CONTRACTS — Construction — Penalties — Commercial loan facility — Whether default interest provision constituted penalty — Determination as at date contract made — Whether presumption that default interest a penalty — Whether default interest extravagant or unconscionable — Whether function of default interest only to punish — Whether pre- estimate of loss required.
Noel Hutley SC and Tim Castle for the Appellant.
Reasons for the judgement can be found here.
ADMINISTRATIVE LAW – access to government information – access application – reasonableness of searches - excluded information - Government Information (Public Access) Act 2009.
Lisa Doust appeared for the Justice & Forensic Mental Health Network.
FINANCIAL SERVICES – application to stay decision of ASIC – decision cancelled first applicant’s financial services license – applicant also operates Registered Training Organisation licensed by ASQA - utility of granting stay - prospects of success – public interest – consequences on application for review.
FINANCIAL SERVICES – application to stay decision of ASIC – banning orders against second and third applicants who were responsible managers of financial service licensee – utility of granting stay - prospects of success – public interest – consequences on application for review.
Dominique Hogan-Doran SC and Steven Cominos appeared for the applicants.
INSURANCE - operation of s 54 of Insurance Contracts Act 1984 (Cth) on claim for contribution between the insurers where the second policy would respond to claim by insured invoking s 54 -whether s 54 applied to the claim by the insured - whether the operation of s 54 meant the appellant was not able to refuse to pay the claim made by the insured - whether the respondent insurer could set up putative liability of the appellant to the insured as a basis for a claim for contribution by it - appeal dismissed
Tim D. Castle appeared for the respondent.
INSURANCE — Contribution — Claim for contribution between insurers — Where insured covered by one policy in terms and one by operation of s 54 of the Insurance Contracts Act 1984 (Cth) — Whether suspension of cover an inherent limitation on claims — Whether s 54 operates only for benefit of insured — Insurance Contracts Act 1984 (Cth), s 54.
Tim Castle represented the Respondent.
Reasons for the judgement can be found here.
PROPERTY – earlier order that plaintiffs may only commence proceedings seeking relief concerning 2006 mortgagee sale with leave – whether leave should be granted – whether leave should be subject to terms that plaintiffs pay all outstanding costs orders and provide security for the costs of proposed proceedings.
Richard Parsons and Madeleine Bridgett appeared for the defendant.
INDUSTRIAL LAW – quantification of penalties – moral responsibility of a number of respondents – the need for both specific and general deterrence
INDUSTRIAL LAW – detailed co-operation in respect to facts – admission of liability – withholding of any details as to financial circumstances
INDUSTRIAL LAW – an order requiring an audit to be undertaken
Michael Seck appeared for Office of the Fair Work Ombudsman
TORTS – Negligence – Police involved in pursuit of fleeing vehicle across NSW/ACT border – Failure to comply with police protocols for safe driving and cross-border pursuits – Passenger in police vehicle suffering mental harm arising from attending scene of accident arising from police pursuit – Liability of State of New South Wales for failure to provide training in use of radios and cross-border pursuit protocols – Liability of police driver for injury to passenger
CHOICE OF LAW – Statutory contribution between tortfeasors – Accident in the Territory following police pursuit from New South Wales – Claim for contribution by ACT Nominal Defendant against New South Wales police office and State of New South Wales – Characterisation of apportionment legislation – Applicable choice of law rule.
TORTS – Causation – Police pursuit of driver cross border – Pursued driver involved in fatal accident – Whether pursued driver would have avoided accident if pursuit terminated earlier – Expert evidence based on aggregate statistics – Whether likely conduct of pursued driver proved on balance of probabilities – Causation not established
TORTS – Statutory contribution – Nominal defendant liable for conduct of pursued driver who caused an accident – State of New South Wales and police officer also negligent – Contingent assessment of appropriate contribution
MIGRATION ― appeal from decision of the Federal Circuit Court ― whether primary judge erred in failing to find that Refugee Review Tribunal did not comply with s 425(1) of theMigration Act 1958 (Cth) ― whether Tribunal gave appellant opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review
ADMINISTRATIVE LAW ― illogicality or irrationality ― whether primary judge erred in failing to find that Tribunal’s decision illogical or irrational
ADMINISTRATIVE LAW ― unreasonableness ― whether primary judge gave inadequate consideration to whether Tribunal’s decision legally unreasonable
Stephen Tully appeared for the appellant
WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action.
Lisa Doust appeared for the appellants.
Reasons for the decision can be found here.
PRACTICE AND PROCEDURE – application to adduce new evidence on appeal – whether such evidence was likely to produce a different result – consideration of conduct of the proceedings before the Tribunal – application refused
Christos Mantziaris appeared for the respondents.
RESIDENTIAL PARKS – Residential Parks Act – whether object in s 130A(1) operates as a jurisdictional fact – object in s 130A(1) does not establish a jurisdictional fact or the fact was satisfied in this case
RESIDENTIAL PARKS – Residential Parks Act – whether the Tribunal may make a possession order under s 113(3A)(b) in circumstances where the resident does not agree to the sale of the dwelling – Tribunal may make an order for possession where resident does not agree
RESIDENTIAL PARKS – Residential Parks Act – whether valuation under s 130A includes rights attached to site agreement – valuation is limited to the dwelling only
RESIDENTIAL LAND LEASE COMMUNITIES – Residential (Land Lease) Communities Act 2013 – operation of transitional provisions
EVIDENCE – expert evidence – approach to expert evidence when not bound by rules of evidence – expert evidence must provide a satisfactory basis for Tribunal’s findings – question of acceptability of expert evidence in Tribunal one of weight not admissibility
Michelle McMahon appeared for the appellants
PRIVILEGED - privilege against exposure to penalty – whether privilege waived by filing proceedings in Fair Work Commission – whether privilege waived by filing witness statements
Michael Seck appeared for CSL Australia
INSURANCE – whether insured obliged to provide insurer with documents to enable insurer to determine whether conditions precedent to cover satisfied – insured claimed legal professional privilege in respect of documents – whether proceedings commenced prematurely
EVIDENCE – further evidence – whether documents in respect of which legal professional privilege was claimed at trial may be tendered on appeal
INSURANCE – double insurance – both policies contain “other insurance” clauses – whether s 45 of the Insurance Contracts Act 1984 (Cth) requires the insured to have “entered into” both contracts of insurance – whether insured has “entered into” both contracts of insurance
INSURANCE – double insurance – whether insurer A entitled to resist providing indemnity on the basis that insured had already been indemnified by insurer B – effect of deed which purported to re-characterise indemnity provided by insurer B as a limited recourse loan
CONTRACT – construction of the word “use” in indemnity clause in sale agreement – whether “use” has particular or special meaning under Virginian law – whether “use” encompassed leasing of aircraft or paying for maintenance pursuant to contractual obligation
Chris Ward SC appeared for the appellants.
Steven Cominos appeared for the second and third respondents.
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – licence agreement – original deed of licence expired – respondent notified of termination – whether the deed of licence was void due to economic duress or a false understanding of the agreement upon signing – whether representations made by the applicant give rise to personal equities of the family of the director of the respondent.
CONSTITUTIONAL LAW – Jurisdiction of the Federal Circuit Court of Australia – judicial power – acquisition of property other than on just terms – whether legislative instrument was unlawful.
David Rayment appeared for the Commonwealth
EMPLOYMENT - Application for an order relating to instruments covering new employer and transferring employees – transferrable instrument – application that transferable instrument will not cover transferring employees – Fair Work Act 2009, ss.311, 312, 317, 318.
Lisa Doust appeared for the Maritime Union of Australia
APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.
Tim D. Castle appeared for Westpac Bank.
APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.
Tim Castle and Daniel Moujali represented the Respondent.
Reasons for the judgement can be found here.
INDUSTRIAL LAW – Redundancy – Agreement clause requiring recourse to “redeployment and voluntary redundancy” – Whether employer obliged to offer redundancy separation to employees whose positions continued to exist – Agreement clause requiring investigation of “all avenues to avoid forced redundancies, including the reduction of contractors” – Whether confined to contractors engaged on fulltime, permanent, basis – Whether employer had undertaken investigation.
INDUSTRIAL LAW – Obligation to consult where introduction of “change” being considered – Whether change was “major” – Whether introduction of change being “considered” – Potential impact of change on dayworkers – Whether employed on day shift – Whether “a change to the numbers of employees per shift.”
INDUSTRIAL LAW – Adverse action – Dismissed of employee – Whether done because of employee’s position as officer of trade union or his having engaged in industrial activity – Reasons of decisionmaker – Onus of proof – Credibility of witness.
EVIDENCE – Credibility of witnesses – Witnesses’ evidence rejected for reasons which included their failure to refer, in their affidavits, to documents and facts which were unhelpful to their case – Whether they testified that their affidavits were comprehensive – Whether they were given sufficient warning that their omissions might result in the rejection of their evidence.
INDUSTRIAL LAW – Remedies – Reinstatement – Whether available where position previously occupied no longer existed.
Lisa Doust appeared for the Construction, Forestry, Mining and Energy Union
APPEAL - Community Association - breach of by-law - withholding of consent - Community Land Management Act 1989 (NSW).
Michelle McMahon appeared for the appellant.
Liability limited by a scheme approved under Professional Standards Legislation.