APPEAL – whether appeal incompetent having regard to s 101(1) of the Supreme Court Act 1970 – appellant did not appeal from judgment or order of primary judge but challenged obiter observations as to construction of s 130A of the Residential Parks Act 1998 (NSW) and sought to clarify or correct order remitting matter to the Tribunal in that respect – appeal dismissed as incompetent.
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.
Berry v Innovia Security Pty Ltd (No 2) [2015] FCA 1156
PRACTICE AND PROCEDURE – security for costs – limited security ordered based on personal undertakings – breach of undertakings – further security ordered.
Dr Chris Ward SC appeared for the applicants.
Thompson v Chapman [2015] NSWCATAP 233
APPEAL — home building - defects - assessment of quantum meruit.
Reznitsky v Director of Public Prosecutions [2015] NSWCA 338
JUDICIAL REVIEW – application to set aside judgment in District Court – applicant failed to appear on appeal from Local Court – appeal dismissed – application to set aside order dismissing appeal – applicant failed to attend on second day of hearing and failed to proffer evidence in support of application – review sought of order dismissing application to reinstate appeal – whether jurisdictional error – whether reasonable apprehension of bias – whether procedural unfairness – whether failure to give reasons.
Commonwealth of Australia v Hevers & Anor (No.2) [2015] FCCA 2753
ADMINISTRATIVE LAW – Commonwealth Tenancy Dispute – termination of long term tenancy agreement under s.94 Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for over 20 years – whether long term tenancy agreement ought to be terminated – original tenancy agreement expired – respondents notified of termination – consideration of personal circumstances of respondents – consideration of the applicant’s interests – termination ordered – appropriate date for vacant possession – order for vacant possession suspended.
Abdul-Rahman v WorkCover Authority of NSW [2015] NSWSC 1483
CIVIL LAW - workers compensation insurance – requirement for employer to hold current policy – debt or civil penalty arising from failure of employer to hold policy – relevant limitation period – appeal against decision of Magistrate – whether action constituted “proceedings for an offence” – whether Magistrate so found – submission that Court bound by purported finding – submission rejected – combative approach to litigation – whether notice of contention should be permitted – conflicting versions of conversations between counsel – when cause of action accrued to the Authority – ambiguity in legislation – appeal allowed.
David Rayment represented the Respondent.
CFMEU v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088
INDUSTRIAL LAW – Breach of industrial agreement – Principles regarding construction of industrial agreement – Meaning of consultation in industrial agreements Breach of consultation obligation in industrial agreement – When obligation to consult arises Whether consultation was genuine – Whether consultation was timely – Whether employees given meaningful opportunity to affect a decision – Whether relevant information to enable consultation was required to be provided Breach of obligation to use redeployment and voluntary redundancy before implementing compulsory redundancy – Breach of obligation to investigate all avenues to avoid compulsory redundancy – Breach of obligation to investigate reducing contractors Employment Whether employer took adverse action against employee for a prohibited reason – Sections 340 and 346 of the Fair Work Act 2009 (Cth) – Onus of proof upon an employer in a claim of adverse action – Evidence necessary to discharge the onus under s 361 of the Fair Work Act 2009 (Cth) – Accessorial liability in a claim of adverse action.
Commonwealth of Australia v Vassallo & Anor [2015] FCCA 2695
ADMINISTRATIVE LAW – Commonwealth Tenancy Dispute – termination of long term tenancy agreement under s.94 Residential Tenancies Act 2010 (NSW) – respondents in possession of the premises for over 20 years – whether termination of the long term tenancy agreement is granted – original tenancy agreement expired – respondents notified of termination – consideration of suitable alternative accommodation available to the respondents – consideration of the applicant’s interests – no appearance by the respondents during proceedings – termination of long term tenancy agreement granted – immediate vacant possession ordered.
Commonwealth of Australia v Foster [2015] FCCA 2663
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of a periodic tenancy agreement under s.85 Residential Tenancies Act 2010 (NSW) – respondent in possession of the premises for less than 20 years – whether termination of the tenancy agreement is granted – original tenancy agreement expired – respondent notified of termination – termination of tenancy agreement granted – order for vacant possession suspended.
Farah v Elias [2015] NSWSC 1417
COSTS – where plaintiff sought prerogative relief with respect to proceedings in NCAT – where proceedings in this Court not pursued – where costs of proceedings to be determined by reference to issues that remain undecided in NCAT– whether plaintiff in this Court would have succeeded in NCAT – where costs should be paid by the defendant whose proceedings in NCAT were likely to fail.
Anning v University of Western Sydney [2015] FCA 1049
DISCRIMINATION - racial discrimination - application for leave to appeal - application refused.
Nixon v Cal Dive International (Australia) Pty Ltd [2015] FCCA 2614
INDUSTRIAL LAW – Application pursuant to s.370(a)(ii) of the Fair Work Act 2009 (Cth) (Act) for extension of time within which to make a general protections court application – whether applicant has a meritorious case if extension granted – whether applicant has reasonable explanation for delay – whether otherwise appropriate to grant extension – extension granted.
Peter Uelese and Minister for Immigration and Border Protection [2015] AATA 740
MIGRATION - Class TY Subclass 444 Special Category (Temporary) visa – criminal offences – cancellation of visa – Direction 65 – character test – protection of Australian community – best interests of minor children – whether risk of future harm to Australian community unacceptable – history of violent criminal conduct – significant risk of reoffending – lack of rehabilitation – countervailing considerations of children – decision affirmed.
Vata-Meyer v Commonwealth of Australia [2015] FCAFC 139
ADMINISTRATIVE LAW – whether court took into account irrelevant considerations – whether court failed to take into account relevant considerations – procedural fairness – unrepresented litigant prevented from putting submission.
APPEAL AND NEW TRIAL – primary judge did not address the elements of the legislation – postulating alternatives but failing to make a finding – inconsistencies in evidence unresolved – forensic advantage of trial judge – fact finding process of trial judge – decision at trial “glaringly improbable” or “contrary to compelling inferences” – review of findings of fact based on trial judge’s assessment of credibility of witnesses – whether findings inconsistent with incontrovertibly established facts – credibility undermined by other evidence unchallenged, unanswered and ostensibly reliable – power of appellate court to set aside findings – errors made by primary judge causing trial to miscarry – proceeding remitted to Federal Circuit Court for retrial – retrial limited to matters agitated on appeal.
EVIDENCE – standard of proof in civil proceedings – standard of proof in discrimination proceedings – balance of probabilities – higher standard of proof erroneously applied – requirement to take into account gravity of matter – drawing of inferences – failure to reconcile conflicting evidence – benefit of doubt on basis that respondent was unsophisticated and obtuse – conflicting conjectures about respondent’s knowledge and intent – failure to weigh up the strength of cumulative evidence – failure to assess demeanour of key witness in light of all the evidence.
HUMAN RIGHTS – discrimination – racial discrimination – correct test to be applied under s 9(1) of the Racial Discrimination Act 1975 (Cth) – act involving distinction, exclusion, restriction or preference – discrimination based on race, colour, descent or national or ethnic origin – purpose or effect of nullifying or impairing – recognition, enjoyment or exercise of any human right or fundamental freedom – on equal footing – right to just and favourable conditions of work – causal nexus between act and race – act done for more than one reason – vicarious liability for racial discrimination – comments referring to “black babies” and “Coon cheese” likely to offend an Aboriginal person – whether racist remarks may constitute racial discrimination – whether occasional politically incorrect banter has requisite discriminatory purpose or effect – whether response to complaint is a relevant consideration in determining whether there was discrimination – whether remarks were innocent – racially-based remarks may affect a person’s self-worth and disadvantage them in their conditions of work – subjective sense of injustice.
HUMAN RIGHTS – termination of complaint – Australian Human Rights Commission – application to Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Capogreco v Rogerson [2015] NSWSC 1371
MISLEADING OR DECEPTIVE CONDUCT – where plaintiffs purchased shares in racehorse – whether defendant made representations that the investment was safe and that it did not matter if the horse won a race or not because the bloodlines made it a valuable stud prospect.
CONTRACT – where owners authorised the defendant to enter the horse in the Magic Millions auction – whether the defendant was authorised to sell the plaintiffs shares at a private sale without notice to the plaintiffs.
Plaintiffs’ claims against the defendant for misleading or deceptive conduct dismissed. Plaintiffs entitled to declarations in relation to their respective ownership of the shares in the horse and to an account from the second defendant.
Owners Corporation SP 78422 v Ware Building Pty Ltd [2015] NSWSC 1384
BUILDING DISPUTE – dispute between owners corporation and builder – where defendant builder seeks to commence separate proceedings against the developer to rectify the contract pursuant to which the building was constructed – related application to amend list response in present proceedings to incorporate that defence – where it has been open to the defendant to agitate the question of rectification for three years – where substantial effort and expense has gone into the preparation of the case as currently pleaded – where a variation argument is in any event already provided for – consequence that it is not in the interests of justice to allow defendant the leave it seeks.
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.
Polley v R [2015] NSWCCA 247 (11 September 2015)
SENTENCE APPEAL – two offences of supplying a prohibited drug – pleas of guilty – MDMA and methylamphetamine – finding of drug trafficking “to a substantial degree” – strong subjective case – good prospects of rehabilitation – nevertheless custodial sentence inevitable – whether applicant’s strong subjective case properly taken into account – whether strong subjective case amounted to “exceptional circumstances” – whether sentence manifestly excessive – circumstances of offending required that effect be given to general deterrence – applicant’s strong subjective case did not amount to exceptional circumstances – proper exercise of sentencing discretion – appeal dismissed.
Lend Lease Building Pty Ltd (LLB) v Construction, Forestry, Mining and Energy Union [2015] FWCFB 5081
APPEAL - Fair Work Act 2009 s.604 - Appeal of decision - appeal refused.
Dr Chris Ward appeared for Lend Lease Building.