Daily Insurance: Tuesday, 15 December 2015
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A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Insurance

Executive Summary (One Minute Read)
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) (FCA) - consumer law - packaging and website description of Nurofen products - admitted breaches of Australian Consumer Law - orders made broadly in terms sought by parties
NSW Commissioner of Police v Folkes (NSWSC) - public assembly and procession - holding of public assembly prohibited pursuant to s25(1) Summary Offences Act 1988 (NSW)
Norris v Routley (NSWSC) - damages - out of-pocket expenses - discount for vicissitudes - determination of remaining issues following principal judgment
Claps v Insurance Australia Ltd t/as NRMA Insurance (NSWSC) - administrative law - motor accidents compensation - psychiatric injury - causation - denial of natural justice by Review Panel - certificate quashed
Chan v Acres (NSWSC) - negligence - damages - purchase of renovated house with serious defects - breach of statutory warranties by vendor - breach of duty of care by Council - apportionment
Kalabakas v Chubb Insurance Company of Australia Ltd (VSC) - insurance - fire causing damage to home and property - fraudulent non-disclosure and misrepresentation - insurer entitled to avoid renewed policy
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Summaries With Link (Five Minute Read)
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA 1408
Federal Court of Australia
Edelman J
Consumer law - misleading or deceptive conduct - ACCC alleged respondent Australian Consumer Law in packaging of Nurofen products and website description of products - after trial commenced respondent admitted various contraventions of ss18 & 33 Australian Consumer Law - parties agreed on proposed orders except concerning pecuniary penalties - held: orders proposed by parties were appropriate - declaratory relief closely tailored to breaches, recorded Court’s disapproval, vindicated Commission’s claim, informed consumers of contravening conduct and deterred other corporations from contravention - injunctive relief unambiguous and appropriately confined - proposed corrective notice and corrective advertising appropriate - compliance orders appropriate - orders made broadly in terms sought by parties.
NSW Commissioner of Police v Folkes [2015] NSWSC 1887
Supreme Court of New South Wales
Adamson J
Public assembly and procession - plaintiff sought order under s25 Summary Offences Act 1988 (NSW) prohibiting holding of public assembly arranged by Party for Freedom - defendant Chairman of the Party for Freedom had signed Notice of Intention to Hold a Public Assembly - plaintiff contended that if public assembly took place there was substantial risk that it would degenerate into violent event - Sch 1 Pt 4, ss23, 24, 25 & 27 - balance between participants’ rights to freedom of speech and association and other persons’ rights not to have activities impeded by exercise of the rights - held: Court accepted Chief Inspector’s unchallenged evidence that potential for conflict and public disorder was high - public assembly and associated gatherings likely to present significant challenge to police officers to keep peace - order made under s25.
Norris v Routley [2015] NSWSC 1875
Supreme Court of New South Wales
Harrison J
Damages - remaining issues for determination following publication of principal judgment - whether certain pharmaceutical costs should be included as probable out-of-pocket expense - whether there should be discount for vicissitudes - Civil Liability Act 2002 (NSW) - Compensation to Relatives Act 1897 (NSW) - held: amount for certain anti-viral pharmaceutical costs associated with deceased’s anticipated liver transplant not included as probable out-of-pocket expense - discounts for the vicissitudes of life made upon deceased’s income, on value of loss of domestic services provided by deceased, and on plaintiff’s income - parties to bring in short minutes of final order.
Claps v Insurance Australia Ltd t/as NRMA Insurance [2015] NSWSC 1881
Supreme Court of New South Wales
Harrison J
Administrative law - motor accidents compensation - plaintiff sought declaration Review Panel’s certificate and statement of reasons void and of no effect - plaintiff contended Review Panel did not deal with substantial case on causation as to cause of psychiatric injury constituting denial of procedural fairness, failed to provide reasons for failure to deal with case on causation, failed to apply correct test on causation and failed to determine injury - s58(1)(d) Motor Accidents Compensation Act 1999 (NSW) - 5D Civil Liability Act 2002 (NSW) - cl 1.8 & 1.9 Motor Accidents Authority Guidelines for the Assessment of the Degree of Permanent Impairment - whether plaintiff established relevant error on face of record or jurisdictional error of sufficient severity to quash Review Panel’s decision - held: Review Panel failed to consider substance of plaintiff’s application - Review Panel failed to accord plaintiff natural justice in sense of procedural fairness - jurisdictional error established - Review Panel Certificate quashed.
Chan v Acres [2015] NSWSC 1885
Supreme Court of New South Wales
McDougall J
Negligence - damages - plaintiffs bought house from first defendant and former wife - before plaintiffs bought house they procured pre-purchase inspection report from second defendant - claim against second defendant settled - plaintiff claimed on basis of report they decided to buy house knowing of some defects but that after they moved in they discovered very serious defects, particularly in first defendant’s work - first defendant had engaged third defendant to prepare structural drawings - fourth defendant was Council - whether third or fourth defendants owed and/or breached duty of care to plaintiffs - whether first defendant breached statutory warranties - whether work defective - costs of rectification - apportionment - held: first defendant breached statutory warranties under Home Building Act 1989 (NSW) - third defendant did not owe plaintiffs a duty of care - Council as Principal Certifying Authority (PCA) owed duty of care to plaintiffs in performance of inspections and issuing final occupation certificate - duty of care coextensive with duty Council owed to first defendant under PCA Agreement - substantial allegations of breach of duty against Council proved - parties to bring in draft orders to give effect to reasons.
Kalabakas v Chubb Insurance Company of Australia Ltd [2015] VSC 705
Supreme Court of Victoria
McMillan J
Insurance - plaintiff own property on which home was constructed - plaintiff had insured the property with defendant for 7 December 2010 to 7 December 2011 - plaintiff renewed initial policy for 7 December 2011 to 7 December 2012 - dwelling and contents on property damaged by fire on 6–7 July 2012 - defendant declined plaintiff’s claim under renewed policy on basis of fraudulent misrepresentations and non-disclosures by plaintiff pursuant to s28(2) Insurance Contracts Act 1984 (Cth) - ss21(1), 26 & 28 - held: plaintiff’s failure to disclose four relevant matters to defendant was fraudulent and plaintiff’s misrepresentations to defendant were also fraudulent - defendant entitled to avoid renewed policy pursuant to s28(2) or to reduce its liability to nil pursuant to s28(3).