Daily Insurance: Thursday, 1 October 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd (No 2) (NSWCA) - costs - appellant successful on one of two issues - respondent to pay 50% of appellant’s costs of appeal - costs of proceedings at first instance to be determined by judge hearing damages claim
Bitupave Ltd t/as Boral Asphalt v Pillinger (NSWCA) - negligence - motorcyclist injured on public road - Boral and Council liable - primary judge erred in finding motorcyclist contributorily negligent - motorcyclist’s cross-appeal allowed - Boral’s appeal dismissed - Council’s cross-appeal dismissed
Anjoul v Shinwari (NSWSC) - compensation to relatives - Pt 4 Civil Liability Act 2002 (NSW) did not apply to plaintiff’s claim under Compensation to Relatives Act 1897 (NSW) - paragraphs of defence struck out
Cullen v Woodbrae Holdings Pty Ltd (NSWSC) - workers compensation - whole person impairment - pre-existing condition - error by Medical Panel - decisions set aside
Hoskin v Victorian Civil and Administrative Tribunal (VSCA) - stay - grant of planning permit - application for stay of orders of VCAT or injunction refused
Luka v Firestone (VSC) - workers compensation - judicial review of opinion of medical panel as to psychiatric diagnosis refused - proceedings dismissed
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Summaries With Link (Five Minute Read)
The Australian Special Opportunity Fund LP v Equity Trustees Wealth Services Ltd (No 2) [2015] NSWCA 294
Court of Appeal of New South Wales
Bathurst CJ; Macfarlan & Emmett JJA
Costs - Court allowed appeal in part - two issues raised by appeal - first issue was whether respondent liable for failure to appoint controller to company - second issue was whether respondent required to comply with appellant’s direction to release charge over company’s assets - appellant successful on first issue - appellant failed on second issue - appellant submitted primary judge’s order that respondent pay 50% of its costs did not reflect extent of its success - in relation to proceedings at first instance, appellant sought that costs of proceedings at first instance should be costs should be costs in the cause - held: appellant should have 50% of costs of appeal - first issue ultimately had more significance - order that respondent pay 50% of appellant’s costs took into account that first issue had more significance in circumstances where no order made in respondent’s favour on issue on which respondent was successful - costs of proceedings below to be determined by judge hearing damages claim - orders made.
The Australian Special Opportunity Fund LP
Bitupave Ltd t/as Boral Asphalt v Pillinger [2015] NSWCA 298
Court of Appeal of New South Wales
Ward, Emmett & Gleeson JJA
Negligence - first respondent injured when he lost control of motorcycle on public road - first respondent sued second respondent Council and appellant (Boral) - primary judge found Boral and Council liable- primary judge found first respondent was 10% contributorily negligent - primary judge apportioned responsibility to Boral at 60% and Council at 40% - primary judge also found Boral breached contractual obligation to Council to take out insurance in respect of Council’s liability - primary judge awarded damages to Council against Boral in amount of judgment against Council - Boral appealed - Council cross-appealed and filed notice of contention that Boral breached different contractual obligation to it - first respondent cross-appealed against finding of contributory negligence - held: no error in decision of primary judge in relation to Boral’s appeal or Council’s cross-appeal - Boral’s appeal dismissed - Council’s cross-appeal dismissed - primary judge erred in finding first respondent contributorily negligent - first respondent’s cross-appeal allowed.
Bitupave
Anjoul v Shinwari [2015] NSWSC 1192
Supreme Court of New South Wales
RS Hulme AJ
Compensation to relatives - statutory interpretation - plaintiff sued defendant and another under Compensation to Relatives Act 1897 (NSW) alleging mother died due to defendants’ failure to exercise reasonable care and skill in provision of advice and treatment in relation to deceased’s opiate dependence - defendant contended plaintiff’s claim properly characterised as claim for economic loss not arising out of personal injury as defined by s5 Civil Liability Act 2002 (NSW) - plaintiff sought orders striking out paragraphs of defence or separate determination of questions whether Pt 4 Civil Liability Act 2002 (NSW) applied to plaintiff’s claim under Act and, if not, whether paragraphs of defence should be struck out - whether plaintiff’s claim was “claim arising out of personal injury” - “arising out of” - held: Pt 4 Civil Liability Act 2002 (NSW) did not apply to plaintiff’s claim under Compensation to Relatives Act - paragraphs of defence struck out.
Anjoul
Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416
Supreme Court of New South Wales
Beech-Jones J
Workers compensation - plaintiff sought judicial review of decisions of Medical Appeal Panel to revoke earlier medical assessment certificate and issue new certificate substituting whole person impairment of 10% - ss15, 16, & 66(1) Workers Compensation Act 1987 (NSW) - ss294, 323 & 328 Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act) - whether worker had a pre-existing condition - “condition” - held: Appeal Panel erred in concluding that once it was established worker had osteoarthritis which had “constitutional pathology” then it followed it was pre-existing condition - Appeal Panel erred concluding s323 WIM Act could be applied on basis of degenerative changes occurring contemporaneously with “injury” suffered by plaintiff - decisions set aside.
Cullen
Hoskin v Victorian Civil and Administrative Tribunal [2015] VSCA 270
Court of Appeal of Victoria
Warren CJ & Santamaria JA
Stay - proceedings arose out of application to Council for permit for development and use of mosque and associated facilities - permit application granted by Council - application for stay of execution of orders made by Victorian Civil and Administrative Tribunal appeal in relation to grant of permit pending appeal - held: application misconceived in that permit already issued - jurisdiction of Court would extend to enjoining commencement of works or use of land - applicants had pointed to no prejudice they would suffer if stay not granted - no prospect of work occurring on site before hearing of application for leave to appeal - stay or injunction refused - application dismissed.
Hoskin
Luka v Firestone [2015] VSC 522
Supreme Court of Victoria
Cavanough J
Workers compensation - plaintiff sought judicial review of opinion of medical panel in response to medical questions relating to decision of sixth defendant’s WorkCover insurer to terminate weekly payments - natural justice - procedural fairness - whether panel omitted to give plaintiff fair hearing by failing to give adequate notice or warning of diagnosis of psychiatric condition to which it came - adequacy of reasons - held: no denial of natural justice or procedural fairness - panel adequately explained its conclusions as to psychiatric diagnosis - application dismissed - proceeding dismissed.
Luka