Category Archive: Litigation

Section 6 – farewell (and good riddance!)

In December 2016 we posted on the NSW Law Reform Commission’s recommendation to replace section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).  Six months later, we can now confirm that section 6 is (finally) dead and herald the new era of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) …

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Senate Inquiry into ‘non-confirming’ building products is wrapping up

On 23 June 2015, the Senate commenced a wide-ranging an inquiry into the use of ‘non-conforming’ building products (being products and materials that do not meet required standards). The inquiry was launched following a 2014 fire in a Victorian apartment complex involving the use of aluminium composite panelling. The due date for reporting has been …

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The Victorian Building Authority fires up for further audits

Following the Lacrosse fire in Melbourne’s Docklands in late 2014, the Victorian Building Authority (VBA) conducted an audit of non-compliant wall cladding systems of high rise buildings in inner city Melbourne. By way of background, the Lacrosse building was clad in aluminium composite panelling, and it is alleged that the panelling (with a combustible core) …

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Litigation funders and contingency fees under the spotlight in Victoria

On Monday, it was announced that the Victorian Attorney-General, the Hon Martin Pakula MP, has asked the Victorian Law Reform Commission (VLRC) to review the rules covering litigation funders to prevent unfair conduct in civil proceedings, such as class actions. The review by the VLRC will consider issues such as: circumstances where a successful outcome …

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Finding dirt in the cloud?

A recent Supreme Court decision has ‘opened the door’ to litigants seeking discovery of supposedly ‘deleted’ electronic material in the Cloud. The decision concerned a dispute about discovery in a defamation proceeding. It all turned on seeking access to text messages which had been deleted from the plaintiff’s i-Phone. The plaintiff said his i-Phone had …

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To walk away or not to walk away – what is a genuine offer to compromise?

Australian Courts in 3 different jurisdictions have recently considered the issue of whether an offer of settlement was ‘a genuine compromise’ warranting an order for indemnity costs. The results in each case demonstrate the factors that a Court will weigh up in determining an entitlement (or otherwise) to indemnity costs. Insurers and their advisors should …

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Qld Court confirms position on vicarious liability

On 29 November 2016, Judge Dorney of the Queensland District Court handed down his decision in House v Anglo Coal (Callide Management) Pty Ltd & Anor [2016] QDC 303. The plaintiff, Glynn House, was injured when a tipper truck he was driving collided with the rear of another truck on a mine haul road. The …

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Insurer unable to deny third party liability claim for jet ski accident – section 54 strikes again

In Allianz Australia Insurance Ltd v Smeaton [2016] ACTCA 59, the Court of Appeal of the Supreme Court of the ACT dismissed an appeal by Allianz in relation to a claim that arose from a jet ski accident on the Ross River in Queensland and ordered Allianz to pay costs of the appeal. The accident …

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Yacht insurer sunk on contribution claim – section 54 ahoy!

The Full Court of the Federal Court has dismissed an appeal concerning the operation of section 54 of the Insurance Contracts Act and contribution between insurers, in a case which is understood to have had its genesis in the Court’s Insurance List for short matters: Watkins Syndicate 0457 at Lloyds v Pantaenius Australia Pty Ltd …

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Climate change risk heats up for directors

Today marks the formal adoption of the Paris Agreement on climate change in many countries across the globe. When ratified in Australia, the Agreement will give legal effect to the development of an economy dedicated to low carbon emissions. The Agreement ushers in a new age for corporate Australia, in which company directors will be …

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