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.
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
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
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.
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
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
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.
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 Castle and Daniel Moujali represented the Respondent.
Reasons for the judgement can be found here.
INDUSTRIAL LAW – Redundancy – Agreement clause requiring recourse to “redeployment and voluntary redundancy” – Whether employer obliged to offer redundancy separation to employees whose positions continued to exist – Agreement clause requiring investigation of “all avenues to avoid forced redundancies, including the reduction of contractors” – Whether confined to contractors engaged on fulltime, permanent, basis – Whether employer had undertaken investigation.
INDUSTRIAL LAW – Obligation to consult where introduction of “change” being considered – Whether change was “major” – Whether introduction of change being “considered” – Potential impact of change on dayworkers – Whether employed on day shift – Whether “a change to the numbers of employees per shift.”
INDUSTRIAL LAW – Adverse action – Dismissed of employee – Whether done because of employee’s position as officer of trade union or his having engaged in industrial activity – Reasons of decisionmaker – Onus of proof – Credibility of witness.
EVIDENCE – Credibility of witnesses – Witnesses’ evidence rejected for reasons which included their failure to refer, in their affidavits, to documents and facts which were unhelpful to their case – Whether they testified that their affidavits were comprehensive – Whether they were given sufficient warning that their omissions might result in the rejection of their evidence.
INDUSTRIAL LAW – Remedies – Reinstatement – Whether available where position previously occupied no longer existed.
Lisa Doust appeared for the Construction, Forestry, Mining and Energy Union
APPEAL - Community Association - breach of by-law - withholding of consent - Community Land Management Act 1989 (NSW).
Michelle McMahon appeared for the appellant.
POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant’s unfair dismissal claim – application dismissed.
Michael Seck appeared for the Commissioner of Police.
CONSTRUCTION - Home Building Act – s 94(1A) – quantum meruit not just and equitable.
Michelle McMahon appeared for the home owner.
LICENSING – occupational licensing - refusal of operator licence application, cancellation of tattooist licence - fit and proper person - public interest - adverse security determination.
Dr Mantziaris appeared for the Commissioner of Fair Trading and the Commissioner of Police, NSW Police Force.
EQUITY – CHARITIES – Trusts and trustee – Where Plaintiff trustee is a local council – Where council held land on trust for the purposes of a public park, public reserve or public recreation area – Land compulsorily acquired with result that the charitable purposes for which the land was held will no longer be fulfilled – Charitable purposes – Other purposes beneficial to public – Where original purposes have ceased to provide a suitable and effective method of using the trust property, having regard to the spirit of the trust – Cy-près scheme proposed taking into consideration practicalities – Approved by Attorney General in amended form – Cy-près scheme as proposed, with amendments, ordered.
Dr Mantziaris appeared for the Attorney General (NSW).
The NSW Special Commission of Inquiry into the governance and future of the Greyhound Racing Industry in NSW held public hearings between September 2015 and February 2016, after which it received extensive written submissions from parties. The Commissioner, former High Court Justice, Michael McHugh QC, reported on 16 June 2016. [Link to Commission Site]
The final report was released on 7 July 2016, at which time the NSW Government announced plans to close down the industry by 1 July 2017.
Dominique Hogan-Doran SC leading Jodi Steele and Steven Cominos of counsel, instructed by Norton Rose Fulbright and Clayton Utz, acted for the former Chief Executive Officer of Greyhound Racing NSW, Mr Brent Hogan.
MIGRATION – whether the Tribunal misconstrued the requirements of a ministerial direction – whether the Tribunal failed to take relevant considerations into account – real chance test – well-founded fear test – whether the Tribunal failed to apply the correct legal test – whether the Tribunal misconstrued or misapplied case law– whether the Tribunal failed to comply with s.425 of the Migration Act 1954 – no jurisdictional error identified – application dismissed.
OCCUPATIONAL LICENSING – firearms dealers licence – refused – application for administrative review – merits hearing by Appeal Panel – purpose of licence – considerations relevant to fitness and the public interest – refusal affirmed. Firearms Act 1996, s 11(3), s 11(7).
Dr Christos Mantziaris represented the appellant.
COSTS – multiple issues - three separate claims in cross-claim – each party successful on one claim – third claim settled – whether costs should be apportioned – set-off of competing costs orders.
Tim D. Castle appeared for Arab Bank Australia Ltd.
CORPORATIONS – power of attorney – construction of general power of attorney – whether exclusion of liability for conflict of interest or direct or personal interest authorises transfer of company assets for director’s private purposes – whether recipients can rely upon assumptions in ss 128 and 129 of the Corporations Act 2001 (Cth)
EQUITY – unjust enrichment – constructive trust – receipt of company assets without authority – irrelevance of recipient’s knowledge to prima facie liability to make restitution
EQUITY – defence of bona fide purchase – whether defence can operate where there is no receipt by third party - meaning of “value” – degree of notice required – whether respondents are purchasers for value – whether respondents have notice
CORPORATIONS – uncommercial transactions under s 588FB of the Corporations Act 2001 (Cth) - whether transfers pursuant to power of attorney were uncommercial transactions – whether, because company had ‘no choice’, the transfers were not uncommercial transactions – whether orders would be appropriate under s 588FF of Corporations Act
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
Liability limited by a scheme approved under Professional Standards Legislation.