Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 261 (24 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/261.html

CONTEMPT OF COURT – Industrial dispute – Preventing access to building sites – Restraining orders made – Alleged breaches of restraining orders – Proceeding alleging contempt of court initiated under Supreme Court (General Civil Procedure) Rules 2005 (r 75.06(2)) – Whether civil or criminal proceeding in circumstances of case.

CONTEMPT OF COURT – Finding made of breaches of restraining orders – Finding of criminal contempt – Criminal convictions recorded and fines imposed – Whether finding of criminal contempt available when charges did not plead contumacious conduct – Whether contumacy an element of criminal contempt or an aggravating circumstance – Nature of contempt – Effect of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 – Whether contumacy must be pleaded in order that contempt for breach of Court orders be treated as criminal – Contumacy need not be pleaded – Sufficient that alleged contemnor put on notice that allegation of contumacy is made.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether trial judge erred in finding applicant had breached restraining orders – Terms of orders – Whether particulars of charges satisfied – Significance of redeployment of workers before relevant blockading conduct commenced – Not reasonably arguable that trial judge erred in findings of contempt.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether evidence to support findings of breaches to criminal standard – Not reasonably arguable that trial judge erred in so finding.

CRIMINAL LAW – Breaches of restraining orders – Finding of criminal contempt – Fine imposed – Whether fine in respect of breach disproportionate to fines imposed for other breaches – Not reasonably arguable that fine disproportionate.

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (S APCI 2014 0040)

PRACTICE AND PROCEDURE – Discovery – Whether procedure under r 29.07 available against alleged contemnor in contempt proceedings brought under Supreme Court General Civil Procedure) Rules 2005 (r 75.06)(2)) – Proceeding alleging breaches of court orders – Nature of contempt alleged – Relevant evidentiary/procedural regime – Corporate defendant – Whether discovery unavailable by reason of contempt proceeding ‘criminal’ and ‘accusatorial’ – Leave to appeal against order for discovery refused.

Australian Competition & Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135 (24 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1135.html

CONSUMER LAW – Penalty hearing – admitted contraventions – orders sought by consent – appropriate relief in the circumstances – declaratory relief – pecuniary penalties – injunctions – probation order – disqualification order – Competition and Consumer Act 2010 (Cth), ss 21, 44ZZRD, 44ZZRK, 45, 76, 80, 86C, 86E

Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129 (23 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1129.html

INTELLECTUAL PROPERTY – applicants in business of selling and developing software for use in mining industry – first respondent a former employee of the first applicant – first respondent left employment with first applicant and commenced employment with competitor company in similar role – first respondent copied applicants’ material including product source code to an external hard drive prior to resigning – material accessed by first respondent while employed by applicants’ competitor – infringement of copyright – breach of duty of confidence – breach of employment contract – breach of s 183(1) Corporations Act 2001 (Cth) – whether compensatory damages claim substantiated by applicants – s 115(2) Copyright Act 1968 (Cth) – appropriate amount of additional damages justified in circumstances of case – s 115(4) Copyright Act 1968 (Cth) – need to deter similar infringements – conduct of the first respondent after infringement– first respondent an individual rather than corporation – no demonstrable financial benefit to first respondent from infringement – no compensable loss demonstrated by applicants

PRACTICE AND PROCEDURE – applicants seeking order for return of applicants’ material in possession or control of first respondent or his current or former legal representatives – whether order specifying return of material in possession of legal representatives necessary or appropriate – only applicable if material not in control of first respondent – ability of first respondent to comply with order if material not in his control

In the matter of Joe & Joe Developments Pty Ltd (subject to a Deed of Company Arrangement) [2014] NSWSC 1444 (22 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1444.html

CORPORATIONS – voluntary administration – deeds of company arrangement – application for relief by contributories under Corporations Act 2001 (Cth) s 447E – where deed of company arrangement contemplated, inter alia, effecting of share buy-back and in specie transfer of property subject to mortgage to shareholders and payment of monies by shareholders in two tranches – where disputes arose between shareholders in respect of implementation of deed of company arrangement – whether company’s affairs managed by deed administrators in a way that was prejudicial to the interests of some or all of the company’s creditors or members – whether established that plaintiffs accepted deed of company arrangement in reliance on alleged representations of deed administrators – whether deed administrators failed to give effect to share buy-back and to transfer property in breach of deed of company arrangement – whether deed administrators engaged in unequal treatment of transfers and security between plaintiffs and other shareholders – whether delay in sale of property caused by deed administrators – whether deed administrators failed to complete the deed of company arrangement – engagement of solicitors by deed administrators – whether deed administrators took adequate steps to conduct review of invoices for legal services – third party payment – whether relief should be granted in respect of relevant payments made by deed administrators – whether deed administrators should be removed.

ESTOPPEL – where consent orders made by parties in earlier proceedings arising out of conduct of deed of company arrangement- res judicata – whether causes of action sued on in earlier proceedings merged into judgment – issue estoppel – whether issue estoppels established – whether consent orders gave rise to Anshun estoppel in respect of relevant issues.

Dale v Clayton Utz (a firm) (No 2) [2014] VSC 517 (22 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/517.html

PRACTICE AND PROCEDURE – Partnership – Removal of partner – Whether removed partner entitled to split case – Applicable principles – Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VicRp 18; [1985] VR 187 (FC) – Wong v Carter [2000] VSCA 53 – French v Triple M Melbourne Pty Ltd Ruling (No 2) [2008] VSC 548 – Privileges against self-incrimination – Re Australian Property Custodian Holdings (In Liquidation) (Receivers and Managers Appointed) (Controllers Appointed) (No 2) [2012] VSC 576; (2012) 93 ACSR 130 – Gemmell v Le Roi Homestyle Cookies Pty Ltd (In Liquidation) [2014] VSCA 182 – Evidence Act 2008 , ss 128, 135 and 136.

ABL Nominees Pty Ltd v MacKenzie (No. 2) [2014] VSC 529 (22 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/529.html

PRACTICE AND PROCEDURE – Application to amend pleadings – New defences sought to be raised – Principles relevant to an application to amend – Test for determining whether amendment futile – Late application to amend to include defence of unconscionable conduct by lender – Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 – Whether pleading discloses a viable defence – Application allowed.

PRACTICE AND PROCEDURE – Whether waiver of client legal privilege by defendant – Application to subpoena files of solicitor formerly acting for defendant to allow testing of the accuracy and credit of defendant’s evidence – Application to test evidence of applicant to amend defence by cross-examination – Whether in the interests of the just, efficient, timely and cost effective resolution of the proceeding – Application refused.

Munday v Commonwealth of Australia (No 2) [2014] FCA 1123 (21 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1123.html

HUMAN RIGHTS – Discrimination – disability – discrimination alleged in conduct of Commonwealth program regarding early release of superannuation on compassionate grounds – early release of superannuation sought by second applicant to pay for in-vitro fertilisation (IVF) treatment overseas on the basis that it was necessary to alleviate acute or chronic depression – IVF treatment would involve paying for ova – first application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression or that she lacked the financial capacity to meet the expense arising from the proposed treatment by other means – second application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression and also because superannuation funds would be used for a purpose that was not permitted under Australian law – requirement of lawful purpose not specified in Superannuation Industry (Supervision) Act 1993 (Cth) or Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether imposition of this requirement involved unlawful discrimination on the basis of second applicant’s disability (infertility) – whether failure to obtain independent legal advice before imposing this requirement involved a failure to make a reasonable adjustment – Disability Discrimination Act 1992 (Cth), ss 5 and 6

WORDS AND PHRASES – “person aggrieved” – “reasonable adjustment”

Booth v The Queen [2014] VSCA 258 (21 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/258.html

CRIMINAL LAW – Application for leave to appeal against conviction – Witness unavailable at trial – Statement admitted in to evidence – Evidence Act 2008 s 65 – Whether content relevant to issue in trial – Motive – Whether statement should have been excluded pursuant to s 137 – Leave to appeal refused.

CRIMINAL LAW – Application for leave to appeal against sentence – Principles in R v Verdins (2007) 16 VR 269 invoked on the plea – Sentencing judge rejected expert evidence of mental disorder and intellectual disability – No error in findings of fact.

Asmar, in the matter of an election for office in the Victoria No 1 Branch of the Health Services Union (No 2) [2014] FCA 1113 (21 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1113.html

INDUSTRIAL LAW – Inquiry into election in registered organisation – alleged irregularity in accepting nominations – rules of organisation – whether person employed or usually employed within the industry – whether person member of registered organisation having been struck from register of members

B. Braun Melsungen AG v Multigate Medical Devices Pty Ltd [2014] FCA 1110 (17 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1110.html

PATENTS – patents for safety IV catheters – infringement – “pith and marrow” principle – whether alleged infringing items disclose all essential features of claims in suit – construction of claims – validity of patents – whether invention novel – priority date of patents – whether claims fairly based on matter disclosed by ancestors – whether real and reasonably clear disclosure of claimed invention in body of specification – whether invention sufficiently described in specification.

Suzlon Energy Ltd v Bangad [2014] FCA 1105 (15 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1105.html

ADMIRALTY – maritime fraud – breach of employee’s fiduciary obligation to not put himself in a position of conflict or to obtain a benefit without employer’s fully informed consent – fraudulent and dishonest conduct of employees and companies they controlled – use of interposed companies controlled by employees to carry employer’s or principal’s cargo at undisclosed inflated prices – employee without any disclosure of true position procuring related company of employer to guarantee charterparty obligations of employee’s company – employee causing secret commissions and profits to be paid into Swiss bank accounts in names of companies he controlled – whether transactions gave rise to equitable debt, resulting trust or justified imposition of constructive trust – where employee’s secret commissions and profits held by company he controlled as volunteer

Murphy v Westpac Banking Corporation [2014] FCA 1104 (14 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1104.html

CONTRACTS – contracts of employment – misleading or deceptive conduct – ss 52 and 53B of Trade Practices Act 1974 (Cth) – retention incentive scheme – whether employer disclosed true nature of scheme to employees – whether alleged non-disclosure of scheme amounted to deceit or negligence on part of employer – whether employee enjoyed contractual rights to bonus or incentive – relevance of discretion to award bonus or incentive – whether implied term that such discretion cannot be exercised capriciously, arbitrarily or unreasonably – whether withholding of incentives from employees a discretion so exercised – whether implied term of mutual trust and confidence – application of Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 88 ALJR 84 – whether scheme induced employees not to seek alternative employment – whether incentives available to employees upon retrenchment

CONTRACTS – contracts of employment – seconded employees – application and interpretation of secondment policy – whether seconded employees in temporary or permanent position

CONTRACTS – contracts of employment – termination – whether reasonable notice given – meaning of “reasonable notice” – whether change in employee duties over time effects contractual variation of notice provisions – application of Quinn v Jack Chia (1991) 1 VR 567

CONTRACTS – contracts of employment – wrongful dismissal claims – whether employer redundancy policy forms part of terms and conditions of contract of employment – construction and interpretation of redundancy policy – whether application of policy varies over time – whether employee secondment affects application of redundancy policy – whether payment in lieu of notice acceptable

DAMAGES – measure of damages – breach of contract of employment – damages in respect of contractual bonuses – quantification of the value of a lost opportunity

TORTS – negligence – whether representatives of employer owed duty of care to employees – whether employer acted with reasonable care – quantification of loss on the part of employee

Jacob v State of Western Australia [2014] FCA 1106 (14 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1106.html

NATIVE TITLE – application pursuant to s 84(5) of the Native Act 1993 (Cth) for joinder as respondents to a native title determination application – whether it was in the interests of justice for the applicants to be joined as respondents – whether the interests of the joinder applicants would be affected by a determination of native title over the claim area – whether the applicants have established a prima facie case

Held: it was in the interests of justice for the three applicants to be joined as respondents

Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091 (13 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1091.html

PRACTICE AND PROCEDURE – costs – whether proceeding instituted vexatiously or without reasonable cause – whether established by absence of genuine belief in truth of facts that would sustain some elements of cause of action – whether unreasonable act or omission by applicant caused respondent to incur costs – whether unreasonable not to accept monetary settlement offer when claim made for reinstatement – whether unreasonable to advance allegations known to be unsupported by admissible evidence – whether unreasonable to seek to adduce evidence of value only to embarrass or humiliate other party’s witness – whether costs to be raised on an indemnity basis

R v Munoz [2014] NSWSC 1408 (13 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1408.html

CRIMINAL LAW – murder; one count – trial by judge alone – Criminal Procedure Act 1986; s 132, s 133 – CRIMINAL LAW – murder; one count – defence of mental illness – Mental Health (Forensic Provisions) Act 1900; s 38 – whether accused mentally ill at time of offences under M’Naughten Rules – facts agreed by Crown and Accused – expert opinion evidence – psychiatric diagnosis of paranoid schizophrenia – whether accused knew what he was doing was wrong – defence established – no point of general principle

Rathner in his capacity as Official Liquidator of Kalimand Pty Ltd (in liq) v Hawthorn [2014] FCA 1067 (8 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1067.html

CORPORATIONS – Company wound up – Voidable transactions – Identification of transaction – Insolvent transactions – Meaning of becoming insolvent “because of” entering into transaction – Uncommercial transactions

EVIDENCE – Transcript of public examination of director – Whether admissible against company – Exception to hearsay rule

Zwanenberg Australia Pty Ltd v Moira Mac’s Poultry and Fine Foods Pty Ltd [2014] FCA 1072 (6 October 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1072.html

CONTRACTS – Construction

CONTRACTS – Contract for the supply of goods, on order, at unit prices – Prices based on manufacturing and capital costs, with mark-up – Provision for regular adjustment – Whether buyer in breach of obligation to calculate adjustment – Provision for coverage of seller’s fixed manufacturing costs at minimum production – Whether limited by estimate or based on actual costs – How costs referable both to manufacture of products and to seller’s other business to be apportioned – Provision for review of model for coverage of minimum costs – Whether buyer in breach of obligation to review

CONTRACTS – Breach – Whether breach constituted by mere threat that fundamental obligation under contract would not be observed.

CONTRACTS – Repudiation – Whether repudiation established by party’s intimation that it would not observe fundamental obligation unless other party made payment which it was not required to make under contract – Affirmation – Whether constituted by continued dealing under contract in conjunction with the issue of proceedings alleging repudiation

CONTRACTS – Implied Terms – Contract for the supply of goods, on order, at unit prices – Whether buyer’s own decision to cease dealing in goods amounted to breach of implied term of co-operation – Whether term implied on facts of case requiring buyer to continue actively seeking business in relevant area – Whether term should be implied requiring seller to mitigate its costs under the contract

TRADE AND COMMERCE – Negotiation of long-term contract for the supply of goods at prices referable to seller’s costs – Seller giving estimate of costs – Whether representation as to future matter – Whether reasonable grounds existed for making of representation – Whether representee suffered or likely to suffer loss

PRACTICE AND PROCEDURE – Setoff – Whether debtor entitled to set off debt owed by creditor to debtor’s parent company

Feehan v Toomey [2014] VSC 488 (3 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/488.html

Succession law — Testator’s family maintenance — Application under Pt IV of the Administration and Probate Act 1958 — Application by granddaughter of the deceased — Where daughter’s mother and daughter of the deceased predeceased the deceased — Where no substantial relationship shown — No responsibility to provide — MacEwan Shaw v Shaw (2003) 11 VR 95 considered

Atai v R [2014] NSWCCA 210 (3 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/210.html

CRIMINAL LAW – murder – appeal against conviction – no evidence that witness in respect of whom s 165 Evidence Act warning sought might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings – incumbent upon defence to elicit evidence to that effect – no miscarriage resulting from omission to give Murray direction – no undermining of the onus of proof by trial judge stating that jury would have expected to hear challenge to denials by witnesses that they were the shooter if there was one – not persuaded that jury should have had a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased – not persuaded that jury should have had a doubt that the applicant had the relevant mental state

CRIMINAL LAW – murder – appeal against sentence – unproductive to single out one subjective feature, age, in sentence comparison – necessary for sentence to reflect deterrence, denunciation and recognition of harm notwithstanding subjective case – sentence not manifestly excessive

In the matter of Matlic Pty Ltd (in liq) [2014] NSWSC 1342 (1 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1342.html

CORPORATIONS – winding up – winding up in insolvency – insolvent trading – claim by creditor for compensation from directors under Corporations Act 2001 (Cth) s 588M -loan agreement with plaintiff executed by person who was not company officer – where plaintiff paid funds in two tranches to another company or person – whether relevant company incurred a debt to plaintiff – whether person had actual authority to execute agreement on behalf of company – whether company was insolvent or became insolvent by incurring such debt – presumptions of insolvency – whether reasonable grounds for suspecting company was insolvent or would so become insolvent – whether defendants failed to prevent company from incurring such debt – knowledge of grounds for insolvency – defences – whether defences under Corporations Act s 588H established.

Australian Competition and Consumer Commission v Zen Telecom Pty Ltd [2014] FCA 1049 (30 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1049.html

CONSUMER LAW – admitted contraventions of Australian Consumer Law (Cth) ss 18(1), 29(1)(g), 29(1)(h), 78(2), 79(b)(i), 79(b)(ii), 79(c)(i), 79(d)(iv), 86(1)(a) – joint submissions and statement of agreed facts and admissions – whether orders sought by consent appropriate in the circumstances – declaratory relief, injunctions, pecuniary penalties, compliance program, publication orders, costs

Roth (a Pseudonym) v The Queen [2014] VSCA 242 (30 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/242.html

CRIMINAL LAW – Application for extension of time to appeal conviction – R v Darby applied – Whether the merits of the appeal justify a delay of 26 months.

EVIDENCE – Whether substantial miscarriage of justice occurred by reason of the admission of the evidence of the applicant’s flight – Whether judge erred in application of s 32 of Evidence Act 2008 in failing to consider whether the statement relied upon to refresh memory of witness was fresh in the mind of the witness at the time of making the statement.

PROCEDURE – Whether judge erred in failing to direct the jury on the use of the evidence of the applicant’s flight – consciousness of guilt – application refused.

Stoney v A & S Boesley Pty Ltd [2014] VSCA 237 (26 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/237.html

SUMMARY JUDGMENT – Purchaser defaulted under contract for sale of land – Contract provided for service at the address of purchaser or purchaser’s legal practitioner – Legal practitioner corresponded about the contents of a default notice and filed affidavit which did not deny receipt of default notice – Judge did not err in finding implied admission of service on legal practitioner.

EVIDENCE – Hearsay evidence by vendor’s legal practitioner about posting of default notice by his secretary – Hearsay evidence permitted by r 22.03(3) of the Supreme Court (General Civil Procedure) Rules 2005 – No error shown.

EVIDENCE – Application to admit fresh evidence – No probative value and could not have affected decision below – Application dismissed.

Woods (a Pseudonym) v The Queen [2014] VSCA 233 (26 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/233.html

CRIMINAL LAW – Conviction – Sexual offending – Father and daughter – Incest – Whether evidence of two separate incidents – Sufficiency of directions – Defence case that complainant had a motive to lie – Whether prosecutor’s response in addressing jury suggested they should accept complainant unless it likely she was lying – Statement by prosecutor in address as to what is ‘usual’ in these cases – No miscarriage.

Robinson v Kenny [2014] FCA 988 (26 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/988.html

TRADE PRACTICES – misleading or deceptive conduct – architect engaged to design house – architect initiated tender process – builder made oral qualification concerning cost of works – whether failure to convey qualification misleading or deceptive conduct – whether representations were estimates – whether architect “innocent conduit” of any representations made – proportionate liability – liability of builder

TRADE PRACTICES – misleading or deceptive conduct – conduct of tender process – whether tender process unorthodox – whether misleading or deceptive representations made concerning conduct of tender process – involvement of architect in preparation of quote – whether tender process fair to all participants

DAMAGES – proportionate liability – whether builder concurrent wrongdoer – whether builder engaged in misleading or deceptive conduct – apportionment of liability

El Masri v Woolworths Ltd [2014] NSWSC 1344 (26 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1344.html

ADMINISTRATIVE LAW – judicial review – workers compensation – decision of the Medical Appeal Panel – whether infected by jurisdictional error – failure to take into account relevant consideration – whether Medical Appeal Panel failed to take into account a medical report – whether error of law – whether failure to provide adequate reasons

Australian Gift and Homewares Association Limited v Melbourne Convention and Exhibition Trust & Anor (Ruling No. 1) [2014] VSC 481 (26 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/481.html

EVIDENCE – Order sought to prevent disclosure of the identity of an informant – Whether Open Courts Act 2013 (Vic) applies – Open Courts Act 2013, ss 3, 7, 17 and 30 – Act not applicable.

PRACTICE AND PROCEDURE – Preliminary discovery – Whether particular evidence to be adduced for a hearsay purpose or non-hearsay purpose, namely the fact that a representation was made – Evidence admitted for non-hearsay purpose becoming admissible for hearsay purpose by operation of s 60 of the Evidence Act 2008 – Admissibility of hearsay evidence in interlocutory applications – Supreme Court (General Civil Procedure) Rules 2005, rr 32.05, 43.03; Evidence Act 2008, ss 59, 60 and 75.

AusNet Electricity Services Pty Ltd v Liesfield [2014] VSC 474 (23 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/474.html

PRACTICE AND PROCEDURE – Class action proceedings against the appellant arising out one of the Black Saturday bushfires (‘the Murrindindi fire’) – Appellant claimed legal professional privilege in relation to a bundle of reports it had prepared (‘the technical analysis documents’) – Documents produced shortly after the appellant was advised by the Victoria Police that the police were investigating whether the appellant was responsible for the start of the fire – Associate Judge ruled that the technical analysis documents were not privileged – Appeal against the decision of the Associate Judge – Instruction for production of the documents given by a sub-committee of the board of directors – Member of the sub-committee giving the instruction not called to explain purpose in seeking production of the technical analysis documents – Consideration of the dominant purpose of the sub-committee – Consideration of possible purposes of the sub-committee other than privileged purposes – Consideration of inferences that could be drawn from the appellant’s failure to call evidence that was available to be called – Blatch v Archer considered – Appeal dismissed.

PRACTICE AND PROCEDURE – Appeal from a decision of an Associate Judge on findings of fact – nature of appeal – test to be applied on appeal to findings of fact.

Francis v Allen & Unwin [2014] FCA 1027 (22 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1027.html

PRACTICE AND PROCEDURE – application by respondents for summary judgment – whether applicant has reasonable prospect of successfully prosecuting the proceeding – claim of infringement of copyright and moral rights in artistic work – photograph – photograph alleged to be a self-portrait of the applicant – factual dispute about the identity of the subject – whether real issue of fact to be tried – whether applicant’s case that she is the subject of the photograph fanciful, frivolous, vexatious or an abuse of process – Federal Court of Australia Act 1976 (Cth), s 31A(2)

In the matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 (22 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1024.html

PRACTICE AND PROCEDURE – interlocutory process – application for summary dismissal on the basis the interlocutory process is an abuse of process – whether the predominant purpose of the interlocutory process was to obtain a collateral advantage or was otherwise improper

PRACTICE AND PROCEDURE – words and phrases – “abuse of process” – relevant principles – application of ss 11(2), 131(1) and 131(2)(k) of the Evidence Act 1995

Australian Super Developments Pty Ltd v David Wellesley Marriner & Ors [2014] VSC 464 (19 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/464.html

TRUSTS AND TRUSTEES – joint venture – sale of joint venture project to one joint venturer – monies provided by joint venture vehicle were lodged as security with electricity supply company – before sale was completed bond monies were released to solicitor – Court of Appeal found that solicitor held bond monies on a ‘solicitor’s trust’ and that bond monies were disbursed by solicitor in breach of trust – Court of Appeal remitted issue of whether first defendant and or companies associated with him were liable for knowingly inducing or immediately procuring breach (or breaches) of trust – level of knowledge required for liability under principle in Eaves v Hickson

DEFENCES AND COUNTERCLAIMS – remitted by the Court of Appeal – common sub-stratum of facts for allegations of unconscionable conduct, misleading and deceptive conduct and estoppel – accounting entries were made to reflect the fact that bond monies lodged as security had been repaid – plaintiffs by counterclaim were unaware that bond monies debt was no longer in existence when sale and assignment took place – whether conduct of defendants by counterclaim was unconscionable – whether first plaintiff by counterclaim was under a ‘special disadvantage’ – whether defendants by counterclaim made representations about the assignment of bond monies debt – pleaded representations not made out – related counterclaim for estoppel also fails.

Vizovitis v Ryan [2014] ACTSC 243 (19 September 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/243.html

COSTS – costs between solicitor and client – agreement as to costs – whether fair and reasonable – Legal Practitioners Act 1970 (since repealed) – onus on solicitor to satisfy court that agreement fair and reasonable – whether hourly rate excessive – whether benefit to solicitor and disadvantage to client established – agreements set aside – measure of client’s loss

The Council of the New South Wales Bar Association v Franklin [2014] NSWCA 329 (19 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/329.html

EVIDENCE – advance ruling as to admissibility of evidence – hearsay evidence – where applicant seeks to tender transcripts of evidence from respondent’s criminal trial – notice of intention to adduce hearsay evidence where maker available to be called – where no written objection to tender – Evidence Act 1995 (NSW), ss 64, 67, 68

Goldsmith v Bisset [2014] NSWSC 1272 (18 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1272.html

PROCEDURE – civil – interlocutory issues – directions – preparation for hearing – orders made for conclave of experts – attempts made by plaintiff to draft questions to put to experts – defendants refused to agree on questions – Practice Note No. SC Gen 11 -requires that parties should agree on the questions to be answered – failure of defendants to comply with Practice Note and Court orders – questions to be put to experts

Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 (18 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/328.html

APPEALS – challenge to primary judge’s findings of fact – whether findings glaringly improbable – whether open to primary judge to determine allegation of forgery on onus
MORTGAGES – forged direction to disburse funds – whether obligation to repay extended to sums disbursed pursuant to forged direction
PRINCIPAL AND AGENT – ratification – whether ratification where no knowledge of forged direction

R v McGuckin [2014] ACTSC 242 (18 September 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/242.html

CRIMINAL LAW – PARTICULAR OFFENCES – Aggravated robbery – Assault occasioning actual bodily harm – Recklessly causing damage to property – Not guilty by reason of mental impairment
CRIMINAL LAW – GENERAL MATTERS – General Liability and Capacity – Pleas of not guilty by reason of mental impairment – Difficulties in diagnosis – Differing diagnoses

Machhour v The Queen [2014] VSCA 225 (17 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/225.html

CRIMINAL LAW – Conviction – Arson – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against conviction – Delay of almost two years in instituting appeal – Proposed appeal without merit – Application refused – No point of principle.

CRIMINAL LAW – Sentence – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against sentence – Whether sentence manifestly excessive – Proposed appeal without merit – Application refused – No point of principle.

McKay v R [2014] NSWCCA 187 (17 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/187.html

CRIMINAL LAW – CONVICTION APPEAL – assault occasioning actual bodily harm – applicant and victim both prisoners – fight as a result of which victim suffered serious injury to an eye – whether verdict of jury was capable of being supported by the evidence – whether jury adopted an inappropriate line of reasoning – whether inconsistency in jury acquitting on primary judge but convicting on secondary charge – verdict open to jury – SENTENCE APPEAL – challenge to fact finding of sentencing judge – basis for challenge not established – appeal dismissed.

R v Hines (No 3) [2014] NSWSC 1273 (17 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1273.html

CRIMINAL LAW – Sentence – murder – single stab wound to the chest – no premeditation – intention to inflict grievous bodily harm – provocation as a mitigating feature – previous offence of murder – future dangerousness – standard of proof – protection of the community – circumstances of deprivation – relevance of intoxication – victim’s impact statement in cases of homicide – all human life precious – whether appropriate to take family victims’ impact statements into account in determining sentence – recent amendments – “aspect of harm done to the community” – particular circumstances – special circumstances – aggravating features

Polish Club Limited v Gnych [2014] NSWCA 321 (16 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/321.html

LIQUOR LAW – lease of licensed premises of a registered club – whether lease granted in breach of Liquor Act 2007 s 92 – effect of breach of s 92(1)(d) – whether the statutory purpose of the Liquor Act can be fulfilled without rendering the lease void and unenforceable

REAL PROPERTY – lease of the core property of a registered club – whether a lease granted in breach of s 41J of the Registered Clubs Act 1976 rendered the lease void and unenforceable

REAL PROPERTY – non-exclusive licence – whether licence granted a right of occupation within Retail Leases Act 1994