Civil Procedure

Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329

From the Federal Court of Australia:

PRACTICE AND PROCEDURE – application for a stay pending application for special leave to appeal to High Court – application dismissed, with costs

David Rayment appeared for the Commonwealth.

CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 1141

PRIVILEGED - privilege against exposure to penalty – whether privilege waived by filing proceedings in Fair Work Commission – whether privilege waived by filing witness statements

Michael Seck appeared for CSL Australia

Jingalong Pty Ltd v Todd & Anor [2016] NSWSC 715

PRACTICE AND PROCEDURE — costs — conduct of first defendant brought about the litigation — settlement agreement reached between the parties — defendants ready and willing to perform obligations under settlement agreement — plaintiff failed to perform obligations under settlement agreement — settlement agreement not completed — plaintiff to pay defendants’ costs of the proceedings after the date of the settlement agreement — first defendant to pay second defendant’s costs of the hearing on costs

Xardia v Commissioner of Taxation & Commissioner of NSW Police; Xardia v Department of Defence [2016] NSWDC 63

PRACTICE & PROCEDURE – order for medical examination to determine plaintiff’s legal capacity in context of defendants' applications for dismissal or striking out of plaintiff’s claims - Births, Deaths and Marriages Act 1995 (NSW), Pt 5A - Uniform Civil Procedure Rules 2005, r 13.4, r 14.28, r 31.46(1)

Michael Seck appeared for the defendants.

National Road Transport Association Ltd v Road Safety Remuneration Tribunal [2016] FCAFC 56

PRACTICE AND PROCEDURE – Application for prerogative remedies in respect of orders and decision of statutory tribunal – Interlocutory application for stay of order and decision – Whether prima facie case of invalidity – Whether strong case – Whether exceptional circumstances shown – Interests of parties and wider community – Imminence of final hearing.

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP

MPJEL Care Pty Ltd v NSW Department of Industry (Vocational Training Review Panel) [2016] NSWCATAD 59

PRACTICE AND PROCEDURE – summons to produce documents – whether legitimate forensic purpose for summonsing handwritten notes made by a member of the Vocational Training Review Panel during a hearing of a complaint – nature of an external appeal

LEGISLATION: Apprenticeship and Traineeship Act 2001 (NSW), ss 39, 44 , 46, 47, 51(1)(c), 53, 55; Civil and Administrative Tribunal Act 2013 (NSW), ss 29(2)(a), 38, 48, 79

Lisa Doust appeared for the applicants.

LFDB v SM (No 2) [2016] FCA 295

From the Federal Court of Australia:

PRACTICE AND PROCEDURE - application to stay execution of judgments registered under the Trans-Tasman Proceedings Act 2010 (Cth) – appeal proceedings in New Zealand and applications to set aside the registered judgments – relevant considerations in determining whether or not to grant a stay – relevance of first applicant’s conduct in previous proceedings in New Zealand and critical observations of that conduct by various New Zealand Courts – relevance of comity – stay granted on appropriate conditions.

Dr Christopher Ward SC appeared for the respondent.

Menzies v Paccar Financial Pty Ltd [2016] FCA 400

ANSHUN ESTOPPEL - Whether applicants precluded by Anshun estoppel from obtaining claims under Independent Contractors Act 2006 (Cth) – whether Supreme Court of New South Wales invested with federal jurisdiction with respect to such claims – whether unreasonable for applicants to refrain from making such claims in earlier proceedings – whether claims for malicious prosecution and abuse of process have any reasonable prospect of success

David Rayment appeared for the finance company, PACCAR Financial Pty Ltd instructed by Mills Oakley Solicitors.


Jardine Lloyd Thompson Pty Ltd v Puri [2016] NSWSC 150

PRACTICE AND PROCEDURE — applications for interlocutory injunction and transfer of proceedings — restraint of trade — parties contracted to submit to the exclusive jurisdiction of the courts of Victoria — proceedings could have been commenced in Victoria — in the interests of justice to transfer proceedings to the Supreme Court of Victoria pursuant to s 5(2) Jurisdiction of Courts (Cross-Vesting) Act 1987(NSW) — claim for interlocutory injunction not heard or determined

Michael Seck appeared for the defendant

Bridges v Norling trading as Itravel Forster [2016] FCCA 212

COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – collateral attack of administrative act - whether in a general protections court application made pursuant to s.370 of the Fair Work Act 2009 (Cth) (FW Act) the Federal Circuit Court of Australia has jurisdiction to determine whether a certificate issued by the Fair Work Commission (FWC) purportedly pursuant to s.368(3)(a) of the FW Act is valid.

JUDICIAL REVIEW – Whether certificate issued by FWC purportedly pursuant to s.368(3)(a) of the FW Act was validly issued – whether validity of certificate issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the person who claims to have been dismissed applying to the FWC under s.365 of the FW Act within 21 days after the dismissal took effect as required by s.366(1)(a) of the FW Act – whether the applicant was dismissed from her employment – whether such dismissal took effect more than 21 days before the applicant applied to the FWC.

INDUSTRIAL LAW – Contract of employment – whether employer repudiated contract of employment – whether employee accepted the repudiation.

Michael Seck appeared for the successful respondent.

CSL Australia Pty Ltd v Maritime Union of Australia [2016] FCA 49

EMPLOYMENT LAW - urgent interlocutory relief to address conduct of members of crew of MV “CSL Melbourne” refusing to leave that vessel - employees ordered to immediately and peacefully disembark the CSL Melbourne at the Port of Newcastle

LEGISLATION -  Coastal Trading (Revitalising Australian Shipping) Act 2012(Cth), Fair Work Act 2009 (Cth), ss 19417418421421(2)(b),  Navigation Act 2012 (Cth), s 122, Workplace Relations Act 1996 (Cth), V.Ships Australia Pty Ltd and Maritime Union of Australia Enterprise Agreement 2013 MV CSL Melbourne, cl 3.2.4

Michael Seck appeared for the successful applicant.

Caason Investments Pty Ltd v Cao (No 2) [2015] FCAFC 192

COSTS - whether, in circumstances where the Full Court has allowed an appeal from a decision of a single judge of the Court not to permit the plaintiffs to amend their Statement of Claim and then has re-exercised the Court’s discretion in respect of that application to amend by permitting amendments some of which were not brought forward before the primary judge, it was appropriate for the Full Court to set aside the order for costs made by the primary judge in respect of the hearing before her and make such order for costs as, in all the circumstances, the Full Court considered to be just – whether, in the events which have happened, the costs of the appellants incurred before the primary judge should be paid or substantially paid by the respondents

PRACTICE AND PROCEDURE - whether a dissenting judge should express reasons concerning a consequential issue

David Rayment appeared for a respondent

Abdul-Rahman v WorkCover Authority of NSW (No 2) [2015] NSWSC 1900

COSTS – interest on costs orders – indemnity costs – lump sum costs – legal costs and counsel’s fees charged by plaintiff’s lawyers – generous to a fault – conduct of the proceedings requiring adjustment to usual costs orders – refusal of Calderbank offers by defendant not unreasonable – question marks over costs claimed under application for specified lump sum costs award

David Rayment appeared for WorkCover Authority of NSW

Westpac Banking Corporation v Kekatos [2015] NSWSC 1629

PRACTICE AND PROCEDURE – plaintiff’s consent to default judgment being set aside given on the basis of defendant’s sworn evidence which she subsequently admitted was false – application by plaintiff to have default judgment reinstated – circumstances in which a court sets aside orders entered by consent – whether plaintiff entitled to summary judgment – whether bona fide defence on the merits – effect of defendant’s failure to give sworn evidence in opposition to plaintiff’s application

PRACTICE AND PROCEDURE – motion to set aside interlocutory consent order to be brought in the original proceedings to avoid multiplicity of proceedings

CONTRACT – consent orders handed up to resolve interlocutory notice of motion not enforceable contract

CONTRACTS REVIEW ACT – relevance of benefit to borrower from discharge of earlier mortgage to secure loans admitted to be owing – no evidence to displace lender’s entitlement to possession and judgment based on portion of advance that conferred incontrovertible benefit on borrower

Tim Castle appeared for Westpac Banking Corporation.

LFDB v SM (No 2) [2015] FCA 1013

COSTS – indemnity costs – whether action had no prospect of success – effect of applicants’ letter to respondent – whether respondent’s failure to resolve proceedings contrary to Federal Court of Australia Act 1976 (Cth), s 38N(1) – where respondent enjoyed partial success – no reason to depart from the usual rule

Dr Chris Ward SC appeared for the respondent

Lambert Leasing Inc. v QBE Insurance Ltd (No 2) [2015] NSWSC 1196

EQUITY - Aviation insurance - The effect of a pay to be paid clause - Costs orders - Indemnity costs - Calderbank offers - Reasonable refusal - Offer of compromise under the Uniform Civil Procedure Rules 2005 - Walk away offer - Whether genuine compromise

Dr Chris Ward appeared for the plaintiffs