Category Archives: s. 140

Southage Pty Ltd v Vescovi & Ors [2014] VSC 141 (4 April 2014)

RESTITUTION − Money paid under mistake of fact − Unjust enrichment – Where defendant’s signature was forged on loan documentation – Where money lender lent money mistakenly believing defendant had requested a loan and had given a mortgage security − Loan funds used by defendant’s husband to pay deposit under contract of sale for other land – Proper identification of moment of enrichment – Whether enrichment received by virtue of defendant’s subsequent nomination as purchaser under the contract − Principles of tracing − Whether proceeds of loan could be traced into estate in land − Tracing into a mixed fund at common law − Whether assessment of enrichment by acquiring estate interest in land must take into account liabilities incurred in consequence − Whether enrichment by virtue of occupation of property − Defence of change of position on the faith of the receipt – Whether knowledge of facts entitling defendant to deal with property must be derived from payer − Significance of non-retention of benefit − Unjust to require restitution − David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; (1992) 175 CLR 353 − Heperu Pty Ltd v Belle ([2009] NSWCA 252; 2009) 76 NSWLR 230 − Perpetual Trustees Australia Ltd v Heperu Pty Ltd [2009] NSWCA 84; (2009) 76 NSWLR 195 − Hills Industries Pty Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380 − Lipkin Gorman (a firm) v Karpnale [1991] 2 AC 548 – State Bank of NSW v Swiss Bank Corporation (1995) 35 NSWLR 350 – Commissioner of State Revenue v Politis [2004] VSC 126.

CGP (Aust) Pty Ltd v Stevens [2014] VSC 105 (31 March 2014)

CONTRACT – Magistrates’ Court – appeal on questions of law from Magistrates’ Court – claim based on invoice for work performed- identification of issues in proceeding – whether issues in respect of earlier invoice wrongly determined – proof of payment – whether Magistrate required to disclose findings about credibility of witness – whether no evidence to support finding – whether failure to take relevant consideration into account – standard of proof applied- findings as to appropriate payment for work

Craigcare Group Pty Ltd v Superkite Pty Ltd [2014] NSWSC 326 (26 March 2014)

CONTRACT – whether contract between Plaintiff and first Defendant – Contract established between Plaintiff and first Defendant as to money paid and the terms upon which it was paid to trust account

EQUITY – TRUSTS – whether money paid into firm of solicitors’ trust account was held on trust for Plaintiff as it was only to be used for prescribed purposes – whether trust was breached by payment out for purposes other than prescribed purposes – whether Plaintiff entitled to equitable compensation – whether second Defendant liable as an accessory to breach of express trust or breach of Quistclose trust under the second limb of Barnes v Addy – consideration of Quistclose trust – Express trust in favour of Plaintiff – breach of trust established – Whether Plaintiff entitled to “equitable damages” – Second Defendant is not liable for knowing assistance in breach of trust

COSTS – Whether to cap costs in view of amount of the claim – Plaintiff to recover 65% of its costs, such costs to be calculated on the ordinary basis – Second Defendant to pay his own costs of proceedings

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 (25 March 2014)

INDUSTRIAL LAW – employment – adverse action – respondent employer dismissed applicant employee for redundancy – adverse action taken by respondent against applicant under s 342(1) of the Fair Work Act 2009 (Cth)

INDUSTRIAL LAW – employment – complaints – whether adverse action taken against applicant because applicant exercised workplace rights under s 340 of the Fair Work Act 2009 (Cth) – whether applicant exercised workplace rights by making any of five successive complaints in relation to her employment under s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – first and second complaint related to allegation of sexual harassment by senior colleague in Hong Kong – third complaint related to allegations of further misconduct by the senior colleague and other employees in the course of the investigation into the Hong Kong incident – fourth complaint related to the alleged deficiencies in the investigation and investigator’s report and included further allegations of misconduct by colleagues, including the respondent’s managing director – fifth complaint related to the managing director’s alleged attempt unlawfully to terminate the applicant’s employment – meaning of complaints that employee is able to make in relation to employment – whether an instrumental basis required for a complaint under s 341(1)(c)(ii) – whether complaint must be made in good faith – whether complaints made by applicant were genuine grievances made in good faith for a proper purpose – relevance of and evidence for the applicant’s allegations of misconduct by colleagues (including the respondent’s managing director) and of corporate culture tolerant of sexual harassment made in the fourth complaint and at trial

INDUSTRIAL LAW – employment – redundancy – whether restructure of the respondent’s business units and the applicant’s dismissal for redundancy were genuine – whether complaints made by the applicant a substantial and operative reason for the decision to terminate her employment for redundancy

Ubertini v Saeco International Group SpA (No 4) [2014] VSC 47 (18 March 2014)

CORPORATIONS – Oppression – compulsory acquisition of minority shareholdings – parent company majority shareholder in subsidiary – demands for payment by parent company – non-supply of new range of stock to subsidiary – alleged failure or refusal by parent company to fill stock orders of subsidiary – appointment of administrators to subsidiary by parent company’s nominee directors on board of subsidiary – charging of penalty interest by parent company on outstanding debts of subsidiary – whether deliberate course of conduct by parent company to remove minority shareholder of subsidiary from management and acquire minority shareholdings in subsidiary without payment – whether parent company’s nominee directors on board of subsidiary failed to properly assist subsidiary – whether conduct of parent company contrary to the interests of members of subsidiary as a whole, or oppressive to, unfairly prejudicial to or unfairly discriminatory against minority shareholders of subsidiary – applicable legal principles – whether conduct of parent company conduct in the affairs of the subsidiary – prevention of board meetings – whether unauthorised transfer of funds, related party transfers and improper incurring of adviser fees by minority shareholder of subsidiary – whether alleged conduct of minority shareholder oppressive conduct – whether alleged failure by minority shareholder to cause subsidiary to pay debts to parent company oppressive conduct – whether oppressive conduct of minority shareholder should disentitle relief sought – Corporations Act 2001 (Cth), ss 53, 232, 233.

Ell v Milne (No 8) [2014] NSWSC 175 (7 March 2014)

DEFAMATION – defences – defence of qualified privilege at common law – email headed “letter to the editor” concerning conduct of developer sent to about 70 email addresses including newspapers, politicians and environmental groups – whether to be inferred that recipients opened and read email – whether email published on an occasion of qualified privilege – defence of contextual truth – whether defendant’s contextual imputation concerning political donations proved substantially true

DEFAMATION – damages – where plaintiff did not give evidence or attend any part of hearing – whether entitled to any award for hurt to feelings or any aggravated damages

State of New South Wales v Hunt [2014] NSWCA 47 (13 March 2014)

APPEAL AND NEW TRIAL – findings of fabrication of evidence by police officer – fabrication of key findings not put in cross-examination – submission of fabrication not made – agreement not to take Browne v Dunn points did not prevent substantial miscarriage of justice – retrial ordered

APPEAL AND NEW TRIAL – failure to address substantial component of defence case – failure to grapple with competing testimonial evidence in light of independent evidence – failure to address separate heads of damages

POLICE – rights, powers and duties – actions for malicious arrest, assault and battery and misfeasance in public office – whether lawful arrest – nature of tort of “malicious arrest” considered

Bibby Financial Services Australia Pty Limited v Sharma [2014] NSWCA 37 (5 March 2014)

CONTRACT – Whether employment contract terminated without cause or terminated for cause for serious misconduct – Whether election was made between available grounds for termination – Whether subsequent conduct amounted to a withdrawal of termination – Whether compliance with process for termination for serious misconduct – Whether non-compliance rendered the asserted termination for cause invalid and of no effect – Whether proper grounds available on the facts for termination for serious misconduct – Whether employee had an accrued right which remained even if terminated for cause
EVIDENCE – Standard of Proof – Briginshaw Standard – clear and cogent proof of serious allegations
EVIDENCE – Standard of Proof – s140(2) Evidence Act – gravity of the matters alleged – clear and cogent proof of serious allegations
HUMAN RIGHTS – Discrimination – Sex Discrimination – Sexual Harassment – s28A Sex Discrimination Act – Whether incidents relied upon constituted sexual harassment

Borcherdt v Commissioner of Taxation [2014] FCA 56 (11 February 2014)

ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – respondents purchased fuel for use in sawmilling and farming businesses – respondents claimed diesel fuel credits and diesel tax credits under Energy Grants (Credits) Scheme 2003 (Cth) and Fuel Tax Act 2006 (Cth) – question as to whether fuel supplier existed – no reliable record kept by respondents of fuel use – Commissioner of Taxation disallowed claims for diesel fuel credits and diesel tax credits – s 14ZZK(b) Taxation Administration Act 1953 (Cth) – Tribunal affirmed decision of Commissioner of Taxation – whether Tribunal bound to take into account conduct of Commissioner of Taxation in regard to obligation to act as a model litigant – whether Tribunal failed to take into account relevant considerations – whether Tribunal took into account considerations it was bound not to take into account – whether Tribunal improperly adopted approach and standard of proof applicable to civil litigation – whether Tribunal required to accept evidence in absence of evidence to the contrary – whether Tribunal erred in application of an administrative penalty – distinction between error of law and error of fact – absence of specific reference to material by Tribunal not conclusive of a failure to take material into account or inadequacy of reasons – reasons of Tribunal to be considered as a whole to ascertain whether relevant issues addressed – Tribunal not required to accept evidence in absence of evidence to contrary – Tribunal not required to consider evidence on standard other than balance of probabilities – Tribunal did not err in respect of administrative penalties

Ashby v Slipper [2014] FCAFC 15 (27 February 2014)

PRACTICE AND PROCEDURE – application for leave to appeal from decision to dismiss proceedings as an abuse of process – leave to appeal required – principles relating to appellate review – challenge to factual bases upon which proceedings classified as an abuse of process – whether or not improper collateral purpose for bringing proceeding – adverse inferences drawn by primary judge – whether solicitor has standing to appeal in relation to adverse findings made as to the conduct of a proceeding – whether the Court has duty to act in relation to a perceived abuse of process – inferences to be drawn from a failure of a witness to depose to matters in issue – application of the Ferrcom principle.

Morris v Smoel [2014] VSC 31 (14 February 2014)

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by widow and three adult children — Widow effectively left a life interest in the estate with the residue left to the adult daughters of the deceased on the death of the widow — Adult son of the deceased left a small legacy — Claim by widow of the deceased — Whether the deceased had a responsibility to make further provision for the widow — Competing claims against the estate of the deceased — Estate assets substantially depleted as a result of litigation resulting from the death of the deceased — Widow’s claim dismissed

BANKRUPTCY — Death of the widow after trial and before judgment — Estate of the widow insolvent — Representative of estate of the widow to make application for administration of plaintiff’s estate pursuant to s 247 of the Bankruptcy Act 1966 (Cth)

Helou v Nguyen [2014] NSWSC 22 (5 February 2014)

PROPERTY – Theft – Stolen money – Remedies at law and in equity – Action for damages in conversion and for moneys had and received – Suit for Constructive Trust in Equity – Need for consistency – Interests of Justice
REMEDY – Remedies based on compensation for Plaintiff’s loss or accounting for wrongdoer’s gain – Consistency of remedy required – Interests of Justice
EQUITY – Trusts and trustees – Constructive trust
TORTS – Trover and Detinue – Action for conversion – Remedies – Waiver of Tort – Damages – Money had and received

Registrar of Aboriginal and Torres Strait Islander Corporations v Matcham (No 2) [2014] FCA 27 (5 February 2014)

CORPORATIONS – Aboriginal and Torres Strait Islander corporation – chief executive officer of corporation contravened multiple provisions of the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – civil penalty regime – orders for relief – orders for disqualification from managing a corporation, compensation and pecuniary penalty – whether multiple contraventions separate or part of one course of conduct – whether aggregate penalty appropriate in the totality of the circumstances

Estate of Laura Angius; Angius v Angius [2013] NSWSC 1895 (17 December 2013)

WILLS, PROBATE AND ADMINISTRATION – informal testamentary document – no dispute that undated document not executed in accordance with s 6 Succession Act 2006 – No dispute that the undated document purports to state the testamentary intentions of a deceased – Deceased familiar with the formal requirements for the making of a valid will – Whether Court satisfied that the deceased intended the undated document to form a Will – Consideration of circumstances in which the document was made – No dispute that if Court not satisfied should be grant of Letters of Administration with formal 2007 Will annexed to independent solicitor agreed to by the parties

Kiefel v State of Victoria [2013] FCA 1398 (20 December 2013)

HUMAN RIGHTS – Discrimination – minor with disability – educational services – consideration of direct and indirect discrimination before and after the 2009 amendments to the Disability Discrimination Act 1992 (Cth) – direct discrimination – whether aggrieved person treated less favourably in circumstances that are not materially different – whether failure to provide reasonable adjustments has the effect that person with disability is treated less favourably in circumstances that are not materially different – ground not made out – indirect discrimination – whether aggrieved person required to comply with requirement or condition with which a substantially higher proportion of persons without disability are able to comply – whether requirement or condition imposed upon an aggrieved person are unreasonable – reasonable degree of precision necessary in formulation – requisite precision absent – ground not made out – alleged breach of Disability Standards for Education – no contravention of standards – application dismissed

Vukotic v Vukotic [2013] VSC 718 (13 December 2013)

WILLS — Application for a grant of probate — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will — Medical evidence not sufficient to support a finding of a lack of capacity — Deceased had capacity according to the Banks v Goodfellow test to give instructions — Deceased had capacity according to the Parker v Felgate test to execute the will

WILLS — Application for a grant of probate — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will

Australian Securities and Investments Commission v Australian Property Custodian Holdings Limited (Receivers and Managers appointed) (in liquidation) (Controllers appointed) (No 3) [2013] FCA 1342 (12 December 2013)

CORPORATIONS – duties of responsible entity of managed investment scheme under s 601FC – duties of officers of responsible entity under s 601FD
STATUTORY DUTY TO ACT IN BEST INTERESTS OF MEMBERS – meaning of “best interests of members” – whether best interests of members is subjective or objective – duty of undivided loyalty to members of scheme – conflict of interests – conflict of interest and duty – duty to give priority to members’ interests –care and caution required where conflicts exist
STATUTORY DUTY TO EXERCISE CARE AND DILIGENCE – standard of care – standard of care for directors of a responsible entity acting as a professional trustee – failure to consider effects of amendment to scheme constitution – failure to consider whether legitimate reasons for amendment – failure to be satisfied as to power to make amendments – reliance on legal advice – reliance on unusual and uncertain legal advice – failure to comply with scheme constitution and Act – failure to properly consider effect of amendments on members’ rights and interests – failure to identify conflict of interests – failure to consider how to appropriately resolve conflicts – duty to prioritise members’ interests – obligation to revisit decisions previously made
STATUTORY DUTY NOT TO MAKE IMPROPER USE OF POSITION TO GAIN ADVANTAGE – meaning of “to gain” and advantage or “to cause” detriment – meaning of improper use
STATUTORY DUTY TO TAKE ALL REASONABLE STEPS TO COMPLY WITH SCHEME CONSTITUTION – scheme constitution contractually binding – scheme constitution not inconsistent with Act – scheme constitution qualifies statutory power to amend
MEMBERS’ RIGHTS – whether right to have scheme administered according to existing constitution is a “members right” under s 601GC – failure to consider members’ right to have scheme administered according to existing constitution – amendment invalid as outside power – whether amendments made outside power become valid once lodged with ASIC
RELATED PARTY TRANSACTION IN MANAGED INVESTMENT SCHEME – breach of s 208 (as modified) of responsible entity – involvement of officers of responsible entity in breach of s 208 – essential elements of the prohibition in s 208 – whether s 208(3) is an exception to the prohibition – officers’ honest belief that constitution contain provision allowing payment
LODGEMENT OF AMENDMENTS TO SCHEME CONSTITUTION – whether lodgement of consolidated scheme constitution is sufficient under s 601GC – whether lodgement of amendments themselves is required
COMPANY PROCEDURE – decision-making by meeting of directors – obligation to clearly express will in meeting of directors – obligation to ensure expression of will is clearly recorded – whether conduct amounts to or conveys assent to a resolution
DEEDS – when does an undated deed come into effect – intention of the parties to the deed – intention by reference to statutory framework

Australian Competition and Consumer Commission v Flight Centre Limited (No 2) [2013] FCA 1313 (6 December 2013)

TRADE PRACTICES – anti-competitive arrangements – whether the respondent travel agent attempted to induce specified Airlines to make collusive arrangements lessening or likely to lessen competition in the market – application of s 45 and s 45A of the Trade Practices Act 1974 (Cth), now the Competition and Consumer Act 2010 (Cth) – six alleged contraventions – consideration of the relevant “market” in intermediary services provided by travel agents – whether respondent and airlines truly in competition – consideration of the relevant service being supplied – Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd [1986] HCA 72; (1986) 162 CLR 395 distinguished

Held: six charges proved – respondent and specified airlines competed for the retail or distributive margin attaching to the sale of an airline ticket – respondent sought to have access to the airfares offered by airlines, and, it sought to prevent the specified airlines from undercutting it with respect to such airfares, amounting to an attempt to induce anti-competitive arrangement or understanding

Ewin v Vergara (No 3) [2013] FCA 1311 (5 December 2013)

HUMAN RIGHTS – discrimination – sexual harassment – employee alleged she was verbally and physically sexually harassed by a contract worker engaged by her employer – harassment alleged to have occurred at the employer’s office, at other venues and during travel – whether the conduct was by “fellow employee” within the meaning of s 28B(2) of the Sex Discrimination Act 1984 (Cth) (SD Act) – whether the conduct occurred at a place that is a workplace of both workplace participants within the meaning of s 28B(6) of the SD Act – meaning of “workplace” – whether “workplace” confined to premises exclusively occupied by workplace participants and not to common areas shared with others – whether the usual workplace of both workplace participants is only a “workplace” during working time – whether and in what circumstances a place other than the usual workplace of both workplace participants may be a “workplace” – whether the conduct alleged could be characterised as a “sexual advance”, “a request for sexual favours” or “conduct of a sexual nature” within the meaning of s 28A of the SD Act – considerations relevant to determining whether the conduct was “unwelcome” – considerations relevant to determining whether a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated – whether the conduct alleged was proved – conduct found to have contravened
s 28B(6) of SD Act.

EVIDENCE – s 140 Evidence Act 1995 (Cth) – considerations to be taken into account in considering whether case proved on balance of probabilities.

DAMAGES – orders under s 46PO(4) Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – measure of damages – extent to which common law principles have application in the assessment of damages under the AHRC Act – whether aggravated damages may be granted to compensate for matters taken into account in the award of general damages – considerations for the award of exemplary damages where compensatory damages have significant punitive force.

DAMAGES – double recovery – claims settled against both the applicant’s employer and the respondent’s employer – terms of settlement not disclosed to the Court – possibility of double recovery – prior satisfaction of applicant’s loss to be taken into account at time damages awarded – orders made requiring terms of settlement to be disclosed.

BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 (2 December 2013)

INDUSTRIAL LAW – applicant operates mine in central Queensland – second, third, fourth and fifth respondents senior officials of first respondent union – versions of overtime policy of union in service bay crib room and included in information pack to new members – claim by applicant that respondents contravened ss 50, 340, 345, 349 and 417 Fair Work Act 2009 (Cth) – relevance of minor variations in terms of overtime policy – whether respondents displayed or issued overtime policy – whether Lodge on frolic of its own – whether union contravened enterprise agreement – meaning of “contravention” – whether conduct of respondents constituted “industrial action” – hortatory statements in overtime policy – whether individual respondents involved in contravention by union – fifth respondent signed letter accompanying information pack with overtime policy to new members – whether applicant had a workplace right of requiring employees to work unrostered overtime – whether conduct of respondents concerning overtime policy constituted adverse action – evidence of negotiations between applicant and union concerning working of unrostered overtime – whether respondents engaged in false and misleading representations concerning right of the applicant to require employees to work overtime

PRACTICE AND PROCEDURE – respondents submitted no case to answer at conclusion of applicant’s case – respondents elected to call no evidence in proceedings – relevant principles where respondent makes “no case to answer” submission – application of rule in Jones v Dunkel – standard of proof – principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – s 140 Evidence Act 1995 (Cth) – civil penalty provisions in Fair Work Act 2009 (Cth) – approach of Court to real controversy between the parties

The Jewellery Group Pty Ltd v Australian Competition & Consumer Commission [2013] FCAFC 144 (29 November 2013)

APPEAL – misleading and deceptive conduct – dual pricing – Strike Through price and Sale price – Was price and Now price – identification of relevant audience – whether the trial judge erred in finding that the information conveyed in the catalogues and flyer were Savings Representations – whether the trial judge erred in finding that the Savings Representations were or were likely to be false or misleading.

Held: The appeal be dismissed. The appellant pay the respondent’s costs of the appeal.

Spaulding v Law Institute of Victoria [2013] VSC 632 (8 November 2013)

ADMINISTRATIVE LAW – Application for leave to appeal from the Victorian Civil and Administrative Tribunal – Appeal from interlocutory orders – Orders were further extensions of time in respect of orders made by consent of the parties – Orders were directions commonly made and of a discretionary character – Whether Magistrates’ Court proceeding involving recovery of an amount paid by the fidelity fund should be heard and determined before VCAT proceedings – Matters before the Tribunal of greater public importance – No real or substantial argument that error exists – Application for leave to appeal refused.

Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157 (7 November 2013)

ADMINISTRATIVE LAW – powers of Australian Communications and Media Authority (“ACMA”) to regulate commercial radio broadcasting licence holders – preliminary investigation report concludes that applicant contravened Surveillance Devices Act 2007 (NSW) and therefore breached a condition of licence under Schedule 2 of the Broadcasting Services Act 1992 (Cth) – whether ACMA can so conclude before competent Court adjudicates the issue – ACMA’s role to regulate the conduct of licensees including conducting investigations – whether ACMA’s findings interfere with the administration of justice in a criminal proceeding where no criminal proceeding has commenced – ACMA’s finding not determinative on question of criminal guilt.

CONSTITUTIONAL LAW – whether ACMA’s conclusion of breach of licence condition involves exercise of judicial power in conflict with Ch III of the Constitution

Rebecca Chan and Anor v Robert Acres and Anor [2013] NSWSC 1597 (1 November 2013)

FAMILY LAW – Whether transfer of property pursuant to Family Court consent orders liable to be set aside as fraud on creditors – Conveyancing Act 1919 (NSW), s37A
FAMILY LAW – Defendants did not disclose to Family Court existence of plaintiffs’ claim against first defendant – Whether there was a miscarriage of justice – Family Law Act 1975 (Cth), ss79(10), 79A(1)

Perpetual Trustees Victoria Limited v Cox and Anor [2013] NSWSC 1583 (31 October 2013)

MORTGAGES – claim for possession of land following alleged mortgage default – defendants are husband and wife – mortgage broker acting for defendants – defendants executed mortgage and loan documentation – split-facility loan (Loans A, B and C) – Loan C remained in an undrawn account – written direction given to lender to disburse Loan C funds – funds paid into account of mortgage broker – defendants deny that direction to disburse Loan C funds executed by them or at their direction – whether husband and/or wife signed direction – whether defendants liable for disbursed Loan C funds – not established that husband or wife signed direction – whether defendants ratified the direction through their later conduct – held defendants did not ratify the direction – whether defendants were required to repay entire sum specified in mortgage (including Loan C funds) as mortgage contained a specific covenant to repay – construction of mortgage – held defendants not required to pay back entire sum – defendants not liable for Loan C funds drawn down without their authority – plaintiff’s claim based upon failure to repay Loan C funds rejected

Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 (29 October 2013)

ADMINISTRATIVE LAW – Application for leave to appeal on question of law against decision of judge of Trial Division affirming decision of Victorian Civil and Administrative Tribunal, which in turn affirmed decision of Racing Appeals and Disciplinary Board – Whether breached rules 64G and 175 of the Australian Rules of Racing by attempting or conspiring to stomach-tube horse prior to race, or engaging in conduct that could have led to stomach-tubing – Whether judge of Trial Division erred in concluding it was open to the Tribunal to find the breaches made out – Rule 64G creates an instrument only offence – Whether judge of Trial Division erred in finding the reasons of the Tribunal adequate in respect of expert veterinary evidence – Application for leave to appeal dismissed.

EVIDENCE LAW – Application of Briginshaw to Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998 ss 97, 98 – Evidence Act 2008 s 140 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 – Greyhound Racing Authority v Bragg [2003] NSWCA 388.

Re Rosaro [2013] VSC 531 (4 October 2013)

WILLS – Informal wills – Whether unexecuted document expresses testamentary intention – Whether the deceased’s wishes are testamentary in nature – Whether the document was intended to be the final will – Meaning of ‘without more’ – Whether conduct and statements subsequent to the making of an informal will is relevant to intention – Where deceased is aware that the declaration is informal and does not wish to take steps to rectify it – Grant of probate refused – Wills Act 1997, ss 7 and 9.

LTH Pty Ltd v Tong [2013] VSCA 268 (27 September 2013)

PRACTICE AND PROCEDURE – Permanent stay of proceedings insofar as there was direct or indirect reliance upon a forged document – Rule 23.01 of the County Court (General Civil Procedure) Rules 2008 – Misappropriation of gold – Disputed agreement to return gold – Handwriting experts – No cross-examination – Inadequacy of reasons – Unable to discern whether all relevant considerations taken into account including future conduct of trial in accordance with amended statement of claim.

Campbell v Illawarra Golf Club Pty Ltd (In Liquidation) (No 2) [2013] NSWSC 1387 (20 September 2013)

REAL PROPERTY – possession of land – golf course – receivers appointed – receivers seek possession – whether employee manager of golf course entitled to possession – possession granted to receivers – writs to be issued and executed forthwith

CONTRACT – construction of contract – using surrounding circumstances as an aid to construction – alleged failure to read contract – allegation of undue influence – allegation of unconscionability – no undue influence found – no unconscionability found

George Christopher Harris v Sophia Rothery (as co-executor of the Estate of the Late Christopher George Harris) [2013] NSWSC 1275 (5 September 2013)

TRUSTS AND TRUSTEES – Principles of construction of trust deed and notices under deed – Whether father’s appointment of adult son as appointor and protector effective
TRUSTS AND TRUSTEES – Office of appointor and protector – Whether power to appoint successor fiduciary or personal
EQUITY – General principles – Undue influence – Whether applicable to appointment to an office under a trust deed

Ballantyne Suites Pty Ltd v Ballantyne Chambers Pty Ltd (in liq) [2013] VSC 482 (10 September 2013)

FRAUD – Whether documents fraudulently concocted and backdated with a view to prejudicing bankrupt’s creditors – Evidence Act 2008 (Vic) s 140 – Nom v Director of Public Prosecutions & Ors [2012] VSCA 198, [113]-[124] – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449-50

Jarrold v Isajul [2013] VSC 461 (10 September 2013)

TORTS – NEGLIGENCE – Plaintiff claims a one half legal interest in a property bought by the fifth defendant and allegedly sold without her knowledge – Plaintiff claims that the first and second defendant were negligent in respect of the handling of the conveyance for the sale of the property in dispute – Plaintiff settled claim as against the first and second defendant on the second day of the trial

REAL PROPERTY – TORRENS SYSTEM – ENTITLEMENT TO STATUTORY INDEMNITY – Whether plaintiff entitled to indemnity by the third defendant for the loss and damage suffered by her as a result of the sale of her interest in the property – Transfer of Land Act 1958 s 110 – Third defendant joined the fifth defendant to the proceeding

EVIDENCE – STANDARD OF PROOF – Plaintiff claims that fifth defendant forged power of attorney – Whether the plaintiff has satisfied the Court that the power of attorney was forged – Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 – Evidence Act 2008 s 140(2) – Credibility of the lay witnesses – The expert evidence on handwriting – Gawne v Gawne (1979) 2 NSWLR 449

TRUSTS – PRESUMPTIONS – ADVANCEMENT – RESULTING TRUST – Contributions to the Purchase Price – Whether the presumption of advancement rebutted – Charles Marshall Pty Ltd v Grimsley [1956] HCA 28; (1956) 95 CLR 353 – Martin v Martin [1959] HCA 62; (1959) 110 CLR 297 – Pearson v Pearson [1961] VicRp 108; [1961] VR 693 – Cummins v Cummins, (2006) 227 CLR 278 – Relationship between the plaintiff and fifth defendant – Whether fifth defendant intended plaintiff’s legal interest be held on trust for him

Berger v Council of the Law Society of NSW [2013] NSWSC 1080 (14 August 2013)

LEGAL PRACTITIONERS – suspension of practising certificate – appeal against suspension – where suspension for alleged misappropriation of funds – hearing de novo – whether suspension necessary in the public interest – whether necessary to make findings of dishonesty – Legal Profession Act 2004, ss 548 and 549

Mutual Community General Insurance Pty Ltd v Khatchmanian [2013] VSCA 144 (14 June 2013)

INSURANCE – House fire – Fraud – Insurer resisting claim for indemnity on basis of allegation that insured connived in fire – Evidence – Circumstantial case – Insured in straightened economic circumstances – Competing expert opinions as to possibility of forced entry by unrelated third party – Whether judge erred in failing to find insured had powerful financial motive to burn house – Whether judge erred in failing to accept one expert opinion over another – Whether judge erred in deciding on basis of insurer’s failure to exclude reasonable possibility of forced entry by unrelated third party as opposed to proof on the balance of probabilities – Appeal dismissed – Transport Industries Pty Ltd v Longmuir [1977] 1 VR 125, considered and explained; Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352, 358; Chamberlain v The Queen (No2 ) [1984] HCA 7; (1984) 153 CLR 521; RJE v Secretary, Department of Justice [2008] VSCA 265; (2008) 21 VR 526, referred to.

INSURANCE – Interest on claims – Day from which unreasonable for insurer to withhold payment – Whether period of six months’ unreasonable – Insurer’s delay in obtaining forensic report – Whether delay justified because of insured’s perceived financial difficulties – Costs – Indemnity costs – Calderbank offer – Whether insurer’s rejection of Calderbank offer unreasonable – Costs order varied in consequence of allowance of additional interest – Hazeldene Chicken Farms Pty Ltd v Victorian Workcover Authority No 2 [2005] VSCA 298; (2005) 13 VR 435, applied – Insurance Contracts Act 1984 (C’th) s 57.

Howlin v Clarence City Council [2013] TASFC 7 (26 July 2013)

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – Further evidence – Power of Court to permit on hearing.

Supreme Court Civil Procedure Act 1932 (Tas), s48.

Aust Dig Appeal and New Trial [389]

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Powers of Court – When appeal lies – By leave of Court – Appeal against order for costs.

Supreme Court Civil Procedure Act 1932 (Tas), s44.

Aust Dig Appeal and New Trial [383]

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 Act 1962 (Tas), s694.

Aust Dig Highways [27]

Karakatsanis & Anor v Racing Victoria Limited [2013] VSC 434 (21 August 2013)

ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal affirming decisions of Racing Appeals and Disciplinary Board – Plaintiffs charged with offences of conspiring and attempting to stomach-tube horse contrary to Australian Rules of Racing – Inferences as to plaintiffs’ intentions – Whether Tribunal erred in drawing inferences – Whether Tribunal correctly applied Briginshaw principles – Whether sufficient evidence to justify findings of conspiracy and attempt – Whether Tribunal disregarded relevant uncontradicted evidence without giving adequate reasons.

Nigro & Ors v Secretary to the Dept of Justice [2013] VSCA 213 (16 August 2013)

PUBLIC LAW – Appeal – Supervision orders under the Serious Sex Offenders (Detention and Supervision) Act 2009 – Nature of appeal from finding that offender an unacceptable risk – Appeal by way of rehearing – Whether conclusion of unacceptable risk was plainly wrong – Appeal from discretionary decision to make supervision order and terms of order attracts principles in House v The King (1939) 55 CLR 499 – Sections 96, 84, 88, 100, 101 and 102 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Dwyer v Calco [2008] HCA 13; (2008) 234 CLR 124; Mobilio v Balliotis [1998] 3 VR 833 followed.

CHARTER – Construction of s 9 of the Serious Sex Offenders (Detention and Supervision) Act 2009 – Principle of legality – Whether interpretive obligations under the Charter of Human Rights and Responsibilities Act 2006 applies to finding that offender an ‘unacceptable risk’ – Construction which least infringes human rights – R v Momcilovic [2010] VSCA 50; (2010) 25 VR 436; Momcilovic v The Queen (2011) 245 CLR 1 considered – Whether s 9 Charter compliant – Whether Charter requires a judicial discretion under s 9(7) to be construed as subject to an implied limitation – Implied limitation inconsistent with text and purpose of the Act – Conditions of supervision order – Additional conditions – Whether conditions must constitute minimum interference with human rights – Section 15(6) exempts core conditions.

PUBLIC LAW – Supervision orders – ‘Unacceptable risk’ – Section 9(1) – Test to be applied – Degree of likelihood of risk – Whether real likelihood, though not necessarily more likely than not that offender will commit offence – Section 9(5) – Consequences if risk eventuates – Placement of offence within a continuum of seriousness inappropriate – The Secretary to the Department of Justice v AB [2009] VCC 1132 in part disapproved .

PUBLIC LAW – Standard of proof of unacceptable risk – High degree of probability – Section 9(2) – Evidence Act 2008 , s 140 – Application of Briginshaw principle – Acceptable and cogent evidence – Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575 considered – Queensland, Western Australian and New South Wales regimes considered – Means of managing risk – Section 9(4) – Whether ways in which offender might manage risk may be taken into account. Sections 9(1), 9(2), 9(3), 9(4), 9(5), 9(7), s 15(6) Serious Sex Offenders (Detention and Supervision) Act 2009.

SUPERVISION ORDER AND CONDITIONS – Appeal of Lowe – Error in finding of unacceptable risk – Supervision order set aside.

SUPERVISION ORDER AND CONDITIONS – Appeal of Nigro – No error in finding unacceptable risk or in making supervision order – Conditions imposed unreasonable, unacceptably wide or uncertain – Conditions set aside.

SUPERVISION ORDER AND CONDITIONS – Appeal of Ghebrat – No error in finding unacceptable risk or making supervision order – Condition restricting employment unreasonable measure to ameliorate risk of re-offending – Condition set aside.

Abela v State of Victoria [2013] FCA 832 (16 August 2013)

HUMAN RIGHTS – Discrimination – disability – educational services – direct discrimination – whether failure to provide reasonable adjustments has the effect that person with disability is treated less favourably – ground not made out – indirect discrimination – whether requirements or conditions imposed upon an aggrieved person are unreasonable – requirements or conditions to be construed broadly – reasonable degree of precision necessary in formulation – requisite precision absent – ground not made out – alleged breach of Disability Standards – no contravention of standards – application dismissed