advocatemmmohan
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New South Wales
COPYRIGHT – Equitable remuneration – Government use of artistic works – Survey plans – Use for State land title registration system – Remuneration for non-government use of artistic works COPYRIGHT – Reproduction – Distinction between reproduction and electronic communication – Treatment of reproduction and communication on the same basis – Whether appropriate in particular circumstances COPYRIGHT – Equitable remuneration – Distinction between compensation for the provision of survey plans and remuneration for use of copyright works – Economic justification for charging for use of copyright works – State economic policies
Copyright Agency Limited v State of New South Wales (includes Corrigendum dated 28 August 2013) [2013] ACopyT 1 (17 July 2013) Last Updated: 29 August 2013 COPYRIGHT TRIBUNAL OF AUSTRALIA Copyright Agency Limited v State of New South Wales [2013] ACopyT 1 Citation: Copyright Agency Limited v State of New South Wales [2013] ACopyT 1 Parties: COPYRIGHT … Continue reading
Supreme Court of New South Wales=On 14 February 2010, the defendant Petty Officer Nikolai Rofe – a member of the Royal Australian Navy posted to the Australian Defence Force Academy (‘ADFA’) where he was the Senior Non-Commissioned Officer in charge of the Seamanship Centre and Boatshed – was responsible for the conduct of an adventure training activity for ADFA officer trainees (officer cadets and midshipmen, for convenience in this judgment collectively referred to as ‘officer cadets’) using a 6.3 metre rigid hull inflatable boat with an outboard motor and unguarded propeller (‘the vessel’), on Lake Burrinjuck near Yass. After completion of fast water insertion exercises, Petty Officer Rofe took a number of officer cadets out on the vessel for what was variously described as a “sea jolly”, “joy ride” or “bit of fun”, in the course of which Officer Cadet Oliver Minchin fell from the vessel and suffered horrific injuries after his lower back connected with the propeller, resulting in the loss of approximately four litres of blood. On 21 December 2010, the Local Court at Yass (Magistrate Beattie) dismissed charges brought against Petty Officer Rofe by the Maritime Authority of New South Wales (‘the Authority’), under (NSW) Marine Safety Act 1998, s 13(1)(b), for operating a commercial vessel recklessly occasioning grievous bodily harm, and s 13(1)(a), for operating a commercial vessel negligently occasioning grievous bodily harm. By summons filed on 17 January 2011, Sean O’Dwyer in his capacity as a Public Officer of the Authority appeals against the Magistrate’s order dismissing the proceedings. The Authority contends that the learned Magistrate erred in law in dismissing the charges, specifically on the following grounds: (1) in holding that for the purposes of Marine Safety Act s 13(1)(a) and s 13(1)(b), the existence of a possibility of serious harm was not sufficient to constitute recklessness and/or negligence; (2) in holding that contravention of s 13(1)(a) required a high and significantly culpable degree of negligence, being a higher degree of negligence than the standard applicable under civil law; (3) in treating the facts that the officer cadets who participated in the relevant boat rides did so for fun and willingly as exculpatory for the purposes of s 13(1)(a) and s 13(1)(b); (4) a fourth ground was not pressed; and (5) in failing to hold that the facts as found constituted a contravention of s 13(1)(b) or alternatively s 13(1)(a) of the Act. Some days before the hearing of the appeal, counsel for both parties were informed of my role with the Australian Defence Force – which involves no responsibility for or association with any part or member of the Defence Force involved in this case – and afforded an opportunity to take instructions in that respect. Neither party objected to my hearing the matter.
Maritime Authority of NSW v Nikolai Rofe [2012] NSWSC 5 (16 January 2012) Last Updated: 17 January 2012 Supreme Court New South Wales Case Title: Maritime Authority of NSW v Nikolai Rofe Medium Neutral Citation: [2012] NSWSC 5 Hearing Date(s): Wednesday, 27 July 2011 Decision Date: 16 January 2012 Jurisdiction: Common Law Before: Brereton J … Continue reading
Supreme Court of New South Wales=Between about 1995 and 1997, the plaintiff Madison Ashton provided what are euphemistically called escort services to the late Richard Pratt, a married man of exceptional wealth, from time to time, for reward. This came to an end when Ms Ashton married a third party in April 1997. Following the breakdown of her marriage, and of a subsequent de facto relationship, contact between Ms Ashton and Mr Pratt resumed in October 2003. Ms Ashton contends that in a conversation between them in November 2003, Mr Pratt promised her that, in consideration of her not returning to the escort industry but providing services (non-exclusively) to him as his mistress on occasions when he was in Sydney (which was typically one and sometimes two nights per week), he would settle $2.5 million upon trust for each of her two children, pay her an allowance of $500,000 per annum, and in addition pay her $36,000 per annum for her rental accommodation and $30,000 per annum for travel expenses in connection with her proposed business. Ms Ashton now sues Mr Pratt’s widow, as the executor of his estate, on those promises, in contract and alternatively equitable estoppel. The main issues are: Whether (as a matter of fact) Mr Pratt made the alleged promises; If so: (a) whether the promises were sufficiently certain to amount to a contract; (b) whether they were intended to create legal relations; and (c) whether they are unenforceable for public policy reasons; If not enforceable in contract, whether the promises are enforceable by way of equitable estoppel; and Whether Ms Ashton’s claims are not maintainable by reason of having been previously compromised and released, in February 2005 or November 2005.
Ashton v Pratt (No 2) [2012] NSWSC 3 (16 January 2012) Last Updated: 17 January 2012 Supreme Court New South Wales Case Title: Ashton v Pratt (No 2) Medium Neutral Citation: [2012] NSWSC 3 Hearing Date(s): 12, 13, 14 and 15 September 2011 Decision Date: 16 … Continue reading
Supreme Court of New South Wales=HIS HONOUR: Ishmail Eken was found by a jury to be not guilty of murder and manslaughter but guilty of riot. This is an offence against s 93B Crimes Act 1900 for which there is prescribed a maximum penalty of imprisonment for 15 years. He was also acquitted of a separate charge of affray which was alleged to have occurred shortly before the riot. Usama Potrus was also found not guilty of murder and manslaughter but guilty of riot. He was not charged with the affray. The trial commenced with empanelment of the jury on 24 May 2011. There were seven accused. The jury retired on 29 September 2011 and returned its verdicts on 2 November 2011.
R v Eken; R v Potrus [2012] NSWSC 2 (9 January 2012) Last Updated: 17 January 2012 Supreme Court New South Wales Case Title: R v Eken; R v Potrus Medium Neutral Citation: [2012] NSWSC 2 Hearing Date(s): 17 November 2011 Decision Date: 09 January 2012 Jurisdiction: Common Law – Criminal Before: R A … Continue reading
SUPREME COURT OF WESTERN AUSTRALIA=The Court is sitting to hear a notice of originating motion brought by Lindsay Hunter for leave to institute proceedings pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA), leave being necessary to do so because Mr Hunter has been declared to be a vexatious litigant. 2 The proposed proceedings are referred to in the affidavits which have been filed by Mr Hunter on this application. The relief sought is complicated and compendious but it is directed against the RSPCA WA Inc, the RSPCA WA directors, being all appointed directors of that association, Ms Joanna Schirrman, chief veterinarian of the RSPCA, Mr Keith Ginbey and all general inspectors of the RSPCA.=the Vexatious Proceedings Restriction Act is unconstitutional and therefore illegal because it is in breach of the Animal Welfare Act and that because it is unconstitutional this gives rise to a cause under s 78B of the Judiciary Act 1903 (Cth), requiring notice to be given to the Attorneys General for the Commonwealth, the States and the Territories, and for the Court not to proceed further without giving the s 78B notices. As to that, I can say that this contention appears to be without any shred of merit whatsoever. The alleged conflict between the Vexatious Proceedings Restriction Act and the Animal Welfare Act does not give rise to any arguable constitutional [2011] WASC 363 EM HEENAN J Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 8 issue and there is no basis whatsoever to contemplate an order that s 78B Judiciary Act notices are required or should be given. 16 Finally, Mr Hunter has submitted that he should not be required to deal further with his objection to me sitting because he did not know until the commencement of proceedings this morning that I had been assigned to hear his case, and that had he been aware of that, he would have taken more care to examine the past record of reasons for decision and transcripts in cases in which I have been involved. He submits that, in that case, he would have been better able to present his case that I was actually prejudiced or biased or that a reasonable person might entertain a belief that I was biased or prejudiced and unable to give a fair and independent decision in his case. 17 As to all these matters I must observe that Mr Hunter has advanced these submissions with relative calm and restraint and with as much deference as he considers should be employed in raising delicate and unpalatable matters. Nevertheless, I do not consider that there is any reasonable basis upon which I should disqualify myself from hearing this application. I have been involved in prior matters involving Mr Hunter, including his unsuccessful applications to bring proceedings under the Vexatious Proceedings Restriction Act. I have given reasons which explain, I hope in modest terms, my conclusions in those matters. The first of those matters was in 2003 and the second in 2008. The present proceedings are entirely fresh and although it is clear that I take a different view of the submissions advanced by Mr Hunter in many respects, that does not mean that I am biased or prejudiced nor does it give rise to any reasonable suspicion of bias. I therefore decline his submission that I should not sit on this matter and I will deal with the application on its merits. 18 I consider that the action which is proposed in the papers filed by Mr Hunter is replete with confusion of thought and seeks to advance unsubstantiated and extreme allegations. I consider that it reveals no prospect of success in the action contemplated and that it disregards the lawful powers and obligations which the RSPCA and its officers possess under legislation. The papers, the affidavits and the submissions produced by Mr Hunter this morning all have features which were decided in the previous cases of Hunter v RSPCA [2006] WASC 215 by Hasluck J and by myself in Hunter v RSPCA in 2008 to be vexatious. I consider that there is no prima facie ground for the proceedings and that leave to commence them should be refused.
[2011] WASC 363 Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : LINDSAY HUNTER (& as Intellectual Property owner of Goldenkelpies) -v- RSPCA WA INC [2011] WASC 363 CORAM : EM HEENAN J HEARD : 1 DECEMBER 2011 DELIVERED : 1 DECEMBER 2011 PUBLISHED : 23 DECEMBER … Continue reading
By an originating process filed on 4 November 2010, the plaintiff (Cranney Farm), in its capacity as the trustee of the Cranney Family Trust, seeks an order under s 459G of the Corporations Act 2001 (Cth) for the setting aside of a statutory demand served on it by the defendant (Corowa Fertilizers) on 15 October 2010. While there is dispute as to whether the demand adequately identified the debt claimed as being due and payable, there is no doubt that it relates to an underlying debt owing by the former trustees of the Cranney Family Trust (Rohan and Geoffrey Cranney) for the supply of fertiliser for rural operations then being carried on by them in their capacity as trustees. 2 Cranney Farm concedes that it cannot, while it remains bound by a judgment given by Bryson AJ against it on 1 October 2010 ( Corowa Fertilizers Pty v Rohan and Geoffrey Cranney & ors , unreported 2009/291644), assert that there is a genuine dispute as to the existence of the claimed debt. Rather, it bases its application for the setting aside of the statutory demand on two grounds: first, pursuant to s 459J(1)(b) of the Corporations Act , that there is “some other reason why the demand should be set aside” (ie other than a defect in the demand, the existence of a genuine dispute or the existence of an offsetting claim) – Cranney Farm in fact submitting that there are two such (related but distinct) ‘other reasons’, those being the filing of a Notice of Appeal (said to have reasonable prospects of success) in relation to the judgment debt on which the statutory demand is based (which appeal, if successful, would mean that the judgment debt would be expunged) and, as a distinct but related reason, that Cranney Farm would be entitled to a stay of execution of the judgment debt; and secondly, pursuant to s 459J(1)(a) of the Act, that the demand is defective such that substantial injustice would be caused if the demand were not to be set aside, the defects identified being in relation to the amounts and descriptions of the debts contained in the schedule to the statutory demand. 3 I note that when the originating process which is now before me was filed (and indeed up until the hearing of the application before me had commenced), no Notice of Appeal from the decision of Bryson AJ had been filed (although a Notice of Intention to Appeal was filed on 29 October 2010, a copy of which was annexed to the affidavit sworn 1 November 2010 of Geoffrey Cranney as director of Cranney Farm and on its behalf on the current application). On 13 December 2010 a Notice of Appeal was filed, the appeal proceedings being listed for directions on 16 February 2011.
Cranney Farm Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9 (2 February 2011) Last Updated: 14 March 2011 Supreme Court New South Wales Case Title: Cranney Farm Pty Ltd v Corowa Fertilizers Pty Ltd Medium Neutral Citation: [2011] NSWSC 9 Hearing Date(s): 13 December 2010 Decision Date: 02 February 2011 Jurisdiction: Before: Ward … Continue reading
Livestock Transport (Sydney) Pty Limited is a horse transport company. It claims to have suffered substantial financial loss as a result of the introduction of equine influenza into Australia in August 2007, which greatly restricted horse movement and transport for a period of time. By these proceedings, Livestock Transport seeks to recover its losses from the Commonwealth of Australia. The claim is based on the allegation that the spread of the virus among horses in various parts of New South Wales and Queensland was due to negligence in the administration of the nation’s quarantine system. 2 Livestock Transport alleges that a stallion named “Snitzel” from Japan who was received at the Eastern Creek Quarantine Station was infected with equine influenza at the time of his arrival and that the virus subsequently escaped from that facility as a result of the fact that grooms, farriers and private veterinarians attending horses there were not required to take adequate steps to decontaminate themselves upon leaving the facility. It seeks to have the Commonwealth held liable for the consequences of those events as the entity responsible for quarantine in Australia, the occupier of the Eastern Creek Quarantine Station and pursuant to a statutory duty of care alleged to arise under the Quarantine Act 1908 (Cth). 3 The Commonwealth admits that it was the occupier of the Eastern Creek Quarantine Station and that it was responsible for quarantine in Australia but denies that it owed any duty of care to Livestock Transport in the circumstances alleged. The Commonwealth also denies that the virus escaped from the Eastern Creek Quarantine Station in the manner alleged, denies breach of any duty owed to Livestock Transport and denies that the company suffered any loss caused by the events alleged. 4 Separately, the Commonwealth has pleaded that it cannot be vicariously liable for the allegedly negligent acts or omissions of any of the relevant officers since those persons are immune from suit by operation of section 82(1) of the Quarantine Act (paragraph 52 of the defence). The Commonwealth further pleads that it cannot be liable because any loss suffered by Livestock Transport was caused by reason of the wrongful acts or omissions of public officers which occurred in the course of their acting in the performance or purported performance of a duty imposed by the Quarantine Act (paragraph 53 of the defence). The matter presently before the Court is an application by Livestock Transport to have those defences struck out.
Livestock Transport (Sydney) Pty Limited v Commonwealth of Australia [2011] NSWSC 7 (2 February 2011) Last Updated: 14 March 2011 Supreme Court New South Wales Case Title: Livestock Transport (Sydney) Pty Limited v Commonwealth of Australia Medium Neutral Citation: [2011] NSWSC 7 Hearing Date(s): 21 September 2010 Decision Date: 02 February 2011 Jurisdiction: Before: McCallum … Continue reading
CORPORATIONS – application for removal of liquidator pursuant to s 503 of the Corporations Act 2001 (Cth) on grounds of apprehended bias – HELD – application dismissed – ESTOPPEL – whether plaintiff estopped from seeking removal of liquidator on Anshun principles – whether application for removal otherwise an abuse of process – HELD – Anshun estoppel established
Accord Pacific Holdings Pty Ltd v Gleeson as liquidator of Accord Pacific Land Pty Ltd (in liq) [2011] NSWSC 1021 (2 September 2011) Last Updated: 5 September 2011 Supreme Court New South Wales Case Title: Accord Pacific Holdings Pty Ltd v Gleeson as liquidator of Accord Pacific Land Pty Ltd (in liq) Medium Neutral Citation: … Continue reading
CORPORATIONS – constitution and replaceable rules – types of companies – construction of constitution – company incorporated for multiple occupancy living in a rural environment – dispute about members’ right to use common property for grazing cattle – constitution does not grant a right to graze cattle on common property to members – whether resolution of members passed in March 1999 is effective to withdraw permission to graze cattle on common property – whether resolution modifies class rights in contravention of procedure prescribed under the company’s constitution – whether company’s affairs conducted oppressively – application for winding up company adjourned so parties can modify their affairs on the basis of the Court’s judgment – HELD – resolution not effective to withdraw permission to graze cattle resolution is not a rule or regulation under memorandum of association clause 2(a)(iii) – no interference with class rights TORTS – trespass – trespass to land – defence of licence to enter property – whether defendants liable in trespass to the company for grazing their cattle on common property – HELD – defendants not liable in trespass as existing permission to graze cattle on common property not validly withdrawn by members resolution of March 1999 CONTRACTS – general contractual principles – whether company has breached contract with member by failing to issue lease to member in conformity with company’s constitution – HELD – no breach found MISLEADING AND DECEPTIVE CONDUCT – whether company misled members about the right to graze cattle on common property – HELD – no misleading or deceptive conduct found.
Currawinya Pty Limited v Adam; Adam v Currawinya Pty Limited [No. 2] [2011] NSWSC 1 (28 January 2011) Last Updated: 9 March 2011 Supreme Court New South Wales Case Title: Currawinya Pty Limited v Adam; Adam v Currawinya Pty Limited [No. 2] Medium Neutral Citation: [2011] NSWSC 1 Hearing Date(s): 9 September 2010 Decision Date: … Continue reading
