Insurance A Daily Bulletin listing Decisions of Superior Courts of

www.arconolly.com.au
Friday 21 March 2014
Insurance
A Daily Bulletin listing Decisions
of Superior Courts of Australia
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Executive Summary (1 minute read)
Enders v Erbas & Associates Pty Ltd (NSWCA) - defamation - circulation of workplace email defences of qualified privilege upheld - appeal dismissed
Dimitrovski v Australian Executor Trustees Ltd (NSWCA) - mortgages - estoppel - challenge to
validity of mortgage precluded by judgment for possession - appeal dismissed
Waterfall v Antony (VSCA) - accident compensation - motorcyclist injured in collision with motor
vehicle towing caravan - driver negligent - contributory negligence 50% - appeal allowed
Mutton v Baker (VSCA) - pleadings - allegation of arrest by police - dismissal of malicious
prosecution claim - leave to appeal refused
Summaries with links (5 minute read)
Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70
Court of Appeal of New South Wales
Ward & Leeming JJA; Tobias AJA
Defamation - defences - applicant sued respondents for defamation arising out of email and
extract from office diary circulated to employees of first respondent - applicant pleaded five
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imputations which were conceded to be defamatory of her if conveyed - primary judge found three
out of five pleaded imputations conveyed but upheld defences of common law and statutory
qualified privilege as well as defence of triviality - primary judge declined to find malice which
would otherwise have destroyed the defences of qualified privilege - s30(3)(h) Defamation Act
2005 (NSW) - knowledge of falsity of imputations - test of malice - held: applicant did not
discharge onus to establish that second respondent knew that email could convey false
imputations - applicant had not established primary judge erred in finding that defence of common
law qualified privilege or statutory qualified privilege was defeated on basis of malice - defences
upheld - leave to appeal granted - appeal dismissed.
Enders
Dimitrovski v Australian Executor Trustees Ltd [2014] NSWCA 68
Court of Appeal of New South Wales
Meagher & Emmett JJA; Bergin CJ in Eq
Mortgages - estoppel - guarantor of loan sought leave to appeal from order dismissing claims
made in equity proceedings against lender on basis they were precluded by judgment for
possession granted in lender’s favour - judgment for possession not opposed - primary judge
concluded there would be fundamental inconsistency if guarantor allowed to challenge the
mortgage when judgment for possession was predicated on validity of mortgage - primary judge
also held judgment for possession precluded a challenge in separate proceedings as mortgage’s
validity - guarantor contended primary judge erred in finding that correlative effect of continuation
of judgment for possession justified dismissal of claims - public policy and illegality - pleading
deficiencies - ss11, 12, 13 Powers of Attorney Act 2003 (NSW) - Anshun estoppel - held: res
judicata and estoppel not “trumped” by public policy in the Act - judge correct to dismiss claims
made in equity proceedings - appeal dismissed.
Dimitrovski
Waterfall v Antony [2014] VSCA 44
Court of Appeal of Victoria
Redlich, Whelan & Santamaria JJA
Accident compensation - appellant motorcyclist injured in WA when motorcycle collided with motor
vehicle which was towing caravan driven by respondent - collision occurred when driver attempted
to make right hand turn while motorcyclist was attempting to overtake driver’s vehicle - driver
denied negligence or alleged that there was contributory negligence on motorcyclist’s part primary judge found driver liable but assessed 60% contributory negligence - motorcyclist
appealed against finding of contributory negligence - ss5B, 5C, 5D & 5K Civil Liability Act 2002
(WA) - held: motorcyclist negligent - Court disagreed with judge’s assessment that motorcyclist’s
negligence was significantly higher than that of driver - motorcyclist was slightly less negligent
than judge assessed his negligence - parties’ departure from requisite standard of care of same
order - motorcyclist’s negligence assessed at 50% - appeal allowed.
Waterfall
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Mutton v Baker [2014] VSCA 43
Court of Appeal of Victoria
Whelan & Santamaria JJA
Pleadings - malicious prosecution - injurious falsehood - applicant and first respondent were
medical practitioners who entered agreement which permitted applicant to use respondent’s
premises in consideration of payment of part of applicant’s fees to first respondent - dispute arose
concerning payments - respondent complained to police - applicant alleged he was arrested
before being released without charge - applicant claimed damages from respondents for malicious
prosecution and injurious falsehood - primary judge struck out claim in malicious prosecution applicant sought leave to appeal - O 23 County Court Civil Procedure Rules 2008 (Vic) - ss62, 63
& 64 Civil Procedure Act 2010 (Vic) - foundation of tort for malicious prosecution - held: proper for
primary judge to dismiss claim for malicious prosecution - applicant did not allege processes of a
court had been used to arrest or prosecute him - if it had not been proper to dismiss claim,
pleading of claim for malicious prosecution should have been struck out with leave to replead on
grounds it was embarrassing and likely to prejudice fair trial of proceeding - application dismissed.
Mutton
The Power of the Dog
by Rudyard Kipling
There is sorrow enough in the natural way
From men and women to fill our day;
And when we are certain of sorrow in store,
Why do we always arrange for more?
Brothers and Sisters, I bid you beware
Of giving your heart to a dog to tear.
Buy a pup and your money will buy
Love unflinching that cannot lie-Perfect passion and worship fed
By a kick in the ribs or a pat on the head.
Nevertheless it is hardly fair
To risk your heart for a dog to tear.
When the fourteen years which Nature permits
Are closing in asthma, or tumour, or fits,
And the vet's unspoken prescription runs
To lethal chambers or loaded guns,
Then you will find--it's your own affair-But ... you've given your heart to a dog to tear.
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When the body that lived at your single will,
With its whimper of welcome, is stilled (how still!).
When the spirit that answered your every mood
Is gone--wherever it goes--for good,
You will discover how much you care,
And will give your heart to a dog to tear.
We've sorrow enough in the natural way,
When it comes to burying Christian clay.
Our loves are not given, but only lent,
At compound interest of cent per cent.
Though it is not always the case, I believe,
That the longer we've kept 'em, the more do we grieve:
For, when debts are payable, right or wrong,
A short-time loan is as bad as a long-So why in--Heaven (before we are there)
Should we give our hearts to a dog to tear?
Rudyard Kipling
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