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Autumn Newsletter 2018
 

Welcome to the State Chambers Newsletter!
 
Our aim is to keep you updated with recent developments in the law, and on our Floor.
 
We are a modern, cutting-edge set of Chambers whose members have excelled in terms of qualifications and experience in a number of specialty practice areas.
 
State Chambers is located on the top floor of a commercial setting on Phillip Street Sydney, the center of legal life in the City and a short walk to the Supreme and Federal Courts where the bulk of our barristers practice daily. 
 
We pride ourselves on having a diverse membership which has developed a truly national profile in the twenty years since our inception.  We have specialist practitioners at all levels of seniority who undertake civil and criminal work, and who offer advice and representation in matters before all Australian Courts and Tribunals. 
 
We currently have six silks and twenty-four juniors who share the common aims of championing access to justice and promoting excellence in advocacy and the delivery of advice.

 

Doyle's Guide 2018
 
State Chambers has had an extraordinary result in the 2018 Doyle’s Guide Leading Employment Work Health & Safety Barristers.
 
Once again, State Chambers has significantly more members included in that part of the Guide than any other set of chambers in Sydney. The following Floor members were included in the Guide:
 
 
We are also delighted to note that Simon Couper QC is included in the Doyle's Guide Leading Commercial Litigation & Dispute Resolution Senior Counsel – Queensland, 2017.

Continuing Professional Development Seminars
 

Upcoming CPD

 - Judicial Bullying - 

  Presented by Jeffrey Phillips SC
 
Whilst problematic judicial conduct is rare, failing to acknowledge and address it can damage the integrity of the courts and undermine their ability to fulfill the judicial function. Mr Phillips SC will speak to a paper that addresses these delicate issues, and offer anecdotes and tips that will be of great benefit to practitioners.

Time – Friday 6 April 2018, 4pm

Place – State Chambers Foyer


Click here for more information
 


Most Recent CPD

- Sir Owen Dixon -

His Understanding of the Allocation of Powers in the Australian Federation; an Enduring Legacy

 

Presented by Anton Duc

 

Click here to watch
 



CPD Archive

Past CPD events at State Chambers have been recorded
and are available in our archive.


Click here to view the archive

Case Notes
 
The Federal Circuit Court of Australia has held that a locally employed person who claimed wages in accordance with the Clerks Private Sector Award was not so bound. The Award was held to apply only to clerical workers employed in the private sector. The operation of a consulate or embassy of a foreign nation was found not to be engaged in the private sector in Australia.
 

 
Damien Allen

In the Supreme Court of New South Wales (23 March 2018)

DGF Property Holdings Pty Limited v Di Federico [2018] NSWSC 344

Click here to view the case note
 
The Court considered the recently introduced section 66ZL of the Conveyancing Act 1919 (NSW), which prevents vendors from rescinding contracts for the sale of off-the-plan residential lots unless the vendor makes out a case for leave on the basis that it is just and equitable in all the circumstances to do so. 
 

 
Brown involved a challenge to State legislation aimed at preventing protesters from undertaking activities on or near business premises. Dr Bob Brown, ex leader of the Australia Greens, was protesting in the Lapoinya Forest in north west Tasmanian for the purpose of raising public and political awareness about logging in State forests. He was arrested and charged under the Workplaces (Protection from Protesters) Act 2014 (Tas) after he refused to leave the area. This case note discusses the analytical methodology used by the Court to assess whether the State Act impermissibly burdened the freedom of political communication implied in the Commonwealth Constitution.
 

In the Supreme Court of New South Wales (23 October 2017)
 

Cambodian Buddhist Society of NSW v Meng Eang Thai [2017] NSWSC 1433

Click here to view the case note

This case considered the validity of two elections held by two rival factions of the Cambodian Buddhist Society, with each faction purporting to be the validly elected management committee of the Society. The Court held that two election results were invalid under the Constitution. The Court appointed a receiver as an officer of the Court to undertake temporary management of the business of the Society.

Floor Members' Recent Decisions

 
Michael Cranitch SC

In the Supreme Court of New South Wales (13 September 2017)

Tsoromokos v Australian Native Landscapes Pty Ltd [2018] NSWSC 321
 
The plaintiff was an independent contractor who was seriously injured while carrying out repairs on machinery. The plaintiff alleged that the defendant failed to provide a safe place of work by permitting him to work on machinery which the defendant knew to be defective. The Court found the defendant negligent, however  the plaintiff’s failure to carry out a proper inspection of the machinery despite his particular knowledge and experience was found to be objectively unreasonable, leading to a finding of contributory negligence.
 

This case was a class action brought on behalf of those affected by the sinking of the refugee boat known as SIEV221 off the coast of Christmas Island on 15 December 2010 with a loss of 50 lives. The case involved a number of significant issues including the duties of public authorities conducting operations, the interaction of the powers under the Migration Act 1958 (including the consequences of an automatic forfeiture of ownership of the vessel to the Commonwealth), and duties of care in a maritime context. The Court gave a verdict in favour of the defendant. The decision is subject of an appeal.
 

The Court considered whether there was any conflict between the decisions in Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd [2012] NSWCA 365 and Pravenkav Group Pty Ltd v Diploma Construction (WA) Pty Ltd (No 3) [2014] WASCA 132 in respect of an application to set aside a statutory demand where there was an offsetting claim. The Court held that the evidence necessary for the Court to calculate the substantiated amount of an offsetting claim could be contained in a supplementary affidavit.  The Court dismissed the application because it found that the offsetting claim did not meet the threshold of genuineness.


In the Supreme Court of New South Wales (14 December 2017)

CLK Kitchens & Joinery Pty Ltd v Mayneline Kitchens & Joinery Pty Ltd
 [2017] NSWSC 1737


The case concerned two issues of construction of a business sale agreement.  At issue was whether the parties were obliged to accept, as reasonable, particular terms proposed by the expert as to the procedure to be followed under an expert determination clause.


In the Supreme Court of New South Wales (6 February 2018)

Sandersons Eastern Suburbs v Mercedes Benz Australia Pacific
 [2018] NSWSC 52

The Court granted an application made by the defendant to dismiss commercial list proceedings as an abuse of process on the basis that the declarations sought were hypothetical and therefore beyond the jurisdiction of the Court.  The Court took a restrictive view of the scope of the jurisdiction to make declarations.

 

Damien Allen :

In the Supreme Court of New South Wales (14 December 2017)

Reliance Financial Services Pty Ltd v Pineiro
[2017] NSWSC 1739

A debtor’s defence that the document charging his interest in land was not a deed because it was attested to by an officer of the lender corporation was rejected because an officer of a corporation attesting a signature as a witness was found not to be “a party to the Deed” for the purposes of Section 38(1) of the Conveyancing Act 1919 (NSW). A creditor can enforce remedies in respect of an equitable mortgage 12 years from the date the principal became due for payment, whereas a claim for interest is only enforceable in the 6 years immediately preceding judgment (ss.42 and 43 of the Limitation Act 1969 (NSW)). The Court held that the appointment of statutory trustees for sale as a means of recovering the debt was available on the basis that an unregistered mortgagee of the interest of a joint tenant is a co-owner within the meaning of section 66G of the Conveyancing Act
 

Shane E J Prince

In the Land and Environment Court of New South Wales (25 July 2017)
 
Local Democracy Matters Inc v Minister For Local Government [2018] NSWLEC 9
 
This case concerned the proposed amalgamation of the Woollahra, Waverley and Randwick Councils. After the commencement of proceedings, the Government abandoned the council amalgamation proposals. The issue of costs arose due to the futility occasioned by the change in Government policy. The Court took the view that, because the argued matter would not have resolved substantive proceedings, the parties should bear their own costs.  
 

Thomas J Dixon

In the Federal Court of Australia (22 December 2017)

Australian Building and Construction Commissioner v Molina [2017] FCA 1501
 
This case involved an application to strike out certain pleadings in a statement of claim on the basis that the allegations failed to give rise to a reasonable cause of action, and had the tendency to cause prejudice, embarrassment or delay in the proceedings. The Court considered the expression ‘lawful request’ for the purposes of whether a person engages in an industrial activity under s.347 of the Fair Work Act 2009 (Cth).


In the Supreme Court of New South Wales (22 February 2018)

Mackinnon v STC Sports Trading Club (No 4) [2018] NSWSC 147
 
This decision involved a recusal application on grounds of apprehended bias. The test was whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the adjudication of the controversy. The application was made on the sixth day of a hearing in the Equity Division of the Supreme Court. The application alleged the Judge had impermissibly intervened in the cross-examination of a Defendant witness.


In the Fair Work Commission (8 March 2018)


Re CPSU, the Community and Public Sector Union [2018] FWC 591

This was the first contested decision made in respect of a provision of the recently introduced Part 6-3A of the Fair Work Act 2009 (Cth). The decision involved an application by a federally-registered union to be covered by a State industrial instrument that applied to employees who transferred from State public sector employment to private enterprise.
 
Simon Meehan

In the Supreme Court of New South Wales (22 December 2017)

Ellens v Fleming 7 Anor (No. 2) [2017] NSWSC 1804

 
In 2016, the parties negotiated a settlement and proffered consent orders which were made by the Supreme Court in partial resolution of complex Family Provision Act 1982 proceedings. The terms of settlement and Court orders provided for the transfer of certain property to the plaintiff from the Estate of his parents (represented by the defendants). The proceedings involved the resolution of ongoing disputation arising from non-compliance with the Court's orders. The decision considered the power of the Court to vary earlier orders under the Act to adjust the rights of the parties to permit the plaintiff to purchase the Estate property. 
 

In the well-publicised pay dispute between the RTBU and Sydney Trains, the Fair Work Commission was called upon to make orders to terminate protected industrial action taken by the Union. After receiving evidence of the likely consequences of the industrial action, Hamberger SDP was satisfied that the action “would have threatened to cause significant damage to the economy of Sydney – the largest and most economically important city in Australia” and made the orders sought.
 
Dr. Simon Blount

In the District Court of New South Wales (16 February 2018)

Robin John Steenson v Aqua Max Investment Pty Ltd [2018] NSWDC (2017/5006)

 
The plaintiff lent money to the defendant on the terms of a signed agreement.  On the plaintiff filing a statement of claim in debt, the defendant raised the unusual defence that, because the plaintiff had failed to perform an orally agreed condition precedent to the defendant’s performance of the agreement, the plaintiff was not entitled to payment of either interest or principal. The defence failed.
 
Lachlan Robison

In the Workers Compensation Commission (23 October 2017)

Guzman v Trade West Pty Ltd [2017] NSWWCCPD 44
 
Successfully argued that arbitrators in the Workers Compensation Commission cannot take into account the criteria for determining impairment as a basis for striking out proceedings because the application of that criteria is a matter for an “approved medical specialist” only.
 
Jaye D Alderson :

In the Supreme Court of New South Wales (1 March 2018)

R v Alou (No. 4) [2018] NSWSC 221
 
On 2 October 2015, Mr Curtis Cheng was murdered by 15 year old Farhad Mohammad in a terrorist act. This case involved the sentencing of Raban Alou for the offence of aiding and abetting that terrorist act by sourcing and supplying the firearm that was used to murder Mr Cheng. This was the first time the offence of committing a terrorist act contrary to the Criminal Code (Cth) had come before a sentencing court in Australia. Mr Alou pleaded guilty to the offence and was sentenced to 44 years' imprisonment. 

Welcome to our new Members

 
Mr Phillips joined the Bar in 1981. He was appointed Senior Counsel in 2003.

He has specialised in Industrial Relations Law, Employment Law, Executive Employment Contracts, Occupational Health and Safety Law, Fair Work Law, Personal Injury Law, Mediations, Alternative Dispute Resolution as well as Inquests and Specialist Tribunals.
Mr Couper joined the Bar in 1983. He was made Queens Counsel in 1993.

His practices primarily in the area of Commercial Law, including Contract Disputes, Corporate Law, Insurance, and Professional Indemnity.
Mr Vernier became a Solicitor in 1989. He was admitted to the Bar in 2013.

His areas of practice include Commercial Law, Contracts, Bankruptcy & Insolvency, Equity, Industrial Relations, Unions & Employment, Product Liability, Professional Negligence, and Trade Practices & Competition.
Mr Robison became a Solicitor in 2007 and joined the Bar in 2010.

He practices in most areas of law, particularly in Administrative Law, Insurance & Personal Injury, Intentional Torts, and Commercial Litigation.
Did you know?
 
It is a seemingly trite proposition that the Local Court, being a creature of statute, has no inherent equitable jurisdiction. The Local Court has jurisdiction to hear and determine “proceedings on any money claim” subject to a jurisdictional limit of $100,000: s.30 of the Local Court Act 2007 (NSW).  A “money claim” is defined as “a claim for recovery of any debt, demand or damages (whether liquidated or unliquidated)” and has been held to include common law remedies such as restitution: Albanis v Eleftheriou [2014] NSWSC 416 at [27]. However, despite the fact that the Local Court cannot grant equitable relief, defendants can rely upon equitable defences: s.6 of the Law Reform (Law and Equity) Act 1972 (NSW). Therefore, a defence which seeks to deny an entitlement to judgment, as opposed to one which seeks positive orders to be made, would typically be given effect by the Local Court: Kelly v Mina [2014] NSWCA 9 at [60]. Equitable defences which have been given recognition include (eg): promissory estoppel (Bushby v Dixon Holmes du Pont Pty Ltd [2010] NSWSC 234 at [33]; cf Wilson v Interhealth Energies Pty Ltd [2008] NSWSC 1137 at [12]); mistake in equity (Abbott v Klein [2015] NSWDC 45 at [49]); and relief against forfeiture or penalties (Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289 at [75]).
 

Readership

Readership applications are currently open for 2018.

Click here to apply

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