Daily Insurance: Tuesday, 7 July 2015 View in browser
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Cavric v Willoughby City Council (NSWCA) - highways - negligence - customer injured in shopping centre - car park did not constitute a public road - appeal allowed
Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd (WASC) - contract - joint venture - notice issued pursuant to clause of joint venture agreement invalid - declaration
Moran v Atrum Coal NL (WASC) - injunction - confidential information - extension of injunction refused
Ning v McGrath (ACTSC) - motor vehicle accident - failure to keep proper lookout - contributory negligence established - appeal allowed
Summaries With Link (Five Minute Read)
Cavric v Willoughby City Council [2015] NSWCA 182
Court of Appeal of New South Wales
Basten, Meagher & Emmett JJA
Highways - negligence - real property - appellant wheeling trolley laden with shopping and child - front wheel on trolley hit “pothole” - trolley tilted - appellant inured when she fell seeking to stop trolley overturning - appellant sued Council for negligent maintenance of car park - trial judge dismissed claim on basis car park was public road by operation of s249(1) Roads Act 1993  with result Council protected by s45 Civil Liability Act 2002 - if car park did not constitute public road appeal must be upheld - statutory scheme - continued operation of common law - whether conveyance effected dedication of a road - evidence of public use - ‘is evidence that the place is or forms part of a public road’ - held: trial judge misunderstood s249(1) as providing freestanding test as to whether place was public road - s249 was no more than an evidentiary provision describing evidence which was admissible to prove a place was or formed part of that public road - s249 was subject to constraint imposed by s178 Conveyancing Act 1919 - in circumstances where there was no other evidence besides public use, trial judge should have found status of place where accident occurred as a public road was not established - appeal allowed.
Santos Offshore Pty Ltd v Apache Oil Australia Pty Ltd [2015] WASC 242
Supreme Court of Western Australia
Pritchard J
Contract - joint venture - dispute concerning validity of notice issued by defendants pursuant to clause of joint venture for exploitation of petroleum production licence - plaintiff claimed some terms and conditions did not comply with requirements of clause with  result notices or challenged conditions invalid - plaintiff sought declarations of invalidity and orders for specific performance requiring defendants to serve notice which complied with clause’s requirements - right of pre-emption - held:  challenged conditions failed to comply with clause’s requirements - notices invalid - Court not persuaded it was appropriate case for orders for specific performance - declaration granted.
Moran v Atrum Coal NL [No 4] [2015] WASC 241
Supreme Court of Western Australia
Mitchell J
Injunction - confidential information - plaintiffs sought extension of injunction restraining defendant from disclosing information concerning loan agreements and securities plaintiffs entered, secured by securities in defendant - held: obligation to notify market operator of the information had arisen under s674 Corporations Act 2001 - Court not satisfied injunction sought by plaintiffs would not require defendant to contravene s674 - inappropriate to grant injunction - extension of injunction refused.
Ning v McGrath [2015] ACTSC 163
Supreme Court of the Australian Capital Territory
Murrell CJ
Motor vehicle accident - respondent injured when motorcycle collided with appellant’s motor vehicle - primary judge found appellant breached duty of care and that there was no contributory negligence by respondent - s54 Evidence Act 2011 - held: it was open to primary judge to find primary liability established - appellant had failed to keep proper lookout primary judge - erred in failing to find respondent guilty of contributory negligence - respondent negligently embarked on risky enterprise of riding motorcycle at night with defective headlight that diminished his visibility to other road users - two thirds of responsibility attributed to appellant, one third to respondent - appeal allowed.