BENCHMARK Insurance, Banking & Construction A Daily Bulletin listing Decisions of Superior Courts of Australia Thursday 24 April 2008 Riley v Repatriation Commission [2008] FCA 531 Federal Court of Australia Edmonds J (at Sydney) Defence & war – Veterans’ Entitlements Act 1986 (Cth) - applicant had served in Australian Army from February 1965 until February 1968 – he served in Vietnam from June 1966 until May 1967 - appeal from Administrative Appeals Tribunal affirming decision of a delegate of Repatriation Commission that applicant's chondromalacia patellae of both knees had not been related to his service – material must raise reasonable hypothesis connecting veteran’s injury or disease with circumstances of service – findings of fact against claim must be made beyond reasonable doubt – no impermissible resolution of possible conflicts in evidence or impermissible findings of fact in Tribunal’s decision - appeal dismissed. Riley (I) Frippery Pty Ltd v Booth, Environmental Defenders Office (Qld) Inc & Ors [2008] FCA 514 Federal Court of Australia Collier J (at Brisbane) Costs – notice of discontinuance – application by respondents that costs be awarded on indemnity basis – held that justice of case required respondents’ costs be awarded on indemnity basis - applicants’ claims were of vexatious & frivolous nature. Frippery (I,C) Benchmark is prepared daily by A R Conolly & Company Lawyers, Sydney e: [email protected] t: 02 9333 3600 - 2 - Freehills, in the matter of New Tel Limited (in liq) ACN 009 068 955 [2008] FCA 543 Federal Court of Australia McKerracher J (at Perth) Corporations Act – Acts Interpretation Act – inspection of written record of examination – inspection of written record – plaintiff’s application for orders that examinee sign by 11 April 2008 written transcript of his examination held on 12 February 2008 – examinee’s application that plaintiff provide examinee with copies of all documents contained in bundle of examination documents provided by plaintiff referred to during the course of his examination – examinee’s application dismissed – plaintiff’s application granted save that transcript is to be signed by 16 May 2008. New Tel Limited (in liq) (B) Lime Telecom Pty Ltd v Powertel Limited [No.2] [2008] NSWSC 362 Supreme Court of New South Wales McDougall J Limits of liability – case law considered - agreement for supply of services – termination – interpretation of exclusion clause – determination of questions in ex tempore judgments 13 & 14 March, 2008: see both links below - defendant supplied telecommunications services to plaintiff - plaintiff used those services in connection with its business – defendant terminated services causing substantial interruption to plaintiff’s business - whether defendant contractually entitled to stop providing services under the Standard Form Agreements: answer ‘no’ – whether defendant had breached agreements: answer ‘yes’ - if there had been a breach, how long did that breach continue for? – answer: up until 7.9.07 - was clause 14.4 of agreements effective to exclude defendant's liability for damages in these proceedings? answer ’no’ - was clause 14.5 of agreements effective to limit defendant's liability for damages, & if so to what extent ? answer ‘no.’ Lime Telecom (No 2); & Lime Telecom [2008] NSWSC 324 (I,B,C) Director of Public Prosecutions (Cth) v Elisabeth Sexton [2008] NSWSC 352 Supreme Court of New South Wales Howie J Contempt - costs - jurisdiction - held that Part 5 Criminal Procedure Act of no relevance to proceedings for contempt of Court - provisions of Supreme Court Act & Rules applied - claimant to pay respondent’s costs. DPP v Elisabeth Sexton (I,B) Benchmark is prepared daily by A R Conolly & Company Lawyers, Sydney e: [email protected] t: 02 9333 3600 - 3 - BBB Constructions Pty Limited & Anor v Catherine J Burn & Ors (No 2) [2008] NSWSC 358 Supreme Court of New South Wales Hoeben J Statutory interpretation - entry & occupation of development site by State agencies under State Emergency & Rescue Management Act - plaintiff developer’s application restraining entry onto land by police under State Emergency & Rescue Management Act 1989 had been dismissed: see Benchmark 23.4.08 & link below for judgment 9.4.08 - whether occupation exclusive - whether power to exclude developer from site & if so the extent of that power - whether developer entitled to possession of development site. BBB Constructions (No 2); & BBB Constructions [2008] NSWSC 356 (I,C) Net Parts International Pty Ltd v Kenoss Pty Ltd [2008] NSWSC 241 Supreme Court of New South Wales Hulme J Share sale agreement – plaintiff agreed to sell to two of the three defendants shares in Crownview Developments Pty Limited – assets included land Wollongong - contract provided time of essence for completion of sale - agreement made to extend time, time remaining of the essence – sale never completed - plaintiff alleging default by two of defendants - plaintiff alleging entitlement to release of deposit, monies payable under agreement, & damages – third defendant an estate agent to whom deposit provided under the agreement - verdict for defendants - order that third Defendant pay second Defendant the sum of $255,050. Net Parts International (C) Black & White (Quick Service) Taxis Ltd v Sailor & Anor [2008] QSC 077 Supreme Court of Queensland Jones J Vicarious liability – discrimination law – joinder - allegation of racial vilification by prospective passenger against taxi driver - whether lessee of taxicab license should be held vicariously liable for contravention of legislation by their employee driver - appellants appealed against orders of Anti-Discrimination Tribunal - whether Tribunal had misconceived the scope of its own jurisdiction – appeal dismissed. Black & White (Quick Service) Taxis (I) Benchmark is prepared daily by A R Conolly & Company Lawyers, Sydney e: [email protected] t: 02 9333 3600 - 4 - McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees P/L [2008] QSC 079 Supreme Court of Queensland Dutney J Bankruptcy - agency – authority – apparent authority – enforceability of deed - second defendant a director of first defendant – second defendant signed deed on behalf of company – whether second defendant had authority to act – - whether arrangement an indemnity or guarantee – forbearance to sue – misrepresentation – unconscionability – case law considered. Estate of Camm (A Bankrupt) (I,B) & McIntosh & Anor as Trustees of the Estate of Camm (a Bankrupt) v Linke Nominees P/L (No 2) [2008] QSC 080 Supreme Court of Queensland Dutney J Costs – indemnity costs order made - second defendant to pay plaintiffs’ costs on indemnity basis. Estate of Camm (A Bankrupt) (No 2) (I,B) Pearson v Rizos [2008] SASC 98 Supreme Court of South Australia Gray J Health law – appeal against dismissal of complaint under Public & Environmental Health Act 1987 (SA) that gym unsanitary with inadequate amounts of chlorine in pool - held that magistrate had erred in finding that complainant had not established he was an authorised officer & as such entitled to make the complaint - magistrate's dismissal of charges set aside - retrial ordered before a differently constituted court. Pearson (I) From the United Kingdom… Morgan v UPS Ltd [2008] EWCA Civ 375 Court of Appeal of England & Wales Pill, Sedley LJJ & Sir Peter Gibson Personal injuries – damages – appeal against award of damages on basis award excessive – fracture to left wrist – claimant left-handed – injury occurred while claimant working as warehouseman – claimant’s case he had planned to set himself up in business as motor mechanic - damages for future loss - disadvantage in labour market – appeal dismissed. Morgan (I) Benchmark is prepared daily by A R Conolly & Company Lawyers, Sydney e: [email protected] t: 02 9333 3600 - 5 - & For Anzac Day Friday 25 April 2008… “I nearly cried sometimes – I was not hurt at all – but those hundreds of poor maimed chaps lying there on the sand were trying to help one another with a joke, a whispered word – a smile – a look.” Ion “Jack” Idriess (1889 - 1979) – born in Sydney at Waverley - trooper with 5th Light Horse at Lone Pine, Gallipoli 1915 - after a bomb blast, he had been taken to a dressing station on the main beach – author of “The Desert Column,” “Lasseter’s Last Ride,” “Flynn of the Inland,” “The Cattle King,” “Forty Fathoms Deep,” “The Silver City.” “They marched as they liked to march, in their slouch hats with the grey- bordered colour patches on the bleached-out puggarees...They were going past now in the rhythmic thunder of the boots, with the clip of metal in the sound, beating through the roar of cheering, & they marched, not like Guardsmen, but in their big loose straight easy way...& suddenly & terribly I knew that all the Jacks were marching past me, all the Jacks were still marching...” George Johnston (1912 - 1970) – from “My Brother Jack” in the final pages of the novel - describing a march in Melbourne towards the end of the Second World War. Because of tomorrow’s public holiday for Anzac Day, the next edition of ‘Benchmark’ will be published on Monday 28 April, 2008 Key: (I) Insurance; (B) Banking; (C) Construction Benchmark is prepared daily by A R Conolly & Company Lawyers, Sydney e: [email protected] t: 02 9333 3600 .