benchmark_30-09-2011_insurance_banking_construction

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					Friday 30 September 2011                                                              www.arconolly.com.au


                  Insurance, Banking & Construction
    A Daily Bulletin listing Decisions of Superior
                 Courts of Australia
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  Executive Summary (1 minute read)
  Lithgow City Council v Jackson - High Court of Australia - personal injuries - ss69 & 78 Evidence
  Act 1995 (NSW) - statutory interpretation - appeal allowed (I)


  Roy Morgan Research Pty Ltd v Commissioner of Taxation - High Court of Australia -
  Superannuation Guarantee (Administration) Act 1992 (Cth) - Superannuation Guarantee Charge Act
  1992 (Cth) - appeal dismissed (B)


  Matar v Jones - Personal injuries - assessment of damages (I)


  Bell v Crewes - s8 Succession Act 2006 (NSW) (B)


  A v Peters & Ors - Public Health & Wellbeing Act 2008 (Vic) (I)


  TRA Global Pty Ltd v Kebakoska - Employment law - redundancy payment - contractual bonus
  entitlements - appeal from magistrate dismissed (I, B, C)


  Stone & Anor v Leonardis & Anor - Real Property Act 1886 (SA) - plaintiffs’ application under
  s191(d) for order directing Registrar-General to remove caveat (B, C)


  Landesbank v Goldman, Sachs & Co - United States decision - Credit Default Obligation -
  defendant’s application to dismiss proceedings granted (B, C)
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  Summaries with links (5 minute read)
   Friday 30 September 2011

   Lithgow City Council v Jackson [2011] HCA 36
   High Court of Australia
   French CJ; Gummow, Heydon, Crennan & Bell JJ
   Personal injuries - ss69 & 78 Evidence Act 1995 (NSW) - statutory interpretation - reception of lay
   opinion evidence in business records - Ambulance Service statement - causation - as to Notice of
   Contention, see par 99 & 109 of judgment of Crennan J - statement of lay opinion in business
   record must comply with s78 - ‚necessary‛- appeal allowed - orders of Court of Appeal of NSW 11
   June 2010 set aside & the respondent’s appeal to that Court dismissed.
   Lithgow City Council (I)
   Jackson - decision Court of Appeal of New South Wales 11 June 2010: see ‘Benchmark’ I & IBC Wednesday 16 June
   2010 - personal injuries - admissibility of evidence - causation - remitter from High Court for rehearing of appeal - for
   circumstances of injury, see link to first Court of Appeal decision below - question mark cut off in photocopy - notes
   of ambulance officers - business records under s69(1) Evidence Act 1995 (NSW) - opinion evidence under s78 Evidence
   Act 1995 (NSW) - meaning of word ‚necessary‛ in s78(b) - whether on the balance of probabilities appellant suffered
   his injuries as described in the ambulance officers’ notes - appeal allowed - orders made by District Court set aside &
   in lieu, judgment for plaintiff in sum of $203,475;
   Craig William Jackson - decision Court of Appeal of New South Wales 28 November 2008: see ‘Benchmark’ I &
   IBC Friday 28 November 2008; reported at (2008) Australian Torts Reports 81-981 at 62,465 - personal injuries -
   causation - measure of damages - contributory negligence - appellant had been found lying unconscious in concrete
   drain in a park in Lithgow shortly before 7 am with serious head injuries & other injuries, having taken his dogs for a
   walk at about 3:30 that morning whilst intoxicated - no memory of events in question or of events from middle of the
   day before - no witnesses of accident - appellant had sued council having care & management of the park, alleging he
   had fallen over the low, unfenced retaining wall of drain & down approximately 1.5 metres on to the concrete drain -
   appeal allowed - orders made by the District Court on 13 June 2007 set aside - verdict for plaintiff in sum of $203,475.


   Roy Morgan Research Pty Ltd v Commissioner of Taxation [2011] HCA 35
   High Court of Australia
   French CJ: Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ
   Superannuation Guarantee (Administration) Act 1992 (Cth) - Superannuation Guarantee Charge Act
   1992 (Cth) - constitutional challenge to both Acts dismissed.
   Roy Morgan Research (B)
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   Roy Morgan Research - decision Full Court of the Federal Court of Australia 26 May 2010: see ‘Benchmark’ B &
   IBC Monday 31 May 2010 - Superannuation Guarantee (Administration) Act 1992 (Cth) - constitutional law - appeal from
   Administrative Appeals Tribunal - people paid by applicant to conduct market research by telephone - whether the
   interviewers were employees, other than exempt employees, of applicant within meaning of s12 - power of
   Commonwealth Parliament to make laws relating to taxation & invalid and old-age pensions - held: the
   superannuation guarantee charge is a tax within the meaning of section 51(ii) of the Constitution - section 51(xxiii)
   gives the Commonwealth Parliament power to make laws with respect to invalid & old-age pensions generally,
   including those that are not provided by the Commonwealth - the laws imposing the superannuation guarantee
   charge & providing for the administration of the superannuation guarantee scheme are therefore valid - appeal
   dismissed - extensive consideration of case law.


   Matar v Jones [2011] NSWCA 304
   Court of Appeal of New South Wales
   Beazley, Giles & Macfarlan JJA
   Personal injuries - assessment of damages - loss of earning capacity - loss of opportunity to earn
   capital profits - appeal allowed in part.
   Matar (I)


   Bell v Crewes [2011] NSWSC 1159
   Supreme Court of New South Wales
   White J
   Succession Act 2006 (NSW) - whether an unsigned will that had been prepared for deceased should
   be admitted to probate pursuant to s8 - probate of informal will refused - costs.
   Bell (B)


   A v Peters & Ors [2011] VSC 478
   Supreme Court of Victoria
   Almond J
   Public Health & Wellbeing Act 2008 (Vic) - proposed plaintiff seeking leave to commence group
   proceeding under Supreme Court Act 1986 (Vic) Part 4A using pseudonyms - order made
   prohibiting publication of names of proposed plaintiff & proposed group members.
   A (I)
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   TRA Global Pty Ltd v Kebakoska [2011] VSC 480
   Supreme Court of Victoria
   Osborn J
   Employment law - appellant the former employer of respondent - redundancy payment paid to
   her - subsequently, employee sued company for contractual bonus entitlements - company
   counterclaimed seeking restitution of redundancy payment on the basis that it was made as the
   result of a mistake as to the employee’s entitlements - Magistrate had upheld the claim &
   dismissed counterclaim - company appealing magistrate’s decision in respect of the counterclaim
   on questions of law - Magistrate had held that redundancy payment was made by mistake, but
   that employee had a partial defence to the counterclaim by reason of change of position & a
   complete defence of estoppel by representation - appeal dismissed - detailed consideration of case
   law from United Kingdom & Australia.
   TRA Global (I, B, C)


   Stone & Anor v Leonardis & Anor [2011] SASC 153
   Supreme Court of South Australia
   White J
   Real Property Act 1886 (SA) - plaintiffs’ application under s191(d) for order directing Registrar-
   General to remove caveat lodged by defendants on title to a property of which defendants
   registered proprietors - defendants’ caveat preventing plaintiffs’ settling on contract of sale into
   which they had entered as mortgagees exercising power of sale - whether an interlocutory
   application could be a "summons" for the purposes of s191(d) - whether plaintiffs had a duty
   broader than a duty to act in good faith in exercise of their mortgagees' power of sale - whether a
   breach of that duty may give rise to a caveatable interest - whether defendants had raised a
   serious question to be tried - whether balance of convenience favoured continuation of the caveat -
   plaintiffs’ application granted - order made for removal of caveat - extensive consideration of case
   law from United Kingdom & Australia
   Stone (B, C)
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   From the United States …

   Landesbank v Goldman, Sachs & Co, 10 Civ. 7549 (WHP)
   United States District Court, Southern District of New York
   William H Pauley III, DJ
   Torts - action arising from downgrading of mortgage-backed Credit Default Obligation (‚CDO‛) -
   defendant’s application to dismiss proceedings - plaintiff Bank’s headquarters in Stuttgart -
   plaintiff alleging negligent misrepresentation, unjust enrichment, fraud - defendant’s application
   to dismiss proceedings granted.
   Landesbank (B, C)




    Monday 3 October 2011 being a public holiday, the next edition of ‘Benchmark’ will be dated
                                       Tuesday 4 October 2011




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