Case Law

Case Summarises provided by A R Conolly & Company Lawyers in their daily newsletter Benchmark.

As new technologies emerge and work practices evolve, new situations arise and responsibilities shift, with these changes affecting how policies are interpreted and respond. Court cases illustrate these changing conditions, and provide valuable information as to how and why a determination was made. Cases occur every day, with the outcomes underpinning many current trends while throwing others to the wind. To keep abreast of these changes and for interesting reading, visit our Case Law facility regularly to search the library or view the latest cases.

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Top 5 latest case law

TitleCaseHighlightHearing Date
Whitehaven Coal Mining Limited v Pain [2018] NSWCA 229 Court of Appeal of New South WalesWorkers compensation - respondent worker was employed by appellant - primary judge made award in favour of respondent under Workers Compensation Act 1987 (NSW) - primary judge found worker suffered from ‘back pathology' constituting a disease, and that disease was aggravated in course of employment - appellant appealed - whether identification of points of law by grounds of appeal - whether erroneous failure to make necessary “injury” finding - adequacy of reasons - whether failure to consider “discretion” under s 11(1) Workers' Compensation Act 1926 (NSW) - whether failure to find work conditions which respondent undertook cause caused ‘aggravation or exacerbation' of respondent's ‘back condition' - held: appeal dismissed.11/01/2019
Trident Seafoods Corporation v Trident Foods Pty Limited [2018] FCA 1490 Federal Court of AustraliaTrade marks - two appeals - first appeal was against ‘non-use decision' in which Registrar of Trade Marks' delegate refused to remove trade marks from Register for non-use - second appeal was against ‘opposition decision' in which another delegate of Registrar of Trade Marks rejected appellant's opposition to respondent's registration of trade mark - goods within scope of registered trademark - whether trademarks used in ‘non-use' period - whether to exercise discretion to remove trademark - whether ‘other circumstances' due to which it was ‘proper' to accept registration application - whether application could be opposed pursuant to s59 Trade Marks Act 1995 (Cth) - held: appeal against non-use decision dismissed - appellant was entitled to oppose respondent's trade mark application under s59 of the Act - appeal against opposition decision allowed.11/01/2019
Southern Classic Group Pty Ltd t/as Southern Classic Cars v Arch Underwriting at Lloyd’s Ltd on behalf of Syndicate 2012 [2018] NSWSC 1272 Supreme Court of New South WalesInsurance - plaintiff was motor dealer owned by Mr John Volcanovski, who was its managing director - plaintiff sought indemnity under "Management Liability Insurance" policy issued by defendant concerning claim which Mr Volcanovski's brother made against it - Mr Volcanovski's brother was employed by plaintiff - Mr Volcanovski's brother claimed plaintiff had repudiated employment contract, terminated contract or constructively dismissed him, or failed to pay him remuneration and benefits - reasonableness of settlement at mediation - construction of policy - whether 'loss' for policy's purposes - whether claim excluded by policy - held: plaintiff entitled to indemnity for proportion of settlement sum which represented components of claim which policy responded to - judgment for plaintiff.11/01/2019
Samoiloff v Grandiflora Nurseries Pty Ltd [2018] VSC 765 Supreme Court of VictoriaWorkers compensation - applicant worker claimed compensation under Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act) - Magistrate dismissed claim, finding applicant had not suffered a ‘work injury' - applicant appealed - whether Magistrate erroneously failed to apply legal test in s39(1) WIRC Act - whether Magistrate erroneously made finding that applicant ‘threw her head back when showering' without evidence and in denial of procedural fairness - rule in Browne v Dunn - held: Magistrate's finding that applicant ‘threw her head back when showering' was not supported by evidence - it was unfair of Magistrate to make the finding when it was not raised with applicant at hearing - procedural fairness established - appeal allowed.11/01/2019
Philipsen v American Medical Systems LLC (No 2) [2018] FCA 1580 Federal Court of AustraliaRepresentative proceedings - claim brought on behalf of group members who had surgery implanting devices manufactured by respondent which were ‘wholly or partly' made from ‘polypropylene mesh' - respondent, by interlocutory application, sought that amendments altering group members' description in Amended Originating Application and Amended Statement of Claim take effect from 31 July 2018, and declaration that s33ZE(1) Federal Court of Australia Act 1976 (Cth) applied to group members added by amendment from 31 July 2018 - s33K Federal Court of Australia Act 1976 (Cth) - whether original pleading's scope misconceived - first applicant's capacity to represent women implanted with ‘sling devices' - whether necessary to grant relief sought - held: interlocutory application dismissed.11/01/2019