A Daily Bulletin Listing Decisions Of Superior Courts Of Australia
Wednesday 13 April 2011www.arconolly.com.auInsurance Banking & ConstructionA Daily Bulletin listing Decisions of SuperiorCourts of AustraliaSearch EngineClick here to access our search engine facility to do a search of particular legal issues, case names,courts and judges. Simply type in a keyword or phrase and all relevant cases that we havereported in Benchmark since its inception in June 2007 will be available with links to each case.Executive Summary (1 minute read)Lacey v Attorney-General of Queensland - High Court of Australia - s669A(1) Criminal Code (Qld)- approach to statutory construction - "appeal", "unfettered discretion" (I)Byrne v Macquarie Group Services Australia Pty Ltd - Employment contracts - interpretation profit share retention policy (I, B)Fleming v Marshall - Private international law - appeal against dismissal of appellants'application for a stay of proceedings dismissed (I, B, C)Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor - Trusts - appeal fromrefusal of application for judgment on admissions or summary judgment & two other orders (B)Thales Australia Ltd v The Coroners Court of Victoria & Anor - Coroners Act 2008 (Vic) occupational health & safety (I, C)Douglas v Police - Road Traffic Act 1961 (SA) - whether reading obtained from the breath analysisinstrument could be reconciled with blood test result (I)Wakeling v Coles Group Ltd - Personal injuries - occupier’s liability - slip & fall (I)
Page 2www.arconolly.com.auGoodin v Colonial Mutual Superannuation Pty Ltd & Colonial Mutual Life Assurance SocietyLtd - Insurance - obligations of an insurer (I)Summaries with links (5 minute read)Wednesday 13 April 2011Lacey v Attorney-General of Queensland [2011] HCA 10High Court of AustraliaFrench CJ, Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJCriminal law - approach to statutory construction - s669A(1) Criminal Code (Qld) permitted appealby Attorney-General against sentence & provided that appellate court "may in its unfettereddiscretion vary the sentence & impose such sentence as to the Court seems proper" - whetherCourt of Appeal had power under s669A(1) to vary a sentence absent any demonstrated orinferred error on the part of the sentencing judge - Court of Appeal had answered that question inthe affirmative - "appeal", "unfettered discretion" - by majority, appeal allowed.Lacey (I)Byrne v Macquarie Group Services Australia Pty Ltd [2011] NSWCA 68Court of Appeal of New South WalesCampbell, Macfarlan & Whealy JJAEmployment contracts - interpretation - remuneration package - profit share retention policy - ‚ifthe employee ceases employment with Macquarie‛ - appeal dismissed.Byrne (I, B)Byrne - decision 7 May 2010: see ‘Benchmark’ Monday 17 May 2010 - employment contracts - determination ofseparate questions - whether ‘ceases‛ employment includes termination by employer - whether employee entitled toretained profits & unvested options in circumstances where employment is terminated by employer - strike-outapplication - s6(2) Contracts Review Act 1980 (NSW) - whether ‘trade, business or profession‛ includes a reference to thetrade, business or profession of an employee - s16 Workplace Relations Act 1996 (Cth) - r1.4 Workplace RelationsRegulations 2006 (Cth) - whether s16 & r1.4 operate to exclude an employment contract claim under Contracts ReviewAct 1980 (NSW) - governing law of employment contract - whether s16 has extraterritorial effect - constructionquestions answered in favour of the defendant - both strike out applications dismissed.
Page 3www.arconolly.com.auFleming v Marshall [2011] NSWCA 86Court of Appeal of New South WalesSpigelman CJ, Macfarlan JA, Sackville AJAPrivate international law - appeal against dismissal of appellants' application for a stay ofproceedings - plane crash in South Australia - proceedings against New York attorneys allegingbreach of retainer by failure promptly to pay to clients monies received in settlement ofPennsylvania proceedings - appellants had unsuccessfully contended at first instance that NewSouth Wales is a clearly inappropriate forum for the issues in the proceedings to be resolved appeal dismissed.Fleming (I, B, C)Marshall - decision 19 February 2010: see ‘Benchmark’ I & IBC Thursday 25 February 2010 - private internationallaw - proper law of the contract - convenience of forum - professional negligence - application by defendants fordismissal of proceedings or permanent stay - aeroplane accident in Australia - both engines had failed - plaintiffs wife& son of person killed - proceedings commenced in the United States of America against manufacturer of aeroplane –United States solicitors’ retainer agreements - settlement monies - proceedings in NSW: plaintiffs’ causes of actionfounded in breach of contract (being retainer agreement), negligence or breach of duty of care, breach of fiduciaryduty, & conspiracy - Court not clearly inappropriate forum - application dismissed;Murakami - decision 15 February 2010 (see ‘Benchmark’ Thursday 18 February 2010) referred to at para. 74 ofSupreme Court judgment 19 February 2010 above & in Court of Appeal judgment - primary judge had ordered apermanent stay of proceedings on basis that issues to be agitated should be determined by the Courts of Indonesia,that jurisdiction being the law of matrimonial domicile - appeal allowed.Scott MacRae Investments Pty Ltd & Anor v Baylily Pty Ltd & Anor [2011] NSWCA 82Court of Appeal of New South WalesBeazley, Giles & Hodgson JJATrusts - appeal from refusal of application for judgment on admissions or summary judgmentdismissed - appeal from order for decision of separate questions allowed - appeal from order forcosts on indemnity basis allowed.Scott MacRae Investments (B)Scott MacRae Investments - decision 12 March 2010
Page 4www.arconolly.com.auThales Australia Ltd v The Coroners Court of Victoria & Anor [2011] VSC 133Supreme Court of VictoriaBeach JCoroners Act 2008 (Vic) - occupational health & safety - employee of appellant observed to collapse,whilst working in the bucket of cherry picker in the vicinity of live electrical cables -inquest intothe death of the worker - whether it was open to the Coroner to conclude that the deceased waselectrocuted - whether it was open to the Coroner to go on with the inquest in circumstanceswhere, having concluded that the deceased was electrocuted, it was submitted by appellant thatthe functions of the Coroner were exhausted - proceeding pursuant to Order 56 of Supreme Court(General Civil Procedure) Rules 2005, seeking relief in nature of certiorari to quash finding thatdeceased had died as a result of an electrocution, & seeking relief in the nature of prohibitionpreventing Coroners Court from continuing with any further hearing of the inquest into the deathof the deceased - appeal proceeding & Order 56 proceeding dismissed.Thales Australia (I, C)Douglas v Police [2011] SASC 50Supreme Court of South AustraliaSulan JRoad Traffic Act 1961 (SA) - appellant had been convicted of driving while there was in his bloodthe prescribed concentration of alcohol - he appealed against conviction - whether readingobtained from the breath analysis instrument could be reconciled with blood test result - appealallowed - conviction quashed.Douglas (I)In the District Court of New South Wales Wakeling v Coles Group Ltd [2011] NSWDC 20District Court of New South WalesLevy SC DCJPersonal injuries - occupier’s liability - slip & fall on wet vinyl floor - no contributory negligence assessment of damages - verdict for plaintiff in sum of 118,350.Wakeling (I)
Page 5www.arconolly.com.auIn the District Court of Queensland Goodin v Colonial Mutual Superannuation Pty Ltd & Colonial Mutual Life Assurance SocietyLtd [2011] QDC 38District Court of QueenslandMcGill SC DCJInsurance - obligations of an insurer - duty of utmost good faith - second defendant provided aninsurance policy to first defendant trustee superannuation fund established by trust deed inrespect of its members - policy issued by second defendant insured plaintiff for total & permanentdisablement benefits - judgment for plaintiff.Goodin (I)Click Here to access our Benchmark Search Engine
Scott MacRae Investments - decision 12 March 2010. Page 4 www.arconolly.com.au Thales Australia Ltd v The Coroners Court of Victoria & Anor [2011] VSC 133 Supreme Court of Victoria Beach J Coroners Act 2008 (Vic) - occupational health & safety - employee of appellant observed to collapse, whilst working in the bucket of cherry picker in the .
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