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


Tuesday, 9 December 2014

Executive Summary (One Minute Read)
Challenger Life Company Ltd v Estate of the late Real (FCA) - life insurance - competing claims - payment of amount owing under policy into Court discharged insurer’s obligations
Cunneen v ICAC (NSWCA) - administrative law - ICAC had no power to investigate allegation against Prosecutor - appeal allowed
2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (NSWCA) - strata titles - proceedings commenced by owners’ corporation without authority not a nullity
State of NSW v Abed (NSWCA) - malicious prosecution - false imprisonment - appeal against vicarious liability of State allowed in part
Divadeus Pty Ltd v Victorian WorkCover Authority (VSC) - WorkCover insurance - industry classifications - calculation of premiums - meaning of labour hire - appeal allowed
Summaries With Link (Five Minute Read)
Challenger Life Company Ltd v Estate of the late Real [2014] FCA 1325
Federal Court of Australia
Jacobson J
Life insurance - competing arguable claims between beneficiary nominated by policyholder and beneficiaries under Will - insurance company plaintiff sought direction under s215 Life Insurance Act 1995 (Cth) that it pay proceeds of policy into Court to be dealt with in accordance with orders of Court - plaintiff sought declaration that by doing so it had discharged its obligations under the policy - construction of policy documentation - held: Court had power to decide between competing claims as an incident of exercise of the jurisdiction of Court under s215 - upon payment into Court, insurance company discharged from any further liability.
Challenger Life Company Ltd
Cunneen v ICAC [2014] NSWCA 421
Court of Appeal of New South Wales
Bathurst CJ; Basten & Ward JJA
Administrative law - ICAC decided to investigate Deputy Senior Crown Prosecutor - Prosecutor challenged inquiry on basis allegations could not constitute corrupt conduct under s8(2) Independent Commission Against Corruption 1988 (NSW) and also that ICAC provide reasons for its decision to investigate and that it hold public inquiry - primary judge dismissed proceedings - Prosecutor sought leave to appeal - held: adversely affects in s8(2) only extended to conduct with capacity to compromise integrity of public administration - unlawful conduct was notcorrupt conduct unless it could lead a public official to exercise his or her functions dishonestly, partially or otherwise improperly - alleged conduct could amount to attempt to pervert course of justice but was not corrupt conduct as it could not be said a police officer might be led to exercise powers improperly - Commission had no power to investigate the allegation - appeal allowed.
2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409
Court of Appeal of New South Wales
Basten, Barrett & Leeming JJA
Strata titles - owners corporation sued developer for breach of building warranties implied under Home Building Act 1989 (NSW) - executive committee began proceedings without approval of a general meeting of owners corporation as required by s80D Strata Schemes Management Act 1996 (NSW) - primary judge held that subsequent approval at annual general meeting sufficient to cure any breach of provision - developer appealed - s312 Body Corporate and Community Management Act 1997 (Qld) - ss5F & 124 Corporations Act 2001 (Cth) - ss18B, 18C, 18E, Sch 4 cl 109 Home Building Act 1989 (NSW) - held: provision prohibited the bringing of proceedings without prior approval of a general meeting of owners corporation but breach did not render proceedings a nullity - breach was cured shortly after proceedings commenced and before application made for summary dismissal - proper to allow proceedings to continue - appeal dismissed.
2 Elizabeth Bay Road Pty Ltd
State of NSW v Abed [2014] NSWCA 419
Court of Appeal of New South Wales
Bathurst CJ; Macfarlan & Gleeson JJA
Malicious prosecution - primary judge found State vicariously liable, and second and third respondents liable, for malicious prosecution, false arrest and false imprisonment arising out of actions of police and persons within Office of Director of Public Prosecutions (ODPP) - State appealed - held: primary judge erred in finding ODPP and police had proceeded upon an improper purpose and concluding conduct was malicious - findings of false arrest and false imprisonment against State upheld - finding of malicious prosecution against second and third respondents upheld - State’s cross-claim against second respondent upheld - second respondent liable to indemnify State for damages awarded against it for false arrest and false imprisonment on basis she had maliciously induced arrest of first respondent - part of first respondent’s cross-appeal on damages upheld - appeal allowed in part.
State of NSW
Divadeus Pty Ltd v Victorian WorkCover Authority [2014] VSC 578
Supreme Court of Victoria
McMillan J
Insurance - company appealed pursuant to s36J Accident Compensation (WorkCover Insurance) Act 1993 (VSC) from determination of Victorian WorkCover Authority that its WorkCover premiums should be assessed on basis that workplace industry classification which most closely corresponded with company’s predominant activity at certain workplace (Kilsyth workplace) was security services - company contended correct workplace industry classification was labour hire - meaning of labour hire - held: premiums payable by company should be reassessed on basis work conducted at the various imputed workplaces was that which most closely corresponded to the predominant activity of the particular client, but that the workplace industry classification that most closely corresponded to company’s predominant activity at the Kilsyth workplace was to remain security services - appeal allowed.
Divadeus Pty Ltd