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

Weekly Insurance Law Review

Friday, 5 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
Greenacre Business Park Pty Ltd v Deliver Australia Pty Ltd (NSWSC) - costs - defence and cross-claim raised on false basis - director of defendant personally liable for plaintiffs' costs
Miller v Lithgow City Council (NSWSC) - negligence - student injured attempting dive into shallow end of pool - school liable
Halime v Singapore Airlines Ltd (NSWSC) - carriers’ liability - action commenced 22 years after event - claim extinguished by Warsaw Convention
Pedavoli v Fairfax Media Publications Pty Ltd (NSWSC) - defamation - claim against newspaper - offer to make amends - damages
Klewer BHNF Klewer v Royal Alexandra Hospital for Children (NSWSC) - medical negligence - removal of tutor without appointment of replacement refused
Kelly v Culakovski (VSCA) - accident compensation - negligence - erroneous assessment of damages - appeal allowed
Steen v WorkSafe Victoria (VSCA) - accident compensation - serious injury - credit - no breach of natural justice - appeal dismissed
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.
[From Benchmark 2 December 2014]
Greenacre Business Park Pty Ltd v Deliver Australia Pty Ltd [2014] NSWSC 164
Supreme Court of New South Wales
White J
Costs - plaintiffs sought non-party costs order against director of defendant company in liquidation on indemnity basis and in specified gross sum - basis for application was that director was responsible for defendant's raising defence and cross claim based on matters director knew were untrue - held: Court satisfied defence and cross-claim propounded on basis director knew to be false - order should be made that director personally be liable for plaintiffs' costs on indemnity basis - plaintiff entitled to a specified gross sum instead of assessed costs - qualification that director should not personally be liable for costs plaintiffs would, in any event, have had to incur to obtain judgment.
Greenacre Business Park Pty Ltd
[From Benchmark 4 December 2014]
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.
[From Benchmark 2 December 2014]
Halime v Singapore Airlines Ltd [2014] NSWSC 1681
Supreme Court of New South Wales
Adams J
Carriers’ liability - limitations - plaintiff claimed he suffered psychological injury as result of engine exploding on flight in 1992 - plaintiff’s action against airline arose from Civil Aviation (Carriers' Liability) Act 1959 (Cth) which provided that Warsaw Convention was part of Australian law - liability of carrier under Convention - held: action could not succeed because of Art 29(1) of the Convention which provided that right to damages was extinguished if action not brought within two years reckoned to date of the arrival and destination, or from date on which aircraft ought to have arrived, or from date on which carriage stopped - carriage stopped at very latest on 29/5/92 - action for damages extinguished on 28/5/94 - statement of claim dismissed.
[From Benchmark 1 December 2014]
Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674
Supreme Court of New South Wales
McCallum J
Defamation - newspaper published article incorrectly identifying plaintiff as female teacher who resigned from school amidst allegations of unlawful sexual misconduct - only defence relied upon by defendants was statutory defence created by s18 Defamation Act 2005 (NSW) of failure to accept an offer to make amends - ss13, 15, 18, 20, 34 & 35 - held: offer to amend did not satisfy mandatory requirements of Act - defamation greatly damaged plaintiff’s impeccable reputation and caused immense hurt - plaintiff entitled to large award of damages, including aggravated damages, and to have Court declare falsity of that which had been imputed to her by newspaper - judgment for plaintiff in sum of $350,000.
[From Benchmark 1 December 2014]
Klewer BHNF Klewer v Royal Alexandra Hospital for Children [2014] NSWSC 1639
Supreme Court of New South Wales
Button J
Negligence - plaintiff alleged he suffered injury loss and damage as result of negligence by children’s hospital - brother appointed as tutor on basis plaintiff incapable of managing own litigation - brother sought removal as tutor - plaintiff sought to represent himself in proceedings - held: Court sympathetic to proposition that person who was tutor and no longer wished to be one should not be forced to remain as one - r7.18(1)(b) Uniform Civil Procedure Rules 2005 (NSW) did not countenance removal of tutor without appointment of another - not in interests of justice to override rules pursuant to s14 Civil Procedure Act 2005 (NSW) - real question whether plaintiff's assertion he was capable of running his own litigation was correct - order declined - matter relisted before Registrar.
Klewer BHNF Klewer
[From Benchmark 28 November 2014]
Kelly v Culakovski [2014] VSCA 305
Court of Appeal of Victoria
Neave, Beach & Kyrou JJA
Accident compensation - damages - negligence - appellant injured when marble façade fell on head from wall of premises occupied by respondent - respondent admitted liability - appellant appealed against assessment of damages - reliability of appellant’s evidence - held: primary judge erred in assessment of damages for medical and like expenses and in not allowing amount for past loss of earnings - damages reassessed - appeal allowed.
[From Benchmark 28 November 2014]
Steen v WorkSafe Victoria [2014] VSCA 299
Court of Appeal of Victoria
Tate, Santamaria & Kyrou JJA
Accident compensation - serious injury - appellant sought leave to bring proceedings to recover damages for work-related injuries pursuant to s134AB(16)(b) Accident Compensation Act 1985 (Vic) - appellant alleged he suffered serious injury and identified relevant body function as injury to lower back - primary judge dismissed application - appellant contended trial judge breached requirements of natural justice by failing to give appellant notice of or opportunity to respond to making of adverse credit finding against appellant - held: contention that credit issues had not been raised in evidence or submissions rejected - contention that making of adverse credit findings not advanced by respondent rejected - findings on credit, though justified, played no material part in trial judge’s decision and therefore could not have affected the result - appeal dismissed.
[From Benchmark 28 November 2014]

The Cliffside Path
(from A Midsummer Holiday and Other Poems, 1884)
By Algernon Charles Swimburne

Seaward goes the sun, and homeward by the down
We, before the night upon his grave be sealed.
Low behind us lies the bright steep murmuring town,
High before us heaves the steep rough silent field.
Breach by ghastlier breach, the cliffs collapsing yield:
Half the path is broken, half the banks divide;
Flawed and crumbled, riven and rent, they cleave and slide
Toward the ridged and wrinkled waste of girdling sand
Deep beneath, whose furrows tell how far and wide
Wind is lord and change is sovereign of the strand.

Star by star on the unsunned waters twiring down,
Golden spear-points glance against a silver shield.
Over banks and bents, across the headland's crown,
As by pulse of gradual plumes through twilight wheeled,
Soft as sleep, the waking wind awakes the weald.
Moor and copse and fallow, near or far descried.
Feel the mild wings move, and gladden where they glide:
Silence, uttering love that all things understand,
Bids the quiet fields forget that hard beside
Wind is lord and change is sovereign of the strand.

Yet may sight, ere all the hoar soft shade grow brown,
Hardly reckon half the rifts and rents unhealed
Where the scarred cliffs downward sundering drive and drown,
Hewn as if with stroke of swords in tempest steeled,
Wielded as the night's will and the wind's may wield.
Crowned and zoned in vain with flowers of autumn-tide,
Soon the blasts shall break them, soon the waters hide,
Soon, where late we stood, shall no man ever stand.
Life and love seek harbourage on the landward side:
Wind is lord and change is sovereign of the strand.

Friend, though man be less than these, for all his pride,
Yet, for all his weakness, shall not hope abide?
Wind and change can wreck but life and waste but land:
Truth and trust are sure, though here till all subside
Wind is lord and change is sovereign of the strand.

Algernon Charles Swimburne