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Recent Decisions

  1. 17-02-2017 Torts:  » negligence; mental harm; non-delegable duty; vicarious liability

    Mr Wright brought an action in negligence occasioning psychological injury against Optus in respect of an attempt by Mr George to kill Mr Wright by throwing him off the roof of an Optus office building while both were attending a training course on those premises. Mr George and Mr Wright were not Optus employees, but were under Optus’ direction at the time.

    The issue on appeal was whether Optus was liable in negligence for Mr Wright’s psychological injury. This raised a question:

    • whether Optus owed Mr Wright a duty of care in respect of mental harm;
    • whether Optus’ staff owed Mr Wright a duty of care with respect to mental harm; and
    • whether Optus was vicariously liable for the actions of its employees.

    Held:

    • Applying s 32 of the Civil Liability Act 2002 (NSW), absent an express finding by the primary judge that an assault of the severity inflicted by Mr George, being intended to put Mr Wright’s life in peril, was something which Optus ought to have foreseen and which it should reasonably have foreseen might cause a person of normal fortitude to suffer a psychiatric illness, Optus was under no duty to take reasonable care to protect Mr Wright against mental harm (Basten and Hoeben JJA, Gleeson JA dissenting).
    • It was not probable that any of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assault the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. Absent such a finding, (a) none of them owed the plaintiff a duty of care with respect to mental harm and (b) Optus could not be vicariously liable to the plaintiff.
     «

    Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21
  2. 16-02-2017 Defamation:  » negligence; novel duties of care; defamation

    Mr Perera brought three claims against Genworth, a mortgage insurer, arising out of claims made by Genworth concerning Mr Perera’s expertise as a property valuer. 

    First, Mr Perera brought an action in negligence occasioning economic loss, positing a novel duty of care said to be owed by a potential plaintiff to a potential defendant not to bring proceedings negligently. 

    Secondly, Mr Perera brought an action in defamation on the basis of a letter written by Genworth and sent to Genworth’s client. 

    Thirdly, Mr Perera brought an action in negligence occasioning psychological injury resulting from a senior employee of Genworth threatening to sue Mr Perera personally for an alleged negligent valuation. 

    The issue on appeal was whether the primary judge erred in summarily dismissing each of Mr Perera’s claims. This raised:

    • a question as to the proper approach where novel duties of care cut across or subvert other legal principles; and
    • as to the defamation claim, a question whether the relevant imputations were specified and whether they were capable of arising.

    Held:

    • The primary judge did not err in striking out the two claims in negligence. The asserted novel duties of care could not exist coherently with the current law, including torts based on misuse of legal process, the absence of a duty of care owed by one litigant to another and the importance of unfettered access to the courts. As such, findings of fact were unnecessary.
    • The defamation proceedings should not have been struck out and should proceed in the District Court.
     «

    Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19
  3. 16-02-2017 Torts:  » negligence; novel duties of care; defamation

    Mr Perera brought three claims against Genworth, a mortgage insurer, arising out of claims made by Genworth concerning Mr Perera’s expertise as a property valuer. 

    First, Mr Perera brought an action in negligence occasioning economic loss, positing a novel duty of care said to be owed by a potential plaintiff to a potential defendant not to bring proceedings negligently. 

    Secondly, Mr Perera brought an action in defamation on the basis of a letter written by Genworth and sent to Genworth’s client. 

    Thirdly, Mr Perera brought an action in negligence occasioning psychological injury resulting from a senior employee of Genworth threatening to sue Mr Perera personally for an alleged negligent valuation. 

    The issue on appeal was whether the primary judge erred in summarily dismissing each of Mr Perera’s claims. This raised:

    • a question as to the proper approach where novel duties of care cut across or subvert other legal principles; and
    • as to the defamation claim, a question whether the relevant imputations were specified and whether they were capable of arising.

    Held:

    • The primary judge did not err in striking out the two claims in negligence. The asserted novel duties of care could not exist coherently with the current law, including torts based on misuse of legal process, the absence of a duty of care owed by one litigant to another and the importance of unfettered access to the courts. As such, findings of fact were unnecessary.
    • The defamation proceedings should not have been struck out and should proceed in the District Court.
     «

    Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19
  4. 15-02-2017 Practice and procedure:  » stays; security for costs

    Mr Pi’s claim for damages for breach of contract, assault and conversion of a washing machine was rejected in the Supreme Court. Mr Pi twice commenced judicial review proceedings from that decision, both of which were discontinued. Mr Pi then sought leave to appeal from the original decision.

    Sitting as a single judge in the Court of Appeal, Gleeson JA stayed the application for leave to appeal until Mr Pi had paid the costs of the two discontinued judicial review proceedings and provided security for costs of the application for leave to appeal. 

    The issue on appeal was whether Gleeson JA erred in granting the stay. This raised a question:

    • as to the circumstances in which a stay may be granted until thepayment of costs in earlier proceedings; and
    • whether the applicant’s prospects of success are relevant to the decision to order security for costs.

    Held:

    • Gleeson JA erred in granting a stay until Mr Pi paid the costs of the discontinued judicial review proceedings. These costs might be set-off against other costs owed by Mr Zhou to Mr Pi.
    • There were “special circumstances” warranting an order for security of costs of the appeal (per Payne JA and Sackville AJA, Basten JA dissenting). The majority had regard to the applicant’s poor prospects of success, while Basten JA considered that the Court should not order a stay pending provision of security for costs on the ground that the application lacked merit.
     «

    Pi v Zhou [2017] NSWCA 16
  5. 15-02-2017 Appeal:  » recovery proceedings; collateral attack; jurisdiction of State courts

    Officers of the Commissioner of Taxation investigated the tax affairs of Anglo American Investments Pty Ltd, obtaining certain information from the taxation authorities in the Cayman Islands. The Deputy Commissioner of Taxation subsequently issued notices of tax assessment to Anglo American, and later commenced debt recovery proceedings in the Supreme Court. 

    The issue on appeal was whether the Supreme Court erred in striking out Anglo American’s amended defence, in which Anglo American contended that the tax assessments were tainted by “conscious maladministration”.

    Held:

    • Leave to appeal the decision of the Supreme Court should be refused, because the amended defence was bound to fail.
    • Obiter, the effect of s 9 of the Administrative Decisions (Judicial) Review Act 1977 (Cth) is that State courts do not have jurisdiction otherwise granted under s 39(2) of the Judiciary Act 1903 (Cth) to issue a declaration, certiorari or an injunction in a “review” of the making of an income tax assessment. However, State courts do have jurisdiction to grant the remedies available to the Federal Court by reason of s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
     «

    Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17
  6. 15-02-2017 Taxation:  » recovery proceedings; collateral attack; jurisdiction of State courts

    Officers of the Commissioner of Taxation investigated the tax affairs of Anglo American Investments Pty Ltd, obtaining certain information from the taxation authorities in the Cayman Islands. The Deputy Commissioner of Taxation subsequently issued notices of tax assessment to Anglo American, and later commenced debt recovery proceedings in the Supreme Court. 

    The issue on appeal was whether the Supreme Court erred in striking out Anglo American’s amended defence, in which Anglo American contended that the tax assessments were tainted by “conscious maladministration”.

    Held:

    • Leave to appeal the decision of the Supreme Court should be refused, because the amended defence was bound to fail.
    • Obiter, the effect of s 9 of the Administrative Decisions (Judicial) Review Act 1977 (Cth) is that State courts do not have jurisdiction otherwise granted under s 39(2) of the Judiciary Act 1903 (Cth) to issue a declaration, certiorari or an injunction in a “review” of the making of an income tax assessment. However, State courts do have jurisdiction to grant the remedies available to the Federal Court by reason of s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).
     «

    Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17
  7. 07-02-2017 Administrative law:  » building case ultimately determined in District Court; s 69 Supreme Court Act 1970 (NSW); supervisory jurisdiction

    Torbey Investments entered into a building contract with Mr and Mrs Ferrara, pursuant to which it undertook building and construction work on the Ferraras’ residential property in Maroubra. Completion was delayed for several reasons, and the Ferraras pruported to terminate the contract.

    The issue on appeal was whether the contract had been validly terminated and what were the appropriate orders. This raised a question:

    • whether the contractual terms imposing procedural requirements and time limits for notices of breach and termination were mandatory; and
    • relating to the power of the Court of Appeal to substitute orders in the exercise of its supervisory jurisdiction.

    Held:

    • The contract had been validly terminated, and the owners were entitled to recover the cost of completion.
    • The order of the District Court with respect to interest, made in favour of the Ferraras despite their not being entitled to interest and not having sought it, should not have been made. Accordingly, the orders made in favour of the Ferraras should be altered.
    • The Court of Appeal, in the exercise of its supervisory jurisdication, has the power to make an order not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the court below. Therefore, the Court of Appeal ordered that Torbey Investments is liable to the Ferraras for damages for defective and incomplete building works in the amount that should have been ordered by the District Court.
     «

    Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
  8. 07-02-2017 Contract:  » building case ultimately determined in District Court; s 69 Supreme Court Act 1970 (NSW); supervisory jurisdiction

    Torbey Investments entered into a building contract with Mr and Mrs Ferrara, pursuant to which it undertook building and construction work on the Ferraras’ residential property in Maroubra. Completion was delayed for several reasons, and the Ferraras pruported to terminate the contract.

    The issue on appeal was whether the contract had been validly terminated and what were the appropriate orders. This raised a question:

    • whether the contractual terms imposing procedural requirements and time limits for notices of breach and termination were mandatory; and
    • relating to the power of the Court of Appeal to substitute orders in the exercise of its supervisory jurisdiction.

    Held:

    • The contract had been validly terminated, and the owners were entitled to recover the cost of completion.
    • The order of the District Court with respect to interest, made in favour of the Ferraras despite their not being entitled to interest and not having sought it, should not have been made. Accordingly, the orders made in favour of the Ferraras should be altered.
    • The Court of Appeal, in the exercise of its supervisory jurisdication, has the power to make an order not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the court below. Therefore, the Court of Appeal ordered that Torbey Investments is liable to the Ferraras for damages for defective and incomplete building works in the amount that should have been ordered by the District Court.
     «

    Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
  9. 07-02-2017 Appeal:  » building case ultimately determined in District Court; s 69 Supreme Court Act 1970 (NSW); supervisory jurisdiction

    Torbey Investments entered into a building contract with Mr and Mrs Ferrara, pursuant to which it undertook building and construction work on the Ferraras’ residential property in Maroubra. Completion was delayed for several reasons, and the Ferraras pruported to terminate the contract.

    The issue on appeal was whether the contract had been validly terminated and what were the appropriate orders. This raised a question:

    • whether the contractual terms imposing procedural requirements and time limits for notices of breach and termination were mandatory; and
    • relating to the power of the Court of Appeal to substitute orders in the exercise of its supervisory jurisdiction.

    Held:

    • The contract had been validly terminated, and the owners were entitled to recover the cost of completion.
    • The order of the District Court with respect to interest, made in favour of the Ferraras despite their not being entitled to interest and not having sought it, should not have been made. Accordingly, the orders made in favour of the Ferraras should be altered.
    • The Court of Appeal, in the exercise of its supervisory jurisdication, has the power to make an order not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the court below. Therefore, the Court of Appeal ordered that Torbey Investments is liable to the Ferraras for damages for defective and incomplete building works in the amount that should have been ordered by the District Court.
     «

    Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
  10. 06-02-2017 Property:  » PPSA; fixtures

    The appellants agreed to lease turbines worth about $44 million to Forge Group Power. Forge Group Power installed the turbines in a temporary power station at Port Hedland. Shortly after, Forge Group Power went into voluntary administration. The appellants had not registered on the PPS Register their interest, as lessor, in the turbines. Accordingly, the security interest remained unperfected. 

    The issue on appeal was whether the PPSA applied to the lease. If it did, the lease was a “PPS lease” and the appellants’ unperfected security interest in the turbines had vested in Forge Group Power as lessee immediately before the appointment of the voluntary administrators. This raised a question as to:

    • whether the turbines were fixtures as defined in the PPSA; and
       
    • whether the PPSA definition of “fixtures” imports common law principles relating to fixtures.

    Held:

    • The definition of “fixtures” in s 10 of the PPSA imports common law principles relating to fixtures.
       
    • Applying those principles, the turbines had not become fixtures under of the PPSA. The lease was a PPS lease, and the appellants’ failure to perfect its security interest meant that Forge Group Power had better title to the turbines.
     «

    Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) [2017] NSWCA 8

Australian Intermediate Appellate Courts

  1. 10-02-2017 Torts:  » negligence; psychiatric harm; employer investigations

    Ms Govier was employed by Unitingcare as a disability worker. A co-worker attacked Ms Govier during a cross-over of their shifts at a client’s house. Ms Govier suffered physical and psychiatric injuries as a result of the attack. Ms Govier suffered further psychiatric injuries when given two letters by her employer, the first requesting that Ms Govier attend an interview about the incident and the second containing allegations against Ms Govier and requesting that she show cause why her employment should not be terminated as a result of the incident. Ms Govier claimed damages for negligently inflicted psychiatric injury.

    The issue on appeal was whether Unitingcare was liable in negligence for Ms Govier’s psychiatric injuries. This raised a question:

    • whether Unitingcare had breached its duty to provide a safe system of work in rostering Ms Govier and the co-worker to meet at the change of shift; and
    • whether Unitingcare owed Ms Govier a duty of care in respect of its investigation of Ms Govier’s role in the incident.

    Held:

    • Unitingcare had not breached its duty to Ms Govier to provide a safe system of work by rostering Ms Govier and the co-worker in a way which required them to meet at the change of shift, because the assault was not reasonably foreseeable despite concerns raised by Ms Govier.
    • Unitingcare’s letters caused psychiatric injury to Ms Govier. However, Unitingcare did not owe a duty of care to Ms Govier in its investigation of Ms Govier’s conduct in relation to the assault (citing State of NSW v Paige).

    NSWCA cases considered include:

    Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

    State of New South Wales v Paige (2002) 60 NSWLR 371; [2002] NSWCA 235

    High Court cases considered:

    Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

    Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562

    Watts v Rake [1960] HCA 58; (1960) 108 CLR 158  «

    Govier v Unitingcare Community [2017] QCA 12
  2. 10-02-2017 Practice and procedure:  » rectification; precise scope of intention of parties

    The respondents were licensed real estate agents. The appellants were property developers who entered into written sales authorities with each of the agents. The agents commenced proceedings for recovery of their claimed commission. The developers cross-claimed that the agents were not entitled to commission because the sales authorities contravened the Estate Agents Act 1980 (Vic). The agents sought to amend their statements of claim to seek relief by way of rectification of the sales authorities.

    The issue on appeal was whether the agent’s amended claim, seeking relief by way of rectification, should be struck out. This raised a question:

    • whether contravention of an Act precludes rectification in respect of that contravention; and
    • as to the proper test for whether amended pleadings should be struck out with no right to re-plead.

    Held:

    • The central consideration in whether the court will order rectification of an instrument is the precise scope of the intention of the parties. If the rectified document would not reflect the common intention of the parties, then the remedy will not be granted. In this case, rectification will not necessarily defeat or undermine the purpose of the Estate Agents Act, and the Court should take a proportionate response to the contravention.
    • The agent’s amended claim did not have no real prospects of success, in the sense of being fanciful. Accordingly, the amended claim should not be struck out.

    NSWCA cases considered include:

    Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165

    Mayo v W & K Holdings (NSW) Pty Ltd (in liq) [2015] NSWCA 119

    High Court cases considered include:

    Nelson v Nelson (1995) 184 CLR 538

    Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 91 ALJR 108

     «

    CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11
  3. 10-02-2017 Contract:  » rectification; precise scope of intention of parties

    The respondents were licensed real estate agents. The appellants were property developers who entered into written sales authorities with each of the agents. The agents commenced proceedings for recovery of their claimed commission. The developers cross-claimed that the agents were not entitled to commission because the sales authorities contravened the Estate Agents Act 1980 (Vic). The agents sought to amend their statements of claim to seek relief by way of rectification of the sales authorities.

    The issue on appeal was whether the agent’s amended claim, seeking relief by way of rectification, should be struck out. This raised a question:

    • whether contravention of an Act precludes rectification in respect of that contravention; and
    • as to the proper test for whether amended pleadings should be struck out with no right to re-plead.

    Held:

    • The central consideration in whether the court will order rectification of an instrument is the precise scope of the intention of the parties. If the rectified document would not reflect the common intention of the parties, then the remedy will not be granted. In this case, rectification will not necessarily defeat or undermine the purpose of the Estate Agents Act, and the Court should take a proportionate response to the contravention.
    • The agent’s amended claim did not have no real prospects of success, in the sense of being fanciful. Accordingly, the amended claim should not be struck out.

    NSWCA cases considered include:

    Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165

    Mayo v W & K Holdings (NSW) Pty Ltd (in liq) [2015] NSWCA 119

    High Court cases considered include:

    Nelson v Nelson (1995) 184 CLR 538

    Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 91 ALJR 108

     «

    CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11
  4. 08-02-2017 Contract:  » review of adjudicator’s decision; whether contract void or unenforceable

    Maxcon Constructions engaged Mr Vadasz to design and construct piling for an apartment building. At all material times, Mr Vadasz, who was carrying on the business under a firm name, was an undischarged bankrupt, and he had not disclosed this to Maxcon (in breach of s 269(1)(b) Bankruptcy Act 1966 (Cth)). Mr Vadasz served on Maxcon a payment claim, and Maxcon issued a payment schedule deducting a “retention sum”. An adjudicator found that the “retention sum” was rendered void by the applicable Security of Payment legislation.

    The issue on appeal was whether Maxcon was liable to pay Mr Vadasz the amount ordered by the adjudicator. This raised a question:

    • whether Mr Vadasz’s contravention of s 269(1)(b) of the Bankruptcy Act 1966 (Cth) rendered the design and construct contract void or unenforceable;
    • whether the adjudicator’s error in finding the retention sum void was a jurisdictional error; and
    • whether review is available for non-jurisdictional error of law on the face of the record.

    Held:

    • Mr Vadasz’s failure to disclose his bankruptcy was a contravention of s 269(1)(b). However, this section did not render the contract void or unenforceable by Mr Vadasz. Mr Vadasz’s failure to disclose also did not render the contract void or unenforceable at common law.
    • The adjudicator erred in finding the retention sum to be void under the Security of Payment Act. However, this error was not a jurisdictional error (Hinton J dissenting). 
    • The adjudicator’s error was an error of law on the face of the record, but the Security of Payment Act impliedly excludes certiorari on the ground of error of law on the face of the record (Shade Systems [2016] NSWCA 379 applied). 

    NSWCA cases considered include:

    Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; [2010] 78 NSWLR 393

    Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379

    High Court cases considered include:

    Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

    Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

     «

    Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2
  5. 08-02-2017 Building and construction:  » review of adjudicator’s decision; whether contract void or unenforceable

    Maxcon Constructions engaged Mr Vadasz to design and construct piling for an apartment building. At all material times, Mr Vadasz, who was carrying on the business under a firm name, was an undischarged bankrupt, and he had not disclosed this to Maxcon (in breach of s 269(1)(b) Bankruptcy Act 1966 (Cth)). Mr Vadasz served on Maxcon a payment claim, and Maxcon issued a payment schedule deducting a “retention sum”. An adjudicator found that the “retention sum” was rendered void by the applicable Security of Payment legislation.

    The issue on appeal was whether Maxcon was liable to pay Mr Vadasz the amount ordered by the adjudicator. This raised a question:

    • whether Mr Vadasz’s contravention of s 269(1)(b) of the Bankruptcy Act 1966 (Cth) rendered the design and construct contract void or unenforceable;
    • whether the adjudicator’s error in finding the retention sum void was a jurisdictional error; and
    • whether review is available for non-jurisdictional error of law on the face of the record.

    Held:

    • Mr Vadasz’s failure to disclose his bankruptcy was a contravention of s 269(1)(b). However, this section did not render the contract void or unenforceable by Mr Vadasz. Mr Vadasz’s failure to disclose also did not render the contract void or unenforceable at common law.
    • The adjudicator erred in finding the retention sum to be void under the Security of Payment Act. However, this error was not a jurisdictional error (Hinton J dissenting). 
    • The adjudicator’s error was an error of law on the face of the record, but the Security of Payment Act impliedly excludes certiorari on the ground of error of law on the face of the record (Shade Systems [2016] NSWCA 379 applied). 

    NSWCA cases considered include:

    Chase Oyster Bar v Hamo Industries [2010] NSWCA 190; [2010] 78 NSWLR 393

    Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379

    High Court cases considered include:

    Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

    Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531

     «

    Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2
  6. 20-01-2017 Practice and procedure:  » abuse of process

    Mr Tyne (as trustee) and a company controlled by Mr Tyne had brought, and then discontinued, proceedings in the Supreme Court of NSW. The proceedings were discontinued after a decision of the High Court of Singapore in relation to the same subject matter. UBS argued that it was an abuse of process for Mr Tyne (as trustee) and his spouse Ms Marks to bring proceedings in the Federal Court arising out of the same factual matrix.

    The issue on appeal was whether the appellants should be permitted to bring their actions in the Federal Court. This raised a question as to when abuse of process arises:

    • in circumstances where the applicant was not a party to the earlier proceedings; and
    • in circumstances where the earlier proceedings were decided on the basis of res judicata and not on their merits.

    Held:

    • Jagot and Farrell JJ: in relation to Ms Marks, while it can be an abuse of process for a non-party to earlier proceedings to bring subsequent proceedings, UBS failed to prove Ms Marks’ knowledge of and role in the Supreme Court proceedings so as to demonstrate her opportunity to make her claims in the earlier proceedings. 
    • Dowsett J, in dissent: it was open to infer that the relationship between Mr Tyne and Ms Marks was such that Ms Marks should have brought her proceedings in conjunction with the earlier proceedings.
    • Jagot and Farrell JJ: in relation to Mr Tyne (as trustee), the Supreme Court proceedings to which the trustee was a party were permanently stayed on the basis of res judicata rather than on the basis of findings of fact or law about the substance of the claims. The earlier proceedings were not decided on their merits and there was no basis to find an abuse of process. 
    • Dowsett J, in dissent: the Federal Court of Australia Act requires the quick, inexpensive and efficient resolution of proceedings, the decision to discontinue the earlier proceedings was a forensic decision and to allow Mr Tyne (as trustee) to bring fresh proceedings would inflict manifest unfairness upon UBS.

    NSWCA cases considered include:

    Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245

    Ghosh v NineMSN Pty Ltd [2015] NSWCA 334

    High Court cases considered:

    Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; 226 CLR 256

    Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 89 ALJR 750

     «

    Tyne (Trustee) v UBS AG (No 2) [2017] FCAFC 5
  7. 17-01-2017 Torts:  » negligence; causation

    Mr Proudlove suffered catastrophic injuries as a passenger in a vehicle driven by Mr Burridge when it collided with an escaped horse on an unlit road at night. As Mr Burridge approached, another driver stood on the road, some distance in front of the horse, and waved. At the time of the accident, WA did not have a no-fault compensation scheme for motor vehicle accidents. At trial, Mr Proudlove proved breach of duty of care, but failed on causation.

    The issue on appeal was whether Mr Burridge was liable in negligence for Mr Proudlove’s injuries. This raised a question whether, if Mr Burridge breached his duty of care to Mr Proudlove, that breach caused Mr Proudlove’s injuries.

    Held:

    • Newnes and Mitchell JJA: on causation, ss 5C and 5D of the Civil Liability Act 2002 (WA) required Mr Proudlove to prove that the collision and Mr Proudlove’s consequent injuries would have been avoided if Mr Burridge had taken reasonable care. Mr Proudlove failed to achieve this on the evidence brought before the trial judge. 
    • Martin CJ, in dissent: applying March v E & MH Stramare Pty Ltd, as a matter of common sense, failure to keep a proper lookout or to pay due care and attention resulting in a failure to identify and respond appropriately to a risk or hazard on the roadway is a frequent cause of motor accidents, and so, in the absence of other evidence, it was reasonable to infer that Mr Burridge’s negligence caused or materially contributed to the vehicle’s collision with the horse and therefore to Mr Proudlove’s injuries.

    High Court cases considered include:

    March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

    Robinson Helicopter Company Incorporated v McDermott [2016] HCA; (2016) 331 ALR 550 [43]

     «

    Proudlove v Burridge [2017] WASCA 6
  8. 22-12-2016 Torts:  » negligence; solicitors’ contractual and tortious duties to client

    Mr Morris controlled the respondent. He engaged the appellant, which trades as Minter Ellison, to conduct a due diligence on a proposed investment in a building business. While preparing the documents to effect the agreement, Minter Ellison was told by the vendor that the vendor would procure the licence necessary for the company to operate lawfully. On completion day, Minter Ellison discovered that the necessary licence had not been procured, and advised Mr Morris to delay completion. Mr Morris instructed them to proceed. The business never acquired the necessary licence, and failed.

    The issue on appeal was whether Minter Ellison was negligent. This raised a question as to:

    • the extent of Minter Ellison’s retainer; and
    • the interaction between contractual and tortious duties to the client.

    Held:

    • There is no inconsistency between the statement of Deane J in Hawkins v Clayton, to the effect that a duty in tort could require a solicitor to take a positive step beyond the scope of the retainer, and the later decision in Astley v Austrust Ltd, which suggested that solicitor liability remained concurrent in contract and tort. The “penumbral” duty is an aspect of a solicitor’s primary duty to identify the legal implications so that the client can properly frame the scope of the retainer, bring material risks to the client’s attention and advise whether further advice should be sought. 
    • In this case, Minter Ellison acted in accordance with instructions and was not negligent.

    NSWCA cases considered:

    Capital Brake Service Pty Limited v Meagher & 8 Ors T/as Sparke Helmore [2003] NSWCA 225

    David v David [2009] NSWCA 8; (2009) Aust Torts Reports 91-993

    High Court cases considered:

    Badenach v Calvert [2016] HCA 18; 90 ALJR 610; 331 ALR 48

     «

    AS Bannister & Ors v Sirrom Enterprises Pty Ltd [2016] SASCFC 153
  9. 09-12-2016 Legal Practitioners:  » admission; “fit and proper person”; conflicting medical opinions regarding appellant’s mental health; refused early consideration of suitability by Legal Practitioners Admissions Board; member of Queensland Civil and Administrative Tribunal found that applicant unable to satisfactorily carry out inherent requirements of legal practice; member directed Board to make declaration of suitability; concluded that whether a person is able to satisfactorily carry out the demands of legal practice is of less concern to Board in determining “fit and proper” issue than authority considering whether to grant practising certificate Court findings: The Tribunal member erred in directing that the Board make a declaration of suitability. As admitting authority, the Supreme Court must be satisfied that an applicant is a “fit and proper person”. This is to be determined by considering each of the suitability matters in relation to an applicant. It is not for the Supreme Court to consider these matters more or less significant by virtue of the fact that they are more or less appropriate for consideration by the regulatory authority.  «
    Legal Practitioners Admissions Board v Doolan [2016] QCA 331
  10. 02-12-2016 Legal Practitioners:  » admission; “fit and proper person”; disclosure; applicant failed to disclose all relevant matters to the Legal Practitioners Admissions Board; change of character; whether applicant should be admitted

    On his initial application to the Admissions Board, the applicant disclosed that he had committed criminal offences. The first, in 2000, involved larceny when the applicant was aged 19. The second, in 2005, consisted of a series of offences under the Police Powers Act. These offences involved dishonesty. The applicant was asked to provide additional information on these offences.

    After providing three supplementary affidavits providing further information, the applicant disclosed that he had been expelled from the army due to four military offences, also involving dishonesty. The applicant claimed he did not reveal this earlier as he was confused. The Board refused his application. Approximately a year after his initial application, the applicant applied again. He had several references attesting to his good character and acknowledged that he intentionally failed to disclose the full extent of his offences in his previous application.

    Court findings: The Court considered the principles concerning a change of character, noting the significance of the applicant’s full disclosure and apparent repetence. It found that while there were encouraging signs that the applicant may have undergone a change, the recency of his recognition of the candour owed to the Court meant that the Court could not presently be satisfied that she should be found “fit and proper”.

     «

    Re an application for admission as a legal practitioner by JY [2016] QCA 324

International Decisions

  1. 13-12-2016 Constitutional law:  » principle of proportionality; application of principle; stages involved in applying ‘structured proportionality’; whether fourth stage of balancing should be applied in Hong Kong; application of margin of appreciation in domestic as opposed to supra-national context; whether town planning restrictions breach article 6 and article 105 of the Basic Law on private property rights; application of proportionality in this context

    Hysan Development Co Ltd owned extensive properties and challenged a series of planning restrictions, arguing that they represented a disproportionate infringement of their property rights.

    Court findings: The Court noted that the Hong Kong courts apply a form of structured proportionality similar to that applied internationally, however, thus far they have ommitted the final ‘balancing’ or ‘weighing stage’. The Court determined that the fourth stage was necessary in order to balance individual and societal rights.

    The Court concluded that Hong Kong courts should apply a ‘margin of discretion’, similar to the ‘margin of appreciation applied in Europe, which varies according to the nature of the right and the identity of the decision-maker. For socio-economic policy issues, the standard for invalidity will be higher, approaching the ‘manifestly without reasonable foundation’ requirement applied in Europe.  «

    Hysan Development Co Ltd v Town Planning Board [2016] HKCFA 84
  2. 06-12-2016 Intellectual property:  » Patent Act, s 289 makes it unlawful to manufacture or sell an “article of manufacture” to which a patented design or colorable imitation thereof had been applied; meaning of “article of manufacture”; correct assessment of damages

    A jury found that various smartphones manufactured by Samsung infringed design patents owned by Apple. Apple was awarded Samsung’s entire profit from the phones in damages, amounting to $399 million. This was affirmed by the Federal Circuit court.

    Court findings: The Court held that “article of manufacture” need not be the end product sold to the consumer but a component thereof. In the absence of sufficient argument by the parties, the Court did not resolve what the relevant “article of manufacture” was and instead remitted it to the Federal Circuit court for assessment.  «

    Samsung Electronics Co Ltd v Apple Inc 580 US (2016)
  3. 10-11-2016 Torts:  » negligence; causation; delay in diagnosing patient with cancer; patient died; whether delay cause of death; delay undermined plaintiff’s ability to prove causation; whether trial judge required to draw adverse inference of causation

    E was an active, non-smoker who was diagnosed with lung cancer after some delay and later died. His partner claimed that the negligent delay caused E’s death. His doctors argued that the cancer would have taken his life even if he had been promptly diagnosed. The trial judge found that while E’s doctors were negligent, their negligence did not cause his death.

    Court findings: A trier of fact may, but is not required to, draw an adverse inference of causation in medical liability cases where the defendant’s negligence undermines the plaintiff’s ability to prove causation and where the plaintiff adduces some evidence of causation. Whether such an inference arises must be assessed on the facts according to a legal, as opposed to scientific, standard. Triers of fact are empowered to make legal determinations even where medical experts are uncertain. It was within the trial judge’s discretion not to draw an adverse inference.  «

    Benhaim v St Germain (2016) SCC 48
  4. 10-11-2016 Contract:  » construction and interpretation; meaning of phrase contained in letter exchanged between parties; commercial context; term to be construed in context of letter as a whole and letter to be read in light of relevant background and other factual circumstances; delay; impact of delay; primary judge did not deliver judgment for three years; consequences for appellate court

    Shibani Knitting Co Ltd contracted to supply pullovers to John Lewis stores in the United Kingdon, with Tex Services Ltd acting as agents. Shibani went into receivership and Tex agreed to provide finance and purchase the required yarn. Under this arrangement, Shibani would produce the order for Tex, who would export and sell it to John Lewis.

    A letter was sent from Shibani’s receivers to Tex confirming this arrangement and specifying a ‘CMT’ (‘cut, make, trim’) price. A dispute arose as to whether this price included the cost of treatment to make the pullovers machine washable. The primary judge delivered judgment three years after the case was heard. It was then appealed.

    Court findings: When the letter is read in the context of its background and other factual circumstances, it is clear that the CMT price covers all aspects of the production of the pullovers. Delay in delivery of judgment such as occurred here should be exceptional and warrant explanation.  «

    Tex Services Ltd v Shibani Knitting Co Ltd [2016] UKPC 31
  5. 09-11-2016 Human rights:  » Housing Benefit Regulations 2006, reg B13 imposes a cap on housing benefit payments in cases of deemed under-occupation of social sector housing commonly known as ‘bedroom tax’; impact on individuals living with disabilities and their familiies and carers and those living in accomodation provided to women at severe risk domestic violence; applicants contend there has been a violation of their rights under the European Convention on Human Rights article 14 and article 8 and/or article 1 of the First Protocol; test for discrimination; test is whether discriminatory treatment is manifestly without reasonable foundation; role of the state in protecting victims of domestic violence

    Claimants either had disabilities, lived with dependent family members with disabilities, or lived in sanctuary scheme’ homes (accomodation for women who are at severe risk of domestic violence). Claimaints argued that by virtue of their circumstances they required additional space and therefore the regulation discriminated against them.

    Court findings: The majority upheld the appeal of one claimant, a woman unable to share a bedroom with her husband because of her disabilities, and dismissed all other claims. In dissent, Lady Hale upheld the claim of a woman living in sanctuary scheme accomodation on the basis that the state has a positive duty to protect victims of domestic violence and public authorities should take the needs of victims of gender-based violence into account in developing their policies.  «

    R (on the application of Carmichael and Rourke) v Secretary of State for Work and Pensions [2016] UKSC 58
  6. 11-10-2016 Torts:  »

    negligence; breach; duty of care; solicitor’s failure to exercise reasonable care and skill in acting for Janin as defendant in personal injuries action arising out of workplace injury claim in 1993; whether attorney immune from suit in Grenada based on principles in Rondel v Worsley [1969] 1 AC 191 and Saif Ali v Sydney Mitchell & Co [1980] AC 198; question whether Wilkinson owed a duty of care for which he was in breach, as he claimed only to have “held the papers” on behalf of the Attorney of Record, Williams.

    Wilkinson had died and so was represented by executors of his estate. Second respondents were his firm, as vicariously liable for any breach. The primary judge found Wilkinson to be immune from suit under the principle in Rondel v Worsley, and the claim was dismissed. Immunity upheld at Court of Appeal.

    Grenada has not followed subsequent finding by House of Lords, in Arthur JS Hall & Co v Simons [2002] 1 AC 615, that the public policy on which the immunity in the previous cases was based was no longer applicable in England. On the facts of this case, the Court found that a failure to turn up to apply for an adjournment, fell within the immunity, as so intimately connected with the conduct of the cause in court that it could fairly be said to be a preliminary decision or omission affecting the way that cause was to be conducted when it came to a hearing.
       «

    Janin Caribbean Construction Limited v Wilkinson [2016] UKPC 26
  7. 09-09-2016 Corporations:  »

    directors duties; iduciary duties; breach of fiduciary duty; company corporate investment vehicle of sole shareholder and director; second director later appointed in exchange for profits; company in liquidation; liquidators sued directors for breach of fidcuciary duty; whether directors should be jointly and severally liable for loss suffered; second director had a substantially more limited role in the running of the company and the breaches

    Sia was the sole shareholder and director of Dynasty Line Ltd. He later invited Lee to become a co-director in exchange for 20% of the profits. In 1996, Dynasty purchased shares in an unrelated companby, but paid only 27.98% of the purchase price. The shares were then used to secure loans to Sia and his associates. Sia and his associates defaulted on the loans and the shares were sold to satisfy the debts.

    In 1999, the vendors of the shares commenced proceedings for the unpaid purchase price and Dynasty went into liquidation. In 2010, liquidators sued Sia and Lee for breach of fiduciary duty. The High Court found that Sia and Lee did in fact breach their fiduciary duties and were joint and severally liable for loss.

    Court findings: Drawing on the cases Re Carriage Co-operative Supply Association (1884) 27 ChD 322 and Bishopgate Investment Management Ltd v Maxwell [1993] BCC 120, the Court rejected the argument that joint and several liability should only arise in cases where the directors acted “in concert”. Sia and Lee should be jointly and severally liable even though Sia had a substantially more limited role in the company and less active participation in the breaches.
       «

    Dynasty Line Ltd v Sia [2016] SGCA 55
  8. 24-08-2016 Torts:  »

    medical negligence; professional negligence; breach of duty; standard of care; failure to provide timely and appropriate post-operative care following surgical procedures.

    Patient suffered major complications following pancreatic surgery resulting in death; test of what constitutes “proper practice” derives from Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, supplemented by Bolitho v City and Hackney Health Authority [1998] AC 232, in which an expert view must satisfy the “threshold test of logic”; causation; there is a need to show that different management would have changed the outcome of the plaintiff’s case
       «

    Koo Quay Keong (Administrator of the Estate of Lee Lee Chan, Deceased) v Ooi Peng Jin London Lucien [2016] SGHC 168
  9. 27-07-2016 Torts:  » negligence; appellant had worked in the financial advisory and insurance industry; Monetary Authority of Singapore imposed framework to ensure persons carrying out regulated activities were fit and proper persons to perform such activities; framework imposed certain due diligence requirements including the conduct of reference checks; appellant alleged that the respondent, his former employer, had breached its duty of care to him in preparing references, as a result of which he failed to secure employment with certain companies; accepted before the Court of Appeal that an employer has a duty of care when preparing an employment reference; whether respondent breached its duty of care to the appellant in preparing the reference; whether the breach caused the appellant not to be employed; standard of care to be exercised in preparing references; employer obliged to exercise due care that facts contained in a reference are true, and that any opinions expressed in the reference are based on, and supported by, facts which are true; respondent’s breach of duty held to have caused third party not to employ appellant; matter remitted for assessment of damages.  «
    Ramesh s/o v AXA Life Insurance Singapore Pte Ltd [2016] SGCA 47
  10. 27-07-2016 Torts:  » tort of deceit; respondent employee settled personal injury claim with employer’s insurer for over £130,000; subsequently alleged that respondent’s account of his injuries grossly and dishonestly exaggerated; appellant insurer sought damages in deceit; claim allowed at first instance but overturned in the Court of Appeal; allegation that appellant insurer had suspicions of respondent’s exaggerations; requirement of inducement; whether party alleging deceit must demonstrate belief in the misrepresentation; belief not necessarily required to establish inducement as a question of fact; in some circumstances the party alleging deceit may be found to have relied upon a misrepresentation though they may have known or suspected the representation to be false; approach of Hutley JA in Gipps v Gipps [1978] 1 NSWLR 454 approved; insurer’s appeal allowed and first instance judgment restored.  «
    Hayward v Zurich Insurance Company plc [2016] UKSC 48