Daily Insurance: Thursday, 12 November 2015
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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)
North Australian Aboriginal Justice Agency Limited v Northern Territory (HCA) - statutory interpretation - constitutional law - challenge to validity of Div 4AA of Pt VII Police Administration Act (NT) failed - matter remitted to single Justice for further directions
The White Ant Co Pty Ltd v Robson (NSWCA) - contract - deed of arrangement - liability term not enlivened - appeal allowed
Hunter Development Corporation v Save Our Rail NSW Incorporated (NSWCA) - administrative law - acquisition of land - assets did not vest in appellant under Transport Administration Act 1988 (NSW) - appellant was not a “rain infrastructure owner” - appeal allowed
Harrison v Retail Employees Superannuation Pty Ltd (NSWSC) - contract - insurance policy - superannuation - plaintiff entitled to receive total and permanent disablement benefit under policy
Woolworths Ltd v Howarth (NSWSC) - judicial review - work-related injury - no error in decision of approved medical specialist - medical assessment certificate not attended with error - summons dismissed
Schijf v Mydomaine Pty Ltd (WASC) - pleadings - limitations - permission to amend Indorsement on Amended Writ of Summons to refer to breach of fiduciary duty
Summaries With Link (Five Minute Read)
North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41
High Court of Australia
French CJ; Kiefel, Bell, Gageler, Keane, Nettle & Gordon JJ
Statutory interpretation - constitutional law - first plaintiff corporation provided legal services to Aboriginal and Torres Strait Islanders - second plaintiff was Aboriginal person resident in Northern Territory arrested by officer or officers of Police Force and taken into custody under s133AB Police Administration Act (NT) - second plaintiff held in custody and issued with infringement notice which recorded offences and provided for payment of fines - plaintiffs alleged Div 4AA of Pt VII in which s133AB appeared was invalid, contending it purported to confer on Executive of the Northern Territory power to detain which was penal or punitive in character and beyond powers of Legislative Assembly of Northern Territory to pass - plaintiffs also contended Division 4AA conferred on Executive of Northern Territory power of detention which undermined or interfered with courts’ institutional contrary to Constitution - second plaintiff also alleged false imprisonment - separate questions - issues of validity - costs of the proceedings - orders to be made in light of answers - held (by majority): plaintiffs' challenge to validity of Div 4AA failed - questions in Special Case answered accordingly - matter remitted to single Justice for further directions.
North Australian
The White Ant Co Pty Ltd v Robson [2015] NSWCA 345
Court of Appeal of New South Wales
Macfarlan & Gleeson JJA; Emmett AJA
Contract - appellant contractor and respondents (homeowner) made deed of arrangement relating to termite infestation in house Homeowner constructed on property - homeowner claimed contractor liable under deed to pay reasonable costs of rectification of damage - District Court judge gave judgment for homeowner - contractor contended primary judge erred in drawing inference there was evidence of actual damage caused by termites and in finding contractor liable under deed - construction of deed - whether clause of deed (liability term) enlivened other than by operation of deed’s other provisions - held: primary judge’s conclusion that contractor was liable had been based not on operative provisions of deed but on estoppels binding contractor as consequence of entering deed - homeowner’s construction of deed rejected - clause of deed (liability term) was not enlivened - leave to appeal revoked insofar it related to quantification of damages - appeal allowed.
The White Ant
Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 34
Court of Appeal of New South Wales
Beazley ACJ; Macfarlan & Meagher JJA
Administrative law - appellant entered agreements for acquisition of land and assets from RailCorp - first respondent sought to restrain RailCorp, Transport NSW and appellant from acting contrary to law in disposing of land or undertaking proposed removal works - first respondent relied on s99A Transport Administration Act 1988 (NSW) which provided that a “rail infrastructure owner” must not close railway line unless authorised by Act of Parliament - no such Act at time of proceedings below or on appeal - appellant appealed against trial judge’s declaration that assets had “vested by or under” Act and appellant had become a “rail infrastructure owner - first respondent cross-appealed against trial judge’s finding that land transfer did not constitute closure of a railway line and RailCorp had not “otherwise disposed of” under s99A - held: Ministerial direction to RailCorp under s3B required it to sell assets but did not effect a transfer to or vesting of assets in appellant - assets vested in appellant pursuant to Asset Sale Agreement - assets did not “vest” in appellant “by or under” Act -appellant was not a “rail infrastructure owner” - appeal allowed - cross-appeal dismissed.
Hunter -
Harrison v Retail Employees Superannuation Pty Ltd [2015] NSWSC 1665
Supreme Court of New South Wales
Lindsay J
Contract - insurance policy - superannuation - plaintiff claimed “Total and Permanent Disablement (TPD) Benefit” against first defendant trustee of superannuation trust and second defendant insurer who issued insurance policy to trustee - plaintiff’s only contradictor was insurer - it was agreed that nothing in trust deed was critical to determination of plaintiff’s claim - question was whether insurance policy answered plaintiff’s claim - ss14 & 54 Insurance Contracts Act 1984 (Cth) - proper construction of “total and permanent disablement” - held: plaintiff was entitled to receive aTPD benefit under policy of insurance - judgment for plaintiff.
Woolworths Ltd v Howarth [2015] NSWSC 1624
Supreme Court of New South Wales
Hamill J
Judicial review - work related injury - first defendant worker worked for plaintiff employer - worker suffered work related injury when attempting to access packet of crumpets - employer sought to quash decision of approved medical specialist (AMS) that worker sustained 17% whole person impairment - employer also sought review of decision of delegate of Registrar of Workers Compensation Commission that appeal against medical assessment to Review Panel was not to proceed because grounds in s327(3) Workplace Injury Management and Workers Compensation Act 1998 (NSW) not made out - employer contended it was denied procedural fairness, that AMS failed to apply provisions of relevant guidelines and erred in accepting what worker told him and/or did not give adequate reasons - whether AMS conducted medical assessment in accordance with law - held: grounds raised in summons not established - no jurisdictional error by AMS - Medical Assessment Certificate not attended with error - summons dismissed.
Schijf v Mydomaine Pty Ltd [2015] WASC 428
Supreme Court of Western Australia
Mitchell J
Pleadings - limitations - plaintiff sought to amend writ of summons and statement of claim to introduce reference to claim for 'damages for breach of fiduciary duty' - defendant opposed application on ground amendment involved adding new cause of action for which limitation period had expired - Limitation Act 1938 (WA) - O21, rr5(1) & 5(5) Supreme Court Rules 1971 (WA) - held: limitation provision barred remedy not right - allowing amendment would not prejudice defendants’ right to plead limitation point in proceedings - limitations question should be dealt with at trial - amendment did not introduce new cause of action - there was overlap between facts underlying breach of fiduciary duty claim and facts underlying claim based on negligent misrepresentation or misleading and deceptive conduct - interests of justice favoured grant of leave to amend - application to amend granted.