Thompson v Chapman [2016] NSWCATAP 6

HOME BUILDING - Appeal - Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general discretion, entitlement to costs where “indulgence” sought by successful applicant, relevance of s94(1A) application to exercise of discretion.

LEGISLATION: Home Building Act 1989 - Civil Procedure Act, 2005 - Consumer, Trader and Tenancy Tribunal Act 2001 - Consumer, Trader and Tenancy Tribunal Regulation 2002 - Civil and Administrative Tribunal Rules, 2014 - Conveyancing Act 1919.

Michelle McMahon appeared for the successful respondent.

Australian Manufacturing Workers' Union (AMWU)-Victorian Branch [2016] FWC 21

INDUSTRIAL - application under s.512 of the Fair Work Act 2009 (FW Act) - right of entry permit.

Lisa Doust appeared for the Australian Manufacturing Workers’ Union.

Australian Municipal, Administrative, Clerical and Services Union v Essential Energy [2015] FWC 8971

INDUSTRIAL - Fair Work Act 2009 s.739 - Application to deal with a dispute - Alleged dispute concerning the placement of employees into a meaningful work placement under the Essential Energy Enterprise Agreement 2013 and the Management of Surplus Employees Policy.

Lisa Doust appeared for the Australian Municipal, Administrative, Clerical and Services Union & Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

Whitley v Director General, NSW Fair Trading [2015] NSWCATOD 155

ADMINISTRATIVE LAW - Fit and proper person – contractor licence - alleged improper conduct – whether allegations made out on evidence – nature of allegations – circumstances of allegations- fit and proper in absence of breach.

Dr Stephen Tully 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.

Stephens & Ors v Commonwealth of Australia (No.2) [2015] FCCA 3404 & related cases

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – purported representative action – tenancies terminated in concurrent proceeding – application dismissed.

David Rayment appeared for the Commonwealth of Australia.

Related Cases:

Commonwealth of Australia v Stephens [2015] FCCA 3403

Commonwealth of Australia v Pries [2015] FCCA 3411 

Commonwealth of Australia v Rickwood [2015] FCCA 3412

Commonwealth of Australia v Frost [2015] FCCA 3397

Commonwealth of Australia v Patrick & Anor [2015] FCCA 3413

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.

Commonwealth of Australia v Rigney & Anor (No.3) [2015] FCCA 3133 and Related Cases

ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of long term tenancy agreement under section 94 of the 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 – predominant use of premises – consideration of personal circumstances of respondents – consideration of the applicant’s interests – termination ordered – appropriate date for vacant possession – order for vacant possession suspended.

CONSTITUTIONAL LAW – Jurisdiction of the Federal Circuit Court of Australia – judicial power – improper restraint on judicial power – acquisition of property other than on just terms – whether there was a “matter” – whether legislative instrument was unlawful.

David Rayment appeared for the Commonwealth of Australia.

Related cases:

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Lam [2015] FCCA 3276 (11 December 2015)      

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Butt & Anor [2015] FCCA 3256 (11 December 2015)    

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Tucev (No.2) [2015] FCCA 3248 (11 December 2015) 

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No.3) [2015] FCCA 3234 (11 December 2015)    

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Dattilo & Anor [2015] FCCA 3260 (11 December 2015)  

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Young & Anor [2015] FCCA 3277 (11 December 2015) 

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors [2015] FCCA 3280 (11 December 2015) 

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Leahy [2015] FCCA 3279 (11 December 2015)    

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Lukic [2015] FCCA 3278 (11 December 2015)      

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Minici & Anor [2015] FCCA 3271 (11 December 2015)  

Commonwealth of Australia (as represented by the Department Of Infrastructure and Regional Development) v Morris [2015] FCCA 3267 (11 December 2015)     

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs & Anor (No.2) [2015] FCCA 3262 (11 December 2015)  

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Findlay [2015] FCCA 3261 (11 December 2015)

Ferella v Key Nominees Pty Limited [2015] NSWCA 401

PRACTICE – summary dismissal – application for leave to appeal – order preventing re-litigation of the same cause of action without leave – whether fresh proceedings within scope of order – no error in decision of primary judge – no explanation for why leave not sought.

LEGISLATION - Real Property Act 1900 (NSW), s 58.

Richard Parsons appeared.

Helensburgh Property Management Pty Ltd v Brady [2015] NSWSC 1861

CONTRACT – where defendant employed as property manager in real estate agency – where employment agreement included obligations in respect of confidential information – whether defendant in breach in poaching clients, setting up business in competition and misusing confidential information whilst still employed with plaintiff. 
  
RECTIFICATION – where post-employment restraint in original contract of 6 months and 15 kilometres from office – where new contract included different restraint – 12 months in area not including the relevant office - whether mistake – whether agreement should be rectified.

Richard Parsons appeared.

Roads and Maritime Services v Rockdale City Council & Ors [2015] NSWSC 1844

EQUITY – trusts and trustees – purpose trusts – where trustee was a local council – where council held land or parts of it on trust for a county road and other purposes – where condition of trusts was that council transfer land or parts of it required for a county road to named body when requested at no cost – where Plaintiff sought transfer of the parcels of land that it ‘required’ for the construction of a road – whether council required to transfer only that part of land that was previously ‘reserved’ or that part of land which was now ‘required’ to the Plaintiff under the terms of the trusts – whether use for a road encompassed ancillary requirements for the construction of the road.

LOCAL GOVERNMENT – regulation and administration – ordinances, regulations, by-laws and local laws – where council held parcels of land on trust for particular purposes – whether obligations arising under the trusts were affected by Local Government Act 1993 (NSW) – application of County of Cumberland Planning Scheme Ordinance.

CHARITIES – charitable purposes – other purposes beneficial to public – where council held land on trust for road purposes and for the purposes of a public park, reserve or recreation area – whether trusts created for purposes of roads and road works are charitable trusts – whether trusts created for purposes of parks and public reserves are charitable trusts – whether trust purposes impractical or impossible – whether to order cy-pres scheme.

WORDS AND PHRASES – ‘required’ – ‘reserved’ – ‘road purposes’ – ‘purposes of a road’.

Dr Christos Mantziaris and Steven Cominos appeared for RMS.

Ayoub v CPT Corp Pty Ltd [2015] NSWCATAP 259

APPEAL - question of law – denial of procedural fairness – expert evidence – no opportunity to reply.

Michelle McMahon appeared for the successful appellant.

Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381

EMPLOYMENT LAW – termination of employment – summary dismissal – whether employee exhibited signs of intoxication at work training course – whether employee intoxicated in a public place – whether employee intoxicated at a work-related social function – whether intoxication warranted summary dismissal for serious misconduct in serious circumstances.

DAMAGES – termination of employment – whether, if summary dismissal not available, employee would have been terminated on notice.

Muller v Westpac Banking Corporation [2015] NSWCATAD 251

ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of sex discrimination against employer – whether fair and just for complaint to proceed – complaint lacks substance – leave refused.

Maritime Union of Australia v Skilled Group Limited [2015] FWC 8312

INDUSTRIAL - Fair Work Act 2009 s.739 - Application to deal with a dispute - Dispute settlement procedure - interpretation of terms of enterprise agreement and related Award - disputed terms dealing with payment of accrued personal leave when employees made redundant - further contest about redundancy payments in respect of periods of casual employment - whether terms of relevant Award and enterprise agreement obliged payment - surrounding circumstances - no ambiguity found - application granted in part - Parties to consult as to any Order.

Lisa Doust appeared for the Maritime Union of Australia.

Nelmeer Ashfield Pty Ltd v Farah [2015] NSWCATAP 252

CONTRACT - catering services agreement in licensed hotel premises – dispute over termination – declaratory and injunctive relief.

CONTRACTS - Agreement not rendered void and unenforceable on account of no approval of Independent Liquor and Gaming Authority – term of 5 years not inconsistent with terms of any head lease – not a shop used wholly or predominantly for the carrying on of a business on behalf of hotel – certificate under s 16 of Retail Leases Act not condition precedent to agreement.

Robert Angyal SC represented the appellant.

Salad Fresh Pty Limited v P&M Quality Smallgoods Pty Limited [2015] NSWSC 1717

COMMERCIAL CONTRACT – Construction - shareholders agreement.

Tim Castle appeared for the plaintiffs.

The Australian Maritime Officers' Union [2015] FWC 8003

INDUSTRIAL - Application for a scope order - application for approval of an enterprise agreement - application for scope order dismissed - challenge to application for approval of enterprise agreement upon grounds of group not fairly chosen and agreement not genuinely agreed - enterprise agreement approved.

Lisa Doust appeared for the Australian Maritime Officers' Union.

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41

STATUTORY INTERPRETATION – Div 4AA of Pt VII of Police Administration Act (NT) provides members of Northern Territory Police Force who arrest person without warrant in relation to infringement notice offence can detain person for up to four hours – Whether detention penal or punitive in character – Relevance of principle of legality – Relevance of principle in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs  (1992) 176 CLR 1.

CONSTITUTIONAL LAW (CTH) – Separation of judicial power – Whether Legislative Assembly of Northern Territory subject to constitutional limitations which limit legislative power of Commonwealth Parliament – Interaction between s 122 and Ch III of Commonwealth Constitution.

CONSTITUTIONAL LAW (CTH) – Constitution – Ch III – Principle in Kable v Director of Public Prosecutions (NSW)  [1996] HCA 24;  (1996) 189 CLR 51 – Whether Div 4AA of Pt VII of Police Administration Act (NT) conferred powers on Northern Territory executive which impaired, undermined or detracted from institutional integrity of Northern Territory courts. 

WORDS AND PHRASES – "infringement notice offence", "institutional integrity", "Kable principle", "penal or punitive", "separation of judicial power", "supervisory jurisdiction". 

Constitution, Ch III, s 122.
Bail Act (NT), ss 16, 33. 
Fines and Penalties (Recovery) Act (NT), ss 9, 12B, 13, 21, 22. 
Police Administration Act (NT), Pt VII, Div 4AA; ss 123, 137, 138.
Police Administration Regulations (NT), reg 1

Parker v Secretary Department of Education and Communities [2015] NSWIRComm 1020

UNFAIR DISMISSAL – Jurisdiction – dismissal – when resignation can be regarded as dismissal for purposes of Act – constructive dismissal – determination of whether a termination was in fact a constructive dismissal to be arrived at by a transactional analysis – ultimatum provided - no negotiations after ultimatum provided – dismissal – jurisdiction lies.