Category Archives: s. 140

Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73 (27 March 2015)

APPEAL – challenge to findings of fact – findings based on testimonial evidence and demeanour of witnesses – whether trial judge grappled with conflicting documentary evidence – whether material errors in description of evidence – whether necessary to determine why employee had given different histories

CHOICE OF LAW – statutory contribution between tortfeasors – workplace accident in Perth – proceedings between employee and third party compromised in District Court of New South Wales – third party seeks statutory contribution from employer – absence of federal jurisdiction – characterisation of apportionment legislation – applicable choice of law rule for statutory claim for contribution

TORTS – statutory contribution – workplace accident – challenge to equal apportionment of liability between third party and employer – relevance of employer being a company whose sole director and shareholder was the employee – relevance of Workers Compensation Act 1987 (NSW), s 151Z – relevance of compromised proceedings resulting in a judgment for the employee with the parties bearing their own costs

Jarrold v Registrar of Titles & Anor [2015] VSCA 45 (24 March 2015)

REAL PROPERTY – Entitlement to indemnity – Transfer of Land Act 1958, s 110 – Property jointly owned by husband and wife – Husband signed transfer of land document pursuant to power of attorney – Whether power of attorney forged – Whether wife held interest in the land and so sustained loss or damage – Issues remitted for new trial.

APPEALS – New trial – Erroneous findings of fact – Whether Court to decide matter for itself or remit for new trial – Credit issues central to case – Trial judge had advantage of seeing witnesses in witness box and seeing trial develop – New trial ordered.

In the matter of IPM Group Pty Ltd [2015] NSWSC 240 (18 March 2015)

PROFESSIONS AND TRADES – lawyers – duties and liabilities – duty of loyalty – duty of confidentiality – whether duty of loyalty extended beyond termination of the retainer – whether risk of a breach of the duty of confidentiality.

PROFESSIONS AND TRADES – lawyers – application under Court’s inherent jurisdiction to restrain solicitors from acting – where proceedings progressed significantly prior to application for restraint was brought – whether interests of justice now influenced by progression of proceedings – warranted declining to make order restraining solicitors from acting.

Donoghue v Commissioner of Taxation (includes Corrigendum dated 2 April 2015) [2015] FCA 235 (17 March 2015)

INCOME TAX – notices of assessment issued to applicant pursuant to audit conducted by respondent – application under s 39B of the Judiciary Act 1903 (Cth) for orders declaring assessments invalid and quashing them – injunction – source of information – where audit performed and assessments made with the benefit of material provided by third party individual without applicant’s permission – whether third party material subject to legal professional privilege – state of knowledge of respondent – whether there was conscious misuse of privileged material

Held: third party worked to or for law firm with which the applicant had a retainer – alternatively third party acted as applicant’s agent for the purposes of applicant’s dealing with law firm – communications and documents made for dominant purpose of obtaining legal advice or for use in litigation and were therefore subject to legal professional privilege – respondent held apprehension that this was the case – material assisted respondent’s train of inquiry and in process of making assessments – no right given by s 166 or s 263 of the Income Tax Assessment Act 1936 (Cth) to Commissioner to use material which is subject to legal professional privilege – element of recklessness in process of assessment sufficient to amount to conscious maladministration as described in Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 – assessment quashed – respondent restrained from using third party material

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225 (17 March 2015)

INDUSTRIAL LAW – whether respondents contravened ss 346, 348 and 355 of the Fair Work Act 2009 (Cth) – whether blockading at two construction sites taken with intent to coerce persons into complying with industrial demands made by the respondents

PRACTICE AND PROCEDURE – application of s 553 of the Fair Work Act 2009 (Cth) – where first respondent the subject of contempt proceedings in Supreme Court of Victoria

Australian Competition and Consumer Commission v Safety Compliance Pty Ltd (in liq) [2015] FCA 211 (13 March 2015)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – misleading or deceptive conduct – contravention of Trade Practices Act 1974 (Cth) s 52 and Australian Consumer Law s 18 – false or misleading representation concerning need for goods – contravention of TPA s 53(f) and ACL s 29(1)(l)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that company was the relevant workplace health and safety agency – contravention of TPA s 52 and ACL s 18 – false or misleading representation that goods were of a particular standard or quality – contravention of TPA s 53(a) and ACL s 29(1)(a)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation of affiliation with the relevant workplace health and safety agency – misleading or deceptive conduct – contravention of TPA s 52 and ACL s 18 – false or misleading representation that company had sponsorship, approval or affiliation – contravention of TPA s 53(d) and ACL s 29(1)(h)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – representation that consumer had already agreed to acquire products– misleading or deceptive conduct – contravention of ACL s 18 – false or misleading representation as to agreement to acquire – contravention of ACL s 29(1)(d)

CONSUMER LAW – telemarketing offers – representation that workplace health and safety equipment required by legislation – threat of inspections or fines for non-compliance – no immediate demand for payment – follow up calls –debt recovery letters – need to consider manner and circumstances of a demand or communication – whether conduct amounts to coercion

CONSUMER LAW – accessorial liability – persons who owned or managed company

CONSUMER LAW – remedies – declarations

Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 199 (13 March 2015)

INDUSTRIAL LAW – whether officials of union engaged in unlawful coercive conduct contrary to s 348 of the Fair Work Act 2009 (Cth) (FW Act) – whether officials of union engaged in improper conduct whilst exercising rights of entry under FW Act contrary to s 500 of the FW Act – findings of fact – allegations of Director established

Craven v Ready Flowers Pty Ltd [2015] FCA 297 (5 March 2015)

BANKRUPTCY AND INSOLVENCY – where applicant applied for an extension of time to seek leave to appeal from an interlocutory judgment of the Federal Magistrates Court of Australia – application for leave to appeal dismissed with costs – order for costs as taxed forms basis for bankruptcy notice – whether the circumstances warrant the exercise of the Court’s discretion under s 52(2) of the Bankruptcy Act 1966 (Cth) to not accept the Federal Court’s costs order as proof of the debt concerned and therefore not make a sequestration order against applicant’s estate – whether director of the respondent gave false evidence before the Federal Magistrates Court and perpetuated a fraud on the Federal Court such as to amount to a perversion of the course of justice – alleged deliberate omission of evidence as to payment arrangements between respondent and entity to whom the respondent’s business was sold – whether leave application before this Court determined on a premise known by the respondent to be false – whether fraud proved on the balance of probabilities

Held: fraud and perversion of justice not proved – costs judgments was evidence of debt in reality – sequestration order made

CONSTITUTIONAL LAW – parliamentary privilege – evidence on which applicant sought to rely included right of reply statement given by director’s wife to the Australian Senate subject to parliamentary privilege under s 16 of the Parliamentary Privileges Act 1987 (Cth) – statement inadmissible as its use would impeach a question of proceeding in Parliament

Ryan v Primesafe [2015] FCA 8 (21 January 2015)

PRACTICE AND PROCEDURE – Costs – application for costs in proceeding instituted under the Fair Work Act 2009 (Cth) pursuant to s 570(2), where applicant has discontinued proceedings against all respondents – relationship between discretion conferred on Court by s 43 of the Federal Court of Australia Act 1976 (Cth) and s 570(2) – whether costs should be awarded against applicant’s solicitor – whether indemnity costs should be awarded – applicant’s solicitor to bear costs personally on party–party basis

Hassoun v Wesfarmers General Insurance Ltd t/a Lumley General [2015] NSWCA 33 (6 March 2015)

PROCEDURE – interlocutory issues – whether to grant leave to appeal from order staying proceedings by an insured against his insurer pending provision of security for costs – whether case management principles a relevant consideration in making such an order – whether primary judge failed to consider plaintiff’s prospects of success – whether primary judge failed to give proper consideration to whether proceedings would be stultified by making the order – significance of impecuniosity of a natural person – whether primary judge failed to have regard to burden of proof to be satisfied by defendant alleging the plaintiff’s claim is fraudulent – whether primary judge failed to give adequate reasons – leave to appeal granted – appeal dismissed

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 (6 March 2015)

INDUSTRIAL LAW – claim by respondent that appellant union contravened ss 50, 340, 345, 349 and 417 of Fair Work Act 2009 (Cth) by promulgating document(s) containing the union’s overtime policy (“the FW Act”) – whether primary judge erroneously characterised manner of alleged contraventions as promulgation of the policy, rather than promulgation of document(s) containing the policy – whether primary judge was required to identify time of contraventions and whether time was so identified – whether Jones v Dunkel inference could have been drawn and whether it was so drawn – whether primary judge erred in finding that the union had organised industrial action – whether primary judge erred in finding that respondent had a workplace right under enterprise agreement – whether an employer may have a workplace right within the meaning of s 361 of the FW Act – whether primary judge erred in finding that reason for union’s industrial action was because of respondent’s workplace right – whether primary judge erred in finding that union had knowingly or recklessly made false or misleading representations

SZTMH v Minister for Immigration & Border Protection [2015] FCA 124 (27 February 2015)

MIGRATION – refusal of protection visa – whether risk of serious harm under s 91R of Migration Act 1958 (Cth) – whether apprehended bias –grounds of appeal not made out

COSTS – application for personal costs order against solicitor – whether s 486E of Migration Act 1958 (Cth) contravened – whether appeal had reasonable prospect of success – where one ground had a reasonable prospect of success – where remaining grounds had no reasonable prospect of success – no contravention of s 486E

White v Johnston [2015] NSWCA 18 (18 February 2015)

ASSAULT AND BATTERY – dental treatment – whether patient’s consent invalid because sole purpose was non-therapeutic – whether onus lay on patient or practitioner – whether absence of consent of the gist of assault and battery

DAMAGES – exemplary damages – whether Civil Liability Act 2002 (NSW), s 3B applied – requirement to determine compensatory damages before considering whether to order exemplary damages – whether other decisions comparable

EVIDENCE – tendency evidence – whether evidence of other malpractice by practitioner wrongly admitted – whether evidence able to be used for purpose different from that for which it was tendered – whether evidence of malpractice significantly probative of performing work with no therapeutic purpose

MEDICAL PRACTITIONERS – consent to treatment – whether consent to dental treatment invalid because of wholly non-therapeutic purpose – onus of proof

Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (29 January 2015)

MIGRATION – application for visa – where migration agent fraudulently completed visa application – public interest criterion 4020 – necessity to set aside delegate’s decision

EVIDENCE – where certain facts agreed by the parties and facts supported by evidence – where judge in Court below found that the appellant had failed to prove an undisputed fact

APPEALS – where remedy sought that was not sought in Court below – whether Court has no jurisdiction to entertain suit – utility in granting relief

Sze Tu v Lowe [2014] NSWCA 462 (23 December 2014)

EQUITY – Tracing – Onus and standard of proof – Where wrongdoer has mixed stolen moneys with own moneys – Black v Freedman claim attaches immediately to stolen money and its traceable product – Volunteer recipient of stolen funds, or traceable product, in no better position than the wrongdoer – Onus on wrongdoer and/or recipient to prove what contribution was from the wrongdoer’s own moneys – Standard of proof in Briginshaw v Briginshaw and s140 Evidence Act applied
LIMITATION OF ACTIONS – Partnership – Action for an account – Cause of action arises upon dissolution of partnership – Application of s15 Limitation Act directly or by analogy – Laches will not be available as a further defence in circumstances where the claim is subject to a statutory bar
LIMITATION OF ACTIONS – Partnership – Action for an account of profits or to recover trust property — Application of s 15 Limitation Act by analogy to an action for an account of profits in relation to trust assets – Application of s 47 Limitation Act directly or by analogy to an action to recover trust property or profits derived from trust property – When does time begin to run – When did the plaintiff first discover, or could have with reasonable diligence discovered, the facts giving rise to the cause of action and that the cause of action has accrued
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Actions by and against partners – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Black v Freedman claim – Institutional constructive trust over the partnership moneys (or their traceable product) – Equitable obligations imposed at the time of theft or, in the case of a volunteer recipient, from the time that they acquire knowledge of the theft – Whether indefeasibility defence under s 42 Real Property Act available for volunteer recipient where acquired registered title prior to being placed on notice of the theft – Fraud exception to s42 not pleaded – Fraud cannot be raised as a new point on appeal – Whether any in personam exception to indefeasibility applicable
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Dissolution – Single adventure or undertaking – Whether a partnership operating two businesses can be considered a single venture – Whether separate termination dates for the businesses precludes the partnership being seen as a “single venture”
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Partnership Property – Application of ss20(1) and 21 Partnership Act – Deeming of property bought with partnership funds to be partnership property “held in trust for the partnership” – Statutory provisions do not create a trust “in the strict sense” nor are they sufficient to make the land “trust property”
TRUSTS – General – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Whether the moneys or the properties (as their traceable product) are subject to statutory, express, resulting, or constructive trusts – Whether proprietary and/or accounting relief available

Burge v Burge [2014] NSWSC 1772 (11 December 2014)

WILLS – informal testamentary document – alterations made to draft of existing will – document dated and signed by testator – testator aware of formal requirements for execution of wills – informal document not found with earlier wills – whether testator intended document to form his will – Succession Act 2006 (NSW) s 8(2)

Fernando v Commonwealth of Australia [2014] FCAFC 181 (22 December 2014)

DAMAGES – where primary judge awarded nominal and exemplary damages for false imprisonment in immigration detention – award of nominal damages for false imprisonment – whether primary judge erred in awarding nominal damages – whether appellant could and would have been lawfully detained if the tort had not been committed – award of exemplary damages for false imprisonment – whether primary judge erred in awarding exemplary damages – whether primary judge erred in not awarding aggravated damages.

DAMAGES – where primary judge assessed compensatory damages in the event that he was wrong in awarding only nominal damages – assessment of compensatory damages for false imprisonment – whether amount in compensatory damages manifestly inadequate.

PRACTICE AND PROCEDURE – hearing on remitter – where Full Court remitted assessment of damages to primary judge – where respondents sought to raise contention that appellant only entitled to nominal damages at hearing on remitter – where contention not raised before question remitted by Full Court – test to be applied in determining whether party should be permitted to raise new contention on remitter – whether remitter by Full Court rendered res judicata appellant’s entitlement to award of damages so as to make it beyond power for primary judge to consider the contention – whether primary judge erred in exercising discretion to allow respondents to put the contention.

Held: Appeal dismissed. Cross-appeal allowed, order for exemplary damages set aside.

Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd [2014] FCA 1366 (18 December 2014)

PATENTS – innovation patents – construction of claims – alleged invalidity – non-compliance with s 18(1A) of Patents Act 1990 (Cth) – lack of novelty – lack of innovative step – whether a manner of manufacture – not useful – non-compliance with s 40(3) – lack of clarity – lack of fair basis

PATENTS – infringement – authorisation – meaning of s 13(1) of the Patents Act 1990 (Cth)

Australian Competition and Consumer Commission v AGL South Australia Pty Ltd [2014] FCA 1369 (15 December 2014)

CONSUMER LAW – misleading or deceptive conduct – false or misleading statements – electricity consumers offered energy plans featuring percentage discounts off of energy usage charges – consumers on energy plans with discounts had their rates increased differentially – whether later representations that consumers’ discounts continued to apply were false or misleading – whether omission to disclose certain information about rate increases was misleading or deceptive

Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365 (12 December 2014)

INDUSTRIAL LAW – contravention of modern award – participants in a claimed unpaid training program were in reality employees to whom the Fair Work Act 2009 (Cth) and Manufacturing and Associated Industries and Occupations Award 2010 (“the Award”) applied – whether employer contravened terms of the Award – whether employees were casuals within the definition in the Award – degree of knowledge required to establish individuals’ accessorial liability under s 550

INDUSTRIAL LAW – failure to comply with Notice to Produce Records or Documents issued by Fair Work Inspector under s 712 of the Fair Work Act 2009 (Cth) – Notice assumed status of workers as “employees” – Notice unduly wide and uncertain – reasonable excuse for failure to compl

The Council of the New South Wales Bar Association v Franklin (No 2) [2014] NSWCA 428 (12 December 2014)

LEGAL PRACTITIONERS – removal from roll of local lawyers – application to have lawyer’s name removed from roll – where lawyer convicted of criminal offences including aggravated sexual assault – where lawyer denied that he committed the offences of which he was convicted, both at trial and at sentencing hearing – whether of good fame and character – whether guilty of professional misconduct – whether presently a fit and proper person – Legal Profession Act 2004 (NSW), s 32

Kyriackou v Law Institute of Victoria Limited [2014] VSCA 322 (11 December 2014)

LEGAL PRACTITIONERS – Lay associate – Appeal against VCAT disqualification order – Findings that actions of lay associate if by an Australian legal practitioner may have resulted in charges – Whether lay associate party to acts – Involvement of lay associate –Deficiency in trust account – Statutory misconduct – Professional misconduct – Penalty – Victorian Civil and Administrative Tribunal Act 1998 s 148 – Legal Profession Act 2004 ss 1.2.4(1)–(2), 2.2.5, 2.2.6(1)(b), (2), (3), (4), (5), 2.2.7, 2.2.8, 3.3.21, 4.4.2.

APPEAL – Appeal on question of law – Defective notice of appeal – Whether VCAT’s decision open on the evidence – Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 rr 4.15, 4.17.

EVIDENCE – Standard of proof – VCAT not bound by rules of evidence – Relevance of rule in Briginshaw v Briginshaw to VCAT proceedings – Failure of appellant to give evidence – Victorian Civil and Administrative Tribunal Act 1998 s 98 – Evidence Act 2008 s 140.

Insurance Australia Ltd t/as NRMA Insurance v El Kabbout [2014] NSWCA 426 (1 December 2014)

APPEAL – leave to appeal – applicant insurer held liable to pay claim in respect of motor vehicle written off after collision with tree – whether trial judge reversed the onus of proof – where expert evidence that accident could not have occurred as respondent contended – where trial judge misstated one aspect of expert’s evidence – where applicant sought to avoid policy in reliance on claim respondent failed to be truthful and frank in relation to claim – whether applicant had established arguable error requiring correction to avoid injustice warranting appellate intervention – leave refused

Bianca Hope Rinehart v Georgina Hope Rinehart [2014] FCA 1241 (19 November 2014)

PRACTICE AND PROCEDURE – Application for interim suppression order pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) – Whether proceeding is an abuse of process – Whether order is necessary to prevent prejudice to the administration of justice

PRACTICE AND PROCEDURE – Relevance of s 8(1) and s 16(9) of the Commercial Arbitration Act 2012 (WA) in considering application for suppression in this Court

PRACTICE AND PROCEDURE – Whether news articles published after the hearing date are of sufficient probative value to warrant reopening the proceeding so that they may be tendered

PRACTICE AND PROCEDURE – Whether an injunction pursuant to s 17J of the Commercial Arbitration Act 2012 (WA), or s 23 of the Federal Court of Australia Act 1976 (Cth) is appropriate

Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151 (13 November 2014)

TRADE PRACTICES – EVIDENCE – whether misleading or deceptive representations made orally or by conduct in relation to purchase of franchise business – where purchaser of franchise operated business for significant time without complaint before alleging misrepresentations – proof of fact requires court to feel actual persuasion of its existence – where trial many years after making of alleged representations and conduct complained of

APPEAL AND NEW TRIAL – where significant delay between conclusion of trial and delivery of judgment – limitations of appellate courts in reviewing credibility findings by trial judge

Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)

TRADE PRACTICES – price fixing – alleged arrangements or understandings between airlines to fix fees and surcharges in relation to the carriage of air cargo – Trade Practices Act 1974 (Cth) ss 45 and 45A – whether airlines engaged in collusive practices – whether airlines bound by domestic law or practice of foreign countries to fix charges

TRADE PRACTICES – price fixing – whether alleged price fixes had purpose, or were likely to have the effect, of substantially lessening competition in a market in Australia – whether markets were ‘in Australia’ for the purposes of Trade Practices Act 1974 (Cth) s 4E – definition of market – assessment of substitution and switching behaviour – assessment of product, geographical and functional dimensions

EVIDENCE – proving a contract, arrangement or understanding within the meaning of Trade Practices Act 1974 (Cth) s 45 – circumstantial proof of collusive behaviour – evidence to be looked at as a whole

Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487 (31 October 2014)

LEGAL PRACTITIONERS – decision by Council of the Law Society of NSW to suspend practising certificate and appoint a manager – complaints of refusal to comply with requests of investigator and of obstructing investigator – dispute as to meaning of sections of Legal Profession Act 2004 – appeal against suspension and appointment of manager – hearing de novo – meaning of sections 267, 268 and 270 of Legal Profession Act 2004 – whether suspension necessary in the public interest – whether complaints made out.

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

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

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

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”

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

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

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

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)

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.

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

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

Legal Services Commissioner v Telehus [2014] VSC 462 (15 September 2014)

LEGAL PRACTITIONERS — Roll of practitioners — Removal of name — Defendant misappropriated trust funds, represented that he held a practising certificate when he did not, failed to lodge tax and GST returns and breached court order that he file tax returns, made false declarations in support of application for renewal of practising certificate — No involvement by Defendant in disciplinary process or hearing to remove name from roll — No suggestion that Defendant had taken steps towards rehabilitation — Defendant not fit and proper person to practise law.

JR Consulting & Drafting Pty Ltd & Anor v Cummings & Ors [2014] NSWSC 1252 (12 September 2014)

CONTRACTS – construction – where parties entered into contract for sale of non-exclusive “interest” in software – nature of “interest” acquired by first plaintiff – whether interest was limited to software which existed at relevant date – whether first defendant owned copyright in software to exclusion of second defendant – whether first plaintiff was limited to licensing software to particular customer – whether first defendant had express or implied obligation to provide first plaintiff with source code and updates for, and modifications and developments to, software – whether initial contract was abandoned by parties.

CONTRACTS – construction – where relevant parties entered into subsequent contract in respect of software – scope of licence granted under contract – whether licence was limited to specified period – whether second plaintiff was permitted to grant licences to new customers after that period – effectiveness of assignment – whether second defendant required to provide updates to second plaintiff to ensure software compatibility with other software.

CONTRACTS – breach – whether parties had breached obligation to deposit source code with escrow agent – whether conditions of agreement for release of software from escrow were satisfied – whether second defendant breached obligations to provide development services, information and assistance – confidentiality – whether second defendant had received and disclosed confidential information – good faith and cooperation – whether there was a breach of obligation of good faith.

CONTRACTS – termination – whether second defendant had properly terminated agreement – whether established that second plaintiff breached contract by non-payment of licence fees – whether second defendant had abandoned rights to termination – whether notice of termination of agreement was effectively served – whether there was a failure by second defendant to comply with dispute resolution clauses – whether termination was invalidated by non-compliance with dispute resolution clauses.

CONTRACTS – existence of contract – whether established that entity was granting licences under previous agreement – where person is director of two associated companies – whether sub-licence was created by decision of common director.

TORTS – tort of conspiracy – harm by unlawful means – where second and third defendants had entered into purchase agreement – where defendants had terminated earlier agreement – whether established that conduct constituted a tort of conspiracy – whether conduct was unlawful – whether established that a purpose of conduct was to harm second plaintiff – whether established that second plaintiff has suffered loss or damage caused by conduct.

TORTS – tort of inducing breach of contract – whether conduct constituted breach of earlier agreement – whether third defendant induced or procured second defendant to engage in conduct – whether third defendant had sufficient knowledge of terms of previous agreement – whether third defendant had requisite intention for second defendant to breach the previous agreement.

TRADE PRACTICES – misleading or deceptive conduct – where representations were made on website registered to company not party to proceedings – whether third defendant engaged in trade or commerce between Australia and another country – whether third defendant engaged in conduct involving the use of telegraphic or telephonic services – whether established that representations were made by third defendant – whether representations were misleading or deceptive or likely to mislead or deceive.

TRADE PRACTICES – unconscionable conduct – whether second and third defendants are corporations engaged in trade or commerce – whether plaintiffs were under a special disadvantage known to second and third defendants – whether second and third defendants unconscientiously took advantage of plaintiffs’ special disadvantage – whether second and third defendants were engaged in conduct in connection with supply or possible supply of goods or services – whether second and third defendants engaged in unconscionable conduct under Australian Consumer Law ss 20 and 21.

INTELLECTUAL PROPERTY – copyright – groundless threats of legal proceedings – whether third defendant made threats in respect of infringement of copyright – whether statements constituted groundless threats of copyright infringement.

WORDS AND PHRASES – “interest”, “customer”.

INTELLECTUAL PROPERTY – copyright – original works in which copyright subsists – whether copyright subsists in each update or new release of software and user documentation – whether first cross-claimant owned copyright in software releases in relevant periods.

INTELLECTUAL PROPERTY – copyright – infringement – whether third cross-defendant infringed copyright in software – whether first, second and fourth cross-defendants had authorised alleged copyright infringement – liability of director of cross-defendants – whether cross-claimants are estopped from bringing an action for infringement of copyright – whether additional damages should be awarded under Copyright Act 1968 (Cth) s 115(4).

TRADE PRACTICES – misleading or deceptive conduct – whether established that alleged representations were made by first, second and third cross-defendants – whether representations were misleading or deceptive or likely to mislead or deceive – whether cross-claimants had relied on alleged representations – whether established that loss and damage suffered by cross-claimants was caused by representations – accessorial liability – application of Australian Consumer Law ss 18 and 29.

EQUITY – breach of confidentiality – whether information in licence key generator is property – whether information is confidential – whether second and third cross-defendants owed an obligation of confidentiality to cross-claimants – whether second and third cross-defendants breached obligation of confidence.

INTELLECTUAL PROPERTY – trade marks – infringement – where third cross-defendant had used phrase on website – whether first cross-claimant has standing to bring claim – whether cross-claimant is entitled to be registered as owner of registered trade mark – whether conduct of cross-defendants constituted trade mark infringement – whether cross-defendants are liable for additional damages.

Curtis v Harden Shire Council [2014] NSWCA 314 (10 September 2014)

TORTS – negligence – duty of care – breach of duty – whether Civil Liability Act 2002 (NSW), s 43A applied – whether placing certain traffic control signs and omitting other signage involved the exercise of a “special statutory power” – prohibition on any person installing prescribed traffic control devices combined with requirement for statutory authority to undertake such activity

WORDS AND PHRASES – “special statutory power” – Civil Liability Act 2002 (NSW), s 43A

TORTS – negligence – duty of care – breach of duty – standard of liability – Civil Liability Act 2002 (NSW), s 43A – motor vehicle accident – whether omission of signs on road was an act no authority could properly consider a reasonable exercise of its power – expert evidence – evidence of council officer – omission of “slippery road” sign despite direction in Traffic Control Plan – common sense

TORTS – negligence – causation – onus – balance of probabilities – whether primary judge erred in comparison of probabilities with possibilities

TORTS – negligence – causation – motor vehicle accident – whether absence of signage caused driver to lose control on first resurfaced section – balance of probabilities – no direct proof – whether circumstances give rise to a reasonable and definite inference – consideration of state of the road, circumstances of accident, expert evidence and competing hypotheses

Williams v Katis [2014] VSC 405 (29 August 2014)

DEFAMATION – Action for defamation by one candidate against opponent in municipal election – Four separate publications – News broadcast – News interview – Court document – Provision of court document to journalist – Statement to lawyer – Meaning of defamatory imputations – Defences to defamation – Justification – Fair comment – Honest opinion – Malice – Defamation Act (Vic) 2005, ss 25, 30, 31.

Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 (28 August 2014)

COSTS – challenge to special order that successful plaintiff be paid only a percentage of his costs – not unreasonable for defendant to refuse Calderbank offer – no error in rejecting submission that defence was improperly maintained – power to reduce costs even where a plaintiff obtained a substantial verdict in his favour – costs discretion re-exercised in light of other errors disclosed in reasons

TORTS – negligence – owner and operator of concrete batching plant failed to inspect and maintain all structural elements – plant collapsed on truck driver – challenge to findings of liability and breach based on impermissible use of hindsight – challenge to drawing of inference from owner’s failure to adduce evidence of results of forensic investigation into collapse – primary judge expressly found owner liable without needing to rely on inferences – damages – factual challenges to heads of economic and non-economic loss

Baxter v Baxter [2014] VSC 377 (22 August 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by three adult sons, three grandchildren and one stepgrandchild — Claim by adult son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Further provision ordered

Briggs v Mantz [2014] VSC 281 (22 August 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by adult son and four adult grandchildren — Estate divided equally between the son and four grandchildren — Estate comprised principally of deceased’s home — Claim by the son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Son sought further provision of the whole of the estate, alternatively, ninety per cent of the estate — Competing claims against the estate of the deceased — Son’s claim dismissed

Smith v O’Neill [2014] NSWSC 1119 (21 August 2014)

SUCCESSION – Wills probate and administration – Revocation of grant of Probate in common form – Whether Will executed in accordance with Part 2.1 of the Succession Act 2006 – Not so executed – Whether court satisfied that Will forms the deceased’s Will and that she intended it to form her Will – Gift to solicitor in Will – Another solicitor, a friend and colleague of solicitor/beneficiary, takes instructions from deceased – Suspicious circumstances – Whether deceased knew and approved of the terms of the Will

Hasler v Singtel Optus Pty Ltd;Curtis v Singtel Optus Pty Ltd;Singtel Optus Pty Ltd v Almad Pty Ltd [2014] NSWCA 266 (15 August 2014)

APPEAL – challenge to findings of fact – deference to trial judge

EQUITY – fiduciary duty – employee in position of conflict – accessory liability for knowing assistance in dishonest and fraudulent design – meaning of “dishonest and fraudulent design” – whether necessary to show knowledge of absence of informed consent – measure of equitable compensation

FRAUD – pleadings and course of trial – whether finding of dishonesty available

PRECEDENTS – departure from decision of another intermediate appellate court – where not necessary to do so in order to resolve appeal – where issue was important, causing inconsistent formulations of principle – precedential status of a decision which did not itself develop the common law but merely explained decision of High Court – comity

Vergara v Ewin [2014] FCAFC 100 (12 August 2014)

HUMAN RIGHTS – discrimination – sexual harassment – appeal against finding of sexual harassment by unwanted sexual intercourse – appellant challenged finding that sexual intercourse occurred – whether Judge failed to apply appropriately the standard of proof and to take account of the gravity of the finding – whether finding open on the facts found at trial

HUMAN RIGHTS – appellant challenged finding of sexual harassment occurring at a hotel and on a public street – consideration of the meaning of “workplace” in s 28B(6) of the Sex Discrimination Act 1984 (Cth)

DAMAGES – appeal against assessment of damages – whether Judge inappropriately had regard to punitive considerations in awarding damages

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2014] FCA 791 (30 July 2014)

TRADE PRACTICES – false representations – misleading or deceptive conduct – allegation that respondents contravened ss 52 and 53 of the Trade Practices Act 1974 (Cth) (“the TPA”) by publishing certain false, misleading or deceptive representations in respect of certain goods – whether the representations contravened the TPA

TRADE PRACTICES – representation as to a future matter – reliance on s 51A of the TPA – whether there were reasonable grounds to support the representation made

TRADE PRACTICES – allegation that the first respondent breached s 52 of the TPA by representing that it had reasonable grounds to make certain representations – representations as to past and present matters – representations not made in contravention of the TPA – whether there were reasonable grounds to make the representations

TRADE PRACTICES – accessorial liability – representation as to a future matter – whether the second respondent had actual knowledge that the representation was made – whether the representation was misleading or deceptive – whether there were reasonable grounds for making the representation – whether the second respondent was knowingly concerned in the contravention of the TPA

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (25 July 2014)

ADMINISTRATIVE LAW – Civil Aviation Safety Authority – whether the Administrative Appeals Tribunal was bound to apply the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – whether the Tribunal erred in not requiring compliance with the rule in Browne v Dunn (1894) 6 R 67 – whether notice was given in any event satisfying the rule in Brown v Dunn and affording the appellant procedural fairness

EVIDENCE – rules of evidence may provide guidance to administrative tribunal – Administrative Appeals Tribunal not bound by the rules of evidence

Held: Appeal dismissed with costs

Cripps v Vakras [2014] VSC 279 (20 June 2014)

CONTRACT — Hire of art gallery — Whether implied duty of good faith or cooperation — Whether placing conditions on hirers’ access to gallery constituted breach — Whether collateral contract for sale of catalogue by gallery — Whether display of disclaimer in gallery constituted breach — Late payment of bond and sale proceeds constituted breach — Whether a director whose actions constitute a breach of contract can be liable for the tort of inducing breach of contract — Damages for late payment.

DEFAMATION — Internet — Personal websites — Three articles concerning hire of art gallery — Defamatory imputations — Application of the ‘Polly Peck’ principle — Whether hyperlinked article relevant to assessment of imputations carried by matter complained of.

DEFAMATION — Publication on internet — Judicial notice of use of search engines such as Google and Bing to increase instances of publication.

DEFAMATION — Common law defence of justification — Elements of defence.

DEFAMATION — Common law defence of fair comment — Elements of defence — Whether management of a gallery open to the public is a matter of public interest — Whether opinion must be one that an honest person might reasonably form — Whether defendant must provide particulars of facts on which comment is based — Test of malice.

DEFAMATION — Common law defence of qualified privilege — Elements of defence — Test of common duty or interest — Whether defence available where defamatory material published on generalist website as distinct from specialist website — Whether defence available for defamatory statements concerning management of art gallery open to public — Whether defence available for statements on internet in reply to verbal attack in the presence of attendees at art gallery — Test of malice.

DEFAMATION — Statutory defences of justification and honest opinion — Defamation Act 2005 ss 25, 31.

DEFAMATION — Damages — Common law principles — Application of ‘eggshell skull’ principle — Grapevine effect — Mitigation of damages for prior bad reputation of plaintiff — Mitigation due to provocation — Recovery by companies.

DEFAMATION — Damages — Statutory cap — Effect of statutory cap where there are multiple plaintiffs — Whether statutory cap requires scaling of damages — Mitigation where multiple publication of similar matter — Defamation Act 2005 ss 35, 38.

DEFAMATION — Damages — Aggravated damages — Whether timing of aggravating conduct affects application of statutory damages cap — Conduct of defendant that is improper, unjustified and lacking in bona fides — Further damaging publications by defendant — Unjustified maintenance of defences — Failure to remove defamatory material from internet — Relevance of defendant’s motives — Whether amount awarded for aggravated damages should be separately identified — Defamation Act 2005 ss 35, 36.