Benchmark Special Edition: Friday, 5 February 2016
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Executive Summary (One Minute Read)
Plaintiff M68-2015 v Minister for Immigration and Border Protection (HCA) - migration - Commonwealth authorised by198AHA of the Migration Act to participate in plaintiff’s detention at Regional Processing Centre - declaration refused
Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd (NSWCA) - costs - “walk away” offer - no significant compromise - variation of costs order refused
Allianz Australia Insurance Ltd v Inglis (WASCA) - insurance - preliminary question - legal liability cover - exclusion clause for injury to person who was normally living with insured - appeal allowed
Motor Accidents Insurance Board v Lester (TASSC) - negligence - driver injured in collision with steer or steers which had escaped from farming property and onto road - non-indemnifiable defendants liable for scheduled benefits paid or to be paid by Motor Accidents Insurance Board
Summaries With Link (Five Minute Read)
Plaintiff M68-2015 v Minister for Immigration and Border Protection [2016] HCA 1
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Migration - plaintiff Bangladeshi national was "unauthorised maritime arrival" pursuant to s5AA Migration Act 1958 (Cth) - plaintiff taken to Nauru - plaintiff sought declaration Commonwealth's conduct in relation to detention, was unlawful - ss198AB, 198AD & 198AHA. - ss51(xix) & 61 Constitution - non-statutory executive power - authorisation for participation in detention at Regional Processing Centre - Nauru Constitution - held (by majority): Commonwealth authorised by198AHA of the Migration Act to participate in plaintiff’s detention - declaration refused.
Mega-top Cargo Pty Ltd v Moneytech Services Pty Ltd [2016] NSWCA 3
Court of Appeal of New South Wales
Gleeson & Leeming JJA; Emmett AJA
Costs - offer of compromise - Court dismissed appeal with costs - respondent sought variation of costs order on basis of offer of compromise that appeal be dismissed with no order as to costs - respondent claimed offer was valid offer of compromise - appellant submitted offer was “capitulation” which did not warrant variation of order - “walk away” offer - rr20.26, 42.15A, 51.47 & 51.48 Uniform Civil Procedure Rules 2005 (NSW) - held: no significant compromise made - variation of costs order refused.
Allianz Australia Insurance Ltd v Inglis [2016] WASCA 25
Court of Appeal of Western Australia
McLure P, Buss JA & Mitchell J
Insurance - Mr and Mrs Inglis were parents of James and Georgia Inglis - Georgia Inglis, while present at home of Daniel Sweeney, Elaine Sweeney and their son Stephen Sweeney, was injured when run over by ride-on lawnmower driven by Stephen Sweeney - lawnmower owned by Stuart Inglis - lawnmower was allegedly driven by James Inglis from home to Sweeneys' home - preliminary question whether Allianz liable to indemnify Stuart and James Inglis under policy which insured Inglis’ home and contents, and also provided legal liability cover, for any liability to Sweeneys in third party proceedings - primary judge found Allianz not entitled to refuse claim - s54 Insurance Contracts Act 1984 (Cth) - s7 Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) - construction of policy - exclusion of liability for injury to a person who was normally living with insured - whether fact Georgia Inglis was normally living with insured was an act under s 54 rather than state of affairs pertaining to or characteristic of life as10 year old - held: Court not satisfied that the fact that a person normally lives with an insured does not constitute an 'act' within s 54(1) - appeal allowed.
Motor Accidents Insurance Board v Lester [2016] TASSC 2
Supreme Court of Tasmania
Tennent J
Negligence - driver catastrophically injured in motor vehicle collision with steer or steers wandering on highway, which had escaped farming property - Motor Accidents Insurance Board entitled under of Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) to recover from certain people scheduled benefits it had to pay for driver’s benefit - Board sued owners of farming property (first and second defendants) and third defendant, contracted by first and second defendant to replace portion of fencing - defendants were non-indemnifiable persons for purposes of Act - held: Court satisfied defendants owed and breached duty of care to driver by negligent acts - as result of defendants’ negligence steers escaped from property and wandered onto highway - clearly foreseeable that if steers escaped they would wander onto roads posing significant risk to road users - risk resulted in injury to driver - defendants are liable to pay scheduled benefits payed or to be paid by Board.
Motor Accidents Insurance Board
Poem for Friday (Recitation here by Thomas Hellier)
The Grasshopper
To My Noble Friend, Mr. Charles Cotton

O thou that swing’st upon the waving hair
Of some well-fillèd oaten beard,
Drunk every night with a delicious tear
Dropped thee from heaven, where now th’ art reared;

The joys of earth and air are thine entire,
That with thy feet and wings dost hop and fly;
And, when thy poppy works, thou dost retire
To thy carved acorn-bed to lie.

Up with the day, the sun thou welcom’st then,
Sport’st in the gilt-plats of his beams,
And all these merry days mak’st merry men,
Thyself, and melancholy streams.

But ah, the sickle! Golden ears are cropped;
Ceres and Bacchus bid good night;
Sharp, frosty fingers all your flowers have topped,
And what scythes spared, winds shave off quite.

Poor verdant fool, and now green ice! thy joys,
Large and as lasting as thy perch of grass,
Bid us lay in ’gainst winter rain, and poise
Their floods with an o’erflowing glass.

Thou best of men and friends! we will create
A genuine summer in each other’s breast,
And spite of this cold time and frozen fate,
Thaw us a warm seat to our rest.

Our sacred hearths shall burn eternally,
As vestal flames; the North Wind, he
Shall strike his frost-stretched wings, dissolve, and fly
This Etna in epitome.

Dropping December shall come weeping in,
Bewail th’usurping of his reign:
But when in showers of old Greek we begin,
Shall cry he hath his crown again!

Night, as clear Hesper, shall our tapers whip
From the light casements where we play,
And the dark hag from her black mantle strip,
And stick there everlasting day.

Thus richer than untempted kings are we,
That, asking nothing, nothing need:
Though lords of all what seas embrace, yet he
That wants himself is poor indeed.​