www.arconolly.com.au Thursday 12 April 2012 Insurance, Banking, Construction & Government A Daily Bulletin listing Decisions of Superior Courts of Australia Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary (1 minute read) Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal & Torres Strait Islander Corporations (No 4) - Costs - power to order costs be paid by a non-party - s43 Federal Court of Australia Act 1976 (Cth) (I, B, C, G) Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd - Workplace Relations Act 1996 (Cth) - Limitation Act 1969 (NSW) - application for leave to appeal from Federal Magistrates Court to be referred to a Full Court (I) Tivo Inc v Vivo International Corporation Pty Ltd (No 2) - Costs - final orders (I, B) Bawden v Repatriation Commission - Veterans’ Entitlements Act 1986 (Cth) - statutory interpretation - appeal allowed (I) Geraldton Port Authority v The Ship "Kim Heng 1888" (No 2) - s37 Admiralty Act 1988 (Cth) - limitation of actions - claim - proceeding (I) Hill v Lang - Copyright Act 1968 (Cth) - appeal dismissed (I, B) Page 2 www.arconolly.com.au Sahab Holdings Pty Ltd v Registrar-General (No 3) - Costs - final orders (B, C) Beck v LW Furniture Consolidated (Aust) Pty Ltd - ss1322 & 1322(4)(a) Corporations Act 2001 (Cth) - statutory interpretation - management & administration of companies - directors & other officers - appeal allowed - cross-appeal dismissed (B) Dixon & Ors v Barton & Ors - Mortgages - indefeasibility of title - s211 Duties Act 1997 (NSW) (B, C) Provident Capital Ltd v John Virtue Pty Ltd (No 1) - s79 Evidence Act 1995 (NSW) (I, B, C, G) Birdanco Nominees Pty Ltd v Money - Employment contracts - restraint of trade - appeal allowed (I, B, C, G) In the estate of Patricia Ada White - Wills Act 1968 (ACT) (B) Sunmugam v Teck & Anor - Singapore case - torts - claim for damages for assault & wrongful arrest - claim against both defendants dismissed (I) Summaries with links (5 minute read) Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal & Torres Strait Islander Corporations (No 4) [2012] FCAFC 50 Full Court of the Federal Court of Australia Keane CJ, Lander & Foster JJ Costs - power to order costs be paid by a non-party - whether appropriate to order costs be paid by directors of unsuccessful party - s43 Federal Court of Australia Act 1976 (Cth) - application by Registrar in relation to costs of appeal, on which Registrar was successful; costs of Registrar’s interlocutory application to join directors to appeal; costs of Corporation’s application to Full Court to re-open its decision & costs of Corporation’s interlocutory application for extension of stay - application unsuccessful - detailed consideration of UK & Australian case law. Dunghutti Elders Council (I, B, C, G) Page 3 www.arconolly.com.au Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Ltd [2012] FCA 347 Federal Court of Australia Katzmann J Workplace Relations Act 1996 (Cth) - limitation of actions - Fair Work Ombudsman (FWO) applying for leave to appeal judgment of a federal magistrate in which an order was made summarily dismissing 6 paragraphs of its application & statement of claim - in those paragraphs FWO sought pecuniary penalties for alleged contraventions of Workplace Relations Act 1996 - respondent had successfully argued that application for pecuniary penalties was brought more than 2 years after the alleged contraventions took place & so was statute-barred under s18 Limitation Act 1969 (NSW) - federal magistrate held that s18 applied by reason of s79(1) Judiciary Act 1903 (Cth) - FWO seeking to contend that contrary to the federal magistrate’s findings, Limitation Act 1969 (NSW) does not apply to an application for orders for payment of penalties under the Workplace Relations Act as (i) the action was not a cause of action to recover a penalty; (ii) the penalty was not recoverable by virtue of an enactment (but as a result of a court order); and that, (iii) in any event, enactment as used in s18(1) of the Limitation Act does not apply to a Commonwealth enactment - s25(2)(e) Federal Court Act of Australia 1976 (Cth) - application for leave to appeal from Federal Magistrates Court to be referred to a Full Court - subject to any contrary direction of the Full Court, the application for leave to appeal be heard concurrently with or, alternatively, immediately before any appeal. Fair Work Ombudsman (I) Tivo Inc v Vivo International Corporation Pty Ltd (No 2) [2012] FCA 336 Federal Court of Australia Dodds-Streeton J Costs - whether former or current Federal Court Rules applicable - final orders Tivo (I, B) Tivo - decision Federal Court of Australia 19 March 2012: see Benchmark I, B & IBC Friday 23 March 2012 - s122(1)(e) Trade Marks Act 1995 (Cth) - computer hardware & software - principles governing deceptive similarity - see pars 513- 514, 523 & 535 of judgment - as first respondent had not, at this stage, been found to have infringed, any accessorial liability of second respondent for infringement could logically arise only in future, following the removal of the Vivo trade mark from the Register - cross-claim dismissed - comprehensive review of UK & Australian case law. Page 4 www.arconolly.com.au Bawden v Repatriation Commission [2012] FCA 345 Federal Court of Australia Gray J Veterans’ Entitlements Act 1986 (Cth) - statutory interpretation - appeal from Administrative Appeals Tribunal - post traumatic stress disorder - consideration of steps that are necessary for the performance of decision-maker’s task in determining whether there is a causal connection between war service & the condition of the veteran - errors of law - appeal allowed. Bawden (I) Bawden and Repatriation Commission - decision Administrative Appeals Tribunal 2 May 2011 Geraldton Port Authority v The Ship "Kim Heng 1888" (No 2) [2012] FCA 353 Federal Court of Australia McKerracher J S37 Admiralty Act 1988 (Cth) - limitation of actions - collision of three vessels with berths in Geraldton Port - plaintiff seeking to discontinue in rem proceeding; it has brought a separate proceeding in personam against charterers - defendants in the in rem proceeding contend that dismissing the in rem proceeding, by virtue of it being out of time, will also have the effect of dismissing the in personam proceeding - His Honour did not agree with defendants’ contention - claim - proceeding - detailed analysis of UK & Australian case law. Geraldton Port Authority (I) Hill v Lang [2012] FCA 349 Federal Court of Australia Besanko J Copyright Act 1968 (Cth) - appeal from orders made by Federal Magistrates Court - federal magistrate had dismissed a claim by applicant against respondent alleging breach of copyright - cinematographic film with a sound recording - appeal dismissed. Hill (I, B) Sahab Holdings Pty Ltd v Registrar-General (No 3) [2012] NSWCA 72 Court of Appeal of New South Wales McColl & Campbell JJA, Tobias AJA Costs - final orders following decision of the Court 20 March 2011, for which see link below. Sahab Holdings (B, C) Page 5 www.arconolly.com.au Sahab Holdings - decision Court of Appeal of NSW 20 March 2012: see Benchmark B, C & IBCG Monday 26 March 2012 - ss12(3)(b), 12A(3) & 118(1)(d) Real Property Act 1900 (NSW) - statutory interpretation; Sahab Holdings - decision Court of Appeal of NSW 15 December 2011: see Benchmark B, C & IBCG Tuesday 20 December 2011 - s32(6) Real Property Act 1900 (NSW) - easements - construction of grant of right of way & attendant covenants to determine whether grant continued in operation - principle of indefeasibility of title - Court's power to order Registrar-General to amend folios of Register to reinstate right of way - comprehensive review of Australian case law; Sahab Holdings - decision of Supreme Court of NSW 5 May 2010; Sahab Holdings - decision Supreme Court of NSW 8 March 2010 - summons dismissed; Sahab Holdings - decision Supreme Court of NSW 26 October 2009 reported at 75 NSWLR 629: see Benchmark B & IBC Tuesday 3 November 2009 - real property - restrictive covenants - parcels of land at Sailor’s Bay Rd, Northbridge - proceedings to review decision Registrar-General's decision removing a right of way from folio of register for servient tenement - reasons for decision of Registrar-General ordered to be provided pursuant to duty under s121 Real Property Act 1900 (NSW) Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76 Court of Appeal of New South Wales Campbell & Young JJA, Sackville AJA Ss1322 & 1322(4)(a) Corporations Act 2001 (Cth) - statutory interpretation - management & administration of companies - directors & other officers - appointment, removal & retirement of directors - power to issue voting shares - Anshun estoppel - Company Law Review Act 1988 (Cth) - appeal allowed - cross-appeal dismissed - matter remitted to determine whether company should be wound up - “retirement’ - comprehensive consideration of UK & Australian case law. Beck (B) Beck - decision Supreme Court of NSW 1 April 2011 - Corporations Act 2001 (Cth) - plaintiff seeking order that first defendant be wound up, and an order that a liquidator be appointed - just & equitable ground - members’ voting rights - board composition - annual general meetings - directorships - discretionary power