Insurance Monday, 16 March 2015 View in browser

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


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Executive Summary (One Minute Read)
Eastbury v Genea Ltd (NSWSC) – costs - successful application to extend limitation period – costs in the cause
Morocz v Marshman (NSWSC) – evidence – medical negligence – application to take expert evidence by video link dismissed except in relation to two experts 
Sauber Motorsport AG v Giedo van der Garde (VSCA) – arbitration – no error in enforcement of foreign arbitral award 
Supple v Building Appeals Board (VSC) - administrative law - no error in determination of Building Appeals Board – proceeding dismissed 
Dielos v Barrie (SASC) - contract for sale of land – dismissal of claim for return of deposit - appeal dismissed 
Treloar v State of Tasmania (TASFC) workers compensation - suitably qualified medical practitioners for medical panel do not need to be qualified for particular medical question at issue 
Summaries With Link (Five Minute Read)
Eastbury v Genea Ltd [2015] NSWSC 198
Supreme Court of New South Wales
Hall J
Costs – Court made orders extending limitation period for causes of action pleaded in statement of claim - plaintiffs submitted defendant should costs because plaintiffs successful on application and defendant had not discharged onus of satisfying Court that some other order should be made – defendant submitted plaintiff should pay defendant’s costs on ordinary basis – unusual circumstances - balancing of plaintiffs’ faultlessness in being outside limitation period with defendant’s concerns as to availability of evidence – s60G Limitations Act 1969 (NSW) – r42.1 Uniform Civil Procedure Rules 2005 (2005) - held: defendant’s opposition to application not unreasonable in circumstances – appropriate order was that costs should be costs in the cause. 
Morocz v Marshman [2015] NSWSC 149
Supreme Court of New South Wales
Harrison J
Evidence – medical negligence – plaintiff sought order that certain expert witnesses located interstate or overseas should be permitted to give evidence by video link – defendant objected to order on basis witnesses not qualified to give expert evidence, offered opinions outside professed area of expertise, or that evidence irrelevant – plaintiff also requested separate determination of liability and damages - held: Court not satisfied experts relevantly qualified to express opinions on relevant matters or had provided admissible reports – application to take evidence by video link dismissed except in respect of two experts – not appropriate to separate issues of damages and liability – damages case must by now be ready to proceed – no suggestion plaintiff’s condition not settled.
Sauber Motorsport AG v Giedo van der Garde BV [2015] VSCA 37
Court of Appeal of Victoria
Whelan, Beach & Ferguson JJA
Arbitration – primary judge found there were no grounds to refuse to enforce foreign arbitral award in which critical dispositive provision required respondent to refrain from depriving first application of entitlement to particular as driver in 2015 Formula One Season – ss2D, 8 & 39 International Arbitration Act 1974 (Cth) – uncertainty – futility – legality and safety – natural justice – position of other drivers - held: leave to appeal granted – no error in decision of trial judge – appeal dismissed.
 Supple v Building Appeals Board [2015] VSC 83
Supreme Court of Victoria
Kaye JA
Administrative law - plaintiff sought review of determination of Building Appeals Board in respect of appeal to it under s141 Building Act 1993 (Vic) as to appropriateness of building work, and in respect of disputes referred under ss152 &153 - held: determination effective and did not need to be reconsidered by a new panel of Board) - Board had jurisdiction to hear matter and did not fail to take into account relevant matter - Board did not fail to give adequate reasons for determination - application for judicial review failed - proceeding dismissed
Dielos v Barrie [2015] SASC 31
Supreme Court of South Australia
Blue J
Contract for sale of land - Magistrate dismissed appellant’s claim to recover deposit paid under contract for purchase of land – contract was subject to condition precedent that subdivisional development approval be granted from certain date - special condition not satisfied - plaintiff wrote to respondent’s agent requesting return of deposit - parties subsequently executed addendum providing for amendment of contract to delete special condition, reduce purchase price and extend settlement date - appellant claimed that in executing addendum he was acting on another person’s behalf and disclosed this to respondent’s agent - purchase not completed - respondent purported to terminate contract - held: on proper construction appellant’s letter terminated contract - Magistrate’s finding that appellant did not disclose he was acting for another person in signing addendum not overturned - no basis to conclude entry into addendum vitiated by appellant being forced to do so - appeal dismissed.
Treloar v State of Tasmania [2015] TASFC 3
Full Court of the Supreme Court of Tasmania
Tennent, Porter & Escourt JJ
Workers compensation - permanent impairment from psychiatric injury - percentage of whole person impairment referred to Chief Commissioner of Workers Rehabilitation and Compensation Panel - Chief Commissioner considered Tribunal had no power to refer question to medical panel as suitably qualified medical practitioners were not available – primary judge held that requirement that medical practitioner be suitably qualified had nothing to do with qualification to consider a particular medical question and that it referred only to qualification to be on register from which practitioners chosen – primary judge set aside decision –  ss49(3), 50 & 72 Workers Rehabilitation and Compensation Act 1988 (Tas) - held: appeal grounds did not identify the nature of appealable error said to have been made by primary judge – in effect appellant had made same submission as were made to Chief Commissioner and primary judge – no error in primary judge’s decision – appeal dismissed.