ArticleHarsh, Unreasonable Or Unjust Dismissal On Medical GroundsThe Industrial Commission of NSW has served notice on large organisations that they defend unfair dismissal cases purely "on the papers" at their peril.AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers
ArticleThe requirement of comprehension in defamation: how to disprove the first step in a claimIn this case, the Court discussed the underlying principles that must be proved to establish any case in defamation. AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers
ArticleDog Attack Victim Has Damages Substantially Reduced On AppealThe Court of Appeal significantly reduced the plaintiff's damages awarded at trial, in particular reducing the award for non-economic loss on the basis of a reduction from 35% to 20% of a most extreme case, notwithstanding the fact that the infant plaintiff received significant scarring from a dog bite and resulting psychiatric disabilities.AustraliaInsuranceCurwoods Lawyers
ArticleFalling from great heights: principals and the negligent acts of their independent contractorsA principal contractor does not owe its independent contractor a non-delegable duty of care. If a principal engages a competent contractor the principal is not subject to an ongoing duty of care with respect to the safety of the work methods used by the contractor. The duty owed is one to alleviate the risk of injury by co-ordinating and directing activities. The duty is to use reasonable care to avoid unnecessary risks of injury. It is not a duty to avoid any risk of injury.AustraliaInsuranceCurwoods Lawyers
ArticleSolicitor liable to bank for fraudulent mortgageIf a solicitor provides cheque directions to a bank without a client's authority, he breaches the warranty of authority.AustraliaFinance and BankingCurwoods Lawyers
ArticleEach period of exposure to asbestos held to have made a contribution towards the contraction of lung cancerWhere the contribution of the negligent acts of 2 or more defendants caused damage, each one should be held liable.AustraliaInsuranceCurwoods Lawyers
ArticleFederal Court Of Australia Grants Stay In Favour Of US District Court Proceedings, But Requires Parties To First Mediate In AustraliaAn American company has partially succeeded in evading its (apparent) contractual obligation to mediate and submit to litigation in Australia, by "getting in first", i.e. filing an application for declaratory relief in the US District Court.AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers
ArticleInsured's Duty Of Disclosure - The Effect Misrepresentation Of Previous License Cancellations And Driving Under The Influence Of Alcohol Will Have On Indemnity Under A Policy Of InsuranceThe effect misrepresentation of previous license cancellations and driving under the influence of alcohol will have on indemnity under a policy of insurance. See Sagacious Legal Pty Limited v Wesfarmers General Insurance Limited (No 4) [2010] FCA 482. Federal Court of Australia. AustraliaInsuranceCurwoods Lawyers
ArticleInterpretation Of ss 50C And 50D Of The Limitation Act 1969 - Date When A Cause Of Action Is ´Discoverable´It is not sufficient for the purposes of the Limitation Act 1969, s 50D(1)(b) that a person merely knows the facts necessary to establish the fault of the defendant. The person must also know that the defendant is, as a matter of law, liable to pay damages.AustraliaEmployment and HRCurwoods Lawyers
ArticleRequirements to Proceed Against an Insurer Pursuant to S6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Eastern Creek Holdings Pty Limited v Axis Speciality Europe [2010] NSW CSC840In determining whether leave is granted pursuant to section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 (Act) a Court will consider whether :- (a) There is an arguable case against the Insured; (b) There is an arguable case that the policy responds to; (c) There is a real possibility that if judgment is obtained the Insured would not be able to meet it.AustraliaInsuranceCurwoods Lawyers
ArticleCommon sense prevails – evidentiary onus confirmed by the High CourtDiscusses a case which considers "best evidence" provisions.AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers
ArticleThe Obligation Of A Review Panel To Give ReasonsThe quality and clarity of reasons given by an administrative law maker continue to be informed by the High Court's decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 ("MIA v Liang") where a Court should not be concerned with the "looseness in the language" invoked by an administrative decision maker.AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers
ArticleChallenging MAS AssessmentsThe objective of MAS is to determine whether a claimant's injuries arising from an accident exceed a threshold which would entitle them to damages for non-economic loss. Their determinations have a significant impact to the rights of the claimant and insurer. It is important that such determinations are correct in accordance with the law.AustraliaInsuranceCurwoods Lawyers
ArticleDodgy Lawyers and Bad Investments – What Constitutes an "Event" in Relation to the Joinder of an Insurer to Proceedings?The courts have considered that the happening of the event is to be the moment when the cause of action is completed.AustraliaInsuranceCurwoods Lawyers
ArticleKnow your audience: The final chapter in ASIC's prosecution of Fortescue and ForrestThe High Court unanimously held that Fortescue Metals and Mr Forrest did not engage in misleading and deceptive conduct.AustraliaCorporate/Commercial LawCurwoods Lawyers
ArticleSection 151Z(1)(d) recovery from a former employer in the context of a "disease of gradual onset"The decision confirms that where the disease is of gradual onset, there may be scope for recovery from former employers.AustraliaEmployment and HRCurwoods Lawyers
ArticleAssessor fails to provide adequate reasons for damages assessedThe case illustrates the insurer receiving administrative relief when alleging failure to provide adequate reasons.AustraliaInsuranceCurwoods Lawyers
ArticleRaising the barbell in relation to the joinder of an insurer to proceedingsIn order to join an insurer to proceedings directly, an applicant needs to have an arguable case, supported by evidence.AustraliaInsuranceCurwoods Lawyers
ArticleCase Note: Prestige Property Services Pty Limited v Choi & Anor [2007] NSWCA 363City of Sydney Council was liable for injuries sustained by the plaintiff when she was struck by a large falling tree branch whilst sitting in Hyde Park.AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers
Article"Court Of Appeal Fails To Decide Whether The OH&S Regulation Confers A Private Cause Of Action For Breach Of Statutory Duty On Members Of The Public"An occupier of premises must take all reasonable steps to eliminate hazards, whereas a contractor will only be required to take reasonable action within the limits of its authority and instructions.AustraliaLitigation, Mediation & ArbitrationCurwoods Lawyers