Weekly Insurance Law Review: Friday, 1 April 2016
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

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Special Issue of the Australian Insurance Law Journal (LexisNexis) - in order to mark the 250th anniversary of Lord Mansfield's seminal judgment in Carter v Boehm (1766) 3 Burr 1905, the Australian Insurance Law Journal (LexisNexis) is devoting an entire issue to the case's legacy - please refer to this link for the promo and index.
Australian Securities and Investments Commission v Macro Realty Developments Pty Ltd (FCA) - corporations - counselling or inducing - misleading or deceptive conduct - unlicensed financial services business - ASIC entitled to relief sought
Perry v Anthony (NSWCA) - contract - currency trading - appellant required to indemnity respondent for trading losses - appeal dismissed
Rinehart v Rinehart (NSWCA) - discovery - privilege - rejection of claim of privilege by former trustee against current trustee - leave to appeal refused
Zahed v IAG Limited t/as NRMA Insurance (NSWCA) - judicial review - motor accidents compensation - claims assessor's reasons for assessment were in adequate - assessment set aside - appeal dismissed
Bankstown City Council v Zraika; Roads and Maritime Services v Zraika (NSWCA) - negligence - motor vehicle collision while plaintiff in utero - Council and Roads and Maritime Service not liable - plaintiff's father who was driving car in which plaintiff's pregnant mother was a passenger liable - father's liability greater than liability of owner and driver of other vehicle - appeals allowed - liability reapportioned
Johnston v Johnston (NSWCA) - costs - contested probate proceedings - offer was mixed offer to which r42.13A did not apply - not appropriate to remit matter for exercise of residual discretion as to costs - leave to appeal granted - appeal dismissed
Serrao by his Tutor Serrao v Cornelius (NSWCA) - negligence - pedestrian struck by motor vehicle from behind in darkness after midnight - pedestrian and driver both intoxicated - respondent's breach of duty did not cause appellant's injuries - cross-appeal allowed
Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd (NSWSC) - security of payments - application to set aside adjudicator's determination on basis there was no “payment claim” refused - statutory demand not set aside
Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No. 2) (NSWSC) - land tax - primary production exemption - comparison of primary production with other uses - land tax assessments set aside - one assessment upheld
Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Ltd (VSC) - pleadings - joinder - proportionate liability - concurrent wrongdoers - refusal of leave to join additional parties as defendants under Part IVAA Wrongs Act 1958 (Vic) and file amended defence - appeal allowed
Hettiarachci v RACV (VSC) - accident compensation - Magistrate's reasons inadequate - erroneous finding of no medical material to support claim - appeal allowed
Sinclair v Sunshine Coast Independent Living Service Inc (QSC) - negligence - alleged workplace injury - Court did not worker's account of injury - employer not liable - judgment for employer
Western Australian Planning Commission v Southregal Pty Ltd (WASCA) - town planning - compensation for injurious affection upon refusal of approval to develop land due to its reservation for public purpose - appeals dismissed
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1.This Benchmark Television broadcast is with Dr Anton Hughes on Patents and Software with Ian Benson.

2. Software patents have become very common because of the ubiquity of computers, the size of the market which means there is substantial money in patents, and the fact that software is infinitely malleable.

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Benchmark Television
Click here to watch the video
 
Dr Anton Hughes on Patents and Software with Ian Benson
Software patents have become very common because of the ubiquity of computers, the size of the market which means there is substantial money in patents, and the fact that software is infinitely malleable.
Click here to watch the video
 
Priscilla Blackadder on Litigating in the age of Social Media with Jaimee Burke
This is a good, practical production with Priscilla giving us answers concerning the use of social media and the law. For example: how may we serve process – social media and juries – proving social media in court – bias and social media – recent cases.
Click here to watch the video
 
Nicholas Smith, Barrister, on Trade Marks and Domain Names with David Tang, Benchmark Technical Lead
This production lasts just over an hour. It is very informative and describes the process of dispute resolution in relation to the use of domain names. It will interest a wide group of people in our community who are interested in protecting their domain names and how they may deal with domain squatting.
Click here to watch the video
 
The Australian Constitution and Australia as a Republic
The Australian Constitution - discussion on the possibility of a republic - 35 minute discussion. This is an introduction to a series on the constitution.
Summaries With Link (Five Minute Read)
Australian Securities and Investments Commission v Macro Realty Developments Pty Ltd [2016] FCA 292
Federal Court of Australia
Beach J
Corporations - ASIC sought declarations and injunctions regarding defendants' conduct in relation to counselling or procuring investors' contraventions of s181(1) Corporations Act 2001 (Cth), misleading or deceptive conduct and carrying unlicensed financial services business- defendant consented to certain orders and did not oppose some relief - trial proceeded in order for ASIC to substantiate entitlement to all sought relief - ss12DA & 12DG Australian Securities and Investments Commission Act 2001 (Cth) - ss181, 471B, 762C, 763A, 763B, 766A, 911A, 1041H, 1324 Corporations Act - held: ASIC entitled to relief sought - orders made.
ASIC
[From Benchmark Wednesday, 30 March 2016]
Perry v Anthony [2016] NSWCA 56
Court of Appeal of New South Wales
Beazley P, Gleeson JA & Emmett AJA
Contract - parties entered contract relating to currency trading - primary judge found appellants required to indemnify respondent for trading losses carrying out contract - appellants contended that there was no consideration for agreement, that respondent not required to be indemnified because no loss suffered, and that distributions made were return of capital rather than profit distribution - construction of agreement - held: mutual promises were sufficient to support a contract - no general principle of no entitlement to benefit of indemnity unless there was actual loss - question was one of construction of indemnity clause - grounds of appeal in relation to actual loss rejected - Court rejected appellants' contention that sums paid were payments of capital - appeal dismissed.
Perry
[From Benchmark Wednesday, 30 March 2016]
Rinehart v Rinehart [2016] NSWCA 58
Court of Appeal of New South Wales
Beazley P; Leeming & Simpson JJA
Discovery - privilege - primary judge rejected claim of privilege by former trustee Gina Rinehart (applicant) against current trustee Bianca Rinehart (first respondent) - primary judge had refused to view documents requested on basis claim should have been made when documents were produced and that person claiming privilege had no power to require court to inspect documents - whether primary judge erred in concluding there was no evidence to conclude there was a privilege which belonged to applicant personally as opposed to as trustee - whether error in refusal to view documents - ss56-59 Civil Procedure Act 2005 (NSW) - ss118, 119 & 136 Evidence Act 1995 (NSW) - rr1.8 & 51.53 Uniform Civil Procedure Rules 2005 (NSW) - held: applicant did not establish case warranting grant of leave - leave to appeal refused.
Rinehart
[From Benchmark Wednesday, 30 March 2016]
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55
Court of Appeal of New South Wales
Meagher & Leeming JJA; Emmett AJA
Judicial review - motor accidents compensation - appeal from decision in which primary judge set aside assessment of second respondent claims assessor - whether second respondent claims assessor failed to give adequate reasons regarding appellant's claim against first respondent insurer - past and future care requirements - Interpretation Act 1987 (NSW) - s94 Motor Accidents Compensation Act 1999 (NSW) (MAC Act) - ss69 & 101 Supreme Court Act 1970 (NSW) - held: primary judge did not err in setting aside assessor's assessment - it was not possible to discern reasons actual path of assessor's reasoning in sufficient detail to determine whether assessor's decision was erroneous - assessor failed to comply with ss94(5) & 106 MAC Act - appeal dismissed.
Zahed
[From Benchmark Wednesday, 30 March 2016]
Bankstown City Council v Zraika; Roads and Maritime Services v Zraika [2016] NSWCA 51
Court of Appeal of New South Wales
Gleeson, Leeming & Simpson JJA
Negligence - motor vehicle collision - apportionment - plaintiff claimed damages for injuries suffered in motor vehicle collision when he was in utero - pregnant mother was passenger in care driven by plaintiff's father - driver and owner of other vehicle involved in collision admitted breach of duty - plaintiff also sued father, Council and Roads and Maritime Services (RMS) - primary judge found RMS and Council breached duty of care to plaintiff, that breaches were cause of collision and that father did not breach duty of care - primary judge assessed liability of driver and owner of other vehicle at 50%, RMS's liability at 25% and Council's liability 25% - RMS and Council appealed - held: father breached duty of care and if he had not breached duty collision would not have occurred - father's liability was greater than that of driver and owner of vehicle - liability reapportioned - primary judge erred in finding Council's breach of standard imposed by s43A Civil Liability Act 2002 (NSW) - even if Council owed duty there was no breach - primary judge erred in finding RMS breached duty of care - appeals allowed.
Bankstown
[From Benchmark Thursday, 31 March 2016]
Johnston v Johnston [2016] NSWCA 52
Court of Appeal of New South Wales
Ward, Leeming & Simpson JJA
Costs - contested probate proceedings - applicants were executors and sole beneficiaries of deceased's Will - applicants gave notice of intention to apply for probate -applicants sought removal of caveat filed by respondents - applicants served offer of compromise on respondents which they accepted - primary judge made costs order pursuant to r42.13A(3) Uniform Civil Procedure Rules 2005 (NSW) - applicants contended judgment proposed in offer did not enliven r 42.13A(3).but enlivened r42.13A(2) or was a mixed offer - held: offer mixed offer to which r42.13A did not apply - not appropriate to remit matter in order to exercise residual costs discretion due to disproportionate costs of doing so in relation to amount in dispute and there was no substantial wrong or miscarriage in any case - leave to appeal granted - appeal dismissed.
Johnston
[From Benchmark Thursday, 31 March 2016]
Serrao by his Tutor Serrao v Cornelius [2016] NSWCA 60
Court of Appeal of New South Wales
Leeming JA; Sackville & Emmett AJJA
Negligence - motor vehicle accident - appellant walking on road struck from behind by a car driven by respondent - accident occurred in darkness after midnight - parties both affected by alcohol - primary judge found respondent negligent and reduced damages by 40% for contributory negligence - appellant contended primary judge should not have found appellant contributorily negligent and that in any case damages for contributory negligence should be reduced - respondent challenged finding she breached duty of care and finding that breach caused injuries - ss3B(2)(a), 5B, 5D & 5E Civil Liability Act 2002 (NSW) - ss7A & 7B Motor Accidents Compensation Act 1999 (NSW) - sch 1 Road Transport Legislation (Repeal and Amendment) Act 2013 (NSW) - s9 Road Transport (Safety and Traffic Management) Act 1999 (NSW) - held: primary judge's finding that appellant, immediately before accident, was not on the bitumen surface of road but on gravel verge could not stand - primary judge's conclusion that respondent's breach caused appellant's injuries relied on this finding and must therefore be set aside - cross-appeal allowed - parties be given opportunity to make submissions on “blameless accident “ case put by appellant in alternative.
Serrao
[From Benchmark Friday, 1 April 2016]
Kyle Bay Removals Pty Ltd v Dynabuild Project Services Pty Ltd [2016] NSWSC 334
Supreme Court of New South Wales
Meagher JA
Security of payments - plaintiff sought to set aside adjudicator's determination that it owed amount to defendant on basis that there was no “payment claim” in accordance with s13(2) Building and Construction Industry Security of Payment Act 1999 (NSW) - plaintiff also sought to set aside statutory demand made by defendant - ss5, 8, 9, 13, 14, 15, 17 & 24 Security of Payments Act - ss459E, 459F & 459G Corporations Act 2001 (Cth) - s69 Supreme Court Act 1970 (NSW) - held: defendant did not make binding election to pursue a course in 15(2)(a) Security of Payments Act - claims were in respect of different reference dates and did not contravene s13(5) Security of Payments Act - no contravention of s13(8) - statutory demand not set aside - amended summons dismissed.
Kyle Bay
[From Benchmark Friday, 1 April 2016]
Metricon Qld Pty Ltd v Chief Commissioner of State Revenue (No. 2) [2016] NSWSC 332
Supreme Court of New South Wales
White J
Land tax - plaintiff property developer sought review of Commissioner of State Revenue's decision to issue land tax assessments - whether plaintiff entitled to exemptions for land tax under s10AA(2) Land Tax Management Act 1956 (NSW) on basis lands used for primary production which was dominant use - held: Court concluded comparison of primary production with other uses not confined to comparison with other physical uses - holding of lands as part of stock in trade not a current use - consultants' work was connected with current commercial land development use to extent land physically used in carrying out activities to obtain approval land tax assessments set aside - one assessment upheld - counsel for plaintiff to bring in short minutes of order.
Metricon
[From Benchmark Friday, 1 April 2016]
Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Ltd [2016] VSC 99
Supreme Court of Victoria
John Dixon J
Pleadings - joinder - proportionate liability -concurrent wrongdoers - second defendant in two proceedings appealed against refusal of leave to join additional parties as defendants under Part IVAA Wrongs Act 1958 (Vic) and file amended defence - r9.06(b) Supreme Court (General Civil Procedure) Rules 2015 (Vic) - held: claim by plaintiffs in each proceedings was ‘apportionable claim' - primary judge erred in finding there was a positive requirement to lead evidence showing substance to proposed claims - sufficient for defendant to establish pleadings contained facts or allegations which could found alleged causes of action alleged - appeal allowed.
Fabfloor
[From Benchmark Wednesday, 30 March 2016]
Hettiarachci v RACV [2016] VSC 97
Supreme Court of Victoria
J Forrest J
Accident compensation - appellant lost claim for compensation under Accident Compensation Act 1985 (Vic) - appellant appealed against Magistrate's decision concerning stress and anxiety claim arising out of employment - appellant contended Magistrate's reasons did not address his account of symptoms - appellant contended in the alternative that Magistrate specifically erred in finding there was no medical material to support work stress and anxiety - ss82 & 93 - held: Magistrate's reasons were inadequate - finding of no medical material erroneous - Magistrate's decision quashed - appeal allowed.
Hettircachci
[From Benchmark Friday, 1 April 2016]
Sinclair v Sunshine Coast Independent Living Service Inc [2016] QSC 63
Supreme Court of Queensland
Holmes CJ
Negligence - plaintiff disability support worker sued defendant employer for back injury suffered at work when she pulled patient's wheelchair over doorway lip - defendant denied accident occurred and that if accident did occur it was not result of foreseeable risk - held: Court did not accept plaintiff's account of hurting back - if Court had accepted plaintiff's account it would have found employer negligent for failure to ensure that workers were aware of availability of front door and ramp- judgment for employer.
Sinclair
[From Benchmark Wednesday, 30 March 2016]
Western Australian Planning Commission v Southregal Pty Ltd [2016] WASCA 53
Court of Appeal of Western Australia
Martin CJ; Newnes & Murphy JJA
Town planning - appeals against determination of question of law - Planning Commission challenged primary judge's findings that person who was not registered proprietor of land when that land reserved for public purpose was entitled to compensation for injurious affection upon refusal of approval to develop land or granted approval subject to conditions unacceptable to applicant - s36 Metropolitan Region Town Planning Scheme Act 1959 (WA) - ss173, 174, 176, 177, 178, 179 & 181 Planning and Development Act 2005 (WA) - s11 Town Planning and Development Act 1928 (WA) - s33 Western Australian Planning Commission Act 1985 (WA) - held: primary judge correct to answer question of law affirmatively - appeals dismissed.
Western Australian Planning Commission
[From Benchmark Thursday, 31 March 2016]
Poem for Friday (Recitation here by Thomas Hellier)
A Shropshire Lad: 52: Far in a western brookland
BY A. E. HOUSMAN

Far in a western brookland
That bred me long ago
The poplars stand and tremble
By pools I used to know.
There, in the windless night-time,
The wanderer, marvelling why,
Halts on the bridge to hearken
How soft the poplars sigh.
He hears: long since forgotten
In fields where I was known,
Here I lie down in London
And turn to rest alone.
There, by the starlit fences,
The wanderer halts and hears
My soul that lingers sighing
About the glimmering weirs.

A. E. HOUSMAN