Menzies v Paccar Financial Pty Ltd [2016] FCA 400

ANSHUN ESTOPPEL - Whether applicants precluded by Anshun estoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success

David Rayment appeared for the finance company, PACCAR Financial Pty Ltd instructed by Mills Oakley Solicitors.

Plaintiff S42 of 2016 v Minister for Immigration and Border Protection [2016] HCATrans 46

MIGRATION - deportation order - refusal to grant Protection (Class XA) visa 

Dr Stephen Tully appeared for the Applicant.

Jardine Lloyd Thompson Pty Ltd v Puri [2016] NSWSC 150

PRACTICE AND PROCEDURE — applications for interlocutory injunction and transfer of proceedings — restraint of trade — parties contracted to submit to the exclusive jurisdiction of the courts of Victoria — proceedings could have been commenced in Victoria — in the interests of justice to transfer proceedings to the Supreme Court of Victoria pursuant to s 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987(NSW) — claim for interlocutory injunction not heard or determined.

Michael Seck appeared for the defendant.

Diao v Cohen [2016] NSWSC 96

CONTRACT – Agreement – Subject to contract – Whether parties intended to be immediately bound - No written agreement signed as contemplated – Held, no contract.

RESTITUTION – Moneys had and received – Failure of consideration – Change of position defence – Whether inequitable to require recipient to pay.

Richard Parsons appeared for the successful plaintiff.

Stiles v Commissioner for Fair Trading & Commissioner of Police, NSW Police Force [2016] NSWCATAD 30

ADMINISTRATIVE LAW - Tattoo Parlours Act 2012 (NSW) - Applicant for operator's license found to be "fit and proper" person - licence refused for "public interest" grounds.

Dr Christos Mantziaris appeared for Commissioner for Fair Trading & Commissioner of Police.

Reasons for the decision can be found here.

Jewelsnloo Pty Ltd v Sengos (No 2) [2016] NSWSC 61

TRADE AND COMMERCE – contract to purchase business – vendors made misrepresentation to the plaintiff concerning the turnover of the business – whether plaintiff relied upon the representation in entering into the contract to purchase the business – held plaintiff did not rely upon misrepresentation.
  
TRADE AND COMMERCE – vendors had benefit of restraints of trade deed with prior vendor that prevented prior vendor from competing with vendors – whether prior vendor had made misrepresentation to the plaintiff concerning intention to compete with the plaintiff – whether prior vendor and vendors had made misrepresentations to the plaintiff concerning the subsistence of the deed and the plaintiff’s entitlement to the benefit of the deed – held representations not made – whether prior vendor and vendors had made representations to the plaintiff by silence by failing to inform the plaintiff that the vendors had released the prior vendor’s obligations under the deed – held representations not made.
  
INTELLECTUAL PROPERTY – passing off – whether business had necessary goodwill or commercial reputation – goodwill or commercial reputation established – whether ordinary customers would be deceived by conduct of relevant defendants – conduct of relevant defendants found to be passing off.
  
RESTITUTION – plaintiff claimed order setting aside purchase of business on ground that plaintiff entered into the contract because of misleading and deceptive conduct by vendors – plaintiff claimed order for rescission under s 243 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – plaintiff delayed in claiming order – plaintiff continued to operate business – plaintiff did not elect to rescind or offer to return business to vendors – plaintiff would not have been entitled in any event to an order setting aside the purchase as restoration of the status quo had become impossible because of plaintiff’s actions.
  
DAMAGES – misleading or deceptive conduct – plaintiff not entitled to damages as claims dismissed – consideration of plaintiff’s claim for damages equal to the purchase price paid by the plaintiff for the business – plaintiff chose not to tender evidence of the difference between the purchase price and the market value of the business – applicable principles considered – plaintiff would not have been entitled to damages claimed in any event because the evidence established that the business had a value at the date of purchase and the plaintiff did not establish that it lost the benefit of the entirety of the purchase price.
  
DAMAGES – passing off – Exemplary, punitive and aggravated damages – plaintiff claimed damages instead of an account of profits – plaintiff did not prove it suffered any loss caused by the passing off – plaintiff not entitled to compensatory damages – plaintiff claimed exemplary damages for tort of passing off – applicable principles considered – plaintiff not entitled to exemplary damages.

David Jay appeared for the successful defendants.

CGG15 v Minister for Immigration & Anor [2016] FCCA 219

MIGRATION – Subclass 050 bridging visa – cancellation of bridging visa – applicant charged with serious criminal offences – Ministerial Direction No.63 – whether the Tribunal failed to consider or comply with Direction – whether Tribunal’s decision was based on a finding of fact for which there was no evidence – Tribunal failed to consider all of the circumstances in which the ground for cancellation arose – jurisdictional error – writs issued.

Dr Stephen Tully appeared for the successful applicant.

Bridges v Norling trading as Itravel Forster [2016] FCCA 212

COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – collateral attack of administrative act - whether in a general protections court application made pursuant to s.370 of the Fair Work Act 2009 (Cth) (FW Act) the Federal Circuit Court of Australia has jurisdiction to determine whether a certificate issued by the Fair Work Commission (FWC) purportedly pursuant to s.368(3)(a) of the FW Act is valid.

JUDICIAL REVIEW – Whether certificate issued by FWC purportedly pursuant to s.368(3)(a) of the FW Act was validly issued – whether validity of certificate issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the person who claims to have been dismissed applying to the FWC under s.365 of the FW Act within 21 days after the dismissal took effect as required by s.366(1)(a) of the FW Act – whether the applicant was dismissed from her employment – whether such dismissal took effect more than 21 days before the applicant applied to the FWC.

INDUSTRIAL LAW – Contract of employment – whether employer repudiated contract of employment – whether employee accepted the repudiation.

Michael Seck appeared for the successful respondent.

CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 49

EMPLOYMENT LAW - urgent interlocutory relief to address conduct of members of crew of MV “CSL Melbourne” refusing to leave that vessel - employees ordered to immediately and peacefully disembark the CSL Melbourne at the Port of Newcastle.

LEGISLATION -  Coastal Trading (Revitalising Australian Shipping) Act 2012(Cth), Fair Work Act 2009 (Cth), ss 19, 417, 418, 421, 421(2)(b),  Navigation Act 2012 (Cth), s 122, Workplace Relations Act 1996 (Cth), V.Ships Australia Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 MV CSL Melbourne, cl 3.2.4

Michael Seck appeared for the successful applicant.

Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23

ADMINISTRATIVE LAW - Appeal Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute - Reasons- Adequacy of reasons.

LEGISLATION - Civil and Administrative Tribunal Act, 2013 - Civil and Administrative Tribunal Rules, 2014, Holiday Parks (Long-term Casual Occupation) Act, 2002 - Residential Parks Act, 1998.

Michelle McMahon appeared for the successful respondent.

Thompson v Chapman [2016] NSWCATAP 6

HOME BUILDING - Appeal - Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general discretion, entitlement to costs where “indulgence” sought by successful applicant, relevance of s94(1A) application to exercise of discretion.

LEGISLATION: Home Building Act 1989 - Civil Procedure Act, 2005 - Consumer, Trader and Tenancy Tribunal Act 2001 - Consumer, Trader and Tenancy Tribunal Regulation 2002 - Civil and Administrative Tribunal Rules, 2014 - Conveyancing Act 1919.

Michelle McMahon appeared for the successful respondent.

Australian Manufacturing Workers' Union (AMWU)-Victorian Branch [2016] FWC 21

INDUSTRIAL - application under s.512 of the Fair Work Act 2009 (FW Act) - right of entry permit.

Lisa Doust appeared for the Australian Manufacturing Workers’ Union.

Australian Municipal, Administrative, Clerical and Services Union v Essential Energy [2015] FWC 8971

INDUSTRIAL - Fair Work Act 2009 s.739 - Application to deal with a dispute - Alleged dispute concerning the placement of employees into a meaningful work placement under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy.

Lisa Doust appeared for the Australian Municipal, Administrative, Clerical and Services Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Whitley v Director General, NSW Fair Trading [2015] NSWCATOD 155

ADMINISTRATIVE LAW - Fit and proper person – contractor licence - alleged improper conduct – whether allegations made out on evidence – nature of allegations – circumstances of allegations- fit and proper in absence of breach.

Dr Stephen Tully appeared for the successful applicant.

Caason Investments Pty Ltd v Cao (No 2) [2015] FCAFC 192

COSTS - whether, in circumstances where the Full Court has allowed an appeal from a decision of a single judge of the Court not to permit the plaintiffs to amend their Statement of Claim and then has re-exercised the Court’s discretion in respect of that application to amend by permitting amendments some of which were not brought forward before the primary judge, it was appropriate for the Full Court to set aside the order for costs made by the primary judge in respect of the hearing before her and make such order for costs as, in all the circumstances, the Full Court considered to be just – whether, in the events which have happened, the costs of the appellants incurred before the primary judge should be paid or substantially paid by the respondents.

PRACTICE AND PROCEDURE - whether a dissenting judge should express reasons concerning a consequential issue.

David Rayment appeared for a respondent.

Stephens & Ors v Commonwealth of Australia (No.2) [2015] FCCA 3404 & related cases

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – purported representative action – tenancies terminated in concurrent proceeding – application dismissed.

David Rayment appeared for the Commonwealth of Australia.

Related Cases:

Commonwealth of Australia v Stephens [2015] FCCA 3403

Commonwealth of Australia v Pries [2015] FCCA 3411 

Commonwealth of Australia v Rickwood [2015] FCCA 3412

Commonwealth of Australia v Frost [2015] FCCA 3397

Commonwealth of Australia v Patrick & Anor [2015] FCCA 3413

Abdul-Rahman v WorkCover Authority of NSW (No 2) [2015] NSWSC 1900

COSTS – interest on costs orders – indemnity costs – lump sum costs – legal costs and counsel’s fees charged by plaintiff’s lawyers – generous to a fault – conduct of the proceedings requiring adjustment to usual costs orders – refusal of Calderbank offers by defendant not unreasonable – question marks over costs claimed under application for specified lump sum costs award.

David Rayment appeared for WorkCover Authority of NSW.

Commonwealth of Australia v Rigney & Anor (No.3) [2015] FCCA 3133 and Related Cases

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of long term tenancy agreement under section 94 of the 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 – predominant use of premises – consideration of personal circumstances of respondents – consideration of the applicant’s interests – termination ordered – appropriate date for vacant possession – order for vacant possession suspended.

CONSTITUTIONAL LAW – Jurisdiction of the Federal Circuit Court of Australia – judicial power – improper restraint on judicial power – acquisition of property other than on just terms – whether there was a “matter” – whether legislative instrument was unlawful.

David Rayment appeared for the Commonwealth of Australia.

Related cases:

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Lam [2015] FCCA 3276 (11 December 2015)      

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Butt & Anor [2015] FCCA 3256 (11 December 2015)    

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Tucev (No.2) [2015] FCCA 3248 (11 December 2015) 

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No.3) [2015] FCCA 3234 (11 December 2015)    

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Dattilo & Anor [2015] FCCA 3260 (11 December 2015)  

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Young & Anor [2015] FCCA 3277 (11 December 2015) 

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors [2015] FCCA 3280 (11 December 2015) 

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Leahy [2015] FCCA 3279 (11 December 2015)    

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Lukic [2015] FCCA 3278 (11 December 2015)      

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Minici & Anor [2015] FCCA 3271 (11 December 2015)  

Commonwealth of Australia (as represented by the Department Of Infrastructure and Regional Development) v Morris [2015] FCCA 3267 (11 December 2015)     

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs & Anor (No.2) [2015] FCCA 3262 (11 December 2015)  

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Findlay [2015] FCCA 3261 (11 December 2015)

Ferella v Key Nominees Pty Limited [2015] NSWCA 401

PRACTICE – summary dismissal – application for leave to appeal – order preventing re-litigation of the same cause of action without leave – whether fresh proceedings within scope of order – no error in decision of primary judge – no explanation for why leave not sought.

LEGISLATION - Real Property Act 1900 (NSW), s 58.

Richard Parsons appeared.

Helensburgh Property Management Pty Ltd v Brady [2015] NSWSC 1861

CONTRACT – where defendant employed as property manager in real estate agency – where employment agreement included obligations in respect of confidential information – whether defendant in breach in poaching clients, setting up business in competition and misusing confidential information whilst still employed with plaintiff. 
  
RECTIFICATION – where post-employment restraint in original contract of 6 months and 15 kilometres from office – where new contract included different restraint – 12 months in area not including the relevant office - whether mistake – whether agreement should be rectified.

Richard Parsons appeared.