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The ‘Recent Decisions of Interest’ webpage features noteworthy cases decided by other Intermediate Courts of Appeal in Australia in the past two months. The cases are updated on a weekly basis.

Recent and historical Decisions of Interest of Other Intermediate Courts of Appeal in Australia handed down since the commencement of the project in August 2009 are also available for perusal by area of law.



May

Industrial Law: protected industrial action; employer response action; whether proposed lock out organised in response to employee claim action; whether union’s protected industrial action should have been terminated
Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65

Industrial Law: Adverse action; where respondent alleged appellants altered employee's position to his prejudice; consideration of what constitutes prejudicial alteration; consideration of time at which action is to be assessed; consideration of elements of coercion; procedural fairness; where federal magistrate raised one basis of the element of unlawfulness with the parties but decided claim on another basis; whether finding outside pleaded case; conduct of parties in the case determinative
Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63

Personal Injury: Damages for economic loss; Case stated; Meaning of Wrongs Act 1958 (Vic) s 28F; Where plaintiff’s with injury and without injury weekly earnings exceed statutory cap; Whether statutory cap applies to final award of damages or part of process in assessing award; Legislative intent behind s 28F and Interpretation of Legislation Act 1984 (Vic) s 35; Interference with common law rights; Comparable statutory compensation provisions in other jurisdictions; Motor Accidents Compensation Act 1999 (NSW) s 125, Personal Injuries Proceedings Act 2002 (Qld) s 51.
Tuohey v Freemasons Hospital [2012] VSCA 80

April

Migration: judicial review decision of the Refugee Review Tribunal under Migration Act 1958 (Cth); where reasons relied in part on an anonymous ‘dob-in’ letter containing unverified assertions about the truthfulness of the appellant’s claims; Tribunal’s obligation to give reasons for decision under s 430(1); discussion of the circumstances in which illogicality or irrationality will amount to jurisdictional error; Tribunal’s reliance on letter was separate ground therefore no jurisdictional error.
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58

Intellectual Property: copyright; television broadcast and cinematograph film; copying; infringement; television broadcasts recorded and copied at request of subscriber by automated recording system owned by Optus; “time-shifting”; copy streamed by system to subscriber at subscriber’s request; who is maker of the copy; Optus or alternatively, Optus and subscriber make(s) the copy.
Statutory Interpretation: Copyright Act 1968 (Cth); meaning of ‘make’ for purposes of ss 86 and 87; automated recording system creating copy; infringement; s 111 exception; private and domestic use; remote recording and copying device; circumstances in which this defence can be invoked; does not apply to person who does not make a copy for their private time-shifting purposes.
National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59

Practice and Procedure: declarations; declarations by consent; power to make declarations by consent; proper contradictor; whether party who consents is a proper contradictor; discussion of principles; party who consents is a proper contradictor; the parties had an interest to oppose the declaratory relief sought, which was sufficient to make them a proper contradictor; appeal allowed
Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56

Costs: application for indemnity costs; failure to accept an offer to compromise; appeal did raise issues of public interest; case on appeal not unarguable; failure to accept the offer of compromise was not unreasonable in the circumstances
Australian Competition and Consumer Commission v Metcash Trading Limited (No 2) [2012] FCAFC 55

Legal Practitioners: Fidelity Fund; Moneys paid to solicitor to be paid into trust account and used for express purpose of paying counsel’s fees; Moneys used by solicitor for own purposes; Client paid the money to the solicitor to be applied to a particular purpose implies that the relationship thereby established was a Quistclose trust creating an interest by the respondent in the trust money; Counsel entitled to claim against Fund; Claim not barred by lack of costs agreement; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, applied – Legal Profession Act 2004 (VIC).
Legal Services Board v Gillespie-Jones [2012] VSCA 68

Practice and Procedure: Application for extension of time in which to file notice of appeal; Leave to appeal granted but applicant failed to file notice of appeal within prescribed time; Expectation of government agencies to act as model litigants; Matter of public interest; Where a party has a less than or barely arguable case but an important principle of public interest is potentially involved, leave will be sometimes granted on the condition of the undertaking as to the other party’s costs; Applicant should be required, as condition for granting extension of time, to undertake to pay the respondent’s costs of the appeal in any event.
Secretary to the Department of Justice v X Q H [2012] VSCA 72

Practice and Procedure: Application to strike out appeal on ground that likely costs are disproportionate to amount of the claim; Magistrates Court (Civil Proceedings) Act 2004 (WA), s 43(3); Claim for $4,920; Appellant's solicitor acting on 'no win, no fee' basis; Parties' likely costs between $13,000 and $18,000 depending on outcome; Appeal does not involve the determination of any issues of legal principle; Appeal struck out as costs of appeal are disproportionate to the amount of the claim.
O'Bree v Collier [2012] WASCA 88

Practice and Procedure: Stay of proceedings; where applicant, a solicitor, appeared as a party for ex parte orders before the Supreme Court of Queensland; where Court of Appeal referred applicant’s conduct in those proceedings to the Legal Services Commissioner; where Queensland Civil and Administrative Tribunal (‘QCAT’) found applicant deliberately misled Supreme Court and failed in his obligations of frankness and candour; applicant removed from the roll of practitioners; applicant sought stay of orders; whether cogent reason for stay; any prejudice to applicant does not outweigh public interest.
Puryer v Legal Services Commissioner [2012] QCA 110

Costs: Primary judge ordered the Corporation pay the Registrar’s costs; Registrar seeking to protect the Corporation’s assets for the benefit of all Dunghutti people; therefore Registrar sought orders that would, in effect, make the directors of the Corporation personally liable to pay the costs which would have otherwise been payable by the Corporation; held the Court has power to order costs be paid by a non-party but not appropriate to order costs be paid by directors of unsuccessful party in this matter.
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (No 4) [2012] FCAFC 50

Torts: negligence; public authority; prescribed burning in National Park caused smoke damage to grapes; the Court held there was no duty to take reasonable care to avoid the reasonably foreseeable risk of smoke damage to grapes; applying Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61, the alleged negligent acts do not fall within the scope of the duty owed; application of Civil Liability Act 2002 (WA); nuisance claim dismissed; applied Bankstown City Council v Alamdo Holdings Pty Ltd [2005] HCA 46 ‘as nuisance was an inevitable consequence of the authorised undertaking, defendant only liable if, in the exercise of its statutory powers, it acted negligently’; ‘no immunity under s 132 CALM Act to the State in relation to its direct (personal) liability for any negligence of the Department in relation to DPHB8’.
Southern Properties (WA) Pty Ltd v Executive Director Of The Department Of Conservation And Land Management [2012] WASCA 79

Contract: Restraint of trade; contract of employment between appellant firm and respondent trainee accountant who subsequently left firm and provided services to former client of firm; restraint clause prohibiting employee from providing accounting services post-employment to clients of firm to whom he had provided services while employed there; liquidated damages payable in event of breach with amount of damages based on firm’s earnings from former client; held that the restraint clause was not unreasonable restraint of trade; had been breached by respondent; liquidated damages clause did not impose penalty therefore enforceable and damages recoverable
Birdanco Nominees Pty Ltd v Money [2012] VSCA 64

Practice and Procedure: Security for costs; proceedings arose under ss 52 and 53A of the former Trade Practices Act 1974 (Cth) and the US-based applicant had been ordered to provide security for costs; whether the fact that the applicant had succeeded at the determination of a preliminary separate question is relevant to the ordering of security for costs and, if so, the extent to which it is relevant; Court held ‘it is a relevant matter that the applicant is no longer at the outset of its case, and ex hypothesi, is closer to its finish’, weight will turn on the facts of the case; evidence did not establish that an order for security for costs would stifle the litigation; held no requirement that creditors who will benefit from the litigation must also ‘stand behind’ the applicant in order for their financial circumstances to be relevant, applied Bell Wholesale Co Ltd v Gates Export Corporation [1984] FCA 34.
Australian Equity Investors, an Arizona Limited Partnership v Colliers International (NSW) Pty Limited [2012] FCAFC 322

Extradition: application for review of the Minister’s decision to surrender the applicant under s 22 Extradition Act 1988(Cth): Ireland requested the extradition of the applicant from Australia, following a Judge of the District Court of Ireland issuing 16 warrants for the arrest of the appellant in relation to fraud offences; challenge to decisions made at several stages to the extradition proceedings; held no jurisdictional and procedural error issuing s 16 notice; held Magistrate’s s 19 determination not beyond jurisdiction, unlawful, or void.
Practice and Procedure: held no prejudice due to denial of adjournment, distinguished Dietrich v The Queen [1992] HCA 57; re-agitation of matters without merit were abuse of process
O’Donoghue v Honourable Brendan O’Connor [2012] FCAFC 47

March

Practice And Procedure: leave to amend Notice of Appeal; overturning factual conclusions on appeal; whether denial of procedural fairness.
Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost [2012] FCAFC 46

Negligence: Duty of care; Contractor engaged by University to conduct on-campus cafeteria; Employee of contractor violently attacked by third party while walking from cafeteria to on-campus car-park; University having exclusive management and control of university campus, including provision and regulation of on-campus car-parks and means of access to and from on-campus car-parks; University owed duty to contractor’s employee to take reasonable care to prevent violent attack by third party while walking on path from cafeteria to on-campus car-park given University’s statutory obligation as person having management and control of workplace to provide means of leaving workplace without risks to health; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254, distinguished; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420, considered; Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16; Chomentowski v Red Garter Restaurant (1970) 29 WN (NSW) 1070, Fraser and Fraser v State Transport Authority (1985) 29 SASR 5, Sartori v Public Transport Corporation[1997] 1 VR 168, English v Rogers [2005] NSWCA 327, applied; Occupational Health and Safety Act 2004 (Vic), s 26.
Karatjas v Deakin University [2012] VSCA 53

Constitutional law: Chapter III; Judicial power of the Commonwealth; Referral of legal issue; Validity of s 596A and s 597 of the Corporations Act 2001 (Cth); Power of court to summon a person before it for examination about the examinable affairs of a corporation in receivership or where property of a corporation is in the possession of a mortgagee or its agent and to conduct an examination; Whether power judicial when exercised on the application of a privately appointed receiver and manager or agent of a mortgagee in possession; Whether power analogous to examination powers historically exercised by courts in the winding up of companies; Whether power incidental to the exercise of judicial power; Chameleon doctrine. Section 569A and s597 of the Corporations Act 2001 (Cth) are valid.
Saraceni v Jones [2012] WASCA 59

Native Title: extinguishment; right to take marine resources for commercial purposes; 130 years of legislation controlling commercial fishing; whether simply regulatory in character or prohibitory; rights and interests; reciprocity based rights founded on a relationship to a person; whether content of rights include a right or interest “in relation to land or waters”: s 223(1), NT Act; extent of determination area; criteria for determining “boundaries” of several marine estates; whether gaps between, or unused areas; “connection” to waters; extent of determination area; definition of outer boundaries of the claim area; whether native title proved in whole area; whether connection to all of marine estate established.
Statutory Interpretation: construction of legislation claimed to abrogate native title rights; requirement of a clear and plain intention so to do.
Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25

Accident Compensation: Appeal against order granting leave under s 135A(4)(b) of Accident Compensation Act 1985 to commence common law proceedings; ‘Serious injury’ under s 135A(19); whether application made under s 135A(2B) within three-year period after date of incapacity became known; legal principles for establishing serious injury incapacity; assessment of applications under s 135AC(b); appellate interference; adequacy of reasons; correct principles applied; conclusion open on whole of the evidence; reasons adequate; appeal dismissed; Accident Compensation Act 1985, ss 135A(19), 135AC(b).
ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31

February

Industrial Law: prohibition on taking industrial action during life of collective agreement; contravention; whether power to award monetary compensation; power to make “any other orders...the Court considers necessary to...remedy its effects”; whether ordinary meaning of power limited to dealing with ongoing effects; whether power limited by legislative history or comparison with other provisions using similar words but containing express power to award compensation
Statutory Interpretation: civil remedy provision; whether the phrase "any other orders... the Court considers necessary to... remedy its effects" includes power to grant compensation where other remedial provisions in legislation expressly provide power to grant compensation; consideration of structure of legislation; remedial provisions to be construed liberally; limitations not to be readily implied from grants of judicial power
Practice And Procedure: whether issues raised by cross-appeal should be considered; inappropriate to exercise judgment where appeal has been dismissed and respondent has already obtained the remedy sought
Transport Workers Union of Australia v Qantas Airways Ltd [2012] FCAFC 10

Intellectual Property: whether appellant’s copyright in building plan for project home infringed by respondents; where opportunity for access established; where striking similarities between copyright work and putative infringement; whether requirement of causal connection between copyright work and putative infringement satisfied; whether inference of copying should be drawn; whether onus of proof shifted to respondents; whether proven or admitted facts not explained justified drawing inference of copying; significance of expert evidence concerning similarities in project home designs; significance of appellant’s delay in commencing proceedings against respondents; whether refusal of primary judge to draw inference of copying open on the evidence; decision of primary judge open on the evidence and not shown to be wrong; appeal dismissed.
Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4

Appeal: vexatious litigant; procedural fairness; lack of jurisdiction; original matters arose from proceedings relating to the appellant’s parents estates and family company; where the appellant had frequently instituted and conducted proceedings which were vexatious; whether the trial judge had erred in declaring the appellant a vexatious litigant; whether the trial judge lacked jurisdiction; whether procedural fairness was afforded to the appellant; appeal dismissed
Fung v Tam & Anor [2012] QCA 10

Taxes And Duties: pay-roll tax; liability to taxation; exemptions; grouping provisions
Port Augusta Medical Centre Pty Ltd V Commissioner Of State Taxation [2012] SASCFC 7

Defamation: appellant sued respondent for letter published to newspaper and republished by newspaper; indorsement of claim named wrong newspaper; application to amend indorsement to change name of newspaper; application outside limitation period; appeal against dismissal of application; appeal dismissed; amendment was new cause of action; claim as amended did not arise out of substantially same facts as original claim; O 21 r 5; amended claim statute-barred
Rossen v Airey [2012] WASCA 26

Criminal injuries compensation: second respondent injured when committing a separate offence; District Court judge awarded compensation; jurisdiction to quash District Court decision; jurisdictional error in application of s 39(1) of the Criminal Injuries Compensation Act 2003 (WA); certiorari granted
Attorney General For Western Australia v Her Honour Judge Schoome [2012] WASCA 29

Negligence: employee of labour hire firm sent to work for client of firm on drilling rig; employee injured when high pressure hose on rig failed; client negligent in failing to inspect hose; Labour hire firm negligent in failing to require client to conduct safety inspection of drilling rig before employee started work; whether client entitled to contribution from labour hire firm to damages payable to employee - Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 7; trial judge found client not entitled to contribution; trial judge erred in finding that labour hire firm not culpable for failing to require client to conduct safety inspection; Leighton v Commissioner of Taxation [2011] FCAFC 96; contribution of 20% ordered
Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19

January

Statutory Interpretation: Criminal Property Forfeiture Act 2002; statutory obligation to express grounds in order made; grounds referred to in order did not particularise forfeiture offence or which limb of the definition of “crime-used property” was relied on; whether the learned Judge erred in finding that the order restraining property was not invalid; Criminal Property Forfeiture Act 2002, s 45.
Criminal Property Forfeiture: notice of contention; whether the learned Judge erred in finding the property was not crime;used property; meaning of “property”; meaning of “crime-used” property; whether there needs to be a substantial connection between the forfeiture offence and the property in Criminal Property Forfeiture Act, s 11.
Constitutional Law: acquisition of property; Criminal Property Forfeiture Act s 43(2)(a) and 96(1); whether invalid; Kable principle; whether s 96(1) invalid as an acquisition of property otherwise than on just terms; Northern Territory (Self-Government) Act 1978 (Cth) s 50(1); Constitution (Cth) s 51(xxxi).
Dickfoss v DPP & Ors [2012] NTCA 1