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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

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AR Conolly & Company

Benchmark Podcast: Friday, 19 June 2015

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Case Summaries

King v Philcox [2015] HCA 19
High Court of Australia
French CJ; Kiefel, Gageler, Keane & Nettle JJ
Negligence - mental harm - respondent’s brother was passenger in a motor vehicle driven by appellant - as result of appellant’s negligence vehicle collided with another vehicle - respondent fatally injured and died while trapped in vehicle - respondent heard about accident and realised that he had driven past accident location earlier that day while vehicle still there - respondent developed major depressive disorder - appellant found liable to pay respondent damages for mental harm - ‘present at the scene of the accident when the accident occurred’ - s53 Civil Liability Act 1936 (SA) - held: Full Court of the Supreme Court of South Australia did not err in finding that a duty of care existed, but Full Court erred in holding respondent was present at the scene of the accident when accident occurred within meaning of s53(1) - respondent not entitled to recover damages for mental harm -  appeal allowed.
King (I)
[From Benchmark Thursday, 11 June 2015]

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    Isbester v Knox City Council [2015] HCA 20
    High Court of Australia
    Kiefel, Bell, Gageler, Keane & Nettle JJ
    Administrative law - bias - natural justice following hearing by Knox Domestic Animals Act Committee of Knox City Council decision made that appellant’s dog be destroyed -  Council empowered to destroy a dog where its owner has been found guilty of an offence under s29 Domestic Animals Act 1994 (Vic) - appellant had been convicted of offence under s29(4) on plea of guilty to charge that dog had attacked a person and caused "serious injury" - whether decision should be quashed because of substantial involvement of member of Committee both in prosecution of charges concerning the dog and decision as to fate of dog - s84P - held: fair-minded observer might reasonably apprehend that member might not have brought an impartial mind to decision under s 84P - natural justice required member not participate in decision - as member had participated in decision, decision must be quashed - appeal allowed. 
    Kiefel (I G)
    [From Benchmark Thursday, 11 June 2015]

    Segelov v Ernst & Young Services Pty Ltd [2015] NSWCA 156
    Court of Appeal of New South Wales
    Meagher, Gleeson & Leeming JJA
    Equity - trusts and trustees - respondent was trustee of service trust associated with accountants’ firm -  trust provided services to firm for payment - trust was discretionary trust - “beneficiaries”  included spouses of and persons nominated by firm’s partners -  appellant nominated as “beneficiary” shortly before husband became a partner of firm - distributions paid into bank account in joint names of appellant and husband appellant unaware of her entitlement of payment of amounts into joint accounts - appellant became aware of entitlement after separating from husband - appellant sought equitable compensation for breach of trust by respondent - appellant claimed trust deed did not authorise interim distributions of ‘income’ and that respondent failed to perform duty to inform beneficiaries of entitlement - s85 Trustee Act 1925 - held: primary judge did not err in finding respondent did not owe a duty to notify a beneficiary of their entitlement - alleged breaches of trust not made out - appeal dismissed.
    Segelov (B)
    [From Benchmark Thursday, 11 June 2015]

    Tilden v Gregg [2015] NSWCA 164
    Court of Appeal of New South Wales
    McColl, Macfarlan & Meagher JJA
    Negligence - appellant punched in face by first respondent at bowling club - appellant commenced proceedings against first respondent for assault and against second respondent occupier and licensee of premises in negligence - appellant obtained summary judgment against first respondent - primary judge dismissed claim against second respondent - appellant challenged finding of no liability in second respondent’s favour and assessment of damages against respondents - ss3B, 5B, 5D & 15  Civil Liability Act 2002 - held: no error in finding that occupier and licensee not negligent - challenge to findings on causation and assessment of damages failed - appeal dismissed.
    Tilden (I)
    [From Benchmark Wednesday, 17 June 2015]

    Chong & Neale v CC Containers Pty Ltd [2015] VSCA 137
    Court of Appeal of Victoria
    Redlich, Santamaria & Kyrou JJA
    Conspiracy to injure corporations - fraud - company (CCC) owned and controlled by appellant (Chong) and son stored and repaired shipping containers owned by respondent shipping company - appellant (Neale) was director of shipping company - appellants found to have conspired to injure respondents by fraud perpetrated in respect of repair by CCC of shipping containers of shipping company - appellants also found to have engaged in fraudulent misrepresentation and misleading and deceptive conduct - Neale found to have breached his fiduciary and statutory duties as director of shipping company and CCC and to have received secret commissions as result of his participation in repair fraud and involvement in sale of CCC’s business - held: grounds of appeal failed - Chong’s appeal allowed in part in relation to amount of interest awarded - Neale’s appeal dismissed.
    Chong (I B C)
    [From Benchmark Thursday, 11 June 2015]

    Srbinovski v Americold Logistics Ltd [2015] VSCA 139
    Court of Appeal of Victoria
    Warren CJ; Tate JA & Digby AJA
    Negligence - jury verdict - appellant commenced action for pain and suffering damages as result of injury sustained while working for respondent - appellant alleged injuries caused by respondent’s negligence - jury returned verdict in appellant’s favour for $50,000 - judgment entered for appellant for $50,000 for pain and suffering and loss of enjoyment of life - trial judge pursuant to s 134AB Accident Compensation Act 1985varied orders, reducing damages for pain and suffering to nil and ordered judgment for respondent - appellant contended jury’s assessment of pain and suffering damages manifestly inadequate - held: appellant failed to show, taking evidence most favourable to respondent, that no reasonable jury could have assessed general damages at $50,000 -  sufficient medical evidence to undermine severity of injury - open to respondent to attack appellant’s credit - errors or stated inaccuracies in respondent’s closing address adequately remedied both by withdrawal and a direction by trial judge - appeal dismissed.
    Srbinovski (I)
    [From Benchmark Friday, 12 June 2015]

    Slaveska v State of Victoria [2015] VSCA 140
    Court of Appeal of Victoria
    Warren CJ, Tate & Ginnane AJA
    Limitation of actions - summary judgment - appellant’s husband sued State and police officers arising out of 13 alleged incidents - claims of assault and battery, false imprisonment, malicious prosecution, defamation, trespass, conversion, detinue and negligence -  all claims dismissed except trespass - appellant filed notice of appeal on behalf of husband - appeal dismissed for want of prosecution - wife commenced own proceeding against State and police officers - respondents sought summary dismissal or striking out of many claims - associate judge refused extension of time to prosecute claims and granted summary judgment in respect of claims regarding incidents on basis that they were not brought within time - appellant appealed - held: appeal grounds rejected except insofar as Court found appellant brought certain claims partly within time - Court dismissed surviving claims which arose from incidents subject of husband’s proceeding as abuse of process - appeal allowed in part.
    Salveska (I)
    [From Benchmark Friday, 12 June 2015]

    Jones v Invion Ltd [2015] QCA 100
    Court of Appeal of Queensland
    M McMurdo P, Philippides JA & P Lyons J
    Corporations - directors’ duties - board of company extended notice period for termination by company of directors’ contracts to 12 months - directors arranged for new contracts giving them right to resign and be paid 12 months’ remuneration - primary judge found those who purportedly bound company to new contracts had no authority to do so and were in breach of duty as directors and fiduciary duty - primary judge found company entitled under s1317H Corporations Act 2001 to compensation for breaches of statutory duty and equitable compensation for breach of fiduciary duty - directors appealed - held: no error in trial judge’s conclusions that directors acted dishonestly and that appellants not entitled to be excused under ss1317S & 1318 - argument sought to be raised as to causation involved departure from pleadings -  application to adduce further evidence dismissed - appeal dismissed. 
    Jones (B)
    [From Benchmark Wednesday, 17 June 2015]
    Boon v Summs of Qld Pty Ltd t/a Big Bill’s Bobcats [2015] QSC 162
    Supreme Court of Queensland
    A Lyons J
    Negligence - plaintiff stabbed in hand with Leatherman knife by defendant’s employee during lunch break at construction site - plaintiff employed by company (Globe) which was contracted by another company (Downer) to provide workers at construction site controlled and monitored by Downer - defendant company was subcontracted by Downer to remove and replace asphalt at construction site - plaintiff sued defendant company for breach of duty to take reasonable care not to expose him to a foreseeable risk of injury and/or claimed defendant vicariously liable for employee’s negligent acts - s9, 59, 61 & 62Civil Liability Act 2003 (Vic) - s6, Sch 4 & Sch 6A Civil Liability Regulation 2003 - held: not established defendant’s employee was negligent - Court not satisfied  reasonable employer in position of defendant company would have taken steps argued by plaintiff to avoid the risk of injury - judgment for defendant. 
    Boon (I)
    [From Benchmark Tuesday, 16 June 2015]
    Monadelphous Engineering Pty Ltd & Muhibbah Construction Pty Ltd t/as Monadelphous Muhibbah Marine v Wiggins Island Coal Export Terminal Pty Ltd[2015] QSC 160
    Supreme Court of Queensland
    P McMurdo J
    Contract - plaintiffs’ firm (MMM) contracted to perform construction work under contracts with defendant - pursuant to contract MMM provided four bank guarantees as security for its performance - defendant called on all four guarantees and received payment from guarantors in full - defendant claimed damages from MMM on account of MMM’s delay in performance - MMM agreed defendant entitled to call upon  guarantees but claimed terms of contract necessarily qualified by Queensland Building and Construction Commission Act 1991 - held: MMM failed to establish contract in original or varied terms was for building work as defined by Act - no need to consider defendant’s alternative argument that only original terms of contract to be considered - contract was not a building contract as defined for the Act - ss67J & 67A did not apply - MMM’s claim dismissed.
    Monadelphous (I B C)
    [From Benchmark Wednesday, 17 June 2015]

    C.A.R.S. Pty Ltd v Brent [2015] TASSC 23
    Supreme Court of Tasmania
    Blow CJ
    Guarantee and indemnity - creditor sued two company directors claiming they were liable to pay sums pursuant to deed of guarantee and indemnity  - first defendant contended he was not liable because signature on deed forged - second defendant admitted signing deed but contended other defendant’s signature was forged which must result in him not being liable - held: Court not satisfied first defendant executed deed or authorised anyone else to do so in his name - plaintiff’s claim against first defendant failed - deed contained express term that liability of each guarantor was not contingent upon execution of guarantee by any other guarantor - second defendant not relieved from liability under guarantee - claim against second defendant succeeded.
    C.A.R.S. (I B)
    [From Benchmark Thursday, 11 June 2015]

    Associated Forest Holdings Pty Ltd v Gordian Runoff Ltd [2015] TASFC 6
    Full Court of the Supreme Court of Tasmania
    Blow CJ; Porter & Wood JJ
    Insurance - limitation of actions - worker injured in accident while working as tree feller - employer (AFH) was self-insurer pursuant to exemption under Workers Compensation Act 1927 (Tas) - AFH and company of which it was a subsidiary (North) entered reinsurance agreement which purportedly provided that once employer reached threshold of $1 million in respect of loss to which policy related, it could look to the reinsurer for liability in excess of amount - appellants brought an action against reinsurer contending threshold of $1,000,000 passed and claiming damages for breach of contract on basis reinsurer refused to pay money that were due to them pursuant to policy by way of indemnity in respect of sums paid to worker and for his benefit - action failed - held: grounds of appeal failed -  North had no claim against reinsurer under the policy - worker not a party to the policy - policy made no provision for any payments to be made to worker but provided only for the reimbursement of sums paid by others - no appellants entitled to recover any sums from - reinsurer - learned trial judge correct to give judgment for reinsurer though she erred in reasoning - appeal dismissed.
    Associated (I)
    [From Benchmark Friday, 12 June 2015]


    Criminal
    Cappis v R [2015] NSWCCA 138
    Court of Criminal Appeal of New South Wales
    Gleeson JA; Johnson & Garling JJA
    Criminal law - possession of border controlled drug - self-represented litigant - applicant Canadian national pleaded guilty to a single offence contrary to ss11.1 &  307.6(1)Criminal Code 1995 of attempt to possess a marketable quantity of border controlled drug unlawfully imported - primary judge imposed a sentence of 6 years and 9 months imprisonment with a non-parole period of 4 years - applicant sought leave to appeal against sentence - held: contention that there was inadequate discount for guilty plea failed - ground of appeal alleging bad legal advice failed - conclusion of sentencing judge well open to him - no error of fact - contention failed that applicant ought to have been given further discount on compassionate grounds because he was a foreigner and time in prison would be difficult - no manifest excess in sentence - appeal dismissed. 
    Cappis



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