Daily Insurance: Monday, 30 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)
Vata-Meyer v Commonwealth of Australia (No 2) (FCAFC) - costs - application for variation of costs order such that costs of appeal be reserved “to be determined by the Federal Circuit Court on re-trial” - application dismissed
Croucher v Cachia (No 2) (NSWCA) - stay granted subject to conditions - determination of form of undertakings - addition of provision to undertakings refused
Damien v JKAM Investments Pty Ltd (NSWCA) - contract - building work debt - identity of contracting party - assignment of debt - appeal dismissed
Yee v O’Dea (NSWSC) - foreign judgments registration - ‘forum non conveniens’ - application to set aside registration of foreign judgment refused
Cielo v Fitzgerald; Cielo v Keighran (QSC) - medical negligence - Court refused to strike out proceedings for want of prosecution
Thorpe v Jason Weller Plumbing & Contracting (TASSC) - workers compensation - appellant injured felling tree was not a worker under Workers Compensation and Rehabilitation Act 1988 (Tas) at time of injury - appellant not entitled to benefits - appeal dismissed
Summaries With Link (Five Minute Read)
Vata-Meyer v Commonwealth of Australia (No 2) [2015] FCAFC 167
Full Court of the Federal Court of Australia
North, Collier & Katzmann JJ
Costs - Court allowed appeal from Federal Circuit Court’s dismissal of appellant’s application for relief with respect to alleged racial discrimination and remitted matter for rehearing - Court ordered respondents to pay appellant’s costs of appeal - respondents sought that order be varied such that costs of appeal be reserved “to be determined by the Federal Circuit Court on re-trial” - s79 Federal Circuit Court Act 1999 (Cth) - ss28(1)(c) & 43 Federal Court of Australia Act 1976 (Cth) - held: Court doubted it had power to make order sought - to revoke earlier order and substitute order reserving question of costs until after retrial would not be best way to facilitate just resolution of disputes as quickly, inexpensively and efficiently as possible:- appellant was entitled to trial free from the errors Court had found to have occurred - respondents could have accepted the trial miscarried and accepted orders sought but made forensic choice to fight appellant on every issue - respondents should bear consequences - application dismissed.
Vata-Meyer
Croucher v Cachia (No 2) [2015] NSWCA 366
Court of Appeal of New South Wales
Tobias AJA
Stay - form of undertakings - verdict and judgment in proceedings entered in respondent’s favour - applicant sought stay of order - Court indicated stay to be granted subject to conditions - Court directed applicant to bring in short minutes containing necessary undertakings - Court accepted minor amendments sought by respondent - major issue between parties was that respondent wished to add certain provision to undertakings - held: extension of undertakings sought by respondent would have effect of entitling respondent to a form of security - respondent not entitled to such security, which was unnecessary for protection of respondent’s position - orders made as to form of undertakings.
Croucher
Damien v JKAM Investments Pty Ltd [2015] NSWCA 368
Court of Appeal of New South Wales
Gleeson & Simpson JJA; Tobias AJA
Contract - building work debt - assignment - appeal arising from proceedings concerning property owned by appellant - different parties claimed interest in property - disputes determined by Darke J, who ordered separate determination of cross‑claim brought by respondent and second cross‑claim brought by appellant - Rein J entered judgment for respondent following set-off - identity of contracting entity - refusal of tender of email correspondence - post-contractual conduct - held: primary judge correct to reject tender of email correspondence - primary judge made permissible use of post contractual conduct - more than open to primary judge to find appellant contracted with company (ACPL) concerning building work - no error in finding appellant liable to respondent as assignee of debt from ACPL - appeal dismissed.
Damien
Yee v O’Dea [2015] NSWSC 1752
Supreme Court of New South Wales
RS Hulme AJ
Foreign judgments registration - defendant sought to set aside registration of foreign judgment on basis of principle of ‘forum non conveniens’ - foreign judgment was of High Court of Hong Kong Special Administrative Region Court of First Instance - defendant contended that his lack of connection with New South Wales meant Court was not “the appropriate court” within r53.3(1)(e) Uniform Civil Procedure Rules 2005 (NSW) - grounds on which registered judgment can be set side - ss6 & 7 Foreign Judgments Act 1991 (Cth) - held: no express requirement in Act requiring that appropriate court be one in state where debtor resided - application to set aside registration of foreign judgment refused.
Yee
Cielo v Fitzgerald; Cielo v Keighran [2015] QSC 330
Supreme Court of Queensland
P Lyons J
Want of prosecution - medical negligence - plaintiff in two proceedings claimed damages for injuries arising from treatment given by two defendant doctors - State was also defendant due to allegation some treatment given in hospitals - defendants sought to strike proceedings for want of prosecution relying on long delay since events occurred, absence of proper explanation for delay; and prejudice - ss4, 9, 9A & 20 Personal Injuries Proceedings 2002 (Qld) - rr24 & 389 Uniform Civil Procedure Rules 1999 (Qld) - held: plaintiff’s case supported by some medical reports - Court not prepared to accept plaintiff had poor prospects of success - actions commenced within limitation period - weight to be attributed to general presumption of prejudice much less than in other cases - plaintiff’s explanation for some delay unsatisfactory - weighing up competing considerations Court refused to strike out proceedings for want of prosecution.
Cielo
Thorpe v Jason Weller Plumbing & Contracting [2015] TASSC 57
Supreme Court of Tasmania
Pearce J
Workers compensation - appellant injured when struck by limb of tree he was felling at a property - appellant claimed to be entitled to benefits under Workers Compensation and Rehabilitation Act 1988 (Tas) from respondent - Workers Rehabilitation and Compensation Tribunal found appellant not entitled to benefits because appellant was not a worker under the Act at time of injury - appellant challenged Tribunals’ finding he had not entered into and was not working under contract of service with respondent - held: Tribunal’s determination that appellant was not a worker was reasonably open to it - Tribunal did not err in not expressly dealing with s4B - appeal dismissed.
Thorpe