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A Daily Bulletin Listing Decisions of Superior Courts of Australia Friday 21 August 2009 Click here to visit our website Insurance Banking & Construction A Daily Bulletin listing Decisions of Superior Courts of Australia Executive Summary (1 minute read) RCI Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia - Legal professional privilege – privilege claim upheld (I, B, C) Australian Competition & Consumer Commission v Teracomm Ltd - Trade Practices Act 1974 (Cth) – advertisements in magazine – misleading & deceptive conduct - mobile telephone content services (B) Williams v Pagliuca - Professional negligence - assessment of value of lost commercial opportunity - solicitor acting for vendor & purchaser – appeal allowed in part (I, B, C) Australian Associated Motor Insurers Ltd v Cassidy & 2 Ors - s81 Motor Accidents Compensation Act 1999 (NSW) – claims resolution procedure - applicable Motor Accident Authority Claims Assessment Guidelines – insurer’s statutory duties (I) Australian Securities & Investments Commission v Macdonald (No 12) - Directors – breach of duty - costs – declarations of contraventions made - disqualification orders made - pecuniary penalties imposed (I, B) Australian Securities & Investments Commission v Stuart Karim Ariff - Liquidators - supervision by the Court (B) Sandvik Mining & Construction Australia Pty Ltd v Dempsey Australia – Disclosure – experts reports – draft reports - privilege (I, B, C) Toms v Fuller – Jurisdiction of Courts (Cross-Vesting) Act 1987 – defamation - joinder (I) Apache Northwest Pty Ltd v Agostini - Application for injunction pending appeal – Varanus Island Final Investigation Report (I, B, C) Page 2 Click here to visit our website Summaries with links (5 minute read) Friday 21 August 2009 RCI Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 910 (19 August 2009) Federal Court of Australia Stone J (in Sydney) Legal professional privilege – claim made by applicant - Commissioner had been given leave to cross-examine deponent of affidavit identifying documents over which privilege claimed - copies of documents – no waiver of privilege dispute as to transfer of applicant’s shares in James Hardie (Holdings) Inc to another member of James Hardie Group – privilege claim upheld – detailed consideration of case law in an interesting decision. RCI (I, B, C) Australian Competition & Consumer Commission v Teracomm Ltd [2009] FCA 903 Federal Court of Australia Moore J (in Sydney) Trade Practices Act 1974 (Cth) – advertisements in magazine – misleading & deceptive conduct - mobile telephone content services - industry code of practice - Telecommunications Service Provider (Mobile Premium Services) Determination 2005 No.1 – target audience - declaratory relief – an interesting decision. Australian Competition & Consumer Commission (B) Williams v Pagliuca [2009] NSWCA 250 Court of Appeal of New South Wales Hodgson & Ipp JJA; Sackville AJA Professional negligence - assessment of value of lost commercial opportunity -for decision appealed from, see ‘Benchmark’ B, C & IBC 11 March 2008 & links below - appeal by solicitor against vendors from orders made on second cross-claim - solicitor acting for vendor & purchaser – exchanged counterparts not identical – in their second cross-claim, vendors had sought damages for breaches of duty by solicitor in acting for vendors in their dealings with purchaser - appeal allowed in part. Williams (I, B, C) Pagliuca – decision 7 March 2008 - vendor & purchaser - exchange of contracts – defendants had carried out a development of three-storey residential units - sale of ‘off the plan’ units - informal exchange by solicitor acting for defendant vendors & plaintiff purchaser - copy signed by vendors complete, copy signed by plaintiff did not contain nine printed pages including alterations & Cooling-Off statements – held: no contract formation, alternatively plaintiff Page 3 Click here to visit our website entitled to rescind because of absence of Cooling-off Statement - Sindel v Georgiou distinguished as in this case there was no earlier consensus which would ground rectification; Parkin Australian Associated Motor Insurers Ltd v Cassidy; Motor Accidents Authority of New South Wales ; Raja [2009] NSWSC 804 Supreme Court of New South Wales Fullerton J s81 Motor Accidents Compensation Act 1999 (NSW) – claims resolution procedure - applicable Motor Accident Authority Claims Assessment Guidelines – insurer’s statutory duties - challenge by plaintiff insurer to decision of Principal Claims Assessor of second defendant, the Authority, refusing an application to exempt third defendant's claim for damages from assessment under Part 4.4 of the Act - admission or denial of liability - withdrawal of an admission - plaintiff’s application dismissed. Australian Associated Motor Insurers (I) Australian Securities & Investments Commission v Macdonald (No 12) [2009] NSWSC 714 Supreme Court of New South Wales Gzell J Directors – breach of duty - costs – twelfth defendant James Hardie Industries NV twelfth - bases upon which Court may exculpate a person under s1317S(2) or s1318(1) Corporations Act 2001 (Cth) - breach of continuous disclosure obligation - declarations of contraventions made - disqualification orders made - pecuniary penalties imposed – comprehensive consideration of case law. Australian Securities and Investments Commission (I, B) Australian Securities & Investments Commission v Stuart Karim Ariff [2009] NSWSC 829 Supreme Court of New South Wales Bergin CJ in Eq Liquidators - supervision by the Court - inquiry pursuant to s.536 Corporations Act 2001 - consent orders. Australian Securities and Investments Commission (B) Sandvik Mining & Construction Australia Pty Ltd v Dempsey Australia [2009] QSC 233 Supreme Court of Queensland P Lyons J Disclosure - experts reports – draft reports – privilege – plaintiff’s application for disclosure of draft statement of second defendant, referred to by expert in a revised draft report - imputing waiver of privilege – application dismissed – an interesting review of case law. Sandvik Mining and Constructions Australia (I, B, C) Page 4 Click here to visit our website Toms v Fuller [2009] QSC 232 Supreme Court of Queensland P Lyons J Jurisdiction of Courts (Cross-Vesting) Act 1987 - defamation – joinder - defendant has filed a conditional notice of intention to defend including a cross-claim - defendant’s application that matter be transferred to the Federal Court – application for transfer refused – defendant seeking that ASIC be added as a party to proceedings – application for joinder dismissed – application to strike out amended Conditional Notice of Intention to Defend & Counterclaim granted, with defendant given opportunity to replead. Toms (I) Apache Northwest Pty Ltd v Agostini [2009] WASCA 147 Court of Appeal of Western Australia Buss JA Application for injunction pending appeal – for decision, see ‘Benchmark’ Monday 17 August 2009 & link below - Varanus Island Final Investigation Report - application granted. Apache Northwest (I, B, C) Apache Northwest – decision 14 August 2009 - investigation report - non-statutory investigation - explosion at gas processing facilities on Varanus Island - plaintiffs seeking declarations & injunctions restraining first defendants & second defendant, the State, from providing a report described as the Varanus Island Final Investigation Report to third defendant, the Minister for Mines & Petroleum, WA - plaintiffs contending that in the preparation & finalisation of the investigation report, first defendants & the State breached a duty to afford procedural fairness to them – alternatively, plaintiffs seeking injunction restraining Minister from publishing report or its contents - whether the preparation & provision to the Minister of the Investigation Report attracted a duty of procedural fairness - if so, whether the first defendants breached the duty of procedural fairness in the way claimed by plaintiffs - no duty of procedural fairness – application for declarations & injunctions dismissed. ....... remembering Will Ogilvie ‚It is early morning on the plains below the Queensland border, after the warm, semi-tropical night. In the east there is a ruby flush in the sky, every moment widening with the day; the long barley grass dripping with dew brushes boot & stirrup, & the scent of the eucalyptus steals to the very heart. The quaint, twisted stems of the gum trees look even quainter, more bizarre than ever in the dim light, and there is no beauty, as the Englishman’s eye is trained to beauty, but only this strange, weird, bewitching charm that is hard to realise or express. Suddenly from the vine trees a burst of warbling song – the magpies calling to the dawn – and round and round your horse’s feet flutters the black wagtail, the ‘shepherd’s companion’ of the Bush, ...... you ride up through the ridge ...... Higher still and we are among the pines..... From bough to bough the spiders have spun their silken threads, making broad targets on which the rising sun makes many an inner white & gold ..... You move your horse from the pine trees out into the open space on the crown of the hill, then, clear of Page 5 Click here to visit our website the trees, let the heavy stock-whip fall; ...... and the roar of it fills the air and dies away along the ridges to the north like a muttered thunder in the hills.‛ William Henry Ogilvie (b. 21 August, 1869 near Kelso, Scotland – d. 30 January, 1963 at Ashkirk, Selkirk, Scotland) Poet, short story writer, memoirist, horseman – at twenty, came out to Australia to gain
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