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


Tuesday, 7 October 2014
Executive Summary (One Minute Read)
Rankin v Gosford City Council (NSWSC) - negligence - motorcyclist injured in collision with traffic barriers moved by unknown malefactors - Council not liable
Fitzgerald v CBL Insurance Ltd (VSC) - insurance contract - claim by trustees under financial insurance policy - insolvency - rectification - proof of loss - damages
Parry v Kennedy (QCA) - subpoena - no error in assessment of reasonable costs of compliance - appeal dismissed
Edwards v Tasmanian Mines Ltd (TASSC) - workers compensation - eligibility for weekly payments - tribunal had jurisdiction to deal with worker's referral - appeal allowed
Summaries With Link (Five Minute Read)
Rankin v Gosford City Council [2014] NSWSC 1354
Supreme Court of New South Wales
Button J
Negligence - unknown malefactors moved traffic barriers hired by Council for use in road works - plaintiff injured when he collided with barriers while riding motorbike along road - ss5B, 5C, 5D, 5E & 45 Civil Liability Act 2002 (NSW) - s7(4) Roads Act 1993 (NSW) - s45E Transport Administration Act 1988 (NSW) - held: Council not protected by statutory immunity contained in s45 Civil Liability Act 2002 (NSW) - Council did not owe duty of care to forestall crimes of others that harmed plaintiff - judgment for Council.
Fitzgerald v CBL Insurance Ltd [2014] VSC 493
Supreme Court of Victoria
Sloss J
Insurance contract - insolvency - rectification - company procured insurer to issue financial insurance policy in favour of ‘transferring employees' of businesses - under policy, insurer agreed to provide indemnity in respect of shortfall in ‘employee entitlements' in event of insolvency of company - company placed in liquidation following administration - insolvency deemed to have taken place as at date of administration - trustees made claims and demands under policy - construction of policy - employee entitlements owed as at deemed date for purposes of insurance policy - whether provisions of certified agreements enlivened - whether employee's jobs were made redundant - whether rectification sought by insurer required continuing common intention - interest under s57 Insurance Contracts Act 1984 (Cth) - claim for damages to recover time and cost in managing claims - proof of loss - held: trustees proved fact of loss to which policy responded - primary claim made for insured loss represented shortfall for 336 transferring employees identified - Court not satisfied trustees made out claim for time and costs involved in preparing and managing the claim.
Parry v Kennedy [2014] QCA 239
Court of Appeal of Queensland
Fraser JA, Applegarth and Boddice JJ
Subpoena - appellant solicitor sought that respondents pay him “$45,000 (or as otherwise assessed)” as reimbursement of loss and expense incurred in complying with subpoena requiring him to give evidence at trial - costs claimed were legal costs of obtaining advice from solicitor's firm and counsel - primary judge found solicitor's reasonable costs of complying with subpoena amounted to $800.00 and ordered respondents to pay solicitor that amount - primary judge also ordered that solicitor pay respondents' costs of application - held: no error in finding it was not reasonable for solicitor to seek independent advice about his compliance with subpoena - no failure to properly consider evidence - no miscarriage of discretion in decision as to amount respondents required to pay solicitor - open to primary judge to order solicitor to pay respondent's costs - appeal dismissed.
Edwards v Tasmanian Mines Ltd [2014] TASSC 49
Supreme Court of Tasmania
Blow CJ
Workers compensation - eligibility for weekly compensation payments - worker injured in course of employment at 65 years old - s87 Workers Rehabilitation and Compensation Act 1988 (Tas) provided that, if injury occurred after worker attained 64 years, weekly payments were payable for only one year after date of injury unless Tribunal made determination under s87(3) that weekly payments may continue - employer ceased to make payments one year after date of injury - worker appealed from decision of Tribunal that, because of the wording of s87, it did not have jurisdiction unless matter was referred to it within first year after the date of the injury, whilst weekly payments were still being made - held: s87 was not intended to limit eligibility for weekly payments in the way that the Chief Commissioner held it did - Commissioner erred in finding Tribunal did not have jurisdiction to deal with worker's referral - appeal allowed - determination set aside - matter remitted.