Daily Insurance: Monday, 7 September 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)
Minister of Defence and Military Veterans v Thomas (CCT168/14) (ZACC) - negligence - ‘employer’ - fundamental right to bodily integrity and security of person underlying workplace damages claim - appeal dismissed
Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd (NSWSC) - contract - no agreement to negotiate a lease in good faith or at all - compensation for confidential information wrongly obtained - claim otherwise dismissed
Klein v National Australia Bank Ltd (VSC) - summary judgment - malicious prosecution - no causal connection between bank’s conduct and prosecution of plaintiff - claim dismissed
Coles Group Limited v Costin (QCA) - limitation of actions - extension of time - undertaking - order extending time upheld - costs orders
Marsh v Baxter (WASCA) - negligence - nuisance - claim arising from escape of genetically modified (GM) canola from farm onto neighbouring certified organic farm dismissed
Last v Fonterra Australia Pty Ltd (TASSC) - workers compensation - no error in decision of Workers Rehabilitation and Compensation Tribunal - appeal dismissed
Benchmark Television
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Sarah Hill and Michelle Daniels - Undue Influence
In this edition of Benchmark Television, Sarah Hill (Barrister) and Michelle Daniels (Barrister) discuss undue influence, with particular reference to recent cases decided by the New South Wales Supreme Court.
Summaries With Link (Five Minute Read)
Minister of Defence and Military Veterans v Thomas (CCT168/14) [2015] ZACC 26
Constitutional Court of South Africa
Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ & Tshiqi AJ.
Negligence - respondent doctor employed by provincial government injured while on secondment to military hospital under control of applicant Minister - Compensation for Occupational Injuries and Diseases Act 130 governed compensation doctor may claim arising from injuries - compensation in two guises: for prescribed benefits payable irrespective of any negligence by employer, and for damages that were caused by third party at workplace (workplace damages) - workplace damages claim was ordinary delictual claim - doctor lodged claim against provincial government under Compensation Act for occupational injury benefits - no dispute doctor entitled to benefits - doctor also instituted delictual damages claim against Minister or company responsible for providing hygiene services at hospital - Minister lodged special plea resisting workplace damages claim - Minister argued doctor precluded from claiming under section s35(1) - essential question was who was doctor’s employer - whether employer was State as single employer or its individual components i.e. provincial government - ‘employer’ - held: Court upheld Supreme Court of Appeal’s interpretation - Supreme Court of Appeal did not regard “the State” or Government as doctor’s employer but rather head of particular provincial government department as reflected in employment contract - doctor’s fundamental right to bodily integrity and security of her person which underlay her common law claim for workplace damages was at stake - Minister’s interpretation more restrictive of doctor’s rights and would prevent her from bring further delictual claim - appeal dismissed.
Minister )
Caves Beachside Cuisine Pty Ltd v Boydah Pty Ltd [2015] NSWSC 1273
Supreme Court of New South Wales
Kunc J
Contract - lease - equity - intellectual property - defendants developed hotel adjacent to beach - defendant asked owner of plaintiff if he would be interested to run hotel’s catering operations - owner said he would - owner became involved in design of hotel’s catering and diverted staff and resources from other catering undertakings in anticipation of operating hotel - when hotel opened company provided catering - defendant terminated arrangement under which plaintiff operated at hotel - dispute arose because parties did not reach agreement on final terms governing relationship - plaintiff put case in contract, equitable estoppel and misleading and deceptive conduct - defendants contended plaintiff knew agreement might not be reached but took commercial risk which had eventuated through no fault of defendants - there was also dispute about value of confidential information of plaintiff obtained by defendants - held: agreement was not an agreement to negotiate a lease in good faith or at all.- - no equitable estoppel in favour of plaintiff - no unconscionable conduct by defendants in abandoning negotiations - defendants did not engage in misleading and deceptive conduct - defendants not unjustly enriched and not otherwise liable in restitution - judgment for plaintiff for $15,000 in compensation for confidential information wrongfully obtained by defendant - claim otherwise dismissed.
Klein v National Australia Bank Ltd [2015] VSC 460
Supreme Court of Victoria
Rush J
Summary judgment - malicious prosecution - plaintiff sued bank for malicious prosecution - bank sought that claim be struck out pursuant to s63 Civil Procedure Act 2010 (Vic), r23.01 Supreme Court (General Civil Procedure) Rules 2005 (Vic) and/or Court’s inherent jurisdiction - held: plaintiff’s claim did not have reasonable prospects of success - plaintiff failed to satisfactorily allege key element of cause of action that bank actively instrumental in instigating prosecution - bank’s conduct not causally connected to police’s decision to prosecute - conduct alleged by plaintiff ‘insufficient to ground an action in malicious prosecution - proceedings dismissed pursuant to s63.
Coles Group Limited v Costin [2015] QCA 165
Court of Appeal of Queensland
Holmes & Gotterson JJA; Applegarth J
Limitation of actions - Court granted extension of time to bring personal injury claim on basis respondent would undertake not to litigate allegation found on appeal to prejudice appellant - respondent provided undertaking - form of undertaking addressed possibility of appellant suffering significant prejudice in relation to its defence insofar as it related to instruction and training - appellant submitted form of undertaking inadequate - appellant contended it may encounter significant prejudice at trial in relation to other aspects of claim - proper identification of cause of action or causes of action which respondent should be permitted to litigate by an order for an extension of time - held: Court not persuaded undertaking inadequate - order granting extension of time should stand - costs orders.
Marsh v Baxter [2015] WASCA 169
Court of Appeal of Western Australia
McLure P; Newnes & Murphy JJA
Negligence - nuisance - pure economic loss - appellants appealed against dismissal of claim against respondent arising from escape of genetically modified (GM) canola from respondent's farm onto appellants' neighbouring certified organic farm - not in dispute GM plant material that landed on appellants' farm posed no risk of any genetic trait transfer to crop or produce on appellants' land held - (by majority): held: appellants did not establish duty of care owed in circumstances - trial judge did not err in concluding no unreasonable interference with appellants' use and enjoyment of their farm land as result of incursion of GM canola swathes from respondent’s farm land - in relation to causation, neither party contended that s5C Civil Liability Act 2002 (WA) applied to claim in nuisance - appeal dismissed.
Last v Fonterra Australia Pty Ltd [2015] TASSC 39
Supreme Court of Tasmania
Blow CJ
Workers compensation - worker injured shoulder and arm in course of employment and subsequently diagnosed with ulnar neuropathy - worker appealed against Workers Rehabilitation and Compensation Tribunal’s determination that worker had wholly or substantially recovered from injury and that his ulnar neuropathy was not caused by incident subject of his claim for compensation - ss61(3) & 63(1).Workers Rehabilitation and Compensation Act 1988 (Tas) - eleven grounds of appeal - adequacy of reasons - medical evidence - held: all contentions as to error rejected - appeal dismissed.