A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Insurance, Banking, Construction & Government

Tuesday, 2 December 2014

Executive Summary (One Minute Read)
Quintano v Minister for Finance and Deregulation (FCAFC) - administrative law - applicant injured in fight in nightclub - act of grace payment refused - appeal dismissed (I G)
State of Queensland v Moon (NSWSC) - transfer of proceedings - medical negligence - proceedings transferred from New South Wales to Queensland (I)
Lawlor (nee Latta) v NSW (NSWSC) - work injury damages - limitations - leave to commence proceedings out of time granted (I)
Miller v Lithgow City Council (NSWSC) - negligence - student injured attempting dive into shallow end of pool - school liable (I)
Eatts v Gundy (QCA) - succession - intestacy - claim for family provision based on parent/child relationship in Aboriginal tradition struck out (B)
GAU v GAV (QCA) - Wills -authorisation of alteration of Will of testatrix who had lost testamentary capacity (B)
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (WASC) - contract - mining and magnetite export operation - transfer of Environmental Approval - contractual construction (B C)
Summaries With Link (Five Minute Read)
Quintano v Minister for Finance and Deregulation [2014] FCAFC 159
Full Court of the Federal Court of Australia
Edmonds, McKerracher & Katzmann JJ
Administrative law - applicant injured in fight at nightclub - sued owner of nightclub - NSW Supreme Court awarded applicant $4,063,802.50 - owner went into liquidation during proceeding - owner insured by insurer through its agent - insurer and agent wound up - applicant sought act of grace payment under s33 Financial Management and Accountability Act 1997 (Cth) on basis ASIC and Australian Prudential Regulation Authority failed to act against insurer or agent despite being aware they were unable to meet liabilities and may have engaged in criminal activity - primary judge dismissed application - held: grounds of appeal not made out - no error in primary judge’s conclusion that applicant’s circumstances were not special or sufficiently special to warrant exercise of discretion to authorise payment - appeal dismissed.
Quintano (I G)
State of Queensland v Moon [2014] NSWSC 1698
Supreme Court of New South Wales
Button J
Medical negligence - plaintiff alleged she was injured in obstetric procedure in hospital procedure in Queensland -  State sought brought pursuant to ss5(2)(b) & 8 Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) to have proceedings brought by plaintiff in District Court of New South Wales transferred to Supreme Court of New South Wales and thereafter to Supreme Court of Queensland - held: circumstances argued strongly for transfer to Queensland - tort allegedly occurred in Queensland - no dispute law of Queensland would apply at trial - plaintiff and vast majority of treating medical professionals resided in Queensland - apart from fact that plaintiff’s solicitors were based in Sydney, dispute had no connection with New South Wales - Queensland was the natural forum for the resolution of the litigation - application granted.
State of Queensland (I)
Lawlor (nee Latta) v NSW [2014] NSWSC 1659
Supreme Court of New South Wales
Hidden J
Limitations - work injury damages - plaintiff sued NSW  for damages for psychological injury suffered as result of duties as a police officer between 1996 and 2002 - plaintiff sought modified common law damages under Workers Compensation Act 1987 (NSW) - statement of claim filed after expiration of 3 year limitation period set by s151D(2) - plaintiff sought leave to commence proceedings - held: Court satisfied there was reasonable explanation for delay and that fair trial could be had - plaintiff entitled to exercise of discretion in her favour - leave to commence proceedings out of time granted.
Lawlor (nee Latta) (I)
Miller v Lithgow City Council [2014] NSWSC 1579
Supreme Court of New South Wales
RS Hulme AJ
Negligence - plaintiff injured when she attempted to perform ‘track-start dive’ into shallow end of swimming pool run by Council - first defendant was Council - second defendant conducted school - plaintiff sued defendants for breach of duty of care - s5D Civil Liability Act 2002 (NSW) - held: immediate cause of plaintiff’s injury was slippage of foot - unreasonable for school to encourage plaintiff to dive into shallow end of pool with lack of gripping facilities - no breach of duty by Council - school liable for failure to warn plaintiff of risks of what she was doing and because it actively encouraged plaintiff to do what she was doing - school’s negligence caused plaintiff’s injuries - judgment for plaintiff - damages to be assessed.
Miller (I)
Eatts v Gundy [2014] QCA 309
Court of Appeal of Queensland
Muir & Fraser JJA; Martin J
Succession - intestacy - family provision - deceased died intestate - appellant was administrator and parent of deceased - respondent was biological son of deceased’s sister - respondent argued he was surviving child of deceased pursuant to Succession Act 1981 (Qld) and sought declaration he take whole estate - primary judge dismissed appellant’s application to strike out respondent’s originating application - child - s41(1) - parent/child relationship in Aboriginal tradition - held: putting the evidence at its highest for respondent that he was in parent/child relationship with deceased according to Aboriginal tradition, claims must fail upon correct construction of statutory provisions - appellant did not have more than a fanciful prospect of success - appeal allowed - application struck out.
Eatts (B)
GAU v GAV [2014] QCA 308
Court of Appeal of Queensland
Muir, Gotterson & Morrison JJA
Wills and estates - testamentary capacity - testatrix and appellant were married - son married respondent - testatrix made Will after son and respondent were married  in 1998 - will made gifts to respondent - testatrix lost testamentary capacity - son and respondent separated - appellant sought to amend Will by codicil pursuant to s21 Succession Act 1981 (Qld) - primary judge found testatrix would have made proposed codicil if she had testamentary capacity but refused leave for appellant to apply for order under s21 - operation of s24(e) - constraint on granting leave - held: finding by learned primary judge with respect to s24(e) was legally flawed - flaw infected refusal of leave to apply for an order under s 21 for authorisation of the making of proposed codicil - appeal allowed - decision to refuse leave set aside - authorisation of proposed alteration of Will by codicil would be in interests of testatrix because it would facilitate taking of step that she herself would most likely take were she able to do so.
Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2014] WASC 444
Supreme Court of Western Australia
Edelman J
Contract - construction of contract - parties were project proponents of magnetite mining and export operation - essential issue in dispute concerned whether contracts by which Sino Iron and Korean Steel (Citic parties) became involved with project required Mineralogy to transfer Mineralogy's status as 'proponent' of Ministerial Statements to Citic parties - Mineralogy refused to take any steps to transfer proponent status to Citic parties -  meaning of contractual clause concerning transfer of Environmental Approval from Mineralogy to Citic parties - held: Citic parties’ construction of clause accepted - clause meant what it said - Mineralogy must transfer Environmental Approval to Sino Iron in accordance with earlier agreements and as benefits may apply to project - construction was consistent with words of clause, with legislative requirements, and with other contractual instruments - it was legally and commercially workable - relief granted.
Sino Iron Pty Ltd (B C)