UNFAIR DISMISSAL - Whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable’ and therefore an unfair dismissal - Under Fair Work Act 2009 - Misconduct of employee established, application dismissed.
Michael Whitbread appeared for the Respondent.
Reasons for the decision can be found here.
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – whether industrial agreement between the parties is to be taken as regulating temporary employment – whether, if not, a separate industrial instrument applies to the parties.
Michael Whitbread acted for the Respondent.
Reasons for the decision can be found here.
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for a new award – award would have the effect of displacing the exclusion of the County of Yancowinna from 29 other awards of the Commission – legal principles to apply – application of Wage Fixing Principles – question of onus – whether onus discharged by identification of another award of the Commission which would, but for its coverage terms, apply to the employees – whether the County of Yancowinna exclusion in an award is a “condition of employment” – whether the County of Yancowinna exclusion in those awards ought to be overridden – determination of terms and conditions of new award – terms to be derived in part from other awards.
Michael Whitbread and Michael Seck acted for the Respondent.
Reasons for the decision can be found here.
APPEAL - application for leave to appeal – whether exercise of discretion disclosed error – meaning of “impracticable” – grounds in support of leave to appeal not made out – leave to appeal refused.
Michael Whitbread and Michael Seck represented the Respondent.
Reasons for the decision can be found here.
APPEAL – administrative review – firearms licence – child sexual assault charges withdrawn – finding that conduct occurred – whether applicant fit and proper person– public interest.
Dr Christos Mantziaris represented the Appellant.
Reasons for the decision can be found here.
ADMINISTRATIVE REVIEW – Firearms – Firearms prohibition order – Where applicant found to be not fit, in the public interest, to have possession of a firearm – Non-disclosure orders – Where non-disclosure orders made which prohibited disclosure of some evidence to applicant.
Dr. Christos Mantziaris represented the Applicant.
Reasons for the decision can be found here.
JUDGMENTS AND ORDERS – what orders should be made to reflect reasons in primary judgment – whether first defendant as well as second defendant liable to pay equitable compensation – quantum of equitable compensation
PRACTICE AND PROCEDURE – application by defendants for leave to re-open to tender documents produced on subpoena – where documents relevant to quantum – small number of documents – whether explanation offered by defendants adequate – whether exceptional circumstances shown – whether justice of case requires that leave be granted
David Pritchard SC and David Rayment represented the Plaintiffs.
Reasons for the decision can be found here.
CONTRACT – formation and validity – proposal by owner of development lots to convert lots into non-strata blocks and build townhouses of specified height – cooperation of strata corporation required – development lot owner promised proposal would result in continuing access for strata owners to swimming pool on her land – resolution passed at general meeting – no contractual effect
ESTOPPEL – proprietary estoppel – encouragement – detrimental reliance – whether lot owner’s promise made to strata corporation – whether reliance by corporation – corporation entitled to easement over pool land
EQUITY – rectification – mistake – strata plan of subdivision included notation that pool structures formed part of common property – notation failed to include three-dimensional space around pool structures – inclusion of notation deliberate and mistake established but intended form of plan could not be determined – rectification refused
Elisabeth Peden and Jennifer Mee represented the First Defendant and Plaintiff respectively in proceedings.
Reasons for this decision can be found here.
CORPORATIONS – winding up – application by minority shareholders to wind up a company under s 461(1)(k) of the Corporations Act 2001 (Cth) – majority shareholder caused whole of company’s funds to be transferred to accounts controlled by him – non-compliance with subsequent order requiring company’s funds to be paid into court – no issue of principle
Jennifer Mee represented the Applicants.
Reasons for the decision can be found here.
COSTS - Basis of quantification - Four separate proceedings heard together - Overlapping parties where Plaintiffs in certain proceedings were Defendants in others - Parties successful on certain claims and unsuccessful in others - Whether appropriate for no order as to costs across all proceedings - Where successful and unsuccessful claims within a proceeding.
John Kelly SC, Howard Insall SC, and Dr. Christos Mantziaris represented Robert Murdoch interests.
The reasons for the decision can be found here.
EQUITY – equitable remedies – vitiating factors – common mistake – discussion of the existence and scope of jurisdiction to set aside contracts for common mistake in equity – whether parties to an agreement were operating under a common misapprehension that was fundamental to the agreement – no fundamental misapprehension.
JUDGMENTS AND ORDERS – res judicata and cause of action estoppel – no issue of principle.
CONTRACTS – formation – illegality – no issue of principle.
CONTRACTS – terms – implied terms – no issue of principle.
CONTRACTS – construction – no issue of principle.
Dr. Christos Mantziaris represented the Second Defendant.
Reasons for the decision can be found here.
EQUITY – equitable remedies – relief against forfeiture – third party rights – where new lessees are in possession of the premises.
EQUITY – equitable remedies – relief against forfeiture – Retail and Other Commercial Leases (COVID-19) 2020 Regulation – whether breach during the prescribed period.
Robert Angyal SC represented the Defendant.
The reasons for the decision can be found here.
CORPORATIONS — Directors and officers — Fiduciary duties — Conflict of duty and interest — Conflict of duty and duty — Diversion of corporate opportunity— Whether corporate opportunity within scope of company’s activities — Where other companies associated with directors took up profitable work — Where diversion occurred after shareholders intended to split up company — Split up not implemented at time of diversion — Directors’ duties where intention or understanding to split up company in future but no present implementation.
CORPORATIONS — Directors and officers — Fiduciary duties — Fully informed consent — Whether sufficient disclosure to constitute fully informed consent.
CORPORATIONS — Directors and officers — Liability for breach of directors’ duties — Knowing involvement — Where companies associated with directors were alter egos of the directors.
CORPORATIONS — Winding up — Grounds for winding up — Just and equitable ground — Relationship between shareholders and directors irretrievably broken down — One of two directors unwilling to attend board meetings or sign financial statements — Whether less extreme remedy available — Evidence that shareholder cannot afford to buy out the other shareholder’s shares — Oppression.
EQUITY — Equitable remedies — Account of profits — Whether allowance made for Defendants’ skill and effort — Discretionary nature of remedy — Where conduct involved lack of honesty.
John Kelly SC, Howard Insall SC, and Dr. Christos Mantziaris represented Robert Murdoch interests.
Reasons for the decision can be found here.
CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – where neither party made a note of the agreement – where neither party confirmed to the other in writing an understanding of the agreement – where no one else present when agreement made – where no dispute that a binding agreement was made concerning sharing expenses and profits of the venture – whether agreement was subject to the plaintiff finding buyer for the consolidated sites.
CONTRACTS – oral agreement between first plaintiff and first defendant concerning proposed consolidation and possible development of three adjoining sites – whether parties’ post contractual conduct casts light on true nature of the agreement.
David Pritchard SC and David Rayment represented the Plaintiffs.
Reasons for the decision can be found here.
EVIDENCE – whether evidence of Calderbank offer inadmissible under s 53B of the Federal Court of Australia Act 1976 (Cth) – whether offer made by email to the mediator constitutes evidence of anything “said … at a conference conducted by a mediator” – offer held inadmissible.
COSTS – where respondent acceded to part of the relief sought without admission of liability and the balance of the relief was subsequently dismissed by consent save as to costs – whether (different) Calderbank offer can be a foundation for indemnity costs when proceeding terminated without a determination on the merits – whether accession to part of the relief amounted to capitulation – whether it can be said that either side would inevitably have succeeded – whether subsequent dismissal of the proceeding by consent should be treated the same as discontinuance with regard to costs – where both parties have incurred substantial sums in costs – no discernible reason why one party or the other should pay costs – each party to bear its own costs.
Jennifer Mee represented the respondent.
Reasons for the decision can be found here.
UNFAIR DISMISSAL – shift swaps – investigation – whether applicant had verbal approval from Supervisor – whether applicant engaged in a serious form of misconduct for personal gain – application granted.
Renae Kumar represented the Applicant.
Reasons for the decision can be found here.
ADMINISTRATIVE LAW – appeal on a question of law from decision of Administrative Appeals Tribunal to cancel applicant’s status as approved provider of child care services under s 195H(1) of A New Tax System (Family Assistance) Administration Act 1999 (Cth) – whether Tribunal erred in finding for the purposes of s 52(3)(d) and (4)(b)(ii) of the Child Care Subsidy Minister’s Rules 2017 (Cth) that applicant’s non-compliance involved reckless giving of inaccurate, false or misleading information or indicated a deliberate or reckless disregard for obligation to comply with regulatory condition – whether Tribunal erred in failing to explain its understanding of what “reckless” meant when finding applicant reckless – where consideration of whether applicant reckless was mandatory relevant consideration – failure to correctly consider mandatory relevant consideration was a material jurisdictional error – appeal allowed.
Jennifer Mee represented the Applicant.
Reasons for the decision can be found here.
EQUITY – equitable remedies – relief against forfeiture – third party rights – where new lessees are in possession of the premises.
EQUITY – equitable remedies – relief against forfeiture – Retail and Other Commercial Leases (COVID-19) 2020 Regulation – whether breach during the prescribed period.
Robert Angyal SC represented the Defendant.
Reasons for the decision can be found here.
OCCUPATIONS – legal practitioners – solicitors – conflict of interest – litigation about property joint venture – solicitor acting for trustee of unit trust owning half of property – solicitor also acting for unit-holder making resulting trust and misleading & deceptive conduct claims – conflict of interest.
CIVIL PROCEDURE – representation of parties – solicitor acting for parties not in the same interest – leave of court – Uniform Civil Procedure Rules 2005 (NSW) r 7.25.
Jennifer Mee represented the Second and Fourth Respondents.
Reasons for the decision can be found here.
CONTRACT – Construction and interpretation – Consideration of the principles of contract interpretation – Whether application of principles of contractual interpretation modified by entire agreement clause – Relevance of surrounding circumstances.
David Rayment represented the Defendant.
Reasons for the decision can be found here.
Liability limited by a scheme approved under Professional Standards Legislation.