Department of Family and Community Services & Arthur [2016] FamCA 1119

From the Family Court of Australia:

FAMILY LAW – CHILD ABDUCTION – Hague convention application – Application by the Secretary of the Department of Family and Community Services for the return of a five year old child to New Zealand – Dispute over her country of habitual residence – Dispute over father having rights of custody – Dispute over father exercising rights of custody – Where the child was wrongfully removed from New Zealand by the mother – Where the father did not consent to the mother removing the child –– Where grave risk of physical or psychological harm or an intolerable situation is not established – Where it is not established that the return would be against the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms – Application for return granted – Adjournment for any conditions of return.

Madeleine Bridgett appeared for the respondent.

R v Fang (No. 2) [2016] NSWSC 1784

CRIMINAL LAW – murder trial - whether adult Crown witness competent to give evidence - witness found unfit to be tried in separate criminal proceedings - ss.12 and 13 Evidence Act 1995 - applicable principles on competence inquiry - presumption of competence not displaced - witness competent to give sworn evidence

Crimes Act 1900 - Criminal Procedure Act 1986 - Evidence Act 1995 - Mental Health (Forensic Provisions) Act 1990

Madeleine Bridgett appeared as amicus curiae for the witness.

Reasons for the decision can be found here.

Mielczarek v Commissioner of Police, NSW Police Force (No 2) [2016] NSWCATAP 255

ADMINISTRATIVE LAW – Appeal - Crimes (Criminal Organisations Control) Act 2012 (NSW) -
Criminal Records Act 1991 (NSW) - Tattoo Parlours Act 2012 (NSW).

Dr Christos Mantziaris appeared for the Commissioner of Police.

Reasons for the decision can be found here.

Arab Bank Australia Ltd v Sayde Developments Pty Ltd [2016] NSWCA 328

CONTRACTS — Construction — Penalties — Commercial loan facility — Whether default interest provision constituted penalty — Determination as at date contract made — Whether presumption that default interest a penalty — Whether default interest extravagant or unconscionable — Whether function of default interest only to punish — Whether pre- estimate of loss required.

Noel Hutley SC and Tim Castle for the Appellant.

Reasons for the judgement can be found here.

Turner v Justice & Forensic Mental Health Network [2016] NSWCATAD 265

ADMINISTRATIVE LAW – access to government information – access application – reasonableness of searches - excluded information -  Government Information (Public Access) Act 2009.

Lisa Doust appeared for the Justice & Forensic Mental Health Network.

The Sharemarket College Pty Ltd & 2 Ors v ASIC [2016] AATA

FINANCIAL SERVICES – application to stay decision of ASIC – decision cancelled first applicant’s financial services license – applicant also operates Registered Training Organisation licensed by ASQA - utility of granting stay - prospects of success – public interest – consequences on application for review.

FINANCIAL SERVICES – application to stay decision of ASIC – banning orders against second and third applicants who were responsible managers of financial service licensee – utility of granting stay - prospects of success – public interest – consequences on application for review.

Dominique Hogan-Doran SC and Steven Cominos appeared for the applicants.

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd [2016] FCAFC

INSURANCE - operation of s 54 of Insurance Contracts Act 1984 (Cth) on claim for contribution between the insurers where the second policy would respond to claim by insured invoking s 54 -whether s 54 applied to the claim by the insured - whether the operation of s 54 meant the appellant was not able to refuse to pay the claim made by the insured - whether the respondent insurer could set up putative liability of the appellant to the insured as a basis for a claim for contribution by it - appeal dismissed

Tim D. Castle appeared for the respondent.

Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd and Others [2016] FCAFC 150

INSURANCE — Contribution — Claim for contribution between insurers — Where insured covered by one policy in terms and one by operation of s 54 of the Insurance Contracts Act 1984 (Cth) — Whether suspension of cover an inherent limitation on claims — Whether s 54 operates only for benefit of insured — Insurance Contracts Act 1984 (Cth), s 54.

Tim Castle represented the Respondent.

Reasons for the judgement can be found here.

Riva NSW Pty Ltd v Key Nominees Pty Ltd [2016] NSWSC 1569

PROPERTY – earlier order that plaintiffs may only commence proceedings seeking relief concerning 2006 mortgagee sale with leave – whether leave should be granted – whether leave should be subject to terms that plaintiffs pay all outstanding costs orders and provide security for the costs of proposed proceedings.

Richard Parsons and Madeleine Bridgett appeared for the defendant.

Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

INDUSTRIAL LAW – quantification of penalties – moral responsibility of a number of respondents – the need for both specific and general deterrence  

INDUSTRIAL LAW – detailed co-operation in respect to facts – admission of liability – withholding of any details as to financial circumstances

INDUSTRIAL LAW – an order requiring an audit to be undertaken

Michael Seck appeared for Office of the Fair Work Ombudsman

Jausnik v Nominal Defendant (No 5) [2016] ACTSC 306

TORTS – Negligence – Police involved in pursuit of fleeing vehicle across NSW/ACT border – Failure to comply with police protocols for safe driving and cross-border pursuits – Passenger in police vehicle suffering mental harm arising from attending scene of accident arising from police pursuit – Liability of State of New South Wales for failure to provide training in use of radios and cross-border pursuit protocols – Liability of police driver for injury to passenger 

CHOICE OF LAW – Statutory contribution between tortfeasors – Accident in the Territory following police pursuit from New South Wales – Claim for contribution by ACT Nominal Defendant against New South Wales police office and State of New South Wales – Characterisation of apportionment legislation – Applicable choice of law rule. 

TORTS – Causation – Police pursuit of driver cross border – Pursued driver involved in fatal accident – Whether pursued driver would have avoided accident if pursuit terminated earlier – Expert evidence based on aggregate statistics – Whether likely conduct of pursued driver proved on balance of probabilities – Causation not established

TORTS – Statutory contribution – Nominal defendant liable for conduct of pursued driver who caused an accident – State of New South Wales and police officer also negligent – Contingent assessment of appropriate contribution

AMZ15 v Minister for Immigration and Border Protection [2016] FCA 1195

MIGRATION ― appeal from decision of the Federal Circuit Court ― whether primary judge erred in failing to find that Refugee Review Tribunal did not comply with s 425(1) of theMigration Act 1958 (Cth) ― whether Tribunal gave appellant opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review

ADMINISTRATIVE LAW ― illogicality or irrationality ― whether primary judge erred in failing to find that Tribunal’s decision illogical or irrational

ADMINISTRATIVE LAW ― unreasonableness ― whether primary judge gave inadequate consideration to whether Tribunal’s decision legally unreasonable

Stephen Tully appeared for the appellant

East Coast Pipeline Pty Ltd v Workers' Compensation Regulator [2016] QIRC 101

WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action.

Lisa Doust appeared for the appellants.

Reasons for the decision can be found here.

Mielczarek v Commissioner for Fair Trading [2016] NSWCATAP 217

PRACTICE AND PROCEDURE – application to adduce new evidence on appeal – whether such evidence was likely to produce a different result – consideration of conduct of the proceedings before the Tribunal – application refused

Christos Mantziaris appeared for the respondents.

Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216

RESIDENTIAL PARKS – Residential Parks Act – whether object in s 130A(1) operates as a jurisdictional fact – object in s 130A(1) does not establish a jurisdictional fact or the fact was satisfied in this case

RESIDENTIAL PARKS – Residential Parks Act – whether the Tribunal may make a possession order under s 113(3A)(b) in circumstances where the resident does not agree to the sale of the dwelling – Tribunal may make an order for possession where resident does not agree

RESIDENTIAL PARKS – Residential Parks Act – whether valuation under s 130A includes rights attached to site agreement – valuation is limited to the dwelling only

RESIDENTIAL LAND LEASE COMMUNITIES – Residential (Land Lease) Communities Act 2013 – operation of transitional provisions

EVIDENCE – expert evidence – approach to expert evidence when not bound by rules of evidence – expert evidence must provide a satisfactory basis for Tribunal’s findings – question of acceptability of expert evidence in Tribunal one of weight not admissibility

Michelle McMahon appeared for the appellants

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

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.

Commonwealth of Australia (As Represented By The Department Of Infrastructure And Regional Development) v Phuong Mai Greenfield Pty Ltd [2016] FCCA 2228

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – licence agreement – original deed of licence expired – respondent notified of termination – whether the deed of licence was void due to economic duress or a false understanding of the agreement upon signing – whether representations made by the applicant give rise to personal equities of the family of the director of the respondent. 

CONSTITUTIONAL LAW – Jurisdiction of the Federal Circuit Court of Australia – judicial power – acquisition of property other than on just terms – whether legislative instrument was unlawful.

David Rayment appeared for the Commonwealth 

Smit Lamnalco Towage (Australia) Pty Ltd [2016] FWC 5630

EMPLOYMENT - Application for an order relating to instruments covering new employer and transferring employees – transferrable instrument – application that transferable instrument will not cover transferring employees – Fair Work Act 2009, ss.311, 312, 317, 318.

Lisa Doust appeared for the Maritime Union of Australia

Kekatos v Westpac Banking Corporation [2016] NSWCA 205

APPEAL – application for leave – where default judgment for money sum and possession of property set aside by consent – where subsequent application to set aside consent order and reinstate default judgment but for lesser amount – whether arguable defence to judgment for lesser amount – leave refused.

Tim D. Castle appeared for Westpac Bank.