Daily Insurance: Monday, 27 July 2015 View in browser
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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)
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd (FCA) - contempt - failure to pay fines - order directing Registrar to apply for punishment of continuing contempt
Rodger v De Gelder (NSWCA) - judicial review - motor accidents compensation - Panel’s certificate vitiated by jurisdictional error - appeal dismissed
Francica v Allianz Australia Insurance Ltd (NSWSC) - administrative law - error of law and error of jurisdiction by Medical Review Panel - certificates quashed
Australian Institute of Fitness Pty Limited v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) (NSWSC) - privilege - materials referred to in affidavit - no waiver of privilege - access to material refused
Summaries With Link (Five Minute Read)
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2015] FCA 743
Federal Court of Australia
Besanko J
Contempt - applicant claimed respondents failed to comply with Court’s orders in proceedings - applicant brought contempt proceedings against first, second, fourth, sixth and seventh respondents by interlocutory application and statement of charge - Court found respondents guilty of contempt and ordered payment of fines - failure to pay fines - applicant sought order that Registrar make application for punishment of continuing contempt - r42.16 Federal Court Rules 2011 (Cth) - held: failure to pay fine may constitute contempt of court - most appropriate enforcement procedure was that sought by applicant - Court ‘may’ make an order where it is ‘alleged’ that person was guilty of contempt of Court - no discretionary reasons for not making an order - plainly sufficient material to justify making of order sought.
Rodger v De Gelder [2015] NSWCA 211
Court of Appeal of New South Wales
Macfarlan, Gleeson & Leeming JJA
Judicial review - motor accidents compensation - respondent injured in motor vehicle accident when vehicle driven by respondent collided with rear of respondent’s stationary vehicle - respondent sued appellant - medical dispute referred to Motor Accidents Medical Assessment Service - Review Panel revoked certificate of medical assessor which certified degree of permanent impairment as 20% - Review Panel certified a degree of permanent impairment as 0% - primary judge found Panel failed to take into account relevant considerations - held: Panel did not engage with evidence of respondent’s complaint of onset of thoracic pain at time of and continuing after accident - Panel misread doctor’s report that recorded history of pain in thoracic region at time of accident - Panel failed to respond to substantial argument based on evidence relied on by respondent as to causation of injury amounting to jurisdictional error - Panel failed to apply itself to real question to be decided in carrying out statutory function in s58(1)(d) Motor Accidents Compensation Act 1999 (NSW) because it misunderstood evidence relevant to its determination - Panel’s decision was not real exercise of its statutory function - appeal dismissed.
Francica v Allianz Australia Insurance Ltd [2014] NSWSC 1962
Supreme Court of New South Wales
Rothman J
Administrative law - plaintiff sought to set aside certificates and reasons of Medical Review Panel - whether Panel’s determination that plaintiff’s shoulder injury was not caused by motor accident was affected by error of law or jurisdictional error - held: Panel answered wrong question - Panel’s opinion that abnormalities in shoulder caused by an event other than relevant accident was pure conjecture - Panel failed fundamentally to determine issues before it on balance of probabilities - there was failure “to give adequate weight to relevant factors of great importance” and giving of “excessive weight to an irrelevant factor of no importance” - certificates quashed.
Australian Institute of Fitness Pty Ltd v Australian Institute of Fitness (Vic/Tas) Pty Ltd (No 2) [2015] NSWSC 994
Supreme Court of New South Wales’
Sackar J
Privilege - Victorian Parties sought access to what they alleged was legal advice disclosed and referred to in affidavit, invoices referred to in affidavit and solicitors’ files to which those invoices related - conduct inconsistent with maintenance of privilege - whether material must be read before privilege waived - held: affidavit did not put in issue legal advice - reasonable reading of affidavit did not disclose substance of advice giving rise to necessary inconsistency - no waiver of privilege - motion dismissed.