Contents

page 134 Proportionate Liability: High Court broadens scope

of “same damage” test: Hunt & Hunt Lawyers v

Mitchell Morgan Nominees Pty Ltd

Angela Pearsall, Kate Boomer and Anthony Ursino

ASHURST AUSTRALIA

page 138 Proportionate liability held not to apply to a

contractual indemnity: Perpetual Trustee Company

Ltd v CTC Group Pty Ltd (No 2)

Carlo Fini BANNERMANS LAWYERS

page 141 Case note: Bird v Ford

Verginia Serdev GILCHRIST CONNELL

page 145 Expert evidence and the use of photographs in a

medical negligence case: Masters bht Masters v

Sydney West Area Health Service

Anna Walsh and Joelle Matar MAURICE

BLACKBURN LAWYERS

page 148 Index to Volume 9

Table of articles

Table of cases

Table of legislation

Consulting EditorsCarolyn Sappideen Professor, Faculty

of Law, University of Western Sydney

Prue Vines Professor, Faculty of Law,

University of NSW

Editorial BoardMark Doepel Partner, Sparke

Helmore, Sydney

Richard Douglas SC Callinan

Chambers, Brisbane

Bill Madden Slater & Gordon, Sydney

Greg Williams Partner, Clayton Utz,

Sydney

Dr James Renwick SC 12th Floor

Selborne Chambers

Michael D Wyles SC Aickin

Chambers

Dr Dominic Katter Barrister

Andrew Eastwood Partner, Herbert

Smith Freehills

Rebecca Stevens Partner, Carter

Newell

Deborah Templeman Principal,

Gilchrist Connell

Mark Elvy Partner, Ashurst Australia

Robert Crittenden Partner, DLA

Piper

Amanda Stickley Director,

Undergraduate Programs, Queensland

University of Technology (QUT)

Christine Plevey Special Counsel,

Minter Ellison Lawyers

2013 . Vol 9 No 10

Information contained in this newsletter is current as at May 2013

Proportionate liability: High Court broadensscope of “same damage” test: Hunt & HuntLawyers v Mitchell Morgan Nominees Pty LtdAngela Pearsall, Kate Boomer and Anthony Ursino ASHURST AUSTRALIA

In 2002, all Australian states and the Commonwealth

enacted legislation which, in certain types of cases, has

replaced joint and several liability with proportionate

liability. In NSW, the provisions are contained in Pt 4 of

the Civil Liability Act 2002 (NSW). In simple terms,

proportionate liability is a statutory defence available to

a wrongdoer when others are also partly responsible for

a plaintiff’s loss or damage. As a defence, the defendant

bears the onus of both pleading and proving proportion-

ate liability.

The legislation addressed the problem at common

law that plaintiffs could sue “deep pocketed” defendants

who, even if they were only marginally liable, would be

required to underwrite the whole of a plaintiff’s loss. The

provisions have the effect of passing the risk of a

defendant being insolvent or untraceable to plaintiffs in

relation to certain types of claims for economic loss.

Under s 34 of the Civil Liability Act, two key

elements must be satisfied in order for proportionate

liability to apply. First, the claim must be an “apportion-

able claim”, which includes claims for economic loss or

damage to property in an action for damages (whether in

contract, tort or otherwise) arising from a failure to take

reasonable care, or for misleading or deceptive conduct.

Second, the defendant must be a “concurrent wrong-

doer”. Under s 34(2) a concurrent wrongdoer “is a

person who is one of two or more persons whose acts or

omissions (or act or omission) caused, independently of

each other, the damage or loss that is the subject of the

claim”.

Recent judgments, including the Victorian Court of

Appeal in St George Bank Ltd v Quinerts Pty Ltd1 and

the NSW Court of Appeal in Mitchell Morgan Nominees

Pty Ltd v Vella,2 have adopted a narrow construction of

the words “the damage or loss that is the subject of the

claim” in s 34(2) and equivalent provisions, finding that

it has the same meaning as “the same damage” in s 23B

of the Wrongs Act 1958 (Vic)3 which allows parties, in

certain circumstances, to seek contribution from other

parties for the “same damage”).

In Hunt & Hunt Lawyers v Mitchell Morgan Nomi-

nees,4 handed down on 3 April 2013, the High Court, by

a 3:2 majority, has moved away from this narrow

approach, providing greater scope to defendants to

benefit from the proportionate liability regime.

Victorian Court of Appeal in St George BankLtd v Quinerts Pty Ltd

In this case, the defendant, Quinerts had negligently

overvalued a property in Melbourne. St George Bank in

relying on the valuation lent a substantial amount of

money to the borrower, who then defaulted on the loan.

The outcome was that there was a shortfall of funds from

the sale of the property. St George sought to recover its

loss from Quinerts who then argued that the borrower

was a concurrent wrongdoer.

The court held unanimously that the borrower could

not be said to have caused or be liable for “the same

damage” as the valuer and therefore they were not

“concurrent wrongdoers” in relation to the valuer’s

claim.

Nettle JA explained:

The loss or damage caused by the borrower and theguarantor was their failure to repay the loan. Nothing which[the valuer] did or failed to do caused the borrower … tofail to repay the loan. The damage caused by [the valuer]was to cause the bank to accept inadequate security fromwhich to recover the amount of the loan. Nothing which theborrower … did or failed to do caused the bank to acceptinadequate security for the loan.5

Hunt & Hunt Lawyers v Mitchell MorganNominees

FactsThe case concerned a negligence claim by Mitchell

Morgan Nominees Pty Ltd (the lender) against Hunt &

Hunt (the lawyers).

In late 2005, Mr Caradonna and Mr Flammia (the

fraudsters) obtained a loan from the lender by way of

forged loan documents. The lawyers acted for the lender

in relation to the mortgage documentation.

australian civil liability May 2013134

In preparing the mortgage documentation, the law-

yers negligently used a form of mortgage that secured

the property by reference to the loan agreement rather

than by a covenant to pay a stated amount. As the loan

agreement was void due to the forgery, the mortgage

secured nothing and was liable to be discharged.

The first instance decisionChief Justice Young found that the fraudsters were

“concurrent wrongdoers” under s 34 of the Civil Liabil-

ity Act 2002 (NSW) and therefore it was necessary to

apportion the lender’s loss between them and the law-

yers. His Honour determined that the damages payable

to the lender should be apportioned as follows:

• 72.5% to Mr Caradonna, who orchestrated the

fraud and was the most morally blameworthy;

• 15% to Mr Flammia; and

• 12.5% to Hunt & Hunt.

The Court of Appeal decisionThe Court of Appeal overturned the first instance

decision on the grounds that the fraudsters’ acts did not

cause the loss or damage that the lender claimed against

the lawyers.6

The Court of Appeal characterised the lender’s dam-

age occasioned by the fraudsters’ conduct as advancing

loan funds when it would not otherwise have done so,

whereas the damage occasioned by the lawyers’ negli-

gence was that the lender did not have the benefit of

security over the property for the money paid out.7

Accordingly, the lawyers and the fraudsters were not

liable with respect to the “same damage” and therefore

were not “concurrent wrongdoers”. This enabled the

lender to recover 100% of its loss against the lawyers.

The Court of Appeal noted that there is a “well-

recognised distinction” between “damage” and “dam-

ages”, “damage” being the personal, proprietary or

economic interest that is harmed and “damages” being

the monetary sum that is awarded in respect of that

harm. Even if the damages payable by both tortfeasors

are in the same amount, it does not follow that they are

liable in respect of the same “damage”.

Arguments in the High CourtThe lawyers in their appeal to the High Court argued

that the fraudsters were “concurrent wrongdoers” and

that apportionment should apply. They submitted that

the mortgage was ineffective for two reasons:

• firstly, that the loan agreement was void due to the

fraud; and

• secondly, that the mortgage instrument was inap-

propriately drafted, because it did not itself con-

tain a debt covenant but did so by reference to the

loan agreement.

Although the lawyers conceded they were respon-

sible for the second aspect, the fraudsters were respon-

sible for the first aspect. Both sets of acts and omissions

were necessary for the respondents to suffer the loss of

being unable to recoup funds advanced. It was thus

argued the fraudsters should be deemed “concurrent

wrongdoers” and proportionate liability should apply.

The lawyers also submitted that there is no require-

ment in the legislation for one concurrent wrongdoer to

contribute to the breach of the other.

On the other hand, the Lenders sought to argue that

the drafting of a worthless security in the case of fraud

is different to the economic loss consequential to fraudu-

lently inducing a lender to pay out money. Under this

construction, the lenders’ loss caused by the fraudsters

had nothing to do with the way the mortgage was drafted

by the solicitors.

The majority decision in the High Court

Characterisation of damageWhile the majority of the High Court (French CJ,

Hayne and Kiefel JJ) accepted the distinction between

“damage” and “damages”, the principal issue to be

determined was the proper identification of the loss or

damage suffered by the lender. They cited Gaudron J in

Hawkins v Clayton8 to note that in an action for

negligence causing economic loss it will be almost

necessary to identify, with some precision, the interest

infringed by the negligent act.

The majority held that the lender’s damage was its

inability to recover the moneys it advanced. Although

the lender’s claim against the lawyers was based on a

different cause of action to the claims it would have had

against the fraudsters, both the lawyers and the fraudsters

materially contributed to the lender’s inability to recover

those moneys.

The majority considered that the Court of Appeal’s

analysis had focused on the immediate effects of the

fraudsters’ conduct (paying out money) and the negli-

gence of the lawyers (not having the benefit of security),

without identifying the actual harm to the lender’s

economic interest (the inability to recover the funds

lent).

australian civil liability May 2013 135

The majority highlighted that if the Court of Appeal’s

characterisation was adopted, the lender would have

suffered no financial loss at the time the “damage” was

sustained. Rather, there was a serious risk that loss

would accrue. The majority noted:

In general terms, in a case involving a loan of monies,

damage will be sustained and the cause of action will

accrue only when recovery can be said, with some cer-

tainty, to be impossible.9

CausationWith respect to causation, the majority referred to s

5D(1) of the Civil Liability Act 2002 (NSW). The

section provides general principles to determine whether

negligence caused the harm. Notably, there are two

elements:

1. that the negligence was a necessary condition of

the occurrence of the harm (factual causation), and

2. that it is appropriate for the scope of the negligent

person’s liability to extend to the harm so caused

(scope of liability).

The section also requires the court to consider (amongst

other relevant things) whether or not and why responsi-

bility for the harm should be imposed on the negligent

parties.

The majority considered that there could be no doubt,

based on the findings of the primary judge, that the

lawyers were a wrongdoer whose actions were a cause

of the lender’s inability to recover the moneys advanced.

While they accepted Giles JA in the Court of Appeal

decision was justified in pointing out the immediate

effects of the fraudsters’ conduct and of the negligence

of the lawyers, they stated it cannot be equated with that

loss and damage.10 The question under s 34(2) is

whether the fraudsters’ acts, independently of the law-

yers, also caused that damage.

The majority accepted the lawyers’ submission that

there were in fact two conditions necessary for the

mortgage to be ineffective — the loan agreement was

void and the mortgage itself did not contain a debt

covenant. The fraudsters were responsible for the first

condition and the lawyers for the second. The fraudsters’

conduct was therefore a factor that contributed to the

lender’s inability to recover.

The majority observed that in St George Bank Ltd v

Quinerts Pty Ltd, there was a suggestion that “there is

some requirement that one wrongdoer contribute to the

wrongful actions of the other wrongdoer in order that

they cause the same damage”.11 The majority noted that

this is not a requirement under Pt 4 of the Civil Liability

Act 2002 (NSW) — the question is whether each

wrongdoer materially contributed to the loss or damage

suffered.

Outcome

The majority held that while the lawyers’ negligence

was a cause of the lender’s loss, it was not consistent

with the policy of Pt 4 that the lawyers be wholly

responsible for the damage when regard is had to the

role played by the fraudsters. Accordingly the lender

should not recover from the lawyers any more than the

loss for which they were responsible, as found by the

primary judge (12.5%).

Minority judgment

The minority (Bell and Gaegler JJ) upheld the approach

of the Court of Appeal, characterising the loss caused by

the lawyers as the lack of a security for the loan. They

held that nothing done by the fraudsters caused this

particular loss, and the fact that the loan transaction

would not have occurred at all but for the actions of the

fraudsters was “not to the point”. Accordingly, they

considered that the fraudsters and the lawyers could not

be “concurrent wrongdoers”.

Comment

The High Court’s 3:2 split in this case illustrates the

complexities involved in determining whether defen-

dants are “concurrent wrongdoers”. While the majority’s

judgment supports a broader construction of the propor-

tionate liability provisions than has previously been

adopted by intermediate appellate courts in Australia, it

will remain important for parties to carefully analyse

claims against wrongdoers to ascertain whether, on the

facts of the case, each of them did in fact materially

contribute to “the loss or damage suffered” by the

plaintiff.

Angela Pearsall

Partner

Ashurst

australian civil liability May 2013136

Kate Boomer

Lawyer

Ashurst

Anthony Ursino

Lawyer

Ashurst

Footnotes1. St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666;

[2009] VSCA 245; BC200909697.

2. Mitchell Morgan Nominees Pty Ltd v Vella (2011) 16 BPR

30,189; [2011] NSWCA 390; BC201109916.

3. See also Law Reform (Miscellaneous Provisions) Act 1946

(NSW).

4. Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd

(2013) 296 ALR 3; [2013] HCA 10; BC201301509.

5. Above, n 1, at [76].

6. Above, n 4, at [9].

7. Vella v Permanent Mortgagees Pty Ltd (2008) 13 BPR 25,343;

[2008] NSWSC 505; BC200803886 at [41] per Giles JA.

8. Hawkins v Clayton (1998) 164 CLR 539 at 601; 78 ALR 69; 62

ALJR 240; BC8802597.

9. Above, n 4, at [32].

10. Above, n 4, at [30].

11. Above, n 4, at [41].

australian civil liability May 2013 137

Proportionate liability held not to apply toa contractual indemnity: Perpetual TrusteeCompany Ltd v CTC Group Pty Ltd (No 2)Carlo Fini BANNERMANS LAWYERS

In Perpetual Trustee Company Ltd v CTC Group Pty

Ltd (No 2),1 the NSW Court of Appeal held that the

proportionate liability provisions of Pt 4 of the Civil

Liability Act 2002 (NSW) (CLA) did not apply to a

contractual indemnity against losses suffered as a result

of a failure to take reasonable care because a contractual

indemnity amounted to contracting out of Pt 4. Further,

one of the judges of the court (Macfarlan JA) offered an

analysis of Pt 4 to the effect that it does not apply to a

breach of a strict contractual duty even if that duty was

carried out negligently.

FactsIn an earlier judgment, Perpetual Trustee Co Ltd v CTC

Group Pty Ltd,2 the Court of Appeal held that CTC

breached its obligation under a mortgage origination

deed (the MO deed) to take reasonable care to identify a

prospective borrower and confirm his authority to sub-

mit a loan application. As that judgment reversed a first

instance decision in favour of CTC, in Perpetual v CTC

(No 2) CTC alleged in a notice of contention that there

were concurrent wrongdoers and that it had the benefit

of a proportionate liability defence under Pt 4 of the

CLA.

One of the bases upon which Perpetual successfully

claimed damages from CTC was cl 14.3 of the MO deed,

which provided:

[CTC] indemnifies [Perpetual] … against any liability orloss arising from and any costs, charges and expensesincurred in connection with:

…

(d) any breach by [CTC] of any of its warranties orobligations under or arising from this deed or failure toperform any obligation under this deed,

including, without limitation, liability, loss, costs, chargesor expenses on account of funds borrowed, contracted foror used to fund any amount payable or expense incurredunder this deed and including in each case, withoutlimitation, legal costs and expenses on a full indemnitybasis or solicitor and own client basis, whichever is thehigher.

IssuesThe two main issues considered by the NSW Court of

Appeal that will have relevance to subsequent cases

were:

• whether the contractual indemnity in cl 14.3 was

inconsistent with Pt 4 of the CLA; and

• whether Perpetual’s claim arose “from a failure to

take reasonable care”, as referred to in the defini-

tion of “apportionable claim” in s 34(1) of the

CLA.

Appeal Judge Macfarlan delivered the lead judgment

on all issues considered by the court, with Meagher and

Barrett JJA agreeing except on the issue of what

constitutes an action “arising from a failure to take

reasonable care”.

Whether the contractual indemnity incl 14.3 was inconsistent with Pt 4 of theCLA

Section 3A(2) of the CLA provides that parties may

contract out of the CLA in the following terms:

This Act … does not prevent the parties to a contract frommaking express provision for their rights, obligations andliabilities under the contract with respect to any matter towhich this Act applies and does not limit or otherwise affectthe operation of any such express provision.

Appeal Judge Macfarlan found3 that cl 14.3 made

CTC liable for the full amount of Perpetual’s loss

resulting from a breach by CTC of a warranty or other

obligation under the MO deed. Clause 14.3 was an

express provision for the rights and liabilities of Per-

petual and CTC respectively under the contract and was

inconsistent with the application of Pt 4 of the CLA. Had

Pt 4 applied, it would have limited CTC’s liability to

Perpetual to only a proportion of the loss suffered by

Perpetual as a result of CTC’s breaches, thus depriving

Perpetual of a full contractual indemnity. The MO deed

made express provision with respect to a matter covered

by Pt 4 so s 3A(2) applied and Pt 4 did not apply to

Perpetual’s contractual claim for indemnity.

australian civil liability May 2013138

Appeal Judge Macfarlan held4 that it was not neces-

sary for parties to a contract to make an express

reference to contracting out of Pt 4 of the CLA and that

a contractual indemnity by its nature is inconsistent with

Pt 4 of the CLA. His Honour relied on Aquagenics Pty

Ltd v Break O’Day Council5 to the effect that s 3A(2)

“does not require the parties to use any particular form

of wording to effect a contracting out”.

In arriving at this conclusion, his Honour was assisted

by the discussion on contractual indemnities in “Indem-

nities and civil liability legislation” by Profes-

sor Barbara McDonald,6 to the effect that Pt 4 did not

apply where a contractual indemnity applied.

Having decided this issue against CTC, it was not

necessary for the court to consider the other issues in the

case about proportionate liability; however, as they were

argued, the court considered them.

Whether Perpetual’s claim arose “from afailure to take reasonable care”, as referredto in the definition of “apportionable claim”in s 34(1) of the CLA

Under s 34(1) of the CLA, an “apportionable claim”

is a claim arising “from a failure to take reasonable

care”.

Perpetual having succeeded on a claim based on a

failure to take care (but to which Pt 4 did not apply

because the parties had contracted out of it), the court

did not have to consider whether Perpetual could have

succeeded on other grounds that did not involve a failure

to take care, notwithstanding that Perpetual argued the

point. Only Macfarlan JA considered this issue in any

detail, with Meagher JA not expressing an opinion and

Barrett JA apparently agreeing with some reservation.

Appeal Judge Macfarlan held7 that for a successful

action for damages to have arisen from a failure to take

reasonable care, it is necessary that the absence of

reasonable care is an element of the, or a, cause of action

upon which the plaintiff succeeds. In arriving at this

conclusion, his Honour cited with approval the commen-

tary on this issue in “The lottery of contractual risk

allocation and proportionate liability”8 by Profes-

sors John Carter and Barbara McDonald and, in particu-

lar, that part of the commentary to the effect that it would

be absurd if a defendant who failed to perform a strict

contractual duty could benefit under Pt 4 of the CLA by

proving it had performed its strict duty negligently.

Appeal Judge Macfarlan9 distinguished and declined

to follow Reinhold v New South Wales Lotteries Corp

(No 2)10 (a decision of Barrett J as his Honour then was)

on this issue. Reinhold had held that whether or not Pt 4

applied to a claim was to be judged in light of the

findings made by a court and is not determined by the

words in which the claim is framed. Appeal Judge

Macfarlan held11 that the application of Pt 4 turns on the

essential character of the plaintiff’s successful cause of

action and not on the facts that happen to be found.

While Barrett JA agreed generally with Macfarlan JA

on other issues in the case, on this issue his Honour

provided specific reasons and said12 that it is a combi-

nation of the terms on which a claim is pleaded and the

court’s findings relevant to the pleading that must be

assessed in order to decide whether the claim arises

“from a failure to take reasonable care”.

Other issuesPart 4 of the CLA only applies if the plaintiff’s action

is “an action for damages”: s 34(1). Section 3 of the

CLA provides that “damages includes any form of

monetary compensation”. Appeal Judge Macfarlan held13

that this definition used broad words that were apt to

cover a claim for a contractual indemnity for loss

suffered as a result of a breach of contract. In doing so,

his Honour distinguished the finding in Commonwealth

Bank of Australia v Witherow14 that an action on a

guarantee on a bank overdraft was not “an action for

damages” because that decision failed to refer to the

definition of damages in s 3. Accordingly, his Honour

held that Perpetual’s claim was an action for damages.

ConclusionsThis case provides valuable appellate level guidance

on the proportionate liability regime. It confirms that

parties can contract out of proportionate liability (in

those jurisdictions where permitted) and do not need to

make express reference to contracting out of Pt 4 of the

CLA if the nature of the express terms already contained

in the contract are inconsistent with Pt 4 applying. This

is the case with a contractual indemnity which, by its

nature (being an indemnity for the full loss suffered by

a plaintiff), is inconsistent with the notion of apportion-

ment and therefore amounts to a contracting out of

proportionate liability.

The case also provides appellate level support for the

proposition that a breach of an obligation (such as a

breach of a strict contractual duty or other warranty) that

does not involve negligence cannot be an apportionable

claim.

Carlo Fini

Special Counsel

Bannermans Lawyers

Footnotes1. Perpetual Trustee Company Ltd v CTC Group Pty Ltd (No 2)

[2013] NSWCA 58; BC201301287.

australian civil liability May 2013 139

2. Perpetual Trustee Co Ltd v CTC Group Pty Ltd [2012]

NSWCA 252; BC201206238.

3. Above, n 1, at [11].

4. Above, n 1, at [14].

5. Aquagenics Pty Ltd v Break O’Day Council [2010] TASFC 3;

(2010) 26 BCL 263; BC201002872 at [71].

6. B McDonald, “Indemnities and the civil liability legislation”

(2011) 27(1) Journal of Contract Law 56–64, pp 62–3.

7. Above, n 1, at [22].

8. J W Carter and B McDonald, “The lottery of proportionate

liability” (2009) 26 Journal of Contract Law 1 p 18.

9. Above, n 1, at [23].

10. Reinhold v New South Wales Lotteries Corp (No 2) [2008]

NSWSC 187; BC200801327.

11. Above, n 1, at [23].

12. Above, n 1, at [42].

13. Above, n 1, at [18].

14. Commonwealth Bank of Australia v Witherow [2006] VSCA

45; BC200600995.

australian civil liability May 2013140

Case note: Bird v FordVerginia Serdev GILCHRIST CONNELL

In Bird v Ford,1 the Supreme Court of New South

Wales (Schmidt J) revisited the application of advocate’s

immunity to the work of solicitors and considered if and

how advocate’s immunity affects the application of the

proportionate liability regime contained in the Civil

Liability Act 2002 (NSW) (CLA). The court also dis-

cussed the duties of a solicitor in acting for a client

whose case has weak or no prospects of success.

The factsThe plaintiffs’ son was expelled from his private

school (Broughton Anglican College) in March 2007.

After the first plaintiff, Mrs Bird, had unsuccessfully

sought to convince the school to retract the expulsion

with the assistance of another solicitor, Mrs Bird engaged

Mr Ford, an education law specialist, pursuant to the

following retainer:

… review the material provided by you, to advise you ofthe potential for having the expulsion decision set asideand, if applicable, of the means for doing this, and, if yourequire, taking steps to have the decision set aside [(firstretainer)].

At first instance, Mr Ford urged Mrs Bird to pursue

further negotiations with the school and wrote to the

school, endeavouring to convince the principal that a

procedurally fair process had not been followed and that

the decision to expel the child was vulnerable to

challenge.2

When Mrs Bird and Mr Ford met with the school’s

new principal in August 2007, he acknowledged that

there had been procedural difficulties with the expulsion,

but refused to reverse the old principal’s decision, given

the child’s history at the school. However, an offer was

made to re-enrol the child in 2008 on a probationary

basis.

During a break in the meeting, Mrs Bird informed

Mr Ford that if the school would not take her son back

in 2007, she would “go to court”. She asked Mr Ford if

he would support her. Mr Ford advised against this

course of action, pointing out:

• the significant cost;

• that if she lost, she would have to pay 60–80% of

the school’s costs;

• that there was no guarantee that she would win;

• that, in part, the case would depend on credit

issues;

• that he did not yet have a feel for what the

evidence against her would be; and

• that even with expedition, a decision would only

be obtained too late in the year to have any utility

and, by that time, it might be against the child’s

interests to move schools.

Mr Ford told Mrs Bird that if she wanted to sue the

school, he would act for her, although he considered that

going to court was not a good option. Mr Ford did not

discuss, at that time, what the court’s powers might be in

providing the outcome she desired, or precisely what

any litigation would involve. Specifically, he did not tell

her that it would be almost impossible for her to achieve

what she wanted through litigation.

In the aftermath of the meeting, Mr Ford again

counselled Mrs Bird about the risk and cost of litigation

and its potential futility. He recommended further nego-

tiation, but Mrs Bird wrote to him stating that she

wished to go to court and outlining a list of demands.

Mr Ford then made some notes of his thoughts on the

subject, recording his concern that Mrs Bird “was acting

irrationally in saying she’ll go to court as it’s almost

impossible to achieve what she wants that way”.

In August 2007, after further negotiations with the

school broke down, Mr Ford again cautioned Mrs Bird

against pursing litigation against the school, citing:

• the cost and stress of litigation;

• the risk of losing;

• that the court might not intervene even if the

procedures followed were found to be unfair;

• that a decision may come too late to have any

utility;

• that the litigation might affect her other child; and

• that the school could just employ fair procedures

and expel the child again.

He recommended that she speak to a barrister before

proceeding. Mrs Bird instructed him to obtain a barris-

ter’s opinion as to the “chances of winning with the

evidence we have”.

Mr Ford then entered into a new retainer with

Mrs Bird to:

… act for you in bringing an application to the SupremeCourt of NSW for a declaration to set aside the [school’s]decision to expel [the child] [(second retainer)].

australian civil liability May 2013 141

Mr Davidson SC (counsel) was briefed to advise on

the likely outcome of proceedings in the Supreme Court

to have the expulsion decision quashed, and to prepare

the initiating process.

On 25 September 2007 (meeting), counsel and Mr Ford

met with Mrs Bird. At the meeting, counsel told Mrs Bird

that the application to have the school’s decision quashed

was a very difficult one and, although she was not

precluded from bringing it, he did not recommend it. He

outlined the risks, evidentiary issues and probable futil-

ity of it.

Mr Ford reiterated the warnings he had previously

given to Mrs Bird. He also warned her that whether the

court had jurisdiction to hear the case was one of two

points on which the plaintiffs had to succeed.

Mrs Bird refused to accept counsel’s recommenda-

tion (with which Mr Ford agreed), and insisted that

proceedings be commenced. Accordingly, proceedings

were commenced seeking judicial review of the school’s

decision to expel the child, a declaration that it was

invalid, and orders setting the decision aside and requir-

ing the school to re-admit the child.

The application was heard before Einstein J, who

dismissed it with costs, concluding that the school had

no obligation to afford the child natural justice in making

disciplinary decisions and, in any event, that its decision

was not amenable to judicial review, being a contractual

one.3

The plaintiffs alleged that Mr Ford had been negli-

gent because his warnings to Mrs Bird had not gone far

enough, and had not been made early enough. They

maintained that:

• the proceedings were misconceived and had no

prospects of success because the Supreme Court

could not have granted the relief sought;

• Mr Ford should have advised Mrs Bird at the

outset that the litigation she contemplated was

hopeless and ought not to be considered; and

• but for Mr Ford’s negligent conduct, the proceed-

ings would not have been brought.

Mr Ford argued, relevantly, that he and counsel had

expressly advised that proceedings should not be brought

and that appropriate warnings had been given. He relied

on advocate’s immunity in relation to his work pursuant

to the second retainer, and sought apportionment of his

liability to the plaintiffs on the basis that counsel was a

concurrent wrongdoer for the purposes of the CLA.

Negligence

First retainerThe plaintiffs asserted that Mr Ford should have

advised Mrs Bird at the outset that it was misconceived

to pursue a reversal of the school’s decision because the

court had no jurisdiction to entertain any application she

could bring.

Justice Schmidt did not agree, as whether this was the

case depended on a number of considerations about

which Mr Ford needed further instructions.4 Further, to

have told Mrs Bird at the outset that, in essence, there

was nothing that could be done for her and her son

would have been negligent, because in the circum-

stances it was reasonable and appropriate to pursue

further negotiations with the school, in light of:

• the lack of clarity at that stage as to certain facts

surrounding the expulsion;

• the fact that there was no settled Australian author-

ity precisely on point; and

• the new principal’s subsequent concession about

the inadequacies of the procedures and offer to

accept the child in 2008.

Second retainer

Justice Schmidt did not agree with the plaintiffs’

allegation that the proceedings were misconceived and

had no prospects of success, given that:

• there was an arguable case to be made on the state

of the authorities at the time;5

• both Mr Ford and counsel thought so, but consid-

ered that the application would probably fail;6 and

• it was neither unethical nor negligent for Mr Ford

and counsel to act for the plaintiffs in the circumstances.

In coming to this conclusion, Schmidt J made the

following findings about the principles of when a legal

practitioner can act for a client who has a weak case:

• at common law, a lawyer can act for a client whose

case is hopeless, provided that the lawyers is not

aware that the proceedings might amount to an

abuse of process;7

• however, the Legal Profession Act 2004 (NSW)8

changed this position in relation to a claim for

damages, in that it allowed a costs order to be

made against a solicitor or barrister where the

claim had no reasonable prospects of success;9

• subject to the provisions of the Legal Profession

Act, it was generally not negligent for a solicitor to

pursue even a hopeless case, provided that the

solicitor properly advised the client about its

prospects of success;

• pursuing a hopeless case may not in itself amount

to an abuse of process — Schmidt J referred, with

apparent approval, to Deane J’s opinion in Will-

iams v Spautz10 that:

australian civil liability May 2013142

… the institution and maintenance of proceedingsand the use of them to pursue a form of redresswhich the particular court could not have granted ifthe proceedings had run their course are legitimateunless the proceedings themselves are not foundedon a genuine grievance but are used as a “stalking-horse” for extortion or merely as an instrument forvexation or oppression;11

• there had been a real possibility that the dispute

could be settled, even if it transpired that there was

no legal basis to pursue proceedings against the

school;12 and

• given Mrs Bird’s decision to litigate in order to

force the school to reach a settlement, even if the

case appeared to be hopeless, it was not an abuse

on Mrs Bird’s part to commence proceedings or

negligent on Mr Ford’s part to act for her.13

Justice Schmidt therefore concluded that Mr Ford had

not acted negligently in the advice he gave Mrs Bird

pursuant to either the first or second retainer.

Advocate’s immunityIn addition, Schmidt J found that advocate’s immu-

nity from suit14 covered the following work performed

by Mr Ford pursuant to the second retainer, because it

affected the conduct of the case in court:

• the advice given at the meeting (which dealt with

whether the application should be brought and the

various arguments that could be advanced);

• subsequent work performed in drafting and set-

tling the initiating process;

• further research undertaken as to the arguments to

be advanced;

• advice as to how later settlement offers by the

school were dealt with;15 and

• the late application for pseudonym order, which

Mr Ford conceded should have been brought

earlier, before a duty judge, but instead was heard

(and denied) at the commencement of the main

hearing (thus resulting in unwanted publicity).16

CausationFinally, the plaintiffs failed on causation, as the

evidence did not establish that, but for the advice Mr

Ford gave, the plaintiffs would not have pursued the

school, or embarked on the subsequent litigation.17 It

was evident that Mrs Bird had understood the advice she

had been given but had refused to accept it,18 “plainly

being convinced that commencement of the proceedings

was the way in which the school would be brought to the

settlement she required”.19

Apportionment of liabilityAlthough Mr Ford was not found liable, Schmidt J

considered the plaintiff’s argument that counsel could

not be considered a concurrent wrongdoer for the

purposes of the CLA because his work was covered by

advocate’s immunity, and concluded that the fact that the

plaintiffs could not recover anything from counsel could

not preclude s 35(1)(b) of the CLA20 from applying, and

assessed Mr Ford’s responsibility at 50%.

Conclusions

• The case is a reminder that a solicitor acting in a

litigated matter can enjoy wide protection under

advocate’s immunity, even where counsel has also

been briefed. Lawyers should consider how best to

take advantage of this when making use of, and

wording, retainer agreements in litigious matters.

It is important to periodically revisit the terms of

the retainer as a matter progresses, and consider

entering into a fresh retainer where appropriate.

• It is not negligent or inappropriate for a lawyer to

act for a client who wishes to commence proceed-

ings in the hope or for the purposes of achieving a

settlement, subject to the provisions of the relevant

professional conduct rules.

• For the purposes of considering whether a case has

“reasonable prospects of success”, it would appear

that the test will be met if the lawyer considers that

there is an arguable case to be made, although it is

likely to fail.

• The fact that a concurrent wrongdoer in an apportion-

able claim may be immune from suit does not

affect the ability of a defendant to rely on the

provisions of the CLA to seek apportionment of

the plaintiff’s damages.

Verginia Serdev

Senior Associate

Gilchrist Connell

Footnotes1. Bird v Ford [2013] NSWSC 264; BC201301494.

2. Above, n 1, at [119].

3. Bird bht Bird v Campbelltown Anglican Schools Council

[2007] NSWSC 1465; BC200710969.

4. Above, n 1, at [153].

5. The state of the law and authorities is discussed at [154]–[158].

6. Above, n 1, at [94].

7. Above, n 1, at [88].

8. See ss 345–7.

australian civil liability May 2013 143

9. Above, n 1, at [90].

10. Williams v Spautz (1992) 174 CLR 509 at 543; 107 ALR 635;

66 ALJR 585; BC9202694.

11. Above, n 1, at [92].

12. Above, n 1, at [159].

13. Above, n 1, at [176].

14. In accordance with the principles discussed in D’Orta-

Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92;

[2005] HCA 12; BC200500919. In general terms, the immunity

extends to advice given by a legal practitioner (whether acting

as an advocate or as a solicitor instructing an advocate) that

leads to a decision that affects the conduct of the case in court:

see [91].

15. Above, n 1, at [175]–[180].

16. Above, n 1, at [174]–[175].

17. Above, n 1, at [230].

18. Above, n 1, at [211].

19. Above, n 1, at [71], also [216].

20. Section 35(1)(b) of the CLA provides that judgment may not be

given against a defendant for more than an amount reflecting

the defendant’s responsibility for the loss in question, irrespec-

tive of whether the plaintiff could recover the balance from a

concurrent wrongdoer.

australian civil liability May 2013144

Expert evidence and the use of photographsi n a m e d i c a l n e g l i g e n c e c a s e :Masters bht Masters v Sydney West AreaHealth ServiceAnna Walsh and Joelle Matar MAURICE BLACKBURN LAWYERS

Photographs have long been used in criminal and

civil proceedings as evidence to prove facts. In civil

proceedings, photographs are commonly used in claims

involving motor vehicle accidents as a basis for experts

to provide an opinion as to how an accident occurred and

which driver was at fault. In medical negligence claims,

the requirement for documentation in clinical notes by

healthcare practitioners oftentimes obviates the useful-

ness of photographs to assist with proving liability.

Masters bht Masters v Sydney West Area Health Ser-

vice,1 a recent decision by Davies J in the Supreme

Court of New South Wales, dealt with an interlocutory

application by the defendant to have the plaintiff’s expert

medical opinions excluded on the basis that the experts

relied upon photographs of the plaintiff in circumstances

where the authenticity of the photographs had not yet

been established.

FactsThe plaintiff was born at the Blue Mountains Hospital

following an uneventful birth. Some days after the birth,

she suffered jaundice, a condition exhibited by visible

yellowing of the skin and sclera of the eyes. The clinical

notes of the hospital contained entries by the midwives

looking after the plaintiff. A blood test was eventually

performed and was diagnostic of elevated bilirubin

levels, consistent with untreated jaundice. The allega-

tions of negligence focus on the hospital’s delay in

diagnosing and managing the jaundice, leading to brain

damage and cerebral palsy, and whether earlier interven-

tion would have avoided the plaintiff’s significant inju-

ries.

Expert evidenceThe plaintiff qualified an expert neonatologist and

midwife to comment on liability. In addition to the

plaintiff’s clinical notes and records, the experts were

provided with 11 photographs taken by the parent on a

standard digital camera over the course of a few days.

Those photographs purported to show a progressive

worsening of jaundice on the plaintiff’s body. Both

experts were critical of the management of the plaintiff

by the hospital staff. The plaintiff’s expert neonatologist

formed this opinion initially, independent of the photo-

graphs. In a supplementary report, he viewed the pho-

tographs and formed the view that they depicted a

worsening yellowing of the plaintiff’s skin over time and

that the photographs reinforced his initial opinion. The

plaintiff’s expert midwife was provided with both the

clinical record and the photographs and based her

criticism of the hospital’s management on both pieces of

evidence. In a supplementary opinion in an attempt to

clarify the weight she placed on the photographs, the

expert clarified that even without the benefit of viewing

the photographs, she would still form the same views.

Neither expert had, or purported to have, any exper-

tise in the area of portrait photograph or visual graphics.

The defendant retained a photographer who purported to

be an expert in photography and visual graphics who

cast doubt upon the capacity of the photographs taken on

a standard digital camera by the plaintiff’s father to

reliably depict the colour of the plaintiff’s skin tone at

the time the photographs were taken.

Applications by the partiesThe plaintiff filed a motion to have the report of the

photographic expert excluded on the basis that it was

defective on a number of levels, including form and

substance and failure to explain specific terms; failure to

provide his curriculum vitae; failure to adequately set

out his expertise in and knowledge of portrait photog-

raphy; failure to comply with r 31.27 of the Uniform

Civil Procedure Rules 2005 (NSW) (UCPR); and failure

to adhere to the general principles in Makita (Aust) Pty

Ltd v Sprowles.2 In opposing the plaintiff’s Notice of

Motion, the defendant filed a motion seeking an order

that the 11 photographs were inadmissible and that the

plaintiff’s expert evidence was inadmissible, given that

the experts relied on the unauthenticated photographs to

form their opinions.

australian civil liability May 2013 145

FindingsJustice Davies upheld the plaintiff’s motion and

excluded the defendant’s expert photographer report. In

making his finding, Davies J noted that the defendant’s

expert seemed to be inexperienced in the preparation of

expert reports and that he seemed to not understand the

reason why the photographs were relevant to the plain-

tiff’s claim and her particular medical condition.3 He

noted that the expert ought to have been assisted when

preparing his report so that he understood that it was

necessary to set out either the facts he was given or the

assumption that he made.4

Justice Davies determined that the report did not

comply with the principles in Makita in that it did not set

out the facts and assumptions of fact on which the

opinion was based; used terms without explanation;

made statements without explanation; and contained

conclusions unsupported by reasoning.5 Ultimately, his

Honour determined that the report was inadmissible by

reason of a failure to comply with r 31.27 of the UCPR.

As to the defendant’s motion that the plaintiff’s

photographs were inadmissible, Davies J did not con-

sider it appropriate to make such an order, given his

determination that the report was inadmissible. His

Honour then turned to consider the second limb of the

defendant’s motion, that the plaintiff’s expert evidence

was inadmissible by reason of relying on unauthenti-

cated photographs. In determining this question, Davies J

considered the documentation provided by the plaintiff’s

solicitors to her medical experts. His Honour noted that

the plaintiff initially obtained her expert evidence inde-

pendent of the photographs, and the photographs were

later disclosed to the experts for supplementary evi-

dence. Accordingly, his Honour was satisfied that the

plaintiff’s expert evidence did not rest upon her photo-

graphs but was rather primarily based on her contempo-

raneous clinical notes and the expertise of each of her

experts.

In excluding the defendant’s report, his Honour noted

that even if he was of the opinion that the report was

admissible in its present form, he would not consider it

appropriate to determine the issue of whether the plain-

tiff’s photographs should be rejected or that the plain-

tiff’s expert evidence partly reliant on photographs

should be rejected in advance of any trial.6

Practical applicationA practical consideration arising from this case is the

need for lawyers to ensure that expert reports are

compliant with the requirements of the UCPR and

relevant case law. Lawyers should bear in mind that

experts lack legal expertise and it is for the lawyer to

ensure that the form and substance of an expert report is

in line with the legal requirements. This extends to

assisting the expert to understand the context in which

the opinion is being formulated.

In this particular case, the clinical notes and records

contained nursing entries regarding subjective observa-

tions of the plaintiff’s skin tone over a period of some

days. The blood test eventually taken to determine the

degree of jaundice suffered by the plaintiff was not taken

until some days after the alleged breach(es) of duty of

care. The entries by the midwives regarding the plain-

tiff’s skin tone were not accepted by the plaintiff as

accurate descriptions. Expert opinions as to when treat-

ment would have made a difference to the outcome

would obviously have been assisted by accurate photo-

graphs of the plaintiff, as these would provide a strong

basis to contest the accuracy of the midwives’ recorded

observations. Fortunately for the plaintiff, the experts

she retained did not require the photographs in order to

form their opinions.

The comment by Davies J that the authenticity and

admissibility of the photographs would be a matter for

the trial judge to determine highlights the risk of going

to trial in a case where the expert evidence is entirely

based on photographs. As stated above, here the expert

evidence was based on contemporaneous clinical notes

and the expertise of each expert.

In conclusion, it is advisable that lawyers consider

whether they have authenticated and verified — or

whether they need to do so — information and docu-

ments, including photographs, via the appropriate experts

prior to instructing medical experts if there is likely be

an issue regarding the accuracy of the documents or

evidence. In circumstances where authentication or veri-

fication is not possible, lawyers should ensure that

expert evidence is only reinforced by, and not entirely

based on, photographic evidence.

Anna Walsh

Principal

Medical Law Department

Maurice Blackburn Lawyers

Joelle Matar

Solicitor

Medical Law Department

Maurice Blackburn Lawyers

australian civil liability May 2013146

Footnotes1. Masters bht Masters v Sydney West Area Health Service [2013]

NSWSC 228; BC201301460.

2. Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; 25

NSWCCR 218; [2001] NSWCA 305; BC200105538.

3. Above, n 1, at [29].

4. Above, n 1, at [27].

5. Above, n 1, at [28].

6. Above, n 1, at [48].

australian civil liability May 2013 147

Index to Volume 9Page numbers in volume 9 correspond to the following

issues:

Issue 1 — pp 1–16

Issue 2 — pp 17–28

Issues 3&4 — pp 29–52

Issue 5 — pp 53–68

Issues 6&7 — pp 69–96

Issue 8 — pp 97–116

Issue 9 — pp 117–32

Issue 10 — pp 133–60

Table of articlesThis table lists alphabetically by author all articles

appearing in volume 9 of Australian Civil Liability.

Barnett, AlexanderThe court confirms that company officers can be affected

by a declaration of a company’s contravention of the

civil penalty provisions of the Corporations Act 2001:

Australian Securities and Investments Commission v

Managed Investments Ltd No 4 — 129

Boomer, Kate; Ursino, Anthony; and Pearsall,AngelaProportionate Liability: High Court broadens scope of

“same damage” test: Hunt & Hunt Lawyers v Mitchell

Morgan Nominees Pty Ltd — 134

Bromberger, NikkiWhen words ain’t words — contributory negligence,

Civil Liability Acts and the standard of care — 57

Brookes, Mark and Rickersey, LaurenFederal Court determines whether legal professional

privilege applies to investigation reports — Ensham

Resources Pty Ltd vAIOI Insurance Company Ltd — 23

Clohessy, Kate and Stevens, RebeccaOccupiers of licensed premises’ liability found to extend

to actions of an employee off premises — 98

Cooper, MontyPassing the smell test: Twombly, Iqbal, and a California

Federal Court’s requirement of more specificity in com-

plaint against defendants — 65

Crisp, Ashley; Pereira, Nicky; and MacLean, SarahFalling ceiling panels and the Civil Liability Act 2002

(WA): Barnes v New Zealand Holdings Pty Ltd — 13

Crittenden, Robert and Nash, ElizabethCase note: Rail Corporation NSW v Vero Insurance

Ltd — 4

Dinkha, OliviaAssessing economic loss: when will a theoretical earn-

ing capacity have no value? Mead v Kerney — 25

New South Wales Court of Appeal dismisses appeal in

respect of award of damages for non-economic loss and

future economic loss: Clifton v Lewis — 20

NSW Court of Appeal examines principles applicable in

challenges to assessments of non-economic loss —

Jackson v Mazzafero: decision date 15 June 2012 — 8

Doepel, MarkEverything old is new again? The High Court says

yes — 43

Doepel, Mark and Love, SarahRatings agency pierces the disclaimer veil: Bathurst

Regional Council v Local Government Financial Ser-

vices Pty Ltd (No 5) — 112

Doepel, Mark and Sharp, SarahThe inspection of insurance affairs in litigation — 18

Douglas, RichardResidential entrants beware! — 30

Ellinghaus, Jethro and Narayanan, GangaFinger lickin’ bad: Samaan bht Samaan v Kentucky

Fried Chicken Pty Ltd — 2

Fini, CarloLate amendment to plead proportionate liability in home

building case disallowed — a case note on Rennie

Golledge Pty Ltd v Ballard — 104

Proportionate liability held not to apply to a contractual

indemnity: Perpetual Trustee Company Ltd v CTC

Group Pty Ltd (No 2) — 137

Fitzpatrick, SusanThe peer professional opinion defence in s 5O Civil

Liability Act 2002 (NSW): some uncertainties — 78

australian civil liability May 2013148

Hitch, Jason D

Obscure torts in the commercial sphere: conspiracy,

intimidation, and wrongful interference with trade or

business as asserted in Ballard v Multiplex — 118

Katter, Dominic H and Quinn, Andrew

Continuing proceedings after delay — 75

Kemp, Adrian

Indemnity clauses and the Accident Compensation Act

1985 (Vic) — 63

Love, Sarah and Doepel, Mark

Ratings agency pierces the disclaimer veil: Bathurst

Regional Council v Local Government Financial Ser-

vices Pty Ltd (No 5) — 112

MacLean, Sarah; Crisp, Ashley; and Pereira, Nicky

Falling ceiling panels and the Civil Liability Act 2002

(WA): Barnes v New Zealand Holdings Pty Ltd — 13

Madden, Bill

Identifying a special category of uncapped negligence

claims & widening the trespass doorway: Dean v Phung

— 35

Markham, Rory

A cautionary tale for solicitors to exercise independent

judgment and care when advising on litigation — 92

Matar, Joelle and Walsh, Anna

Expert evidence and the use of photographs in a medical

negligence case: Cassie Masters by her tutor William

Masters v Sydney West Area Health Service — 144

McGinley, Tim and Walsh, Jonathan

Case note: Mario Perez v The State of New South

Wales — 127

McKay, Clare

Can concurrent liability in torts and contract permit

recovery for loss of chance of a better medical outcome?

— 82

McKie, Sheena and Williams, Greg

“But for” still a “necessary condition” for causation — 54

Narayanan, Ganga and Ellinghaus, Jethro

Finger lickin’ bad: Samaan bht Samaan v Kentucky

Fried Chicken Pty Ltd — 2

Nash, Elizabeth and Crittenden, RobertCase note: Rail Corporation NSW v Vero Insurance

Ltd — 4

Pearsall, Angela; Boomer, Kate; and Ursino,AnthonyProportionate Liability: High Court broadens scope of

“same damage” test: Hunt & Hunt Lawyers v Mitchell

Morgan Nominees Pty Ltd — 134

Pereira, Nicky; MacLean, Sarah; and Crisp, AshleyFalling ceiling panels and the Civil Liability Act 2002

(WA): Barnes v New Zealand Holdings Pty Ltd — 13

Quinn, Andrew and Katter, Dominic HContinuing proceedings after delay — 75

Renwick, JamesRecent Australian developments in international arbitra-

tion — 70

Rheingold, Paul DMass torts in the United States — 40

Private settlement of mass product litigation in the

United States — 60

Rickersey, Lauren and Brookes, MarkFederal Court determines whether legal professional

privilege applies to investigation reports — Ensham

Resources Pty Ltd vAIOI Insurance Company Ltd — 23

Serdev, VerginiaCase note: Bird v Ford — 140

Sharp, Sarah and Doepel, MarkThe inspection of insurance affairs in litigation — 18

Siavelis, JustineJoinder of insurers, a balancing of the scales — The

Owners — Strata Plan 62658 v Mestrez Pty Ltd — 88

Siavelis, Justine and Winterton, JadeWhen will advocates’ immunity apply to work outside of

court? Donnellan v Woodland — 109

Slabacu, BiancaOccupiers’ liability and foreseeable risk of harm: Novakovic

v Stekovic — 11

Stevens, Rebecca and Clohessy, KateOccupiers of licensed premises’ liability found to extend

to actions of an employee off premises — 98

australian civil liability May 2013 149

Telford, Paul

Privilege against self-incrimination in civil proceedings

— 73

Templeman, Deborah

A view from the West on joinder of insurers: QBE

Insurance (Aust) Ltd v Lois Nominees Pty Ltd — 45

Ursino, Anthony; Pearsall, Angela; and Boomer,Kate

Proportionate Liability: High Court broadens scope of

“same damage” test: Hunt & Hunt Lawyers v Mitchell

Morgan Nominees Pty Ltd — 134

Walsh, Anna and Matar, Joelle

Expert evidence and the use of photographs in a medical

negligence case: Cassie Masters by her tutor William

Masters v Sydney West Area Health Service — 144

Walsh, JonathanAsbestos claims and the failure of the ACT workers

compensation legislation — 49

Walsh, Jonathan and McGinley, TimCase note: Mario Perez v The State of New South

Wales — 127

Williams, Greg and McKie, Sheena“But for” still a “necessary condition” for causation — 54

Winterton, JadeThe new landscape of the law of evidence in Western

Australia: an overview of the Evidence and Public

Interest Disclosure Legislation Amendment Act 2012

(WA) — 123

Winterton, Jade and Siavelis, JustineWhen will advocates’ immunity apply to work outside of

court? Donnellan v Woodland — 109

australian civil liability May 2013150

Table of casesThis table lists alphabetically all cases appearing in

volume 9 of Australian Civil Liability. Page numbers in

bold refer to articles focusing on the relevant case.

A-G (Cth) v Breckler (1999) 197 CLR 83; 163 ALR

576; [1999] HCA 28; BC9903188 — 72

ACCC. See Australian Competition and Consumer

Commission

Actos (Pioglitazone) Products Liability Litigation, Re

WDLa — 40

Adamson v Motor Vehicle Insurance Trust (1957) 58

WALR 56 — 59

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR

420; 260ALR 628; [2009] HCA48; BC200910035 — 55,

99, 103

Allianz Australia Ltd v Sim (2012) 10 DDCR 325;

[2012] NSWCA 68; BC201202036 — 54

Allied Security Group Pty Ltd v Karimi and Rooty

Hill RSL Club Ltd [2009] NSWCA 2; BC200900383

— 99

Amaca Pty Ltd (under NSW administered winding

up) v Booth (2011) 283 ALR 461; 86 ALJR 172; [2011]

HCA 53; BC201109716 — 55

Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR

576; [2010] HCA 5; BC201000970 — 55

Amaca Pty Ltd v Novek (2009) 9 DDCR 199; [2009]

NSWCA 50; BC200901583 — 128

Amchem Products, Inc v Windsor 521 US 591 (1997) —

60

American Home Assurance Company v King [2001]

NSWCA 201; BC200103487 — 5

Anderson v Australian Securities and Investments

Commission (2012) 91 ACSR 452; [2012] QCA 301;

BC201208517 — 73–4, 130

Anjin No 13 Pty Ltd v Allianz Australia Insurance

Ltd (2009)26VR148; [2009]VSC371;BC200907943 —

89, 91

Aquagenics Pty Ltd v Break O’Day Council [2010]

TASFC 3; (2010) 26 BCL 263; BC201002872 — 139

Artahs Pty Ltd v Gall Standfield & Smith (a firm)

[2012] QCA 272; BC201207708 — 75–6

Ashby v Commonwealth (No 4) [2012] FCA 1411;

BC201209686 — 121

Ashcroft v Iqbal 556 US 662 (2009) — 65–7

Ashjal Pty Ltd v Alfred Toepfer International (Aust)

Pty Ltd [2012] NSWSC 1306; BC201208244 — 71

Ashmere Cove Pty Ltd v Beekink (No 2) (2007) 244

ALR 534; (2007) 14 ANZ Ins Cas 61-741; [2007] FCA

1421; BC200707813 — 46–7, 91

ASIC. See Australian Securities Investments and

Commission

Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR

155; [1999] HCA 6; BC9900546 — 84, 86

Attard v James Legal Pty Ltd (2010) 80 ACSR 585;

[2010] NSWCA 311; BC201008799 — 110

Australian Casualty Co Ltd v Federico (1986) 160

CLR 513; (1986) 66 ALR 99; BC8601440 — 6

Australian Competition and Consumer Commission

v Australian Safeway Stores (1998) 81 FCR 526; 153

ALR 393; (1998) ATPR 41-631; BC9800786 — 24

Australian Securities Investments and Commission

v Healey [2011] FCA 717; BC201104526 — 74

Australian Securities and Investments Commission

v Managed Investments Ltd (No 2) [2012] QSC 072;

BC201201724 — 130

Australian Securities and Investments Commission

v Managed Investments Ltd (No 4) [2013] QSC 015;

BC201300537 — 129–30

Australian Securities and Investments Commission

v Mining Project Group Ltd (2007) 164 FCR 32; 65

ACSR 264; [2007] FCA 1620; BC200709199 — 74

Australian Securities and Investments Commission

v Rich (2004) 50 ACSR 500; 22 ACLC 1232; [2004]

NSWSC 836; BC200406016 — 130

Bain v Bambit [2012] NSWDC 113 — 38

Ballard v Brookfield Australia Investments Ltd [2012]

NSWCA 434; BC201210044 — 121

Ballard v Brookfield Australia Investments Ltd [2013]

NSWCA 18; BC201300773 — 121

Ballard v Multiplex [2012] NSWSC 426;

BC201203232 — 118–21

Barclay v Penberthy (2012) 291 ALR 608; [2012]

HCA 40; BC201207490 — 43–4

Barker v Corus UK Ltd [2006] 2 AC 572; [2006] All

ER (D) 23 (May); [2006] NLJR 796; [2006] UKHL

20 — 86

Barnes v New Zealand Holdings Pty Ltd [2011]

WADC 208 — 13

Basha v Vocational Capacity Centre Pty Ltd [2009]

NSWCA 409; BC200911475 — 9

Bathurst Regional Council v Local Government Finan-

cial Services Pty Ltd (No 5) [2012] FCA 1200;

BC201208415 — 112–3

Bayley v Queensland [2001] QSC 476; BC200108111 —

76

Bell Atl Corp v Twombly 550 US 544 (2007) —

65–7

Bird bht Bird v Campbelltown Anglican Schools

Council [2007] NSWSC 1465; BC200710969 — 142

Bird v Ford [2013] NSWSC 264; BC201301494 —

142

Birkett v James [1978] AC 297; [1977] 2 All ER 801;

[1977] 3 WLR 38 — 76

australian civil liability May 2013 151

Bishopgate Insurance Australia Ltd (in liq) v Deloitte

Haskins and Sells (Supreme Court of Victoria, Appeal

Div, No 4901 of 1989, 9 September 1994) — 76

Bolitho v City & Hackney Health Authority [1998]

AC 232; [1997] 4All ER 771; [1997] 3 WLR 1151 — 80

Brakoulias v Karunaharan (Ruling) [2012] VSC 272;

BC201204385 — 78

Breen v Williams (1996) 186 CLR 71; 138 ALR 259;

43 ALD 481; BC9604086 — 83, 86

Brisbane South Regional Health Authority v Taylor

(1996) 186 CLR 541; 139 ALR 1; 70 ALJR 866;

BC9604531 — 76

CAL No 14 Pty Ltd v Motor Accidents Insurance

Board (2009) 239 CLR 390; 260 ALR 606; [2009] HCA

47; BC200910034 — 87

Calderbank v Calderbank [1975] 3 All ER 333;

[1975] 3 WLR 586; [1976] Fam 93 — 109, 111

Campbell v United Pacific Transport Pty Ltd [1966]

Qd R 465 — 76

Carrier v Bonham [2002] 1 Qd R 474; [2001] QCA

234; BC200103216 — 58–9

CE Heath Underwriting & Insurance v Campbell

Wallis Moule & Co Pty Ltd [1992] 1 VR 386; (1991)

6 ANZ Ins Cas 61-071 — 89

CGU Insurance Ltd v Bazem Pty Ltd [2011] NSWCA

81; BC201101953 — 18

Chamberlain v Ormsby t/as Ormsby Flower [2005]

NSWCA 454; BC200511171 — 110

Chaplin v Hicks [1911] All ER Rep 224; [1911] 2 KB

786 (CA) — 85

Chapman v Hearse (1961) 106 CLR 112; [1962] ALR

379; (1961) 35 ALJR 170; BC6100100 — 12

Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd

(2010) 78 NSWLR 393; 272 ALR 750; [2010] NSWCA

190; BC201007088 — 71

Clifton v Lewis [2012] NSWCA229; BC201205723 —

20–2

Collingwood v Calvert (unreported, QCA, Fitzgerald P,

Mackenzie and Cullinane JJ, 6 December 1996, No

3028 of 1996, BC9606146) — 76

Commissioner for Railways (NSW) v Scott (1959)

102 CLR 392; [1959] ALR 896; (1959) 33 ALJR 126;

BC5900540 — 43–4

Commissioner of Railways v Ruprecht (1979) 142

CLR 563; 25ALR 481; 53ALJR 606; BC7900071 — 59

Commonwealth v Amann Aviation Pty Ltd (1991)

174CLR64;104ALR1;66ALJR123;BC9102617 — 85,

87

Commonwealth Bank of Australia v Witherow [2006]

VSCA 45; BC200600995 — 139

Conley v Gibson 355 US 41, 47 (1957) — 65

Cooper v Hopgood & Ganim (a firm) [1999] 2 Qd R

113; BC9802398 — 76

CootevKelly [2012]NSWSC219;BC201201254 — 86–7

Coron v Sandin (2006) US Dist LEXIS 41276 — 86

Cotton v Commissioner for Road Transport & Tram-

ways (1942) 43 SR (NSW) 66; 60 WN (NSW) 42 — 58

Crofter Hand Woven Harris Tweed Co v Veitch

[1942] AC 435; [1942] 1All ER 142; (1941) 111 LJPC

17; 166 LT 172 — 119

Crystal Wall Pty Ltd v Pham [2005] NSWCA 449;

BC200511039 — 9

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189

CLR345;146ALR402;71ALJR1143;BC9703378 — 70

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223

CLR 1; 214 ALR 92; [2005] HCA 12;

BC200500919 — 109–10, 143

Day v Rogers [2011] NSWCA 124; BC201103283 —

110

Dean v Phung [2010] NSWSC 722; BC201005174 —

39

Dean v Phung [2011] NSWSC 653; BC201104725 —

39

Dean v Phung [2012] NSWCA223; BC201205508 —

35–9

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284;

[2005] NSWSC 3; BC200500375 — 94

Dell v Dalton (1991) 23 NSWLR 528; 14 MVR 158;

(1991) Aust Torts Reports 81-112 — 9

Dempsey v Dorber [1990] 1 Qd R 418; (1989) 10 MVR

69 — 75–6

Den Hoedt v Barwick (2006) 46 MVR 30; [2006]

WASCA 196; BC200607740 — 9

Department of Health and Community Services (NT)

v JWB and SMB (Marion’s case) (1992) 175 CLR

218; 106 ALR 385; 66 ALJR 300; 6 AJFL 97 — 36

Department of Transport v Chris Smaller (Trans-

port) Ltd [1989] AC 1197; [1989] 1 All ER 897; [1989]

2 WLR 578 — 76

Deputy Commissioner of Taxation v Richard Walter

Pty Ltd (1995) 183 CLR 168; 127 ALR 21; 69 ALJR

223; BC9506421 — 72

DePuy Orthopaedics, Inc ASR Hip Implant Products

Liability Litigation, Re NDOh — 40

Desmond v Cullen (2001) 34 MVR 186; [2001] NSWCA

238; BC200104103 — 103

Dobbs v National Bank of Australasia Ltd (1935) 53

CLR 643; [1935] ALR 360; (1935) 9 ALJR 112;

BC3500024 — 72

Dobler v Halversen (2007) 70 NSWLR 151; [2007]

NSWCA 335; BC200710215 — 80

Donnellan v Woodland [2012] NSWCA 433;

BC201210043 — 109–11

Douglas v Hello! Ltd (No 3) [2004] All ER (D) 280

(May); [2005] 2 FCR (UK) 487; [2005] 3 WLR 881;

[2005] EWCA Civ 595 — 36

Dow v Tayside University Hospitals NHS Trust 2006

SLT (Sh Ct) 141 — 86–7

australian civil liability May 2013152

Dresna Pty Ltd v Misu Nominees Pty Ltd (2004)

ATPR (Digest) 46-245; [2003] FCA1537; BC200307948 —

121

Ellis v Rantzos (t/as Rantzos Hairdressing) [2005]

NSWCA 266; BC200506074 — 9

Ellis v Wallsend District Hospital (1989) 17 NSWLR

553; (1989) Aust Torts Reports 80-289 — 39

Employers Reinsurance Corp v Ashmere Cove Pty

Ltd (2008) 166 FCR 398; 15 ANZ Ins Cas 61757;

[2008] FCAFC 28; BC200801415 — 89

Employers Reinsurance Corp v Ashmere Cove Pty

Ltd [2008] HCA Trans 296 — 48

Ensham Resources Pty Ltd v AIOI Insurance Com-

pany Ltd [2012] FCA 710; BC201204912 — 23–4

Environment Protection Authority v Caltex Refining

Co Pty Ltd (1993) 178 CLR 477; 82 LGERA 51; 118

ALR 392; BC9303552 — 74

Esso Australia Resources v FCT (1999) 201 CLR 49;

168 ALR 123; [1999] HCA 67; BC9908417 — 24

Evans v Queanbeyan City Council (2011) 9 DDCR

541; [2011] NSWCA 230; BC201105860 — 86

Fairchild v Glenhaven Health Services Ltd [2003] 1

AC 32; [2002] 3 All ER 305; [2002] 3 WLR 89; [2002]

UKHL 22 — 87

Fosamax (alendronate sodium) Products Liability

Litigation (No II), Re DNJ — 40

Fugro Spacial Solutions Pty Ltd v Cifuentes [2011]

WASCA 102; BC201102281 — 43

Gerah Imports v Duke Group (1993) 12 ACSR 513;

61 SASR 557; 116 FLR 479; 12 ACLC 116 — 18–9

Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76;

BC200902489 — 84, 87

Giannarelli & Shulkes v Wraith (1988) 165 CLR 543;

81 ALR 417; 62 ALJR 611; BC8802647 — 109

Gladwell v Steggall (1839) 5 Bing (NC) 733 (CtCP) —

86

Gleeson v Brock [1969] Qd R 361 — 76

Goddard Elliott (a firm) v Fritsch [2012] VSC 87;

BC201201151 — 110–11

Godecke v Kirwan (1973) 129 CLR 629; 1 ALR 457;

47 ALJR 543; BC7300037 — 70

Gold v Essex County Council [1942] 2 KB 293; [1942]

2 All ER 237 (CA) — 87

Graham v Baker (1961) 106 CLR 340 — 21

Graham v Welch [2012] QCA 282; BC201208098 —

33

Gregg v Scott [2005] 2 AC 176; [2005] All ER (D) 269

(Jan); [2005] 2 WLR 268; [2005] UKHL 2 — 86–7

Griffıths v Kerkeyemer (1977) 139 CLR 161; 15 ALR

387; 51 ALJR 792; BC7700069 — 127

Grinham v Tabro Meats Pty Ltd; Victorian WorkCover

Authority v Murray [2012]VSC 491; BC201208113 —

79

Guilmet v Campbell 188 NW 2d 601 (Mich, 1971) —

86

Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417;

BC8400458 — 11

Halliday v Neville (1984) 155 CLR 1; 57 ALR 331;

(1984) Aust Torts Reports 80-315; BC8400463 — 32

Hamilton v Oades (1989) 166 CLR 486; 85 ALR 1; 63

ALJR 352; 15 ACLR 123 — 19

Hammond Worthington v Da Silva [2006] WASCA

180; BC200607262 — 9

Hartogen Energy Ltd (in liq) v Australian Gas Light

Co (1992) 36 FCR 557; 8 ACSR 277; 109 ALR 177;

BC9203584 — 24

Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69;

62 ALJR 240; BC8802597 — 94

HCCC. See Health Care Complaints Commission

Health Care Complaints Commission v Nemeth [2012]

NSWMT 4 — 37

Health Care Complaints Commission v Phung (No 1)

[2012] NSWDT 1 — 39

Health Care Complaints Commission v Tiong [2012]

NSWMT 6 — 37

Health Care Complaints Commission v Von Marburg

[2012] NSWMT 5 — 38

Hedley Byrne & Co Ltd v Heller & Partners Ltd

[1964] AC 465; [1963] 2 All ER 575 (HL); [1963] 3

WLR 101; [1963] 1 Lloyd’s Rep 485 — 84, 87

Henderson v Merrett Syndicates [1995] 2 AC 145;

[1994] NLJR 1204; [1994] 3 All ER 506; [1994] 3 WLR

761 — 86

Herskovits v Group Health Co-operative of Puget

Sound 664 P 2d 474 (Wash, 1983) — 86

Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 22

NSWCCR 428; [2001] HCA 44; BC200104558 — 98

Holmes v Civil & Civil Pty Ltd (unreported, QCA,

Fitzgerald P, McPherson JA and Demack J, 14 Septem-

ber 1992, No 15 of 1992, BC9202145) — 76

Hope v Hunter and New England Area Health Ser-

vice (2009) 10 DCLR (NSW) 63; [2009] NSWDC 307;

BC200940355 — 80

Hotson v East Berkshire Area Health Authority

[1987] AC 750; [1987] 2 All ER 909 (HL); [1987] 3

WLR 232 — 85, 87

Hotson v Fitzgerald [1985] 3 All ER 167; [1985] 1

WLR 1036 (QB) — 87

Hoy v Honan (unreported, QCA, Fitzgerald P, Der-

rington and Byrne JJ, 19 August 1997, No 4058 of 1996,

BC9705781) — 76

Hunt & Hunt Lawyers v Mitchell Morgan Nominees

Pty Ltd (2013) 296 ALR 3; [2013] HCA 10;

BC201301509 — 136

Insurance Commission of Western Australia

v Weatherall [2007] WASCA 264; BC200710572 — 11

australian civil liability May 2013 153

Interchase Corporation Ltd (in liq) v FAI General

Insurance Co Ltd [2000] 2 Qd R 301; (1998) 10 ANZ

Ins Cas 61-428; [1998] QCA 180; BC9803566 — 46

Jack Brabham Engines Ltd v Beare [2010] FCA 872;

BC201005917 — 120–1

Jackson v Mazzafero [2012] NSWCA 170;

BC201204227 — 8–10, 22

Jaenke v Hinton [1995] Aust Torts Reports 81-368;

[1995] QCA 484; BC9502146 — 30–1

JN Taylor Holdings Ltd (in liq) v Bond (1993) 59

SASR 432; BC9304569 — 89, 91

John Fairfax & Sons Ltd v Cojuangco (Newspaper

Rule case) (1988) 165 CLR 346; 82 ALR 1; BC8802649

— 125

Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137;

[2000] HCA 56; BC200006926 — 30, 32

Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367;

(1959) 76 WN (NSW) 278; BC5900240 — 46

Joslyn v Berryman (2003) 214 CLR 552; 198 ALR

137; [2003] HCA 34; BC200303073 — 59

Kaats v Caelers [1966] Qd R 482 — 76

Keddie v Stacks/Goudkamp Pty Ltd [2012] NSWCA

254; BC201206228 — 92–4

Keioskie v Workers’ Compensation Board of

Queensland (unreported, QCA, Macrossan CJ,

McPherson JA and Thomas J, 9 September 1992,

No 46 of 1992, BC9202177) — 76

Kirby v Centro Properties Ltd [2009] FCA 695;

BC200905672 — 18

KT v PLG & Ardlog Pty Ltd [2006] NSWSC 919;

BC200607310 — 39

Lamb v Munster (1882) 10 QBD 110 — 74

Lanphier v Phipos (1838) 8 C & P 475; 173 ER

581 — 86

Leahy & South Australia v Beaumont (1981) 27

SASR 290 — 58–9

Lee v Fairbrother (2009) 9 DCLR (NSW) 164; [2009]

NSWDC 192; BC200940234 — 37, 39

Lee v Taunton and Somerset NHS Trust [2000] All

ER (D) 2460; [2001] FLR 419 (QB); [2001] Fam Law

103; [2001] 1 Fam Law R 419 — 87

Legal & General Life of Aust Ltd v A Hudson Pty

Ltd (1985) 1 NSWLR 314; [1985] ANZ ConvR 108;

(1985) NSW ConvR 55-237 — 72

Lilyville Pty Ltd v Colonial Mutual Life Assurance

Society Ltd [1999] QSC 372; BC9908408 — 76

Liu v The Age Co Ltd (2012) 285 ALR 386; 257 FLR

360; [2012] NSWSC 12; BC201200265 — 125

Locke v Camberwell Health Authority [1991] 2 Med

LR 249 — 94

Lois Nominees Pty Ltd v Hill [2011] WASC 53;

BC201100816 — 47

Lois Nominees Pty Ltd v QBE Insurance (Aust) Ltd

(2011) 42WAR 75; [2011]WASC 208; BC201106349 —

47

London City Equities v Penrice Soda Holdings Ltd

(2011) 281 ALR 519; 84 ACSR 573; [2011] FCA 674;

BC201104295 — 18

MacDonald v Australian Securities Investments and

Commission (2007) 73 NSWLR 612; 65 ACSR 299;

[2007] NSWCA 304; BC200709160 — 74

Magnou v Australian Wool Testing Authority Ltd

[2007] NSWCA 357 — 25

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR

705; 25 NSWCCR 218; [2001] NSWCA 305;

BC200105538. — 146

March v E & M H Stramare Pty Ltd (1991) 171 CLR

506; 99 ALR 423; 65 ALJR 334; BC9102636 — 55

Masters bht Masters v Sydney West Area Health

Service [2013] NSWSC 228; BC201301460 — 145

McFarlane v Tayside Health Board [2000] 2 AC 59;

[1999] 4 All ER 961; [1999] 3 WLR 1301 — 86

McHale v Watson (1966) 115 CLR 199; [1966] ALR

513; (1966) 39 ALJR 459; BC6600450 — 58–9

McKellar v Container Terminal Management Ser-

vices Ltd (1999) 165 ALR 409; [1999] FCA 1101;

BC9904933 — 121

McKernan v Fraser (1931) 46 CLR 343; [1932] ALR

113; (1931) 5 ALJR 354; BC3200056 — 119, 121

MeadvKerney[2012]NSWCA215;BC201205500 — 25–7

Medlin v State Government Insurance (1995) 182

CLR 1; 127ALR 180; 69ALJR 118; BC9506433 — 21

Medtronic Sprint Fidelis Lead Wire, Re MDL No 1905

(D Minn) — 60

Medtronic, Inc, Sprint Fidelis Leads Products Liabil-

ity Litigation, Re 623 F3d 1200 — 60

Merck Sharp & Dohme (Aust) Pty Ltd v Peterson

(2011) 196 FCR 145; 284 ALR 1; [2011] FCAFC 128;

BC201107861 — 55

Miller v Miller (2011) 242 CLR 446; 275 ALR 611;

[2011] HCA 9; BC201101793 — 84, 87

Milward v Acuity Specialty Products Group, Inc 639

F3d 11 (1st Cir 2011) — 41

Mitchell Morgan Nominees Pty Ltd v Vella (2011) 16

BPR 30,189; [2011] NSWCA390; BC201109916 — 136

Mitsubishi Electric Pty Ltd v Victorian Workcover

Authority (2002) 4 VR 332; [2002] VSCA 59;

BC200202330 — 24

Mogul Steamship Co Ltd v McGregor Gow & Co

[1892] AC 25 — 121

Momcilovic v R (2011) 245 CLR 1; 280 ALR 221;

[2011] HCA 34; BC201106881 — 87

Neindorf v Junkovic (2005) 222 ALR 631; 80 ALJR

341; [2005] HCA 75; BC200510492 — 30

Nelson v Matrixx Initiatives, Inc No C 09-02904 (ND

Cal, May 18, 2012) — 65–7

australian civil liability May 2013154

New South Wales v Mikhael [2012] NSWCA 338;

BC201208083 — 54–6

Nickmar Pty Ltd v Preservatrice Skandia Insurance

Ltd (1985) 3 NSWLR 44; 3ANZ Ins Cas 60-657 — 24

Nocton v Lord Ashburton [1914] AC 932; [1914] All

ER Rep 45 (HL); (1914) 30 TLR 602 — 84

Nominal Defendant v Livaja [2011] NSWCA 121;

BC201103241 — 25–7

North Sydney Leagues Club Ltd v Berecry (2002)

Aust Torts Reports 81-657; [2002] NSWCA 154;

BC200202694 — 98–9, 103

Novakovic v Stekovic [2012] NSWCA 54;

BC201201598 — 11–2

OBG Ltd v Allan [2008] 1 AC 1; [2007] All ER (D) 44

(May); [2007] 2 WLR 920; [2007] UKHL 2 — 120–1

One.Tel Ltd (in liq), Re; Australian Securities and

Investments Commission v Rich (2003) 44 ACSR 682;

21 ACLC 672; [2003] NSWSC 186; BC200301066 —

130

Orcher v Bowcliff Pty Ltd [2012] NSWSC 1088;

BC201210506 — 98–103

Orica Ltd v CGU Insurance Ltd (2003) 59 NSWLR

14;1DDCR87;[2003]NSWCA331;BC200306819 — 50

Ortiz v Fibreboard Corp 527 US 815 (1999) — 62

Owners-Strata Plan 62658 v Mestrez Pty Ltd [2012]

NSWSC 1259; BC201209357 — 47, 88–91

Perez v New South Wales [2013] NSWDDT 1 — 127–8

Perpetual Trustee Co Ltd v CTC Group Pty Ltd

[2012] NSWCA 252; BC201206238 — 139

Perpetual Trustee Company Ltd v CTC Group Pty

[2013] NSWCA 58; BC201301287 — 138

Pippin v Sheppard (1822) 11 Price 400 (Exch); 147 ER

512 — 86

Pittman Estate v Bain (1994) 112 DLR (4th) 257

(Ontario Court of Justice) — 83

PLIVA, Inc, v Mensing 131 SCt 2567 (2011) — 40–1

Port of Melbourne Authority v Anshun Pty Ltd

(1981) 147 CLR 589; 36 ALR 3; 55 ALJR 621;

BC8100097 — 46–8

Portelli v Tabriska Pty Ltd [2009] NSWCA 17;

BC200900694 — 100, 102–3

Propecia (Finasteride) Product Liability Litigation,

Re EDNY — 40

Qantas Airways Ltd v Transport Workers’ Union of

Australia (2011) 280 ALR 503; 211 IR 1; [2011] FCA

470; BC201102981 — 120

QBE Insurance (Aust) Ltd v Lois Nominees Pty Ltd

[2012] WASCA 186; BC201207427 — 45–8, 88, 91

Quinlan v Rothwell [2002] 1 Qd R 647; [2001] QCA

176; BC200102262 — 76

R v Bateman (1925) 133 LT 730; 94 LJKB 791; 19 Cr

App R 8 (CA); 41 TLR 557 — 86–7

R v Mobilio [1991] 1 VR 339; (1990) 50 A Crim R

170 — 37, 39

Rabay v Bristow [2005] NSWCA199; BC200504147 —

9

Rail Corporation NSW v Vero Insurance Ltd [2012]

NSWSC 632; BC201203998 — 4–7

Rank Film Distributors Ltd v Video Information

Centre [1982] AC 380; [1981] 2 All ER 76; [1981] 2

WLR 668; [1981] FSR 363 — 74

Rees v Darlington Memorial Hospital NHS Trust

[2004] 1 AC 309; [2003] 4 All ER 987; [2003] 3 WLR

1091; [2003] UKHL 52 — 87

Refrigerated Express Lines (Australasia) Pty Ltd v

Australian Meat & Live-Stock Corporation (1979) 42

FLR 204; (1979) ATPR 40-137 — 74

Reinhold v New South Wales Lotteries Corp (No 2)

[2008] NSWSC 187; BC200801327 — 139

Rennie Golledge Pty Ltd v Ballard [2012] NSWCA

376; BC201209167 — 104–7

Reynolds v Health First Medical Group [2000] Lloyd’s

Rep Med 240 (CC) — 87

Riegel v Medtronic, Inc 552 US 312 (2008) — 62

Roberts v Ramsbottom [1980] 1 All ER 7; [1980] 1

WLR 823; [1980] RTR 261 — 58–9

Rogers v Whitaker (1992) 175 CLR 479; 109 ALR

625; 67 ALJR 47; BC9202689 — 86

Rooty Hill Medical Centre v Gunther [2002] NSWCA

60; BC200200741 — 39

Rothwell v Chemical & Insulating Co Ltd [2008] 1

AC 281; [2007] 4 All ER 1047; [2007] 3 WLR 876;

[2007] UKHL 39 — 82–3, 85–6

Samaan bht Samaan v Kentucky Fried Chicken Pty

Ltd [2012] NSWSC 381; BC201202507 — 2–3

Sanders v Snell (1998) 196 CLR 329; 157 ALR 491; 72

ALJR 1508; BC9805142 — 120

Sellars v Adelaide Petroleum NL (1994) 179 CLR 332;

120 ALR 16; 68 ALJR 313; BC9404621 — 86

Shaw v Thomas [2010] NSWCA 169; BC201005097 —

31–3

Sherry v Australasian Conference Association (t/as

Sydney Adventist Hospital) [2006] NSWSC 75;

BC200600702 — 39

Sibraa v Brown [2012] NSWCA 328; BC201208686 —

32–3

Snelgrove v Great Southern Managers Australia Ltd

(in liq) (rec and mgr apptd) — 18

Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR

237; 57 ALJR 248; BC8300067 — 74

Southgate v Waterford (1990) 21 NSWLR 427; (1990)

Aust Torts Reports 81-065; BC9001703 — 9

Spedding v Nobles; Spedding v McNally (2007) 69

NSWLR 100; [2007] NSWCA29; BC200700962 — 103

St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR

666; [2009] VSCA 245; BC200909697 — 136

australian civil liability May 2013 155

Starks v RSM Security Pty Ltd (2004) Aust Torts

Reports 81-763; [2004] NSWCA351; BC200406355 —

98, 103

Strong v Woolworths Ltd t/as Big W (2012) 285 ALR

420;86ALJR267; [2012]HCA5;BC201200949 — 54–5,

87

Studerv Boettcher [2000] NSWCA263; BC200007223 —

94

Style Ltd, Re (2009) 255 ALR 63; [2009] FCA 314;

BC200902188 — 18

Sullivan v Gordon (1999) 47 NSWLR 319; 30 MVR

29; [1999] NSWCA 338; BC9906092 — 128

Sydney South West Area Health Services v MD

(2009) 260ALR 702; [2009] NSWCA343; BC200909477

— 80

Tabet v Gett (2010) 240 CLR 537; 265 ALR 227;

[2010] HCA 12; BC201002304 — 82–4, 86–7

Tate v McLeod [1969] Qd R 217 — 76

TCL Air Conditioner (Zhongshan) Co Ltd v Judges

of the Federal Court of Australia — 70–2

Thake v Maurice [1986] QB 644 (CA); [1986] 1 All

ER 497; [1986] 2 WLR 337 — 86

Thompson v Woolworths (Qld) Pty Ltd (2005) 221

CLR 234; 79ALJR 904; [2005] HCA19; BC200502226 —

30

Thornton v Sweeney (2011) 59 MVR 155; [2011]

NSWCA 244; BC201106403 — 11

Todorovic v Waller (1981) 150 CLR 402 — 25

Town of Port Hedland v Hodder (No 2) [2012]

WASCA 212; BC201208196 — 57–9

Tyler v Custom Credit Corp Ltd [2000] QCA 178;

BC200002582 — 75–6

Upper Hunter Country District Council v Australian

Chilling & Freezing Co Ltd (1968) 118 CLR 429; 41

ALJR 348; BC6800450 — 70

Vairy v Wyong Shire Council (2005) 223 CLR 422;

221 ALR 711; [2005] HCA 62; BC200507887 — 11

Vella v Permanent Mortgagees Pty Ltd (2008) 13

BPR 25,343; [2008] NSWSC 505; BC200803886 — 79,

136

Wallace v Kam (HCA, pending) — 87

Westport Insurance Corp v Gordian Runoff Ltd

(2011) 244 CLR 239; 281 ALR 593; [2011] HCA 37;

BC201107579 — 71

Wighton vArnot [2005] NSWSC 637; BC200504663 —

38

Williams v Hursey (1959) 103 CLR 30; [1959] ALR

1383; (1959) 33 ALJR 269; BC5900600 — 121

Williams v Spautz (1992) 174 CLR 509; 107 ALR 635;

66 ALJR 585; BC9202694 — 142

Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1)

NSW 405 — 76

Wong v Commonwealth (2009) 236 CLR 573; 252

ALR 400; [2009] HCA 3; BC200900209 — 87

Woodward v Proprietors Lauretta Lodge Building

Units Plan No 1792 [1997] QCA183; BC9702735 — 31,

33

World Trade Center Disaster Site Litigation, Re

(SDNY, opinion of Judge Hellerstein 11 March 2011) —

62

Wynn Tresidder Management v Barkho [2009] NSWCA

149; BC200905074 — 9

Yearworth v North Bristol NHS Trust [2009] All ER

(D) 33 (Feb); [2010] QB 1 (CA); [2009] 3 WLR 118;

[2009] EWCA Civ 37 — 87

Zoloft (sertaline hydrochloride) Product Liability

Litigation, Re EDPa — 40

australian civil liability May 2013156

Table of statutesThis table lists alphabetically within each jurisdiction

all statutes appearing in volume 9 of Australian Civil

Liability.

Australia

CommonwealthAustralian Securities and Investments Commission

Act 2001

s 12DA — 112

Bankruptcy Act 1966

s 117 — 46, 89

Corporations Act 2001 — 74, 129–30

Ch 5A — 88

s 209(2) — 73

s 247A — 18

s 562 — 88–9

s 596B — 18–9

s 601AG — 18

s 601AH — 88

s 601FC — 73

s 601FC(5) — 73

s 601FD — 73

s 1041E — 112

s 1317E(1) — 73

s 1317E(2) — 129

s 1317F — 129–30

s 1941H — 112

Evidence Act 1995 — 123–5

s 126G — 124

EvidenceAmendment(Journalists’Privilege)Act2010 — 124

Sch 1 — 125

EvidenceAmendment(Journalists’Privilege)Bill2010 — 125

Federal Court of Australia Act

s 53A — 70

Foreign Judgments Act 1991 — 71

Insurance Contracts Act 1984

s 51 — 4–6, 18

International Arbitration Act 1974 — 70–2

State and territoryBuilding and Construction Industry Security of Payment

Acts — 70

Civil Liability Acts — 57, 80

Australian Capital TerritoryPublic Interest Disclosure Act 1994 — 124

Workers Compensation Act 1951 — 49–51

Pt 8.2 — 49

s 18(1) — 49

s 18(5) — 49

s 166A — 50

s 170 — 50

Sch 3 — 49, 51

New South Wales

Building and Construction Industry Security of Payment

Act 1999 — 71

Civil Liability Act 2002 — 12, 31, 35, 55, 84, 88,

105, 128, 134, 140

Pt 1A — 84, 87

Pt 4 — 104–5, 107, 134, 137

s 3 — 138

s 3A(2) — 137

s 3B — 35–6

s 3B(1)(a) — 35

s 5A(1) — 87

s 5B — 6, 11

s 5B(1)(b) — 31–2

s 5B(1)(c) — 31–2

s 5B(2) — 12, 32

s 5C — 6

s 5D — 54

s 5D(1) — 54–5

s 5D(1)(a) — 54

s 5D(2) — 55

s 5O — 78–81

s 5O(3) — 80

s 5O(4) — 80

s 5P — 80

s 5R — 59

s 11A — 35

s 13 — 21–2

s 15B — 127–8

s 15B(2)(d) — 128

s 16 — 8, 20, 22

s 34 — 134

s 34(1) — 138

s 34(2) — 105, 134

s 35 — 104–5

s 35(1) — 90, 105

s 35(1)(b) — 142

s 35(3) — 105

s 35(3)(a) — 105

Civil Procedure Act 2005

s 14 — 89

s 16 — 89

ss 35–55 — 70

s 56 — 91, 106

s 56(3) — 106

s 57 — 106

s 58 — 91, 106

s 61(1) — 91

australian civil liability May 2013 157

s 64 — 106

s 64(2) — 106

Conveyancing Act 1919

s 88K — 109

Evidence Act 1995 — 124

Pt 3.10 Div 1A — 123

EvidenceAmendments (Journalist Privilege)Act 2011 —

124

Law Reform Miscellaneous ProvisionsAct 1946 — 18,

136

s 5(1)(c) — 107

s 9 — 105

Legal Profession Act 2004 — 141

ss 345–47 — 142

s 345 — 92, 94

s 348 — 92–3

Liquor Act 2007 — 101

Motor Accidents Compensation Act 1999 — 94

Pt 3.4 — 94

Public Interest Disclosures Act 1994 — 124

Supreme Court Act 1970

s 20 — 91

s 23 — 91

s 63 — 91

Transport Administration Act 1988

s 19A — 7

Transport Legislation Amendment Act 2011

Sch 3 — 7

Uniform Civil Procedure Rules 2005 — 144

r 2.1 — 91

r 6.19(1) — 18

r 6.24(1) — 91

r 16.19(1) — 89

r 31.27 — 144

Workers Compensation Act 1987 — 50–1

s 151AB — 51

s 151AB(1) — 50

Workplace Injury Management and Workers Compensa-

tion Act 1998 — 94

Northern TerritoryPublic Interest Disclosure Act — 124

QueenslandCivil Liability Act 2002

s 4 — 87

s 22 — 80

s 22(2) — 80

s 23 — 59

Public Disclosure Act 2010 — 124

Uniform Civil Procedure Rules 1999 — 73–4

r 5 — 74

r 165 — 74

r 166 — 73–4

r 166(1) — 74

r 166(3)(a) — 74

r 166(3)(b) — 74

r 166(4) — 73

r 166(5) — 74

r 166(6) — 74

r 389 — 75

r 389(2) — 75–6

South AustraliaCivil Liability Act 1936

s 4 — 87

s 41 — 80

s 41(1) — 80

s 41(2) — 80

s 44 — 59

TasmaniaCivil Liability Act 2002

s 3B(1)(a) — 35

s 22 — 80

s 22(1) — 80

s 22(2) — 80

s 23 — 59

Evidence Act 2001

Ch 3 Pt 10 Div 1A — 125

Public Interest Disclosure Act 2002 — 124

VictoriaAccident Compensation Act 1985 — 63–4

s 138 — 63

s 138(4A) — 63

Whistleblowers Protections Act 2001 — 124

Wrongs Act 1958

s 23B — 134

s 28C(2)(a) — 35

s 28C(3) — 87

s 59 — 78–80

s 59(1) — 80

s 60 — 80

s 62 — 59

Western AustraliaCivil Liability Act 2002

s 5A(2) — 87

s 5B(1) — 13

s 5B(2) — 13

s 5K — 57–9

s 5K(2)(a) — 58

s 5PB — 80

Evidence Act 1907 — 123–4

s 20A(1) — 125

australian civil liability May 2013158

s 20C — 125

s 20D — 125

s 20E — 125

s 20G — 125

s 20I — 125

s 20J — 125

s 20K — 125

s 20L — 125

Evidence and Public Interest Disclosure Legislation

Amendment Act 2012 — 123–5

Evidence and Public Interest Disclosure Legislation

Amendment Bill 2011 — 125

Public Interest Disclosure Act 2003 — 123–4

s 3 — 125

s 5 — 125

s 7A — 125

s 8 — 125

s 10 — 124–5

s 12 — 125

s 15A — 125

s 15B — 125

s 16 — 125

s 17 — 125

Rules of the Supreme Court 1971 — 19

r 9A — 19

New ZealandEvidence Act 2006

s 68 — 124

United KingdomNational Health Services Act 1946 — 87

United StatesAir Transportation Safety and System StabilizationAct —

60

Federal Rules of Civil Procedure

r 8 — 65

r 8(a)(2) — 65

r 12(b)(6) — 65–7

r 23 — 61

Notice Pleading Restoration Act of 2009 — 67

United States Code

21 USC § 1407 — 62

21 USC § 1407(a) — 40

49 USC § 40101 — 62

australian civil liability May 2013 159

PUBLISHING EDITOR: Linda Cazzolli PUBLISHER: Joanne Beckett

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ISSN 1449-6127 Print Post Approved PP 255003/07024 Cite as (2013) 9(10) CL

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