National Credit Code, or were unfair contract terms - ss12BG, 12CA, 12CB, 12CC, 12GF & 12GM Australian Securities and Investments Commission Act 2001 (Cth) - Contracts Review Act 1980 (NSW) - Fair Trading Act 1999(Vic) - held: it was not proven that late payment fee was extravagant or unconscionable - no unconscionable conduct by bank - fees were not penalties - transactions not unjust or terms unfair - statutory claims dismissed - bank’s appeal allowed.

Paccioco

[From Benchmark 13 April 2015]

Fletcher v Nextra Australia Pty Ltd

[2015] FCAFC 52

Consumer law – appellant involved in newsagency industry – appellant appealed from primary judge’s decision that appellant’s publication of article on internet blog was misleading and deceptive conduct in contravention of s18 Australian Consumer Law – article criticised contents of flyer circulated by respondent – respondent was competitor of company of which appellant was director and 50% shareholder – appellant contended publishing blog not conduct in trade or commerce and that respondent did not establish representations – Sch 2 Competition and Consumer Act 2010 (Cth) - s52 Trade Practices Act 1974 (Cth) - held: publication of article occurred in trade or commerce - at least one representation correctly found to be representation of fact – representation false and misleading – appeal dismissed.

Fletcher

[From Benchmark 14 April 2015]

Dallas Buyers Club LLC v iiNet Ltd

[2015] FCA 317

Preliminary discovery - owner of copyright in film sought preliminary discovery of documents - internet service providers were respondents to application - applicants claimed they had identified 4,726 unique IP addresses from which their film was shared on-line their permission contrary to Copyright Act 1968 (Cth) - held: ISPs to divulge names and physical addresses of customers associated with each of IP addresses identified by applicants on condition information only be used for purposes of recovering compensation for infringements and not otherwise disclosed without Court’s leave - Court also imposed condition that applicants were to submit draft of any letter they proposed to send to account holders associated with IP addresses.

Dallas

[From Benchmark 9 April 2015]

Coles Supermarkets Australia Pty Ltd v Fardous

[2015] NSWCA 82

Negligence - occupier’s liability - respondent injured in slip and fall at appellant’s supermarket - primary judge found in respondent’s favour against appellant on liability and awarded damages - appellant challenged awards for past economic loss, future economic loss and future out-of-pocket expenses - whether respondent had any earning capacity at time of accident taking into account earlier work accident - s13 Civil Liability Act 2002(NSW) - held: primary judge erred in assessment of damages for economic loss - respondent had significant prospect assessed at 65% of obtaining employment of 20 hours per week at rate of $20 per hour - primary judge’s award of damages for past and future economic loss reduced to reflect percentage - no error in assessment of damages for future out-of-pocket expenses - appeal allowed.

Coles

[From Benchmark 10 April 2015]

Workplace Safety Australia v Simple OHS Solutions Pty Ltd

[2015] NSWCA 84

Trade practices - contract - equity - estoppel - distribution agreement between Workplace Safety Australia Pty Ltd (WSA), Simply OHS Solutions Pty Ltd (Simple) and guarantor - under agreement Simple agreed to distribute WSA’s online subscription packages - WSA purported to terminate agreement for alleged breaches by Simple - WSA sued Simple and guarantor for money owing under agreement and damages for loss of further profits - Simple cross-claimed for damages for wrongful repudiation and on basis WSA contravened s51AD Competition and Consumer Act 2010 (Cth) in entering agreement - common ground that Trade Practices (Industry Codes – Franchising) Regulations 1998 (Cth) contravened if agreement was franchising agreement - held: primary judge did not err in concluding agreement was a franchise agreement within meaning of Code - WSA not entitled to terminate agreement on basis of Simple’s failure to pay instalment or meet sales target - no error in assessment of damages under s82 - appeal dismissed.

Workplace

[From Benchmark 10 April 2015]

Perisher Blue Pty Ltd v Nair-Smith

[2015] NSWCA 90

Negligence – causation - appellant operated ski fields– respondent injured when ski-lift chair struck her – respondent sued appellant for damages and breach of contract – primary judge upheld claim - appellant appealed – held: lift operator’s failure to observe condition of chair as it exited bullwheel constituted breach of appellant’s duty of care - not open to primary judge to conclude appellant’s breach was necessary condition of occurrence of harm - respondent’s injuries not materialisation of inherent risk - limitations on damages imposed by Pt 2 were invalid under s109 Constitution - limitations directly inconsistent with right to “full contractual liability” conferred by s74(1) Trade Practices Act 1975 (NSW) (TPA) - ticket contract was for supply of “recreational services” under s68(2) TPA - term of ticket contract which excluded liability for more than personal injury or death was void by operation of s68 TPA – appeal allowed.

Perisher

[From Benchmark 14 April 2015]

Metaxoulis v McDonald’s Australia Ltd

[2015] NSWCA 95

Negligence - child got stuck on playground equipment in McDonald’s restaurant while playing in back area of playground where children were not supposed to play - appellant slipped and fell from height of about two metres after climbing over equipment and rescuing child - appellant suffered aggravation of pre-existing injury to wrist and a minor rib injury-appellant sued McDonalds-primary judge found for McDonalds and undertook hypothetical assessment of damages at $78,911.95 - ss5B, 5D, 13, 16; Pt 8 Civil Liability Act 2002(NSW) - held: McDonald’s breached duty of care by failing to prevent unauthorised access to back area of playground-causation established - quantification of damages for non-economic loss not manifestly inadequate-damages awarded for past economic loss for period extending beyond initial three months - damages awarded for future economic loss due to appellant’s diminution in ability to pursue full-time employment-allowance awarded for domestic assistance at commercial rates-appeal allowed.

Metaxoulis

[From Benchmark 15 April 2015]

Meldov Pty Ltd v Bank of Queensland

[2015] NSWSC 378

Meldov

[From Benchmark 13 April 2015]

Robbins v Hume

[2015] VSC 128

Wills and estates – family provision – deceased left property to defendant and personal estate equally between daughters – plaintiff daughter sought to restrain defendant from dealing with proceeds of sale of property and order pursuant to s99 Administration and Probate Act 1958 (Vic) extending time to commence application for provision – plaintiff contended defendant as executor and trustee of estate had fiduciary duty to safeguard her interests and had failed to do so – alternatively plaintiff claimed defendant had duty to be even-handed between all beneficiaries – held: defendant in personal capacity or as executor had no duty to safeguard plaintiff’s interests or duty of even-handedness of kind submitted by plaintiff - defendant’s executorial duties had finished with estate finally distributed – summons dismissed.

Robbins

[From Benchmark 14 April 2015]

Westpac Banking Corporation v Jamieson

[2015] QCA 50

Negligence – investment advice – damages - primary judge found bank in breach of contract and negligent in provision of investment advice – primary judge also found bank’s conduct misleading or deceptive or likely to mislead or deceive in contravention of s12DA(1) Australian Securities and Investments Commission Act 2001 (Cth) – parties appealed and cross-appealed – held: bank’s appeal against finding of liability in respect of superannuation investment dismissed - respondents’ cross-appeal against decision to limit damages in relation to superannuation fund loan to two years’ interest payments dismissed – first respondent’s cross-appeal concerning methodology to gross-up his net loss dismissed.

Westpac

[From Benchmark 14 April 2015]

Ireland v B & M Outboard Repairs

[2015] QSC 84

Ireland

[From Benchmark 15 April 2015]

R v Simmons; R v Moore [2015] NSWSC 73

Criminal law - assumed identities - New South Wales Commissioner of Police sought orders to protect identity of witnesses who were undercover operatives - orders sought under Law Enforcement and National Security (Assumed Identities) Act 2010 (NSW) - Commissioner also sought non-publication orders under Court Suppression and Non-publication Orders Act 2010 (NSW) - held: in interests of justice to do what was necessary to protect witnesses’ identities - Court satisfied non-publication order necessary to prevent prejudice to the proper administration - orders made.
RvSimmons

R v Simmons (No 6)

[2015] NSWSC 418

Criminal law - evidence - privilege against self-incrimination - accused was on trial for murder - Crown called witness who was previously co-accused to give evidence - witness’s charge reduced to accessory after the fact to murder - whether witness should be required to give evidence over anticipated objection pursuant to s 128 Evidence Act 1995 (NSW) on basis it might tend to prove he committed offence - seriousness of charge of murder - potential significance of evidence - no pending charges against witness - unlikelihood that decision to discontinue would be revisited by DPP - X7 v Australian Crime Commission[2013] HCA 29 - held: there were reasonable grounds for objection taken by witness - it was in interests of justice that witness be required to give evidence

RvSimmonsNo.6

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