http://www.austlii.edu.au/au/cases/cth/FCA/2013/582.html

INDUSTRIAL LAW – sham contracting – accessorial liability – whether threat to dismiss in order to reengage employee as an independent contractor – whether misrepresentation of employment relationship as a contract for services

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/687.html

CONTRACTS – oral agreement – evidence relevant to whether parties entered into an oral agreement – identification of terms of oral agreement.

EVIDENCE – credibility of witnesses – importance of contemporaneous material – Jones v Dunkel inferences.

PARTNERSHIP – formation – whether the parties were in partnership – distinction between partnership and joint venture.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/508.html

DESIGNS – validity – steel fencing panel – whether design “new or original” – essential features of design to be judged by “instructed eye” – whether design differed in immaterial details or in features commonly used in the relevant trade – whether obvious adaptation of analogous article

DESIGNS – infringement – whether fraudulent or obvious imitation of registered design – where evidence was led that respondent referred to creating a “lookalike” of applicant’s product – principles in determining infringement – whether applicant entitled to the design

343. It seems to me to follow from what was said in Polyaire v K-Aire, and the earlier authorities to which the Court referred, that the claim is a serious one. It must be proved on the balance of probabilities taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (NSW).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/125.html

CONTRACT – construction – loan agreements – whether loan agreements were intended to be operative in accordance with their terms – whether primary judge made erroneous factual findings or failed to make necessary factual findings.

http://www.austlii.edu.au/au/cases/cth/FCA/2013/452.html

“No Catchwords”

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/511.html

SUCCESSION – wills, probate and administration – application of Briginshaw standard to alleged destruction of will – whether evidence supports finding that deceased made a new will that has not been found

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/371.html

WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – whether the document purports to state the deceased’s testamentary intentions – no dispute that document not executed in accordance with s 6 Succession Act 2006 – Deceased familiar with the formal requirements for the making of a valid will -whether Court satisfied that the deceased intended document to form an amendment to his duly executed Will – Consideration of circumstances in which the document was executed

http://www.austlii.edu.au/au/cases/cth/FCA/2013/276.html

PRACTICE AND PROCEDURE: application for leave to amend notice of appeal – amendments sought not argued by the appellant in the court below – whether it is in the interests of justice to allow the amendments – whether allowing the amendments would cause prejudice to the respondent – whether the proposed grounds of appeal are reasonably arguable

http://www.austlii.edu.au/au/cases/cth/FCA/2013/142.html

TAXATION – Taxation Administration Act 1953 (Cth) – Division 290 – Civil penalty regime –Whether entity is a promoter of tax exploitation scheme – Whether entity has implemented a scheme otherwise than in accordance with its product ruling – Time limits on commencement of actions in respect of an entity’s involvement in a tax exploitation scheme
STATUTORY INTERPRETATION – Meaning of ‘markets the scheme or otherwise encourages the growth of the scheme or interest in it’ – Meaning of consideration received ‘in respect of’ marketing or encouragement

http://www.austlii.edu.au/au/cases/cth/FCA/2013/47.html

TRADE PRACTICES – proceeding by Commission under s 51AB of Trade Practices Act 1974 (Cth) and s 21 of Schedule 2 to Competition and Consumer Act 2010 (Cth) – whether respondent engaged in unconscionable conduct – matters relevant to unconscionability – where respondent a trading corporation supplying vacuum cleaners – where respondent’s representatives sold vacuum cleaners to consumers during home visit – where consumers initially offered free maintenance check of existing vacuum cleaners – where consumers not informed that respondent’s representatives may attempt to sell respondent’s vacuum cleaners during maintenance check – where maintenance checks alleged to be cursory – where respondent’s representatives allegedly untrained to perform maintenance checks – where consumers of advanced age – where certain representatives breached provisions of State fair trading legislation concerning acceptance of consideration prior to expiry of cooling-off period and length of attendance at consumer’s premises – whether respondent engaged in unfair and pressure sales tactics – whether equivalent vacuum cleaners available in retail stores at lower price

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/431.html

SUCCESSION – where person entitled to assert equitable defence in protection of disputed property has died intestate while under the protection of the NSW Trustee and Guardian – estate bona vacantia – administrator of deceased estate able to assert defence available to deceased in his lifetime – whether Crown entitled to bona vacantia property can enforce a defence belonging to intestate deceased – whether Crown takes title as successor or by statute – question not necessary to resolve where disputed property held at all relevant times by administrator of deceased estate

EVIDENCE – onus of proof – balance of probabilities – party bearing the onus must present enough evidence to enable the court to feel actual persuasion that a particular fact is so – where asserted fact is supported by only one piece of evidence – evidence sufficient on its own to support finding of relevant intention – whether a sufficient basis in surrounding circumstances to overcome evidence

WORDS AND PHRASES – “bona vacantia”

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1548.html

Strata Schemes (Freehold Development Act) 1973 (NSW), Strata Schemes Management Act 1996 (NSW), serviced apartment, strata title apartment, whether lease or licence, construction of lease, validity of lease of common property, whether void, whether executed ultra vires, whether indefeasible, s 42 Real Property Act 1900 (NSW), unauthorised affixing of company seal, requirements of fraud, relation to indoor management rule, extent of indefeasibility, indefeasibility and certain personal covenants, proper construction of lease, delegation of functions, reasonable directions on voting rights, dealing with common property, whether valid exercise of right to be granted new leases, whether in contravention of relevant legislation, whether void or unenforceable, contravention of terms of lease, estoppel, specific performance of lease

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1402.html

INDUSTRIAL LAW – general protection claim – requirement of industrial activity – expulsion from union does not constitute industrial activity – applicant did not observe union ban on applying for promotion – adverse action – requirement of injury or prejudicial alteration – requirement of discrimination – discrimination includes indirect discrimination – Fair Work Act 2009 (Cth), ss 346, 347

INDUSTRIAL LAW – general protection claim – adverse action – applicant appointed himself his own bargaining agent – respondent excluded applicant from negotiations of enterprise agreement – respondent and relevant union agreed to consultative provisions – whether respondent’s adherence to consultative provisions constitutes adverse action

INDUSTRIAL LAW – objectionable terms – term of enterprise agreement requiring that proposals for change must be presented to a committee composed of employer and union representatives – Fair Work Act 2009 (Cth), ss 12, 356

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1493.html

PARTNERSHIP – Actions by and against partners – partnership funds mixed with funds of a partner and used to purchase residential investment properties – fresh trial under Civil Procedure Act 2005, s 88(1) – evidence at first trial admitted without need to recall witnesses under s 89(2)(a) – cash businesses – unreported cash sales – trust property in strict sense followed into hands of persons other than bona fide purchasers for value without notice – institutional constructive trust in favour of partners – onus of proof – withdrawal of election for equitable compensation rather than account of profits – equity to mould suitable relief – partner entitled to a percentage interest in properties in proportion to his capacity to contribute to the purchase prices.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1444.html

TORT – negligence – professional negligence – alleged failure by a solicitor to properly advise in a commercial property transaction – instructions given to settle without receipt of deposit – client an experienced property developer
CONTRACT – contract of retainer – scope of retainer

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1420.html

PROFESSIONAL NEGLIGENCE – solicitor obtained instructions for preparation of new will by plaintiff’s father – change to testamentary intentions – no uncertainty as to testamentary intentions – testator died before execution of will – solicitor failed to respond to plaintiff’s calls for urgent advice – solicitor’s duty of care to disappointed beneficiary under will – plainitff’s loss of chance to benefit under new will

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1222.html

INDUSTRIAL LAW – workplace right – Fair Work Act 2009 (Cth) s 340, s 341 – whether duties of licenced aircraft maintenance engineers found in reg 51 and reg 215(9) of the Civil Aviation Regulations 1988 (Cth) constitute a “workplace right” – whether in any event decision-maker intended to injure employees concerned by reason of their exercise or proposed exercise of alleged “workplace right”

Held: provisions of Civil Aviation Regulations 1988 (Cth) do not constitute a workplace right and in any event, decision-maker had no intention to injure the employees by reason of exercise or proposed exercise of alleged “workplace right”

41. Section 340 of the Fair Work Act is one of a number of what are described in the “guide” (s 334) to Pt 3.1 of Ch 3 of that Act as “general protections”. These general protections are intended to protect workers from “adverse action”, as defined by s 342. In each instance, there must be a causal relationship between an intended taking of adverse action and the exercise or proposed exercise of a right, protected activity or holding of a particular status or characteristic.
42. The general protections for which Pt 3.1 provides are designated as “civil remedy provisions” by s 539(1) of the Fair Work Act. Proof of the contravention of such a provision attracts a maximum pecuniary penalty of 60 penalty units: s 539(2). A proceeding in respect of an alleged contravention of a civil remedy provision is subject to the rules of evidence and procedure applicable to civil matters: s 551 Fair Work Act. As to the applicable onus and standard of proof in such a proceeding, in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770; (2010) 188 FCR 221 at [13] I observed:

13. Subject to the operation of s 360 and s 361 of the Fair Work Act, the Union carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) ( Evidence Act ) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1200.html

CONTRACT – breach of contract – contract for provision of financial services – implied warranties in s 12ED Australian Securities and Investments Commission Act (2001) Cth – damages for breach of contract

CORPORATIONS – financial products – breach of Australian financial services licence under s 912A Corporations Act 2001 (Cth) – meaning of derivative in s 761D(1) of the Corporations Act 2001 (Cth) – meaning of debenture in s 9 of the Corporations Act 2001 (Cth)

CORPORATIONS – misleading and deceptive statements – whether statements based on reasonable grounds and result of exercise of reasonable care and skill – effect of disclaimers

CORPORATIONS – rescission – requirements of s 924A Corporations Act 2001 (Cth) – notice under s 925A – whether notice given within a “reasonable period”

DAMAGES – causation, remoteness, rule in Potts v Miller, contributory negligence, statutory damages

EQUITY – fiduciary obligations – formal advisory relationship arising out of contract – informal advisory relationship arising from conduct – whether breach of fiduciary duty – equitable compensation

INSURANCE – whether insured entity a party to contract of insurance – effect of s 48 Insurance Contracts Act 1984 (Cth) – duty of disclosure – construction of terms

NEGLIGENCE – whether duty of care owed – indeterminate liability – vulnerability – causation –unlawful conduct

RESTITUTION – availability of restitutionary remedies – defence of change of position – requirement of good faith

STATUTORY INTERPRETATION – whether investment permissible under s 625 Local Government Act 1993 (NSW) – whether product a security within the meaning of relevant Ministerial order – consequences if investment impermissible

TRADE PRACTICES – misleading and deceptive conduct – whether conduct engaged in “in this jurisdiction” – whether conduct in relation to financial product or financial services – “mere conduit” – accessorial liability – whether conduct should be excused under s 1317S Corporations Act 2001 (Cth)

12.4.1 Proof

2464. I accept S&P’s submission that the case against it involve allegations against professional people and a professional organisation capable of adversely affecting their and the organisation’s reputation. I accept also that these circumstances are relevant given the terms of s 140(2) of the Evidence Act which provides that that the court may take into account in deciding whether it is satisfied that the case has been proved on the balance of probabilities the nature of the cause of action or defence, the nature of the subject matter of the proceeding and the gravity of the matters alleged.
…
3601. Eighth, the allegation advanced by AHAC involves very serious misconduct. The first and second variations of AHAC’s case involve allegations that LGFS knowingly acting unlawfully or acted with a reckless disregard for whether or not it was acting unlawfully. That is an allegation to which the reasoning in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (and s 140(2) of the Evidence Act ) applies. There is no proof of the cogency required to sustain AHAC’s allegation. The evidence points overwhelmingly to LGFS believing that it was licensed to deal in and advise in relation to the Rembrandt notes.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1130.html

BANKRUPTCY AND INSOLVENCY – appeal from decision of Federal Magistrate to uphold a sequestration order against the appellant’s estate – two staged approach to determining existence of debt discussed – whether Federal Magistrate fell into error by imposing an unwarranted burden of proof upon the appellant – error found – solvency – whether an inference should have been drawn from a valuation of appellant’s properties that those properties were readily saleable – onus on appellant to make out solvency – no error by Federal Magistrate in this regard – sequestration order set aside.

EVIDENCE – onus of proof – burden of proof in relation to a challenge to the existence of a debt discussed – whether an unwarranted burden of proof was imposed upon the appellant.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/942.html

CONTRACTS – where applicant’s role with respondent Bank made redundant – where applicant subsequently retrenched – whether failure to give required notice prior to termination of employment or payment in lieu pursuant to written contract of employment – whether breach of contract – whether failure to give notice deprived applicant of chance to be redeployed during notice period pursuant to respondent’s redeployment policy.

Held: The respondent failed to give the applicant four weeks’ notice in breach of contract.

CONTRACTS – where respondent’s policies contained in a “Human Resources Reference Manual” and accessible on respondent’s intranet – whether policies terms of applicant’s employment contract – where statement of express exclusion of policies from employment contracts present in Human Resources Reference Manual – whether language of policies suggestive of contractual obligation or merely aspirational in nature – whether express incorporation – whether policies formed implied terms of applicant’s contract by virtue of custom or established practice of respondent.

Held: The statement of express exclusion prevents the policies being either implied as a matter of fact or expressly incorporated into the applicant’s employment contract.

CONTRACTS – existence of implied term of mutual trust and confidence in Australian law – whether serious breach by respondent of its own policy sufficient to breach implied term – whether serious breach of redeployment policy caused applicant loss or damage – whether damages available for breach of implied term – assessment of loss of chance – whether damages for hurt, disappointment and injury to reputation available – whether aggravated damages available.

Held: The applicant is entitled to damages for loss of chance to be redeployed due to respondent’s breach of implied term of mutual trust and confidence by acting in serious breach of its redeployment policy.

TRADE PRACTICES – misleading and deceptive conduct – where general manager of respondent represented to applicant that his role would not change following employment of state manager – where responsibility of applicant reduced by two-thirds – whether representation misleading or deceptive or likely to mislead or deceive for purposes of s 52, 53B and 51A of Trade Practices Act 1974 (Cth) – whether representation made in “trade or commerce”.

Held: The representation was not made in “trade or commerce” for purposes of Trade Practices Act 1974 (Cth).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/223.html

DAMAGES – torts – exemplary damages – medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect – relevance of planning and duration of course of conduct

MEDICAL PRACTITIONERS – liability in tort – defence of consent – medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect – whether defence of consent available – burden of proof of demonstrating consent of patient – whether medical practitioner was reckless as to whether treatment was either appropriate or necessary – whether exemplary damages should be awarded

STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury – purpose of leaving those who commit intentional torts to the operation of the general law – whether provision engaged by treatment known not to be reasonably necessary

TORTS – trespass to the person – consent to medical treatment – requirement that basic information be given to patient – distinction between nature of procedure and peripheral characteristics – whether misrepresentation of the nature of the procedure vitiates consent – relevance of motive of practitioner in misrepresenting the proposed treatment – burden of proof of establishing that procedure undertaken with consent – whether honest and reasonable belief that patient consented a defence

Evidence Act 1995 (NSW), s 140

http://www.austlii.edu.au/au/cases/cth/FCA/2012/788.html

1. The Commonwealth and Peter Slipper, who are the respondents in these proceedings, filed interlocutory applications last month seeking orders pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) that judgment be given against James Ashby, the applicant, because the proceeding against each of them, relevantly, was an abuse of the process of the Court and or vexatious or alternatively that the proceedings be permanently stayed on that footing.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/732.html

CONTEMPT OF COURT – civil contempt – failure to comply with order of the Court to pay costs – whether failure to make payment deliberate or wilful – failure to make payment not so described if defendant unable to pay – no evidence that defendant has moneys with which to pay the judgment debt – held failure to comply with order within time not deliberate or wilful

15. Nonetheless, it is necessary for the party alleging contempt to prove that the breach of the court’s order was deliberate and not casual, accidental or unintentional.

16. In the present case, it is unnecessary to decide whether the party alleging contempt must prove the deliberateness or wilfulness of the breach beyond reasonable doubt, or whether, in the case of a civil contempt such as this, proof to the standard prescribed by s 140 of the Evidence Act 1995 is sufficient (see Markisic v The Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 at [60]; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69; Sigalla v TZ Limited [2011] NSWCA 334, where it is assumed, following Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525, that proof of each element in the charge must be beyond reasonable doubt, but where the operation of the Evidence Act 1995 (NSW) on that question was not considered. Compare Australian Securities and Investments Commission v Sigalla (No. 4) [2011] NSWSC 62 at [89]- [94].)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2012/183.html

PRACTICE AND PROCEDURE – Application to extend time for filing a Notice of Appeal – whether appeal has reasonable prospects of success – held no – no matter of principle

6. His Honour spent a considerable amount of time in his judgment discussing all these matters. He then referred to s140 of the Evidence Act 1995 which provides in paraphrase that the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities, but in doing so the court must take into account the nature of the subject matter of the proceeding and the gravity of the matters alleged. He then noted that in an English case, Re A (A Minor) [1994] 2 FLR 463 (Eng), Lord Justice Waite had said that the issue of paternity is a serious one, more serious in the scale of gravity than, for example, proof of debt or minor negligence and the balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/16.html

COPYRIGHT – literary work – originality – whether copyright subsists in HTML source code of material safety data sheets (MSDSs) rendered by computer program – whether work of joint authorship – where HTML source code is generated by computer program and includes data entered manually – whether copyright subsists in only part of the relevant copyright work

COPYRIGHT – literary work – originality – whether copyright subsists in MSDSs created by a process of transcription of third party MSDSs

COPYRIGHT – infringement – implied licence arising as a matter of law – scope of licence – where manufacturers, importers and suppliers of hazardous substances required to comply with legislative regimes for the provision of MSDSs – where first respondent reproduced appellant’s MSDSs in anticipation of receipt of customer requests for their provision

COPYRIGHT – infringement – whether appellant discharged onus to prove absence of licence in circumstances where primary judge found many MSDSs were the subject of a customer request for their provision and many were not – whether respondents carried an evidentiary burden to show acts falling within the scope of the implied licence found

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/594.html

SUCCESSION – wills, probate and administration – making of a will – deceased creates a Microsoft Word document in his personal computer – document not executed in accordance with Succession Act, s 6 – whether the document expresses the testamentary intentions of the deceased – whether the deceased intended the document to be his will – Succession Act, s 8 – revocation – document printed out of deceased’s computer but not found amongst his papers after his death – Microsoft Word document not deleted from deceased’s computer – whether the deceased destroyed the printed version of the document – if so, whether the deceased intended to revoke the testamentary intentions expressed within the Microsoft Word document and/or the printed document – whether the deceased no longer intended to treat the Microsoft Word document and the printed document as his will – HELD: no intention to revoke the testamentary intentions expressed in the Microsoft Word document – the Microsoft Word document satisfies Succession Act, s 8 and should be admitted to probate.

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/26.html

Highways – Creation and extinction of highways – Dedication – What constitutes dedication – In general – Common law principles – Intention to dedicate – Rebuttal of the presumption of dedication that arises from user.
President of the Shire of Narracan v Leviston [1906] HCA 34; (1906) 3 CLR 846, followed.
Aust Dig Highways [13]

Highways – Construction, maintenance and repair – Roads –Whether road maintained as shown on municipal map.
Local Government (Highways) Act 1982 (Tas), s21.
Local Government Act 1993 (Tas), s208.
Aust Dig Highways [27]

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/438.html

JUDGMENTS – foreign judgment – judgment of High Court of Solomon Islands – judgment registered after contested application under s.6 Foreign Judgments Act 1991 (Cth) – application under s.7 to set aside registration of judgment – whether judgment registered in contravention of Act – whether High Court of Solomon Islands had jurisdiction – whether judgment obtained by fraud – whether applicable test is different where fraud alleged in obtaining foreign judgment as opposed to local judgment – whether enforcement of judgment contrary to public policy – whether matter in dispute already subject of final and conclusive judgment by other court – whether leave to reopen hearing ought be granted after judgment reserved – reopening application refused – all grounds to set aside registration of judgment rejected

“125.In determining whether the Applicants have discharged the civil standard of proof that the judgment was obtained by fraud, the Court should take into account the gravity of the matters alleged: s.140(2)(c) Evidence Act 1995 . Section 140(2) imports the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 in requiring a court, when considering whether it is satisfied on the balance of probabilities, to take into account the gravity of the matters alleged in relation to the question: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [61]; Palmer v Dorman [2005] NSWCA 361 at [40]- [47].”

http://www.austlii.edu.au/au/cases/cth/HCA/2012/17.html

Corporations – Duties and liabilities of directors and officers – Contraventions of civil penalty provisions of Corporations Act 2001 (Cth) (“the Act”) – Corporation released misleading announcement to Australian Stock Exchange (“ASX”) – Australian Securities and Investments Commission (“ASIC”) brought proceedings against respondents (and others) for contraventions of the Act – Section 180(1) of the Act required directors and officers to act with degree of care and diligence that reasonable person in that position would exercise – ASIC alleged directors contravened s_180(1) by approving draft announcement not materially different from misleading announcement released to ASX – ASIC alleged company secretary and general counsel of corporation contravened s 180(1) by not advising board that draft announcement was misleading – Whether directors approved draft announcement.

Evidence – ASIC tendered minutes of board meeting recording tabling and approval of draft ASX announcement – Minutes subsequently approved – ASIC did not call corporation’s solicitor, who had supervised preparation of draft minutes and attended board meeting – Whether ASIC owed respondents a “duty of fairness” in its conduct of litigation – Whether ASIC breached putative duty by not calling solicitor – Whether proper consequence of any such breach was to discount cogency of ASIC’s case – Whether board minutes sufficient evidence to prove directors’ approval of draft announcement.

Words and phrases – “cogency of proof”, “duty of fairness”, “obligation of fairness”, “onus of proof”, “satisfaction on the balance of probabilities”.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/426.html

[PROCEDURE] – plaintiff’s application to reopen case – whether interests of justice favour reopening for purpose of admitting new material – whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness’s credibility – whether plaintiff made a tactical decision not to tender an expert’s report – whether expert’s report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff’s alleged depression.

[EVIDENCE] – proof – standard of proof – civil – approach to assessment of credibility – burden of proof to the Briginshaw v Briginshaw standard – whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct – whether evidence of each witness should be assessed, on its own merits, for credibility – whether court can defer resolution of the question of credibility until all the facts have been found.

[TORTS] – intentional – conspiracy – harm by lawful means – harm by unlawful means – whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry – whether defendants’ intent and purpose of agreement was to injure the plaintiff – whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser – whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff – whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance – whether any such conspiracy agreement was carried into execution.

[TORTS] – intentional – tort of intimidation – whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract – whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action – whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant’s demands – whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants’ will, being to deprive the plaintiff of the opportunity to provide demolition services.

[TORTS] – intentional – wrongful interference – whether tort of unlawful interference exists – whether third, fourth and fifth defendants illegally interfered with the contract between the first and second defendants and the plaintiffs – whether a contractual relationship existed between the first and second defendants – whether the third and fourth defendants knew of that relationship – whether the third and fourth defendants unjustifiably and intentionally interfered with the contract between the first and second defendants and the plaintiffs – whether that interference caused termination of the contract.

[LIMITATION OF ACTIONS] – limitation defence – fraudulent concealment – whether plaintiff’s cause of action is statue barred – whether plaintiff proved, on the balance of probabilities, that he discovered fraudulent concealment to enliven the operation of section 55 of the Limitation Act (NSW) – whether defendants fraudulently concealed causes of action from the plaintiff.

[BUILDING AND CONSTRUCTION] – contract – building – performance – whether subcontract was terminated lawfully – whether first and second defendants paid all that was contractually due – whether notice of default and notice of termination was ineffective – whether first and second defendants unlawfully locked out plaintiff from the work site – whether first and second defendants unlawfully and without authority or cause, seized and converted the plaintiff’s plant and equipment.

[DAMAGES] – torts – negligence – financial loss – pure economic loss – recoverability – damages for psychological and psychiatric impairment – aggravated and exemplary damages – whether experts report in relation to damages were based on assumptions made good in evidence – whether plaintiff can claim damages for lost earnings that would have been made but for the conspiracy – whether plaintiff can claim damages for the loss of opportunity – whether calculation of damages by expert was calculated with flawed assumptions.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/450.html

INDUSTRIAL LAW – freedom of association – whether demand made by union official for employees to join a union in contravention of ss 346, 348, and 349 of the Fair Work Act 2009 (Cth) – whether identity of union official alleged to have made the demand established – application dismissed

EVIDENCE – s 45(3)(c) Evidence Act 1995 (Cth) – cross examination on alleged prior inconsistent statement contained in a document – whether document should be admitted into evidence

http://www.austlii.edu.au/au/cases/cth/FCA/2012/425.html

CONSUMER LAW – misleading and deceptive conduct – advertising – breach of Australian Consumer Law ss 18(1), 29(1)(g), 34 – whether representations were made – whether representations were false, misleading or deceptive – whether qualifying information sufficiently clear and prominent

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/400.html

VOLUNTARY ASSOCIATION – justiciability – contract of employment – domestic tribunal – procedural review – abuse of process – permanent stay – bias – right against self incrimination – reputation – oppression and unfairness – absolute privilege

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/381.html

PERSONAL INJURY – supply of contaminated food – Salmonella poisoning – factual contest as to source of supply.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/346.html

CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered

Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)

EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt

Held: presumptions rebutted

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/276.html

SUCCESSION – FAMILY PROVISION – The Plaintiff, a daughter of a former de facto partner of deceased seeks family provision order under Family Provision Act 1982 – Whole estate shared between natural daughters, a friend, identified grandchildren of the deceased – Allegations of sexual relationship between the Plaintiff and the deceased – Whether jurisdictional issue established, factors warranting the making of the Plaintiff’s application, and if so, nature and quantum of provision to be made.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/252.html

TRADE MARKS – Whether respondents’ mark deceptively similar to applicants’ mark – Whether honest concurrent use – Whether use of respondents’ mark likely to deceive or cause confusion, because applicants’ mark had acquired reputation in Australia or due to convergence of goods sold under each mark – Whether discretionary factors justify maintenance of registration of respondents’ mark – Whether infringement of applicants’ trade mark – Whether second respondent liable as joint tortfeasor – Whether applicants’ or respondents’ mark should be removed from the Register due to non-use in respect of particular goods or services

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/27.html

MIGRATION – application for review required by s 347(1)(a) of the Migration Act 1958 (Cth) to be made in the approved form – two approved forms, one for persons in immigration detention and one for persons not in immigration detention – whether application valid if wrong approved form used – whether nomination of person made in wrong approved form as applicant’s authorised recipient of documents under s 379G authorised Migration Review Tribunal to give that person invitation to applicant to appear at hearing under s 360A(2)(a) – whether earlier nomination of authorised recipient on wrong approved form superseded by later inconsistent nomination on correct approved from – whether Tribunal committed jurisdictional error

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/18.html

MIGRATION – detention under Migration Act – initial finding that appellant falsely imprisoned for one day of 1203 day period – tortious conduct on part of officials – whether damages incorrectly assessed – whether appellant entitled to damages for entire period of detention – whether misfeasance in public office occurred – whether appellant entitled to general and exemplary damages for misfeasance in public office – competing inferences open as to conduct in public office – appeal allowed in part – proceeding to be remitted to trial judge for assessment of damages for false imprisonment – finding of misfeasance in public office overturned on appeal

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/193.html

The Plaintiffs seek an order that the Defendant, the appointed executor to whom Probate was granted, provide a proper account in respect of his administration of the estate of the deceased, and that he pay to them all monies found to be due to them upon the taking of such an account, together with interest thereon – The Defendant asserts that the deceased’s estate has been fully distributed in accordance with the terms of the deceased’s Will to the beneficiaries named in the Will

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/16.html

COPYRIGHT – literary work – originality – whether copyright subsists in HTML source code of material safety data sheets (MSDSs) rendered by computer program – whether work of joint authorship – where HTML source code is generated by computer program and includes data entered manually – whether copyright subsists in only part of the relevant copyright work

COPYRIGHT – literary work – originality – whether copyright subsists in MSDSs created by a process of transcription of third party MSDSs

COPYRIGHT – infringement – implied licence arising as a matter of law – scope of licence – where manufacturers, importers and suppliers of hazardous substances required to comply with legislative regimes for the provision of MSDSs – where first respondent reproduced appellant’s MSDSs in anticipation of receipt of customer requests for their provision

COPYRIGHT – infringement – whether appellant discharged onus to prove absence of licence in circumstances where primary judge found many MSDSs were the subject of a customer request for their provision and many were not – whether respondents carried an evidentiary burden to show acts falling within the scope of the implied licence found

http://www.austlii.edu.au/au/cases/cth/FCA/2012/134.html

CONTEMPT – application for adjournment of criminal contempt proceeding pending hearing and determination of civil proceeding – allegation of conduct in civil proceedings forming part of factual basis for contempt charge – relevant considerations for expediting contempt proceeding – due weight to public interest – application to adjourn contempt proceedings refused

http://www.austlii.edu.au/au/cases/cth/FCA/2012/10.html

INDUSTRIAL LAW – sham contracting – compensation – breach of s 902(1) of the Workplace Relations Act 1996 (Cth) by a company – accessorial liability of a company director – liability of company for acts of an employee under s 826(1) of the Workplace Relations Act 1996 (Cth) – dismissal of an employee for a prohibited reason under s 792 – dismissal of casuals employed on a regular and systematic basis – meaning of “representation” in s 900(1) of the Workplace Relations Act 1996 (Cth) – breach of a requirement in a NAPSA to pay unused annual leave entitlements – breach of a requirement in a NAPSA to pay superannuation

http://www.austlii.edu.au/au/cases/cth/FCA/2012/46.html

INDUSTRIAL LAW – building and construction industry – threat with intent to coerce or apply undue pressure – whether threat made – whether intent should be inferred in absence of cross-examination on intent

INDUSTRIAL LAW – building and construction industry – discrimination – whether alleged discriminatory statements made – whether discrimination to make a statement that can have no effect

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1613.html

CLAIM FOR DAMAGES – misfeasance in public office and negligence – Plaintiffs obtain development approval from Defendant to build apartment block at Nelson Bay – lengthy delay by Plaintiffs in commencing work on development – Defendant grants development approval for other apartment blocks in the vicinity in the meantime – Plaintiffs seek to increase height and density of project in light of adjoining developments – Plaintiffs make modification application under s.96 Environmental Planning and Assessment Act 1979 – s.96 application with Defendant for extended period – Plaintiffs at no stage appeal to Land and Environment Court under s.96(6) Environmental Planning and Assessment Act 1979 against deemed refusal – planning officer obtains independent legal advice whether s.96 application or fresh development application appropriate – planning officer follows advice that s.96 application was open – height and density issues – independent legal advice obtained whether Department of Planning concurrence required – Plaintiffs repeatedly provide Defendant with revised plans – Plaintiffs lobbying Councillors as well as dealing with planning officer – Plaintiffs in financial difficulties – mortgagee takes possession of development site – Defendant ultimately refuses s.96 application – Plaintiffs sue Defendant claiming damages by way of loss of chance to make a profit

MISFEASANCE IN PUBLIC OFFICE – elements of tort – claim by Plaintiffs that planning officer acted with intention to harm Plaintiffs – whether planning officer was holder of public office – mental element – whether conscious maladministration demonstrated – planning officer obtained and acted on independent legal advice – substantial cause of delay in determination of s.96 application was frequent amendments of plans by Plaintiffs – prejudgment by planning officer not established- intention to harm Plaintiffs not established – claim for misfeasance in public office fails

NEGLIGENCE – whether duty of care owed by Defendant to Plaintiffs – statutory scheme – availability of appeal under s.96(6) Environmental Planning and Assessment Act 1979 if application not determined within 40 days – whether Plaintiffs vulnerable – whether reliance on Defendant – held duty of care did not arise – no breach of duty in any event – claim in negligence fails

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1422.html

INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – liability admitted – question of pecuniary penalty to be imposed – assessment must take into account the particular circumstances of the incident – whether principles should be adopted from criminal law sentencing process – penalty should reflect objective seriousness of breach – assessment must also focus on the practical steps that could be taken to protect the health and safety of employees at the workplace – penalty imposed which differs from assessment offered by the parties

Evidence Act 1995 (Cth) ss 140, 141, 191