Daily Insurance: Thursday, 4 June 2015 View in browser

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

Daily Insurance

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Executive Summary (One Minute Read)
State of NSW v McCarthy (NSWCA) - trespass - police officers’ entry of premises occupied by respondent was lawful - appeal allowed
Commonwealth Bank of Australia v ACN 076 848 112 Pty Ltd (NSWSC) - corporations - voluntary administration - leave to proceed against company - access to documents relating to company’s insurance arrangements refused
James v Maxwell (QSC) - negligence - motorcyclist injured in collision with motor vehicle on bend in dirt road - driver of motor vehicle and insurer liable
Hodgson v Rio Tinto Aluminium Ltd (QSC) - workers compensation - declaration in relation to entitlement to seek damages for workplace injury refused
Summaries With Link (Five Minute Read)
State of NSW v McCarthy [2015] NSWCA 153
Court of Appeal of New South Wales
Meagher & Gleeson JJA
Trespass - primary judge held appellant liable for damages for trespass to land when four police officers entered premises occupied by respondent - Court granted leave to appeal - ss9, 10 & 201 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) - whether primary judge erred in failing to find officers satisfied requirements in ss9 or 10 relating to exercise of power to enter - whether primary judge should have held that officers’ entry unlawful because of failure to provide information required by s201 after exercising power - held: entry of each of the officers was lawfully authorised under ss9 or 10 - s201(2)(b) expressly provided that in case like present information in s201 must be provided after exercise of power - lawfulness of exercise not contingent on subsequent provision of information where information could not reasonably have been provided earlier - notice of contention rejected - appeal allowed.
Commonwealth Bank of Australia v ACN 076 848 112 Pty Ltd [2015] NSWSC 666
Supreme Court of New South Wales
Ball J
Corporations - bank sought and was granted leave under s444E(3) Corporations Act 2001 (Cth) to proceed against first defendant subject of deed of company arrangement - bank also sought access to documents disclosing details of first defendant’s professional indemnity insurance - bank had also served notice to produce and subpoena seeking access to the documents - first defendant sought to set aside notice - ss56-61 Civil Procedure Act 2005 - held: production of documents relating to first defendant’s insurance arrangements not justified by modern case management principles - not in interests of justice for insurance policies to be disclosed - notice set aside - balance of amended notice of motion dismissed.
James v Maxwell [2015] QSC 149
Supreme Court of Queensland
Henry J
Negligence - motorcyclist sought damages for injuries to leg in collision on bend in dirt road with motor vehicle driven by first defendant - held: evidence compelled inference that first defendant was travelling too fast to manoeuvre vehicle around bend without encroaching into path of oncoming traffic - collision was entirely due to first defendant’s negligent driving - no contributory negligence - second defendant insurer also liable in respect of damages - judgment for motorcyclist.
Hodgson v Rio Tinto Aluminium Ltd [2015] QSC 93
Supreme Court of Queensland
Boddice J
Workers compensation - applicant sought declaratory relief in relation to entitlement to seek damages workplace injury - whether applicant had applied for compensation under Workers Compensation and Rehabilitation Act 2003 in respect of injury and if so whether second respondent made decision in relation to application or otherwise complied with statutory obligations - ss132, s 134, s 237, s 392, s 542 & 586 Worker’s Compensation and Rehabilitation Act 2003 - held: applicant had applied for compensation - applicant not entitled to declaration sought - second respondent did not make decision on application within time period specified by Act, but applicant subsequently notified of decision when provided with copy of letter - even if letter’s reasons did not comply with Regulations, time commenced to run in respect of statutory right of review - applicant not entitled to the declarations in the alternative - application dismissed.