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AR Conolly & Company

A Daily Bulletin listing selected decisions
of Superior Courts of Australia

Published by
AR Conolly & Company

Benchmark Podcast: Friday, 5 December 2014

Weekly Law Review

Case Summaries

Quintano v Minister for Finance and Deregulation [2014] FCAFC 159
Full Court of the Federal Court of Australia
Edmonds, McKerracher & Katzmann JJ
Administrative law - applicant injured in fight at nightclub - sued owner of nightclub - NSW Supreme Court awarded applicant $4,063,802.50 - owner went into liquidation during proceeding - owner insured by insurer through its agent - insurer and agent wound up - applicant sought act of grace payment under s33 Financial Management and Accountability Act 1997 (Cth) on basis ASIC and Australian Prudential Regulation Authority failed to act against insurer or agent despite being aware they were unable to meet liabilities and may have engaged in criminal activity - primary judge dismissed application - held: grounds of appeal not made out - no error in primary judge’s conclusion that applicant’s circumstances were not special or sufficiently special to warrant exercise of discretion to authorise payment - appeal dismissed.
Quintano (I G)
[From Benchmark 2 December 2014]


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    Halime v Singapore Airlines Ltd [2014] NSWSC 1681
    Supreme Court of New South Wales
    Adams J
    Carriers’ liability - limitations - plaintiff claimed he suffered psychological injury as result of engine exploding on flight in 1992 - plaintiff’s action against airline arose from Civil Aviation (Carriers' Liability) Act 1959 (Cth) which provided that Warsaw Convention was part of Australian law - liability of carrier under Convention - held: action could not succeed because of Art 29(1) of the Convention which provided that right to damages was extinguished if action not brought within two years reckoned to date of the arrival and destination, or from date on which aircraft ought to have arrived, or from date on which carriage stopped - carriage stopped at very latest on 29/5/92 - action for damages extinguished on 28/5/94 - statement of claim dismissed.
    Halime (I B)
    [From Benchmark 1 December 2014]
     
    Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674
    Supreme Court of New South Wales
    McCallum J
    Defamation - newspaper published article incorrectly identifying plaintiff as female teacher who resigned from school amidst allegations of unlawful sexual misconduct - only defence relied upon by defendants was statutory defence created by s18 Defamation Act 2005 (NSW) of failure to accept an offer to make amends - ss13, 15, 18, 20, 34 & 35 - held: offer to amend did not satisfy mandatory requirements of Act - defamation greatly damaged plaintiff’s impeccable reputation and caused immense hurt - plaintiff entitled to large award of damages, including aggravated damages, and to have Court declare falsity of that which had been imputed to her by newspaper - judgment for plaintiff in sum of $350,000.
    Pedavoli (I)
    [From Benchmark 1 December 2014]
     
    Klewer BHNF Klewer v Royal Alexandra Hospital for Children [2014] NSWSC 1639
    Supreme Court of New South Wales
    Button J
    Negligence - plaintiff alleged he suffered injury loss and damage as result of negligence by children’s hospital - brother appointed as tutor on basis plaintiff incapable of managing own litigation - brother sought removal as tutor - plaintiff sought to represent himself in proceedings - held: Court sympathetic to proposition that person who was tutor and no longer wished to be one should not be forced to remain as one - r7.18(1)(b) Uniform Civil Procedure Rules 2005 (NSW) did not countenance removal of tutor without appointment of another - not in interests of justice to override rules pursuant to s14 Civil Procedure Act 2005 (NSW) - real question whether plaintiff's assertion he was capable of running his own litigation was correct - order declined - matter relisted before Registrar.
    Klewer BHNF Klewer (I)
    [From Benchmark 28 November 2014]
     
    Miller v Lithgow City Council [2014] NSWSC 1579
    Supreme Court of New South Wales
    RS Hulme AJ
    Negligence - plaintiff injured when she attempted to perform ‘track-start dive’ into shallow end of swimming pool run by Council - first defendant was Council - second defendant conducted school - plaintiff sued defendants for breach of duty of care - s5D Civil Liability Act 2002 (NSW) - held: immediate cause of plaintiff’s injury was slippage of foot - unreasonable for school to encourage plaintiff to dive into shallow end of pool with lack of gripping facilities - no breach of duty by Council - school liable for failure to warn plaintiff of risks of what she was doing and because it actively encouraged plaintiff to do what she was doing - school’s negligence caused plaintiff’s injuries - judgment for plaintiff - damages to be assessed.
    Miller (I)
    [From Benchmark 2 December 2014]
     
    Greenacre Business Park Pty Ltd v Deliver Australia Pty Ltd [2014] NSWSC 164
    Supreme Court of New South Wales
    White J
    Costs - plaintiffs sought non-party costs order against director of defendant company in liquidation on indemnity basis and in specified gross sum - basis for application was that director was responsible for defendant's raising defence and cross claim based on matters director knew were untrue - held: Court satisfied defence and cross-claim propounded on basis director knew to be false - order should be made that director personally be liable for plaintiffs' costs on indemnity basis - plaintiff entitled to a specified gross sum instead of assessed costs - qualification that director should not personally be liable for costs plaintiffs would, in any event, have had to incur to obtain judgment.
    Greenacre Business Park Pty Ltd (I B)
    [From Benchmark 4 December 2014]
     
     
     
    In2Ply Pty Ltd v Amerind Pty Ltd (in liq) [2014] VSC 603
    Supreme Court of Victoria
    Randall AsJ
    Corporations - plaintiff sought to set aside statutory demand served upon it by defendant - defendant claimed plaintiff did not have an offsetting claim within s459(1)(b) Corporations Act 2001 (Cth) - held: at date of service of statutory demand, and at date for compliance with it, there was no debt due and payable to defendant - debt that existed to support a statutory demand must be 'due and payable' and remain due and payable during entire period for compliance - Court satisfied plaintiff had a genuine cross-claim against defendant which exceeded the amount set out in the statutory demand and was a valid offsetting claim under s459H(2) - statutory demand set aside.
    In2Ply Pty Ltd (B C)
    [From Benchmark 4 December 2014]
     
    Bolitho v Banksia Securities Ltd (No 4) [2014] VSC 582
    Supreme Court of Victoria
    Ferguson JA
    Group proceeding - plaintiff depositor and owner of debentures in company claimed he and group members suffered loss and damage as result of defendants’ conduct - lawyers had represented plaintiff in proceeding since inception - defendants sought to restrain plaintiff from continuing to retain lawyers - interests of lawyers in litigation funder - test for restraint - held: fair-minded, reasonably informed member of public would conclude that proper administration of justice required that lawyers should be prevented from acting, in the interests of the protection of the integrity of the judicial process and interests of justice.
    Bolitho (I B)
    [From Benchmark 28 November 2014]
     
    Eatts v Gundy [2014] QCA 309
    Court of Appeal of Queensland
    Muir & Fraser JJA; Martin J
    Succession - intestacy - family provision - deceased died intestate - appellant was administrator and parent of deceased - respondent was biological son of deceased’s sister - respondent argued he was surviving child of deceased pursuant to Succession Act 1981 (Qld) and sought declaration he take whole estate - primary judge dismissed appellant’s application to strike out respondent’s originating application - child - s41(1) - parent/child relationship in Aboriginal tradition - held: putting the evidence at its highest for respondent that he was in parent/child relationship with deceased according to Aboriginal tradition, claims must fail upon correct construction of statutory provisions - appellant did not have more than a fanciful prospect of success - appeal allowed - application struck out.
    Eatts (B)
    [From Benchmark 2 December 2014]
     
    Michalakas v Powell [2014] SASCFC 132
    Full Court of the Supreme Court of South Australia
    Kourakis, Vanstone & Parker JJ
    Corporations - Master refused application for leave to institute proceedings in name of company pursuant to s237 Corporations Act 2001 (Cth) - serious question to be tried - best interests of company - ss237(2)(c) & 237(2)(d) - Pts 2F & 1A - held: evidentiary deficits undermined appellant's contention that proposed case was viable - appellant failed to satisfy Court that proceedings would be in best interest of the company - no error by Master - Master correct to refuse leave - appeal dismissed.
    Michalakas (B)
    [From Benchmark 3 December 2014]
     
    Menz v Menz [2014] SASC 180
    Supreme Court of South Australia
    Gray J
    Wills - probate - deceased left Will dated 7 July 1978 in which she appointed plaintiff husband executor and sole beneficiary of estate - divorce order made in Federal Magistrates Court in 2013 relation to marriage - divorce application discontinued following death of deceased - following death, envelope located bearing handwritten text of deceased providing deceased’s estate was to be divided between children of plaintiff and deceased - plaintiff sought grant of probate of 1978 will in solemn form and order pronouncing against the handwritten document appearing on envelope - held: in circumstances, and in regard to fact that no party had challenged validity of 1978 Will, it was appropriate to make order pronouncing for its force and validity -  divorce did not take effect - s20A Wills Act 1936 (SA) had no operation - disposition in plaintiff’s favour not revoked - handwritten writing gave rise to well-founded suspicion that document was not a valid testamentary instrument - no party had propounded the envelope as a Will - order made pronouncing against validity of envelope.
    Menz (B)
    [From Benchmark 3 December 2014]
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