Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 (23 February 2010).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2010/20.html
Sydney, Australia
1300 00 2088
Tag Archives: LOWER NORTH SHORE
Dubow v Fitness First Australia Pty Ltd [2010] FMCA 56
Plaito Pty Ltd t/a Lollipop’s Playand Frenchs Forest re Plaito P/L Enterprise Agreement 2009
Plaito Pty Ltd t/a Lollipop’s Playand Frenchs Forest re Plaito P/L Enterprise Agreement 2009 [2010] FWAA 708 (3 February 2010).
http://www.austlii.edu.au/au/cases/cth/FWAA/2010/708.html
Sydney, Australia
1300 00 2088
Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1
ON 3 FEBRUARY 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).
http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html
Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.
The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.
Kirk was convicted and sentenced.
Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.
The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.
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Officeworks BusinessDirect Pty Ltd re Officeworks Customer Fulfilment Centre National Union of Workers Agreement 2009 [2010] FWAA 706
Personal Property Securities Act 2009 (Cth)
ON 15 DECEMBER 2009, the Personal Property Securities Act 2009 commenced.
http://www.austlii.edu.au/au/legis/cth/consol_act/ppsa2009356
1300 00 2088
Mosman Municipal Council v Kelly (No 5) [2009] NSWLEC 186
Mosman Municipal Council v Kelly (No 5) [2009] NSWLEC 186 (30 November 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2009/186.html
Sydney, Australia
1300 00 2088
91 Ourimbah Road, Mosman NSW 2088
Mosman Municipal Council v Kelly (No 5) [2009] NSWLEC 186 (30 November 2009).
http://www.austlii.edu.au/au/cases/nsw/NSWLEC/2009/186.html
Sydney, Australia
1300 00 2088
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).
http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html
Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.
The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.
The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.
The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).
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Bofinger v Kingsway Group Limited [2009] HCA 44
ON 13 OCTOBER 2009, the High Court of Australia delivered Bofinger v Kingsway Group Limited [2009] HCA 44 (13 October 2009).
The High Court held that guarantors of a secured loan may recoup contributions they made to the repayment of the loan to a first mortgagee from the remaining surplus securities before the surplus is applied to repay any second or subsequent mortgagee with security over the same property, even if the guarantors have also guaranteed the second or subsequent loans. The guarantors were found the be subrogated to the first mortgagee. Upon repayment of the first loan, first mortgagee had a fiduciary obligation to in good conscience provide the guarantors with the surplus funds and remaining properties.
On the principle of unjust enrichment and how it applies to subrogation, Gummow, Hayne, Heydon, Kiefel and Bell JJ said at [85]:
“The appeal to this Court in Friend v Brooker [63], which concerned the equitable doctrine of contribution, was correctly conducted on the footing that the concept of unjust enrichment was not a principle supplying a sufficient premise for direct application in a particular case. The same is true of the equitable doctrine of subrogation. The oral submissions for the Solicitors correctly recognised this.”
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