Transport Industry General Carriers Contract Determination [2016] NSWIRComm 3

CONTRACT DETERMINATION – application to vary – principles to be applied – relevance of wage fixation principles – fair and reasonable conditions – relevance of consent or non-opposition of respondents – consent to division of proceedings into two stages – first stage to deal with non-rates issues – whether coverage of determination should be extended – whether rescission of another determination should be ordered – whether second determination of continuing practical effect – whether “purpose” clause should be included – whether principal contractors should provide a copy of the determination to each contract carrier engaged – whether a cartage rate schedule should be provided before work commences - whether compensation should be paid for time lost during repainting of vehicle – whether work time should include mandatory short fatigue breaks and time lost due to accident or breakdown – whether principal contractors should be obliged to develop drug and alcohol policies or programs –records to be maintained by principal contractors – whether a deeming clause should be included if records are not kept.

Michael Seck appeared for Mainfreight Distribution Pty Limited.

Klazidis v Commissioner of Police [2016] NSWIRComm 1014

UNFAIR DISMISSAL – charge of affray – applicant pleads guilty – sentenced to eighteen months imprisonment with nine months non­parole period – on appeal custodial sentence set aside – bond imposed and no conviction recorded – disciplinary process – allegations of serious misconduct – NSW Police Force Code of Conduct and Ethics – NSW Police Force Statement of Values – four allegations of misconduct found proven – decision to terminate applicant's employment – character evidence – seriousness of the misconduct – factors of aggravation and mitigation – considerations of fairness, reasonableness and harshness – fresh and independent review of the decision – cowardly attack by applicant on victim – applicant walked away as victim lay unconscious on roadway.

Michael Seck appeared for the Commissioner of Police.

CPSU, the Community and Public Sector Union [2016] FWC 985

FAIR WORK - Application for consent to alteration of eligibility rules – Fair Work (Registered Organisations) Act 2009 s.158(1)  - Application for alteration of eligibility rulesprivatisation of Home Care Service of NSW – transfer of employees to Australian Unity Home Care Service Pty Ltd – application to continue to cover transferring employees who were previously covered – application granted.

Lisa Doust appeared for the Australian Municipal, Administrative, Clerical and Services Union.

Gmitrovic v Commonwealth of Australia [2016] NSWSC 418

LIMITATIONS – defamation proceedings commenced outside limitation period – related proceedings also commenced in Fair Work Commission – burden of proof on plaintiff to show it was not reasonable to commence within time period – burden not discharged – cause of action not maintainable.
  
DEFAMATION – employee of Commonwealth – alleged misconduct – Intent to Sanction Minute and Statement of Reasons circulated to supervisors and others involved in investigation – defence of qualified privilege made out.

Matthew Richardson appeared for the Commonwealth of Australia.

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SafeWork (NSW) v Romanous Contractors; SafeWork (NSW v John Allen Romanous [2016] NSWDC 48

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CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee.


SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general – credit – character - deterrence – appropriate penalty.


SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty.


COSTS – prosecution costs.

Michael Seck appeared for the offenders.

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Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

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EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle and James Green represented the Applicant.

Reasons for the judgement can be found here.

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Comgroup Supplies Pty Ltd v Products for Industry Pty Ltd & Anor [2016] QCA 88

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EQUITY – TRUSTS AND TRUSTEES – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – KNOWING RECEIPT – where an employee of the applicant induced the first respondent, through its managing director, the second respondent, to invoice the applicant for work done by a company owned and controlled by the employee – where in fact no such work had been performed by the employee’s company and the invoices were a fabrication – where the applicant submitted that the issue of the fictitious invoices by the respondents constituted knowing assistance of the employee – where the applicant submitted that the respondents knowingly received the proceeds of payment of the invoices – whether the respondents’ held the kind of knowledge necessary to be found accessorily liable for the employee’s breach of fiduciary duty.

EQUITY – GENERAL PRINCIPLES – MISTAKE RECOVERY OF MONEY PAID OR EXPENDED – MONEY PAID BY MISTAKE – MISTAKE OF FACT – where the applicant paid money to the first respondent under an operative mistake of fact – where the respondents entered into the arrangement with the applicant’s employee in good faith – where the respondents would be placed in a worse position if ordered to make restitution of payments that it had passed on to the employee’s company than if it had not received payments from the applicant at all – whether the respondents could rely on a change of position defence to a claim by the applicant for restitution.

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the proposed appeal does not raise any significant questions of law but rather the application of well-established principles of law to the facts – whether, in the circumstances, leave to appeal should be granted.

Tim Castle appeared for the applicant.

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National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56

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PRACTICE AND PROCEDURE – Application for prerogative remedies in respect of orders and decision of statutory tribunal – Interlocutory application for stay of order and decision – Whether prima facie case of invalidity – Whether strong case – Whether exceptional circumstances shown – Interests of parties and wider community – Imminence of final hearing.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP.

AMZ15 v Minister for Immigration & Anor [2016] FCCA 473

MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Sri Lanka on various bases – applicant’s claims of harm not believed – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth), made an irrational or illogical decision, made findings without probative evidence or made an unreasonable decision considered – no jurisdictional error.

Dr Stephen Tully appeared for the applicant.

 

Australian Industry Group v Road Safety and Remuneration Tribunal [2016] FCA

INJUNCTION - decision of Road Safety and Remuneration Tribunal - introduction of new minimum pay rates for for long-distance drivers and those involved in the distribution of goods destined for sale or hire by supermarket chains.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP in these proceedings concerning the decision of the Road Safety and Remuneration Tribunal.

AFR Report

The Australian report

MPJEL Care Pty Ltd v NSW Department of Industry (Vocational Training Review Panel) [2016] NSWCATAD 59

PRACTICE AND PROCEDURE – summons to produce documents – whether legitimate forensic purpose for summonsing handwritten notes made by a member of the Vocational Training Review Panel during a hearing of a complaint – nature of an external appeal.

LEGISLATION: Apprenticeship and Traineeship Act 2001 (NSW), ss 39, 44 , 46, 47, 51(1)(c), 53, 55; Civil and Administrative Tribunal Act 2013 (NSW), ss 29(2)(a), 38, 48, 79.

Lisa Doust appeared for the applicants.

Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348

ADMINISTRATIVE LAW – JUDICIAL REVIEW – decision of Secretary under Costs in Criminal Proceedings Act 1967 – deferral under s 4(5) thereof to see what claimant “may receive” – no relevant criteria for deferral – decision quashed.

Dr Christos Mantziaris appeared for the Attorney General for the State of New South Wales.

LFDB v SM (No 2) [2016] FCA 295

From the Federal Court of Australia:

PRACTICE AND PROCEDURE - application to stay execution of judgments registered under the Trans-Tasman Proceedings Act 2010 (Cth) – appeal proceedings in New Zealand and applications to set aside the registered judgments – relevant considerations in determining whether or not to grant a stay – relevance of first applicant’s conduct in previous proceedings in New Zealand and critical observations of that conduct by various New Zealand Courts – relevance of comity – stay granted on appropriate conditions.

Dr Christopher Ward SC appeared for the respondent.

Capogreco v Rogerson [2016] NSWCA 61

APPEAL – application for leave to appeal – costs – challenge to apportionment of costs – partial success at trial – whether costs should be apportioned as to causes of action where issues intertwined – whether apportionment to be based on pre-trial costs of preparation of evidence – whether costs assessor could allocate costs after the event.
  
COSTS – Calderbank letter – whether offer of fixed costs a genuine offer of compromise.

Robert Angyal SC appeared for the appellant.

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Nelmeer Ashfield Pty Ltd v Farah [2016] NSWSC 279

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CONTRACTS - Retail Leases Act 1994 (NSW) – nature of inconsistency with terms of head lease required by s 16(5) of Retail Leases Act.
  
CORPORATIONS – head lessor and lessee had common shareholders and directors – no sham, fraud or device alleged – terms of head lease inconsistent with 5-year sub-lease.
  
APPEAL – leave to appeal – Appeal Panel distinguished binding authority of Conoid Pty Ltd v International Theme Park Pty Ltd [2000] NSWCA 189 on erroneous basis – matter of sufficient importance to warrant a limited grant of leave.

Robert Angyal SC appeared for the successful appellant.

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Helensburgh Property Management Pty Ltd v Brady [2016] NSWSC 253

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DAMAGES – where the defendant in breach of contract in poaching clients during and after employment with plaintiff – whether plaintiff entitled to damages assessed on basis of diminution in value of rent roll – whether clients would have left the plaintiff irrespective of defendant’s breach – assessment on basis of lost commissions.

Richard Parsons appeared for the defendant.

Liability limited by a scheme approved under Professional Standards Legislation.