Roads and Maritime Services v Rockdale City Council & Ors [2015] NSWSC 1844

EQUITY – trusts and trustees – purpose trusts – where trustee was a local council – where council held land or parts of it on trust for a county road and other purposes – where condition of trusts was that council transfer land or parts of it required for a county road to named body when requested at no cost – where Plaintiff sought transfer of the parcels of land that it ‘required’ for the construction of a road – whether council required to transfer only that part of land that was previously ‘reserved’ or that part of land which was now ‘required’ to the Plaintiff under the terms of the trusts – whether use for a road encompassed ancillary requirements for the construction of the road.

LOCAL GOVERNMENT – regulation and administration – ordinances, regulations, by-laws and local laws – where council held parcels of land on trust for particular purposes – whether obligations arising under the trusts were affected by Local Government Act 1993 (NSW) – application of County of Cumberland Planning Scheme Ordinance.

CHARITIES – charitable purposes – other purposes beneficial to public – where council held land on trust for road purposes and for the purposes of a public park, reserve or recreation area – whether trusts created for purposes of roads and road works are charitable trusts – whether trusts created for purposes of parks and public reserves are charitable trusts – whether trust purposes impractical or impossible – whether to order cy-pres scheme.

WORDS AND PHRASES – ‘required’ – ‘reserved’ – ‘road purposes’ – ‘purposes of a road’.

Dr Christos Mantziaris and Steven Cominos appeared for RMS.

Ayoub v CPT Corp Pty Ltd [2015] NSWCATAP 259

APPEAL - question of law – denial of procedural fairness – expert evidence – no opportunity to reply.

Michelle McMahon appeared for the successful appellant.

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

EMPLOYMENT LAW – termination of employment – summary dismissal – whether employee exhibited signs of intoxication at work training course – whether employee intoxicated in a public place – whether employee intoxicated at a work-related social function – whether intoxication warranted summary dismissal for serious misconduct in serious circumstances.

DAMAGES – termination of employment – whether, if summary dismissal not available, employee would have been terminated on notice.

Muller v Westpac Banking Corporation [2015] NSWCATAD 251

ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of sex discrimination against employer – whether fair and just for complaint to proceed – complaint lacks substance – leave refused.

Maritime Union of Australia v Skilled Group Limited [2015] FWC 8312

INDUSTRIAL - Fair Work Act 2009 s.739 - Application to deal with a dispute - Dispute settlement procedure - interpretation of terms of enterprise agreement and related Award - disputed terms dealing with payment of accrued personal leave when employees made redundant - further contest about redundancy payments in respect of periods of casual employment - whether terms of relevant Award and enterprise agreement obliged payment - surrounding circumstances - no ambiguity found - application granted in part - Parties to consult as to any Order.

Lisa Doust appeared for the Maritime Union of Australia.

Nelmeer Ashfield Pty Ltd v Farah [2015] NSWCATAP 252

CONTRACT - catering services agreement in licensed hotel premises – dispute over termination – declaratory and injunctive relief.

CONTRACTS - Agreement not rendered void and unenforceable on account of no approval of Independent Liquor and Gaming Authority – term of 5 years not inconsistent with terms of any head lease – not a shop used wholly or predominantly for the carrying on of a business on behalf of hotel – certificate under s 16 of Retail Leases Act not condition precedent to agreement.

Robert Angyal SC represented the appellant.

Salad Fresh Pty Limited v P&M Quality Smallgoods Pty Limited [2015] NSWSC 1717

COMMERCIAL CONTRACT – Construction - shareholders agreement.

Tim Castle appeared for the plaintiffs.

The Australian Maritime Officers' Union [2015] FWC 8003

INDUSTRIAL - Application for a scope order - application for approval of an enterprise agreement - application for scope order dismissed - challenge to application for approval of enterprise agreement upon grounds of group not fairly chosen and agreement not genuinely agreed - enterprise agreement approved.

Lisa Doust appeared for the Australian Maritime Officers' Union.

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41

STATUTORY INTERPRETATION – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs  (1992) 176 CLR 1.

CONSTITUTIONAL LAW (CTH) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution.

CONSTITUTIONAL LAW (CTH) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions (NSW)  [1996] HCA 24;  (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts. 

WORDS AND PHRASES – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction". 

Constitution, Ch III, s 122.
Bail Act (NT), ss 16, 33. 
Fines and Penalties (Recovery) Act (NT), ss 9, 12B, 13, 21, 22. 
Police Administration Act (NT), Pt VII, Div 4AA; ss 123, 137, 138.
Police Administration Regulations (NT), reg 1

Parker v Secretary Department of Education and Communities [2015] NSWIRComm 1020

UNFAIR DISMISSAL – Jurisdiction – dismissal – when resignation can be regarded as dismissal for purposes of Act – constructive dismissal – determination of whether a termination was in fact a constructive dismissal to be arrived at by a transactional analysis – ultimatum provided - no negotiations after ultimatum provided – dismissal – jurisdiction lies.

TriCare (Hastings) Limited v Allen [2015] NSWCA 344

APPEAL – whether appeal incompetent having regard to s 101(1) of the Supreme Court Act 1970 – appellant did not appeal from judgment or order of primary judge but challenged obiter observations as to construction of s 130A of the Residential Parks Act 1998 (NSW) and sought to clarify or correct order remitting matter to the Tribunal in that respect – appeal dismissed as incompetent.

Westpac Banking Corporation v Kekatos [2015] NSWSC 1629

PRACTICE AND PROCEDURE – plaintiff’s consent to default judgment being set aside given on the basis of defendant’s sworn evidence which she subsequently admitted was false – application by plaintiff to have default judgment reinstated – circumstances in which a court sets aside orders entered by consent – whether plaintiff entitled to summary judgment – whether bona fide defence on the merits – effect of defendant’s failure to give sworn evidence in opposition to plaintiff’s application.

PRACTICE AND PROCEDURE – motion to set aside interlocutory consent order to be brought in the original proceedings to avoid multiplicity of proceedings.

CONTRACT – consent orders handed up to resolve interlocutory notice of motion not enforceable contract.

CONTRACTS REVIEW ACT – relevance of benefit to borrower from discharge of earlier mortgage to secure loans admitted to be owing – no evidence to displace lender’s entitlement to possession and judgment based on portion of advance that conferred incontrovertible benefit on borrower.

Tim Castle appeared for Westpac Banking Corporation.

Berry v Innovia Security Pty Ltd (No 2) [2015] FCA 1156

PRACTICE AND PROCEDURE – security for costs – limited security ordered based on personal undertakings – breach of undertakings – further security ordered.

Dr Chris Ward SC appeared for the applicants.

Thompson v Chapman [2015] NSWCATAP 233

APPEAL — home building - defects - assessment of quantum meruit.

Reznitsky v Director of Public Prosecutions [2015] NSWCA 338

JUDICIAL REVIEW – application to set aside judgment in District Court – applicant failed to appear on appeal from Local Court – appeal dismissed – application to set aside order dismissing appeal – applicant failed to attend on second day of hearing and failed to proffer evidence in support of application – review sought of order dismissing application to reinstate appeal – whether jurisdictional error – whether reasonable apprehension of bias – whether procedural unfairness – whether failure to give reasons.

Commonwealth of Australia v Hevers & Anor (No.2) [2015] FCCA 2753

ADMINISTRATIVE LAW – Commonwealth Tenancy Dispute – termination of long term tenancy agreement under s.94 Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for over 20 years – whether long term tenancy agreement ought to be terminated – original tenancy agreement expired – respondents notified of termination – consideration of personal circumstances of respondents – consideration of the applicant’s interests – termination ordered – appropriate date for vacant possession – order for vacant possession suspended.

Abdul-Rahman v WorkCover Authority of NSW [2015] NSWSC 1483

CIVIL LAW - workers compensation insurance – requirement for employer to hold current policy – debt or civil penalty arising from failure of employer to hold policy – relevant limitation period – appeal against decision of Magistrate – whether action constituted “proceedings for an offence” – whether Magistrate so found – submission that Court bound by purported finding – submission rejected – combative approach to litigation – whether notice of contention should be permitted – conflicting versions of conversations between counsel – when cause of action accrued to the Authority – ambiguity in legislation – appeal allowed.

David Rayment represented the Respondent.

CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088

INDUSTRIAL LAW – Breach of industrial agreement – Principles regarding construction of industrial agreement – Meaning of consultation in industrial agreements Breach of consultation obligation in industrial agreement – When obligation to consult arises Whether consultation was genuine – Whether consultation was timely – Whether employees given meaningful opportunity to affect a decision – Whether relevant information to enable consultation was required to be provided Breach of obligation to use redeployment and voluntary redundancy before implementing compulsory redundancy – Breach of obligation to investigate all avenues to avoid compulsory redundancy – Breach of obligation to investigate reducing contractors Employment Whether employer took adverse action against employee for a prohibited reason – Sections 340 and 346 of the Fair Work Act 2009 (Cth) – Onus of proof upon an employer in a claim of adverse action – Evidence necessary to discharge the onus under s 361 of the Fair Work Act 2009 (Cth) – Accessorial liability in a claim of adverse action.

Commonwealth of Australia v Vassallo & Anor [2015] FCCA 2695

ADMINISTRATIVE LAW – Commonwealth Tenancy Dispute – termination of long term tenancy agreement under s.94 Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for over 20 years – whether termination of the long term tenancy agreement is granted – original tenancy agreement expired – respondents notified of termination – consideration of suitable alternative accommodation available to the respondents – consideration of the applicant’s interests – no appearance by the respondents during proceedings – termination of long term tenancy agreement granted – immediate vacant possession ordered.

Commonwealth of Australia v Foster [2015] FCCA 2663

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of a periodic tenancy agreement under s.85 Residential Tenancies Act 2010 (NSW) – respondent in possession of the premises for less than 20 years – whether termination of the tenancy agreement is granted – original tenancy agreement expired – respondent notified of termination – termination of tenancy agreement granted – order for vacant possession suspended.