Insurance

A Daily Bulletin listing Decisions of Superior Courts of Australia

Representative proceedings (NSW) � whether there was a �substantial common issue of

law or fact�. See Jameson v Professional Investment Services Pty Ltd Personal injuries (NSW) � judge relied on his own medical knowledge to make adverse credit finding about a witness� credit. See Strinic v Singh Contract � heads of agreement had been signed � whether a contract had been formed. See Max Reflectance Investment Pty Ltd v Drazcat Pty Ltd Legal professional privilege (WA) � waiver of privilege. See Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd Insurance � damage caused by fire � fraud established. See West End Aeronautical plc v QBE Insurance (Aust) Limited From the United Kingdom: Insurance (UK) � materiality � alteration of risk � knowledge. See Ansari v New India Assurance Ltd Tort (UK) � police officer charged with dangerous driving causing death following pursuit � officer brought clam for false imprisonment and malicious prosecution. See Alford v Cambridgeshire Police Costs (UK) � whether costs of attending an inquest can be recovered by way of costs in subsequent civil proceedings. See Roach v Home Office

Friday 27 February 2009 Click here to visit our website

Today�s Cases

Friday 27 February 2009 Jameson v Professional Investment Services Pty Ltd [2009] NSWCA 28 Court of Appeal of New South Wales Spigelman CJ, Allsop P & Ipp JA Representative action � financial services & markets � product disclosure - appellant had instituted representative action on behalf of group of investors who had acquired promissory notes from Ann Street Mezzanine Pty Ltd (in liq), an entity within Westpoint Group of companies � appeal from orders that: (1) proceedings not continue as representative proceedings (2) leave to amend the appellant�s originating process be refused � for decision appealed from see �Benchmark� Thursday 13 December, 2007 & link below - �substantial common issue of law or fact� - r7.4(2) Uniform Civil Procedure Rules 2005 (NSW) � discretion to �otherwise order� under r7.4(2) - �opt in� & �opt out� � access to justice � appeal allowed. Jameson Jameson - decision 12 December 2007 - whether action should proceed as a class action � consideration of academic works & case law from Australia & Canada � allegation by plaintiff & persons named in a schedule to statement of claim they were investors in money making scheme controlled by �Westpoint� - investments failed � damages sought for breach of statutory duty or under Trade Practices Act 1974 (Cth) � leave sought to amend pleadings � consideration of case law dealing with historical background of representative actions � opt-in & opt-out approach � limited class action � case law considered as to declarations & representative proceedings � proceedings should not continue as class action.

Strinic v Singh [2009] NSWCA 15 Court of Appeal of New South Wales Beazley, Ipp & Basten JJA Personal injuries claim in District Court � primary judge had made adverse finding as to credit of plaintiff as witness � primary judge�s reliance on his own medical knowledge to make adverse credit finding was sufficient to impugn the judgment � appeal allowed. Strinic Lykouressis v Lykouresis & Ors [2009] NSWSC 80 Supreme Court of New South Wales Palmer J Tort of deceit � director�s duties - first defendant liable in deceit � derivative claim � leave to proceed refused � unrepresented litigants � the Court found that third, fourth & fifth respondents had engaged in dishonest conduct � argument as to costs adjourned for short period, but the Court would need to be persuaded as to why costs order should be made in favour of third, fourth and fifth defendants - claim against them failed only because plaintiff had not appointed receiver who could have sued in company�s name without leave � judgment for plaintiff against first defendant; judgment for third,

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fourth & fifth defendants � detailed analysis of case law. Lykouressis Max Reflectance Investment Pty Ltd v Drazcat Pty Ltd & Ors [2009] QSC 024 Supreme Court of Queensland Martin J Contract - sale of health club � Heads of Agreement had been signed 'subject to a formal deed' � various applications by second defendant - whether communications in contemplation of reaching a binding agreement had formed a contract - whether parties had intended to form a concluded bargain - extrinsic evidence � application for summary judgment dismissed � held that Heads of Agreement were no more than that - detailed consideration of principles & case law. Max Reflectance Investment Lawrence v Slemko [2009] WASC 33 Supreme Court of Western Australia Newnes J Defamation - application to set aside default judgment � material published on website - whether defendant has arguable defence - true innuendo - whether reasonable reader with knowledge of extrinsic fact would have understood material to refer to plaintiff � default judgment set aside. Lawrence Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [2009] WASC 34 Supreme Court of Western Australia Murray J Legal professional privilege - waiver of privilege � accounting records � advice, legal or otherwise - Iron Ore (Hope Downs) Agreement Act 1992 (WA) & unincorporated joint venture in relation to development of Hope Downs & exploitation of its iron ore assets, between Rio Tinto Ltd and the defendant - application by plaintiff for discovery by potential party - application by defendant for plaintiff to produce documents relative to plaintiff's application � discovery of specified documents ordered. Wright Prospecting

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From the District Court of New South Wales� West End Aeronautical plc v QBE Insurance (Aust) Limited [2009] NSWDC 18 District Court of New South Wales Rolfe DCJ Insurance � damage to stock & contents caused by arson - insured company wound up � insured company had assigned its rights to plaintiff - defence of fraud � burden of proof - circumstantial evidence which can be taken into account � verdict for insurer. West End Aeronautical

From the United Kingdom� Ansari v New India Assurance Ltd [2009] EWCA Civ 93 Court of Appeal of England & Wales Waller, Thomas & Moore-Bick LJJ Insurance � materiality � alteration of risk - primary judge had dismissed appellant's claim against his insurer - damage caused by fire to commercial premises in Manchester - automatic sprinkler system turned off � knowledge � sprinkler system no longer providing the protection the statement in the proposal form indicated � appeal dismissed. Ansari Alford v Cambridgeshire Police [2009] EWCA Civ 100 Court of Appeal of England & Wales Richards & Rimer LJJ Tort � false imprisonment � malicious prosecution - appellant police officer the driver in high speed pursuit of vehicle which crashed, killing a passenger - subsequent police inquiry led to appellant being charged with dangerous driving causing death but prosecution against him was subsequently dismissed � he brought claim for false imprisonment & malicious prosecution which was dismissed by primary judge � approach of an appellate court towards a finding of a first instance judge as to existence of reasonable grounds � case law considered - appeal dismissed. Alford Roach & Ors v Home Office [2009] EWHC 312 (QB) High Court of England & Wales (Queen�s Bench Division) Davis J sitting with Assessors (Master Wright & Mr Robert Carter) Costs - whether costs of attending an inquest can be recovered by way of costs in subsequent civil proceedings � two costs appeal & one cross-appeal � two persons in custody had committed suicide � actions taken in both cases alleging defendant�s failure to provide adequate safeguards � both actions

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were settled - appeal of claimants in one of cases allowed - cross-appeal of Home Office dismissed � appeal of Home Office in other case dismissed. Roach

And for St. David�s Day Sunday 1 March 2009

The Story of a Song

�My name�s Edward Morgan, I live at Llangollen,

The vale of St. Tafyd The flow�r of North Wales.

My father & mother too live at Llangollen. Good truth, I was born in that sweetest of vales ....�

In the mid 1820s, a young Englishman named Charles James Mathews (1803-1878) accepted the position of architect to the Welsh Iron & Coal Mining Company at Cold Tawn, North Wales. While there, he heard a tune he liked played by a harper � he was told it was called �Cader Idris� after the mountain in Meirionnydd. Unknown to Mathews, the tune had been written in 1804 by the harper* John Parry (1776-1851, bardic name Bardd Alaw.)

In the farmhouse where Mathews was staying worked a dairymaid called Jenny (née Jones) married to a ploughman Edward Morgan. Edward had served twenty years in the Navy before returning to Jenny to marry her � Mathews was inspired to set the story of their courtship to the tune of �Cader Idris.� During a visit to London from Wales, he sang the song at a large party � an elderly man came up to him afterwards and introduced himself as John Parry, the composer of �Cader Idris,� which had won a prize at an Eisteddfod in 1804.

Mathews had artistic pedigree � his father was the actor Charles Mathews (1776-1835.) Charles James Mathews was to abandon architecture for a very successful stage career � he made his first public appearance as an actor in 1835 at the Olympic Theatre in London. He used the song �Jenny Jones� in one of his revues & it became a tune that was whistled in the streets.

..... I parted a lad from the vale of my fathers And left Jenny Jones then a pretty young lass,

But now I�m return�d a stormbeaten old mariner, Jenny from Jones into Morgan shall pass;

And we�ll live on our cheese & our ale in contentment, And long thro� our dear native valley we�ll rove,

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For indeed in our hearts we do love that Llangollen, And sweet Jenny Morgan till death I will love.

Hen Wlad Fy Nhadau - the Welsh national anthem

Hen Wlad Fy Nhadau/Land Of My Fathers

Men of Harlech - Wikipedia, the free encyclopedia

Welsh Flag - Y Ddraig Goch � the Red Dragon

*Folk and Celtic musicians often use the term "harper," whereas classical/pedal musicians use "harpist."

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