Wednesday 24 March 2010
www.arconolly.com.au
Insurance Banking & Construction
A Daily Bulletin listing Decisions of Superior
Courts of Australia
Executive Summary (1 minute read)
Director General, New South Wales Department of Health v Industrial Relations Commission
of New South Wales - Industrial Relations Act 1996 (NSW) - judicial review - power of the
Industrial Relations Commission of New South Wales to order re-employment - power of the
Commission to order a person to resign - order made by Full Bench quashed (I, B, C)
Castleplex Pty Ltd (in liq), Re - Winding up - appeal from liquidator’s decision - mitigation of
damage - onus of proof (B)
Connor v Surrey County Council – United Kingdom decision - personal injuries - foreseeability whether public authority liable in negligence for psychiatric injury alleged by head teacher of a
school (I)
Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church (Rev 1) –
United Kingdom decision - negligence - primary judge had concluded archdiocese not vicariously
liable for acts of priest - claimant's appeal allowed against primary judge’s dismissal of his claim
in so far as it is based on vicarious liability (I)
Owens v Noble – United Kingdom decision - personal injuries - fraud - application for postjudgment relief - fresh evidence - person severely injured in a motor vehicle accident awarded in
excess of £3.0M in damages - insurer obtained surveillance showing injured person carrying out
activities inconsistent with his alleged injuries & disabilities (I)
Byron Avenue – New Zealand decision - Negligence - leaky apartments - liability of Council absence of code compliance certificate - contributory negligence (I, C)
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Summaries with links (5 minute read)
Wednesday 24 March 2010
Director General, New South Wales Department of Health v Industrial Relations Commission
of New South Wales [2010] NSWCA 47
Court of Appeal of New South Wales
Spigelman CJ, Tobias JA & Handley AJA
Industrial Relations Act 1996 (NSW) - judicial review - power of the Industrial Relations
Commission of New South Wales to order re-employment - power of the Commission to order a
person to resign - applicant invoked supervisory jurisdiction of the Court of Appeal - order made
by Full Bench quashed - matter remitted.
Director General, New South Wales Department of Health (I, B, C)
Castleplex Pty Ltd (in liq), Re [2010] QCA 59
Court of Appeal of Queensland
McMurdo P; Fryberg & McMeekin JJ
Winding up - appeal from liquidator’s decision - mitigation of damage - onus of proof - appellant
had lodged proof of debt with the liquidator of Castleplex Pty Ltd - proof of debt had been
rejected in part - appellant contending the whole of it should have been accepted by the liquidator
- appellant had appealed to the Supreme Court to vary the liquidator’s decision as per s1321
Corporations Act 2001 (Cth) - his appeal had been rejected - appellant appealing to Qld Court of
Appeal contending denial of natural justice & procedural fairness - by majority, Fryberg J
dissenting, appeal dismissed - detailed consideration of Australian case law.
Castleplex (B)
From the United Kingdom…
Connor v Surrey County Council [2010] EWCA Civ 286
Court of Appeal of England & Wales
Laws, Sedley & Thomas LJJ
Personal injuries - foreseeability - negligence consisting in the use or non-use of public law whether public authority liable in negligence for psychiatric injury alleged by head teacher of a
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school by reason of Council’s alleged failure to implement one of its legal functions: to create an
interim reporting board so as to prevent head teacher from being directly involved in/exposed to
criticisms of her performance - appeal dismissed.
Connor (I)
Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church (Rev 1)
[2010] EWCA Civ 256
Court of Appeal of England & Wales
Lord Neuberger MR; Longmore & Smith LJJ
Negligence - vicarious liability - claim for damages brought by person who alleged he was
sexually abused by a priest when a minor - primary judge had dismissed the claim - primary
judge had concluded archdiocese not vicariously liable for acts of priest - claimant's appeal
allowed against primary judge’s dismissal of his claim in so far as it is based on vicarious liability cross-appeal dismissed - detailed consideration of case law from the United Kingdom & Canada.
Maga (I)
Owens v Noble [2010] EWCA Civ 224
Court of Appeal of England & Wales
Sedley, Smith & Elias LJJ
Personal injuries - fraud - application for post-judgment relief - fresh evidence - person severely
injured in a motor vehicle accident awarded in excess of £3.0M in damages - insurer did not
appeal - insurer subsequently received confidential information as to extent of person’s injuries insurer obtained surveillance showing injured person carrying out activities inconsistent with his
alleged injuries & disabilities - insurer successfully obtained injunction to prevent injured person
from dissipating remaining funds - insurer then filed appeal out of time - appeal allowed to extent
that issue of fraud to be referred for trial - detailed consideration of case law.
Owens (I)
From New Zealand…
Byron Avenue [2010] NZCA 65
Court of Appeal of New Zealand
William Young P; Baragwanath & Arnold JJ
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Negligence - leaky apartments - liability of Council - absence of code compliance certificate contributory negligence - question of whether a plaintiff will be held to have been contributorily
negligent as a result of a third party’s negligent conduct - the ‚both ways‛ or ‚identification‛
principle - whether client should bear responsibility for their solicitor’s default - an interesting
decision with extensive consideration of case law from the United Kingdom, New Zealand &
Australia.
Byron Avenue (I, C)
Sunset Terraces - decision New Zealand Court of Appeal 22 March 2010 - liability of local authorities - leaky
building cases - no compliance certificate.
Henry Wadsworth Longfellow
(27 February 1807 - 24 March 1882)
From ‘The Rainy Day’
... Be still sad heart and cease repining;
Behind the clouds the sun is shining,
Thy fate is the common fate of all,
Into each life a little rain must fall,
Some days must be dark and dreary.
The Rainy Day - Henry Wadsworth Longfellow (1807-1882)
From ‘Excelsior’
The shades of night were falling fast,
As through an Alpine village passed
A youth, who bore, 'mid snow and ice,
A banner with the strange device,
Excelsior!
His brow was sad; his eye beneath,
Flashed like a falchion from its sheath,
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And like a silver clarion rung
The accents of that unknown tongue,
Excelsior ! ...
"Try not the Pass !" the old man said;
"Dark lowers the tempest overhead,
The roaring torrent is deep and wide !"
And loud that clarion voice replied,
Excelsior ! ...
Excelsior by Henry Wadsworth Longfellow
The Big Read | Henry Wadsworth Longfellow