| Insurance Australia Ltd t/as NRMA Insurance v Pate (NSWSC) - judicial review - motor accidents compensation - past and future economic loss - error by claims assessor - assessor's decision set aside
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| Cairncross v Anderson t/as ERA Legal (NSWSC) - pleadings - professional negligence - advocate's immunity - strike-out application adjourned awaiting High Court's determination of legal principles concerning advocate's immunity
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| Thiess Pty Ltd v Dobbins Contracting Pty Ltd (NSWSC) - negligence - contract - bailment - proportionate liability - fire destroyed excavator due to ‘hot work' performed by defendants' employees - first defendant settled with plaintiff - second defendant not liable
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| Strauss v Bennett (NSWSC) - contract - claim for possession of land occupied by defendant - defendant failed to make out claim of unwritten agreement for sale to him of plaintiff's interest in land - plaintiff entitled to possession and damages - defendant entitled to restitution
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| BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd (QSC) - pleadings - contract - application to strike out paragraphs of statement of claim or for provision of further particulars dismissed
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| Maio v City of Stirling [No 2] (WASCA) - contract - deed - dismissal of claim for easement for parking on land adjoining land registered in second respondent's name - appeal dismissed
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Dear Subscriber
1. Today’s production is a discussion on negligence litigation in consideration of the Queensland Court of Appeal’s decision State of Queensland v Kelly [2014] QCA 27.
2. It is a very enjoyable and educational discussion by two of Australia’s most eminent Counsel, Richard Douglas QC and Dennis Wheelahan QC.
3. This is a repeat broadcast.
4. For Benchmark CLE subscribers we have prepared notes and a series of question and answers this afternoon, which we will forward to them at their request.
5. Also for Benchmark CLE subscribers at their request we will forward them an advice notice evidencing when they accessed this production.
6. If you are not a CLE subscriber you can subscribe here: https://benchmarkinc.com.au/cle
7. You should watch on Wi-Fi to avoid excess data usage charges.
Warm regards
Alan Conolly for Benchmark
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| Benchmark Television |
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| Richard Douglas QC and Dennis Wheelahan QC present on State of Queensland v Kelly [2014] QCA 27 |
| In this edition of Benchmark Television, Dennis Wheelahan QC and Richard Douglas QC discuss negligence litigation with particular reference to the Queensland Supreme Court of Appeal’s decision in Queensland v Kelly [2014] QCA 27. Mr Douglas acted as leading counsel for the respondent. |
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| Summaries With Link (Five Minute Read) |
Insurance Australia Ltd t/as NRMA Insurance v Pate [2016] NSWSC 278
Supreme Court of New South Wales
Schmidt J
Judicial review - motor accidents compensation - claimant injured in car accident - NRMA was compulsory third party insurer of at fault vehicle - NRMA admitted liability - dispute between parties as to entitlement to compensation for past and future economic losses - NRMA sought pursuant to s69 Supreme Court Act 1970 (NSW) to quash assessor's decision - NRMA contended assessor took irrelevant matters into account and failed to deal with issue concerning claimed loss of earnings from rabbit farming business - held: assessor failed to take relevant consideration into account - assessor did not adequately explain reasoning - assessor misunderstood NRMA's case - assessor failed to determine what NRMA put in issue - assessor's decision set aside.
Insurance |
Cairncross v Anderson t/as ERA Legal [2016] NSWSC 258
Supreme Court of New South Wales
Button J
Pleadings - professional negligence - solicitors' duties - defendant sought to strike out plaintiff's amended statement of claim on basis claim was doomed to fail due to advocate's immunity - s 66 Civil Procedure Act 2005 (NSW) (CPA) - s14 Limitation Act 1969 (NSW) - s73 Trade Practices Act 1974 (Cth) - held: Court concluded determination of motion should await determination by High Court of legal principles concerning immunity - matter adjourned pursuant to s66 CPA.
Cairncross |
Thiess Pty Ltd v Dobbins Contracting Pty Ltd [2016] NSWSC 265
Supreme Court of New South Wales
McDougall J
Negligence - contract - bailment - proportionate liability - fire destroyed excavator used by second plaintiff - fire caused by ‘hot work' carried out by first defendant's employee - second defendant's employee assisted first defendant's employee with the ‘hot work' - second plaintiff claimed employees failed to exercise appropriate care and employers were liable - first defendant did not partake in proceedings due to settlement with plaintiffs - first plaintiff was lessee of excavator - plaintiffs claimed first plaintiff had subleased excavator to second plaintiff at time of accident - nature of precautions required to be taken in context of work performed - contributory negligence - s5B Civil Liability Act 2002 (NSW) - held: plaintiff's case against second defendant failed - judgment for second defendant.
Thiess |
Strauss v Bennett [2016] NSWSC 262
Supreme Court of New South Wales
Darke J
Contract - agreements made between owners of 1/10 interest in land - plaintiff was registered proprietor of 1/10 interest in land - building works carried out on plaintiff's site - plaintiff's daughter and defendant husband lived on site - couple divorced - no property settlement - plaintiff sought possession against defendant - defendant claimed he occupied site pursuant to unwritten agreement for sale to him of plaintiff's interest - defendant sought specific performance - constructive trust - principal and agent - ratification - joint endeavour - held: defendant did not make out claims - plaintiff entitled to possession and damages - defendant entitled to restitution of amount paid pursuing alleged agreement.
Strauss |
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2016] QSC 55
Supreme Court of Queensland
Mullins J
Pleadings - contract - plaintiff claimed damages for breach of contract for construction of dam and repudiation - defendant sought to strike out paragraphs of statement of claim or provision of further and better particulars - parties disputed which material facts must be pleaded - held: all material facts had been pleaded - further particulars refused - application dismissed.
BM Alliance |
Maio v City of Stirling [No 2] [2016] WASCA 45
Court of Appeal of Western Australia
Martin CJ; Buss & Murphy JJA
Contract - deed - primary judge dismissed appellants' claim concerning alleged proprietary rights in nature of easement for parking on land adjoining land registered in second respondent's name - alleged easement arose pursuant to deed (‘2010' deed) to which appellants were not party and which referred to earlier deed (‘1983 deed') - appellant not party to 1983 deed - appellants contended they were entitled to enforce covenants in 1983 deed as adopted in 2010 deed or entitled to easement for use of ‘Use Area' on lot - doctrine of lost modern grant - prescription - Prescription Act 1832 (UK) - s11(2) Property Law Act 1969 (WA) - ss7 & 24 Town Planning and Development Act 1928 (WA) - s63A, 65(3) & 69 Transfer of Land Act 1893 (WA) - held: grounds of appeal failed - appeal dismissed.
Maio |
