Dr Christopher Ward

LFDB v SM [2017] FCAFC 178

From the Full Federal Court of Australia:

PRIVATE INTERNATIONAL LAW – appeal from the dismissal by the primary judge of an application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth)to set aside the registration of a judgment of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgment would be contrary to public policy in Australia

Dr Christopher Ward SC and Dr Stephen Tully successfully appeared for the respondent.

Bates & Arthur and Anor [2017] FamCAFC 73 (26 April 2017)

From the Family Court of Australia:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO INTERVENE – Application in an appeal by the father seeking leave to intervene in an appeal – Where the Court is satisfied that allowing the application would not cause any injustice to the applicant – Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted – Application to intervene granted.

Dr Christopher Ward SC appeared with Madeleine Bridgett for the First Respondent.

LFDB v SM (No 3) [2017] FCA 80

PRIVATE INTERNATIONAL LAW – application under s 72(1) of the Trans-Tasman Proceedings Act 2010 (Cth) (the Act) to set aside the registration of two judgments of the High Court of New Zealand in relation to proceedings under the Property (Relationships) Act 1976 (NZ) – whether enforcement of judgments would be contrary to public policy in Australia as involving a gross denial of procedural fairness – whether the judgments were given in a proceeding in rem – whether the subject of the proceedings is moveable property not situated in New Zealand – whether one of the judgments is not a “registrable judgment” because if contravened it would make LFDB liable to conviction for contempt in New Zealand. 

STATUTORY INTERPRETATION – construction of s 72(1) of the Act – whether judgment contrary to public policy – whether the judgments were given in a proceeding in rem the subject matter of which was moveable property.

Dr Ward SC and Dr Tully successfully resisted an application to refuse recognition of a foreign judgment under the Trans-Tasman Proceedings Act on public policy grounds.  The decision of the Federal Court discussed the circumstances in which recognition may be refused on grounds of public policy as well as the nature of judgments in rem.. 

Lambert Leasing Inc. v QBE Insurance (Australia) Ltd [2016] NSWCA 254

INSURANCE – whether insured obliged to provide insurer with documents to enable insurer to determine whether conditions precedent to cover satisfied – insured claimed legal professional privilege in respect of documents – whether proceedings commenced prematurely

EVIDENCE – further evidence – whether documents in respect of which legal professional privilege was claimed at trial may be tendered on appeal

INSURANCE – double insurance – both policies contain “other insurance” clauses – whether s 45 of the Insurance Contracts Act 1984 (Cth) requires the insured to have “entered into” both contracts of insurance – whether insured has “entered into” both contracts of insurance

INSURANCE – double insurance – whether insurer A entitled to resist providing indemnity on the basis that insured had already been indemnified by insurer B – effect of deed which purported to re-characterise indemnity provided by insurer B as a limited recourse loan

CONTRACT – construction of the word “use” in indemnity clause in sale agreement – whether “use” has particular or special meaning under Virginian law – whether “use” encompassed leasing of aircraft or paying for maintenance pursuant to contractual obligation

Chris Ward SC appeared for the appellants.

Steven Cominos appeared for the second and third respondents.

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

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

Australian Industry Group v Road Safety and Remuneration Tribunal [2016] FCA

INJUNCTION - decision of Road Safety and Remuneration Tribunal - introduction of new minimum pay rates for for long-distance drivers and those involved in the distribution of goods destined for sale or hire by supermarket chains

Dr Christopher Ward SC and Dr James Stellios appeared for the Commonwealth Minister for Employment, the Hon. Michaelia Cash MP in these proceedings concerning the decision of the Road Safety and Remuneration Tribunal.

AFR Report

The Australian report

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.

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

Lado Causillas v NSW Trustee and Guardian; Bentancor Lado v NSW Trustee and Guardian [2015] NSWSC 1204

SUCCESSION – family provision and maintenance – failure by testator to make sufficient provision for applicants – applicants are deceased’s wife and only adult son – both estranged from the deceased – no provision made in deceased’s estate for applicants – applicants ‘eligible persons’ – two-step approach in s 59 of the Succession Act 2006 (NSW) affirmed – what is “adequate”, “proper”, “provision”, “maintenance” and “advancement in life” pursuant to s 59(1)(c) of the Act – whether provision made by testator is “wise and just” and is right and appropriate assessed against community standards – court has discretionary power and is assisted by s 60 of the Act – effect of long term estrangement of both applicants – relevance of “bare widowhood” and “bare paternity” – each individual case must be assessed on its own unique circumstances

SUCCESSION – family provision and maintenance – principles upon which relief granted for wife – effect of the deceased remaining married to wife despite unilaterally abrogating duty to her and their son – applicant legally remains the deceased’s wife despite Uruguayan court order ending community of assets – deceased enjoyed financial benefit from not fulfilling his obligations to his wife – moral obligation cannot be escaped by repudiation or evasion – held inadequate provision made for wife by the deceased

SUCCESSION – family provision and maintenance – principles upon which relief granted for son – deceased’s performance of moral paternal obligations to his son was the antithesis of community expectations – extremity of circumstances in present case – adult son’s conduct in not attempting to re-establish relationship with the deceased does not disentitle him to provision – held inadequate provision made for son by the deceased

Dr Chris Ward appeared for the successful plaintiff

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

Wu v Li [2015] FCAFC 109

CONTRACTS – appeal from decision of a single judge of the Federal Court of Australia – construction of contract – shareholder agreements – claim by respondent of entitlement under indemnity provisions – meaning of “member loan” in indemnity provisions – whether primary judge erred in quantification of respondent’s entitlement – where respondent alleged misleading and deceptive conduct by appellant – whether primary judge erred in holding that respondent had not proved his loss – where respondent alleged breach of contract by appellant – whether primary judge erred in finding no contravention of shareholder agreements

EVIDENCE – when statement in an agreement or contractual document will constitute admissible evidence of an admission

COSTS – where respondent succeeded on one claim but not others – whether the primary judge erred in ordering appellant to pay respondent’s costs

Dr Chris Ward appeared for the appellants

LFDB v SM [2015] FCA 725

PRACTICE AND PROCEDURE – applications to set aside registration of freezing orders made by the High Court of New Zealand – whether enforcement of judgments would be contrary to public policy in Australia – whether freezing orders are “registrable NZ judgments” – whether freezing orders are “final and conclusive” judgments – whether freezing orders are orders that, if contravened, would make the first applicant liable to conviction for an offence – whether orders were made in proceedings in rem the subject matter of which was movable property not situated in New Zealand – Trans-Tasman Proceedings Act 2010 (Cth), s 72

LFDB v SM [2015] FCA 725 (20 July 2015)

Lambert Leasing Inc. v QBE Insurance Ltd [2015] NSWSC 750

CONTRACTS – contracts of employment – misleading or deceptive conduct – ss 52 and 53B of Trade Practices Act 1974 (Cth) – retention incentive scheme – whether employer disclosed true nature of scheme to employees – whether alleged non-disclosure of scheme amounted to deceit or negligence on part of employer – whether employee enjoyed contractual rights to bonus or incentive – relevance of discretion to award bonus or incentive – whether implied term that such discretion cannot be exercised capriciously, arbitrarily or unreasonably – whether withholding of incentives from employees a discretion so exercised – whether implied term of mutual trust and confidence – application of Commonwealth Bank of Australia v Barker[2014] HCA 32; (2014) 88 ALJR 84 – whether scheme induced employees not to seek alternative employment – whether incentives available to employees upon retrenchment

CONTRACTS – contracts of employment – seconded employees – application and interpretation of secondment policy – whether seconded employees in temporary or permanent position

CONTRACTS – contracts of employment – termination – whether reasonable notice given – meaning of “reasonable notice” – whether change in employee duties over time effects contractual variation of notice provisions – application of Quinn v Jack Chia (1991) 1 VR 567

CONTRACTS – contracts of employment – wrongful dismissal claims – whether employer redundancy policy forms part of terms and conditions of contract of employment – construction and interpretation of redundancy policy – whether application of policy varies over time – whether employee secondment affects application of redundancy policy – whether payment in lieu of notice acceptable

DAMAGES – measure of damages – breach of contract of employment – damages in respect of contractual bonuses – quantification of the value of a lost opportunity

TORTS – negligence – whether representatives of employer owed duty of care to employees – whether employer acted with reasonable care – quantification of loss on the part of employee