COSTS – where plaintiff sought prerogative relief with respect to proceedings in NCAT – where proceedings in this Court not pursued – where costs of proceedings to be determined by reference to issues that remain undecided in NCAT– whether plaintiff in this Court would have succeeded in NCAT – where costs should be paid by the defendant whose proceedings in NCAT were likely to fail.
Anning v University of Western Sydney [2015] FCA 1049
DISCRIMINATION - racial discrimination - application for leave to appeal - application refused.
Nixon v Cal Dive International (Australia) Pty Ltd [2015] FCCA 2614
INDUSTRIAL LAW – Application pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether applicant has a meritorious case if extension granted – whether applicant has reasonable explanation for delay – whether otherwise appropriate to grant extension – extension granted.
Peter Uelese and Minister for Immigration and Border Protection [2015] AATA 740
MIGRATION - Class TY Subclass 444 Special Category (Temporary) visa – criminal offences – cancellation of visa – Direction 65 – character test – protection of Australian community – best interests of minor children – whether risk of future harm to Australian community unacceptable – history of violent criminal conduct – significant risk of reoffending – lack of rehabilitation – countervailing considerations of children – decision affirmed.
Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139
ADMINISTRATIVE LAW – whether court took into account irrelevant considerations – whether court failed to take into account relevant considerations – procedural fairness – unrepresented litigant prevented from putting submission.
APPEAL AND NEW TRIAL – primary judge did not address the elements of the legislation – postulating alternatives but failing to make a finding – inconsistencies in evidence unresolved – forensic advantage of trial judge – fact finding process of trial judge – decision at trial “glaringly improbable” or “contrary to compelling inferences” – review of findings of fact based on trial judge’s assessment of credibility of witnesses – whether findings inconsistent with incontrovertibly established facts – credibility undermined by other evidence unchallenged, unanswered and ostensibly reliable – power of appellate court to set aside findings – errors made by primary judge causing trial to miscarry – proceeding remitted to Federal Circuit Court for retrial – retrial limited to matters agitated on appeal.
EVIDENCE – standard of proof in civil proceedings – standard of proof in discrimination proceedings – balance of probabilities – higher standard of proof erroneously applied – requirement to take into account gravity of matter – drawing of inferences – failure to reconcile conflicting evidence – benefit of doubt on basis that respondent was unsophisticated and obtuse – conflicting conjectures about respondent’s knowledge and intent – failure to weigh up the strength of cumulative evidence – failure to assess demeanour of key witness in light of all the evidence.
HUMAN RIGHTS – discrimination – racial discrimination – correct test to be applied under s 9(1) of the Racial Discrimination Act 1975 (Cth) – act involving distinction, exclusion, restriction or preference – discrimination based on race, colour, descent or national or ethnic origin – purpose or effect of nullifying or impairing – recognition, enjoyment or exercise of any human right or fundamental freedom – on equal footing – right to just and favourable conditions of work – causal nexus between act and race – act done for more than one reason – vicarious liability for racial discrimination – comments referring to “black babies” and “Coon cheese” likely to offend an Aboriginal person – whether racist remarks may constitute racial discrimination – whether occasional politically incorrect banter has requisite discriminatory purpose or effect – whether response to complaint is a relevant consideration in determining whether there was discrimination – whether remarks were innocent – racially-based remarks may affect a person’s self-worth and disadvantage them in their conditions of work – subjective sense of injustice.
HUMAN RIGHTS – termination of complaint – Australian Human Rights Commission – application to Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Capogreco v Rogerson [2015] NSWSC 1371
MISLEADING OR DECEPTIVE CONDUCT – where plaintiffs purchased shares in racehorse – whether defendant made representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect.
CONTRACT – where owners authorised the defendant to enter the horse in the Magic Millions auction – whether the defendant was authorised to sell the plaintiffs shares at a private sale without notice to the plaintiffs.
Plaintiffs’ claims against the defendant for misleading or deceptive conduct dismissed. Plaintiffs entitled to declarations in relation to their respective ownership of the shares in the horse and to an account from the second defendant.
Owners Corporation SP 78422 v Ware Building Pty Ltd [2015] NSWSC 1384
BUILDING DISPUTE – dispute between owners corporation and builder – where defendant builder seeks to commence separate proceedings against the developer to rectify the contract pursuant to which the building was constructed – related application to amend list response in present proceedings to incorporate that defence – where it has been open to the defendant to agitate the question of rectification for three years – where substantial effort and expense has gone into the preparation of the case as currently pleaded – where a variation argument is in any event already provided for – consequence that it is not in the interests of justice to allow defendant the leave it seeks.
LFDB v SM (No 2) [2015] FCA 1013
COSTS – indemnity costs – whether action had no prospect of success – effect of applicants’ letter to respondent – whether respondent’s failure to resolve proceedings contrary to Federal Court of Australia Act 1976 (Cth), s 38N(1) – where respondent enjoyed partial success – no reason to depart from the usual rule.
Dr Chris Ward SC appeared for the respondent.
Polley v R [2015] NSWCCA 247 (11 September 2015)
SENTENCE APPEAL – two offences of supplying a prohibited drug – pleas of guilty – MDMA and methylamphetamine – finding of drug trafficking “to a substantial degree” – strong subjective case – good prospects of rehabilitation – nevertheless custodial sentence inevitable – whether applicant’s strong subjective case properly taken into account – whether strong subjective case amounted to “exceptional circumstances” – whether sentence manifestly excessive – circumstances of offending required that effect be given to general deterrence – applicant’s strong subjective case did not amount to exceptional circumstances – proper exercise of sentencing discretion – appeal dismissed.
Lend Lease Building Pty Ltd (LLB) v Construction, Forestry, Mining and Energy Union [2015] FWCFB 5081
APPEAL - Fair Work Act 2009 s.604 - Appeal of decision - appeal refused.
Dr Chris Ward appeared for Lend Lease Building.
Caason Investments Pty Ltd v Cao [2015] FCAFC 94
Counsel | David Rayment
PRACTICE AND PROCEDURE – application for leave to appeal - application for leave to amend pleading - representative proceeding under Federal Court of Australia Act 1976 (Cth) Pt IVA – claim for compensation for loss or damage resulting from misstatement in, or omission from, disclosure document under Corporations Act 2001 (Cth) s 729 - claims of misleading or deceptive conduct - causation – market-based causation – whether primary judge erred in rejecting proposed amendments to reflect market-based causation case – whether the market-based causation case is a viable one in the context of the claim under s 729 - whether reliance is a necessary element under s 729 - leave to appeal granted – appeal allowed.
Corporations Act 2001 (Cth) ss 728, 729(1), 729(2), 1041H
Australian Securities and Investments Commission Act 2001(Cth) s 12DA
Corporate Law Economic Reform Program Bill 1998 (Cth)
Fair Trading Act 1999 (Vic) s 9
Federal Court of Australia Act 1976 (Cth) s 31A, Pt IVA, s 37M(3)
Federal Court Rules 2011 (Cth) rr 8.21, 16.21, 16.55
BQY v Children’s Guardian [2015] NSWCATAD 181
CHILD PROTECTION – working with children check clearance – application for administrative review - Children's Guardian decision set aside – working with children check clearance granted.
Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204
SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased’s wife and only adult son – both estranged from the deceased – no provision made in deceased’s estate for applicants – applicants ‘eligible persons’ – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is “adequate”, “proper”, “provision”, “maintenance” and “advancement in life” pursuant to s 59(1)(c) of the Act – whether provision made by testator is “wise and just” and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of “bare widowhood” and “bare paternity” – each individual case must be assessed on its own unique circumstances.
SUCCESSION – family provision and maintenance – principles upon which relief granted for wife – effect of the deceased remaining married to wife despite unilaterally abrogating duty to her and their son – applicant legally remains the deceased’s wife despite Uruguayan court order ending community of assets – deceased enjoyed financial benefit from not fulfilling his obligations to his wife – moral obligation cannot be escaped by repudiation or evasion – held inadequate provision made for wife by the deceased.
SUCCESSION – family provision and maintenance – principles upon which relief granted for son – deceased’s performance of moral paternal obligations to his son was the antithesis of community expectations – extremity of circumstances in present case – adult son’s conduct in not attempting to re-establish relationship with the deceased does not disentitle him to provision – held inadequate provision made for son by the deceased.
Dr Chris Ward appeared for the successful plaintiff.
Lauer & Ng v Corner [2015] NSWCATCD 114
Counsel | Michelle McMahon
ADMINISTRATIVE LAW - home building - identity of builder - multiple causes of action claimed -Australian Consumer Law and residential building works - misleading and deceptive conduct - restitution - entitlement of unlicensed builder to retain payments in absence of quantum merit claim - damages.
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237
DEFAMATION – identification of plaintiff – articles published in major newspaper in print and online – imputations that female teacher had engaged in sexual misconduct with Year 12 boys at the school – plaintiff not named in matter complained of but identifiable by the inclusion of incorrect details – consideration of the principles in Baltinos – whether plaintiff can rely on extrinsic identifying facts acquired by readers after the matter complained of had been published to identify teacher – whether defendant implicitly invited readers to visit school website to ascertain identity of teacher.
DEFAMATION – damages – assessment of damages under sections 34 and 35 of the Defamation Act 2005 (NSW) – principles applicable in the assessment of aggravated damages – whether cross-examination unjustifiable or improper – reliance on post-publication evidence as to reputation – scope of publication.
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7.
Defamation Act 2005 (NSW), ss 18, 34, 35; Pt 3; Pt 4.
Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 (20 August 2015).
Lambert Leasing Inc. v QBE Insurance Ltd (No 2) [2015] NSWSC 1196
EQUITY - Aviation insurance - The effect of a pay to be paid clause - Costs orders - Indemnity costs - Calderbank offers - Reasonable refusal - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Walk away offer - Whether genuine compromise.
Dr Chris Ward appeared for the plaintiffs.
CFMEU v v Port Kembla Coal Terminal Limited [2015] FWCFB 4075
EMPLOYMENT - Appeal against decision [2015] FWC 2384 - workplace drug testing comprising urine and oral fluid random testing - whether either method of testing establishes impairment - whether implementation unjust or unreasonable - error by Commissioner established - permission to appeal granted - appeal upheld - on reconsideration of dispute implementation of preferred method of random drug testing in circumstances of the employer not unjust or unreasonable.
CFMEU v v Port Kembla Coal Terminal Limited [2015] FWCFB 4075 (19 August 2015)
Wu v Li [2015] FCAFC 109
CONTRACTS – appeal from decision of a single judge of the Federal Court of Australia – construction of contract – shareholder agreements – claim by respondent of entitlement under indemnity provisions – meaning of “member loan” in indemnity provisions – whether primary judge erred in quantification of respondent’s entitlement – where respondent alleged misleading and deceptive conduct by appellant – whether primary judge erred in holding that respondent had not proved his loss – where respondent alleged breach of contract by appellant – whether primary judge erred in finding no contravention of shareholder agreements.
EVIDENCE – when statement in an agreement or contractual document will constitute admissible evidence of an admission.
COSTS – where respondent succeeded on one claim but not others – whether the primary judge erred in ordering appellant to pay respondent’s costs.
Dr Chris Ward appeared for the appellants.
Scotto v Scala Bros Pty Ltd & Anor (No.2) [2015] FCCA 2167
INDUSTRIAL LAW – Underpayments of employees over three legislative regimes, the Workplace Relations Act 1996, the Fair Work Act 2009 (“FW Act”) and the FW Act bridging period from 1 July 2009 to 31 December 2009 – pecuniary penalties – relevant considerations – appropriate approach to quantification of penalty when there is a course of conduct over three legislative regimes – grouping principle.
Scotto v Scala Bros Pty Ltd & Anor (No.2) [2015] FCCA 2167 (13 August 2015)
Asiapac Securities Pty Ltd v Ashlee Holdings Pty Ltd [2015] NSWSC 1431
CIVIL PROCEDURE – possession of land - application to set aside default judgment – whether satisfactory explanation for delay – whether bona fide and arguable defence.
Richard Parsons represented the Second Defendant.