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Another Trip And Fall Case Rejected

January 15th 2009 12:50

The Queensland Court of Appeal [McMurdo P, Fraser JA and Mackenzie AJA] has upheld the decision of the Supreme Court in another trip and fall case where the primary judge held that the unfortunate injury was not caused by the negligence of the respondent but rather the plaintiff's own carelessness.

ELLIS V UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (Q) [2008] QCA 388

FACTS

The plaintiff, Mr Ellis, was walking home late on a rainy evening. He had consumed alcohol in the hours leading up to the incident but not enough to impair his ability to keep a proper lookout. He was in a hurry to get home and out of the rain. The fall occurred on the driveway of the premises run by Lifeline. The area of the fall was poorly illuminated due to the absence of a nearby street light.

The plaintiff was well aware of the protruding paver.

He struck his foot on the raised paver and lost his balance.

The plaintiff was unable to walk after the accident and had to crawl to the shelter of a nearby tree until someone found him which did not happen for many hours.

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Posted By: Craig Hill - Category: Litigation

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Ten Major Developments In Commercial Litigation In 2008

January 11th 2009 12:11

Economic conditions, court decisions, and a new Federal Government all will generate changes during 2009. The following are the top ten developments according to Clayton Utz Solicitors.

Top Ten Development Commercial Litigation

1. Economic downturn triggers a rise in litigation

As the economy slowed in 2008, litigation departments became increasingly busy. Demand for litigation has traditionally been counter-cyclical...

2. The rise and rise of litigation funding

2008 was a bumper year for litigation funders. The Aristocrat class action was settled for a record $145 million ...

3. Last year of the Gleeson-led High Court

August 29 marked the end of the Gleeson era, as the 11th Chief Justice of the High Court reached the constitutional retirement age. The Gleeson court will be fondly remembered by the business community. Gleeson promoted consensus on the bench ...

4. Sub-prime litigation

The fallout from the sub-prime crisis triggered an explosion of litigation in the USA in 2008. We saw a similar spike in litigation after the dot com bust in 2000...

5. Spotlight on the cost of litigation

How to keep litigation costs under control was again a key issue in 2008. In the shadow of the C7 appeal, various proposals were mooted to discourage mega-litigation including abolishing the tax deductibility of legal costs...

6. A new government

Faced with a severe financial crisis in its first full year on the job, the Rudd government resisted the temptation to over regulate. It will however, be interesting to see what flows from the government's review of credit ratings agencies and its survey of company directors...

7. Push for an action for invasion of privacy gathers pace

The debate about personal privacy was brought to a head in 2008, with the Australian Law Reform Commission recommending the introduction of a statutory cause of action for a serious invasion of privacy....

8. Protecting privilege

The protection of client legal privilege was the sleeper issue of 2008. Since the decision in the Federal Court case of Rich v Harrington was handed down at the end of last year, claims for privilege over communications with in-house lawyers are being far more closely scrutinised by the courts....

9. Criminalising cartels

The headline issue in trade practices law in 2008 was the release of draft laws to criminalise serious cartel conduct...

10. An emboldened regulator?

After enduring accusations over the years of being too conservative in its approach to prosecuting corporate misfeasance, the Australian Securities and Investments Commission took the bold move of launching a $200 million action against KPMG over its auditing of various Westpoint entities...

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Posted By: Craig Hill - Category: Litigation

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State Of Mind And Waiver Of Privelege

January 10th 2009 11:49

Do you impliedly waive privilege in your legal advice by putting in issue your state of mind? Generally speaking, two distinct approaches emerged, a broad view and a narrower view, but recently the narrower view has prevailed. The NSW Court of Appeal recently signalled however that it might be prepared to take a broader view of issue waiver when a party has put in issue his or her state of mind.

Key Point

* If the Court of Appeal's comments are followed, framing a case might be enough to inadvertently waive privilege.

Broad vs narrow

An example of the broad view is the decision in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152. BT claimed that Telstra had engaged in misleading and deceptive conduct which induced it to enter into an agreement. Telstra then sought discovery of legal advice received by BT, on the basis that the advice went to BT's state of mind when it entered into the agreement. Even though BT did not refer to any legal advice, the Court found that privilege had been waived.

Breach Of Confidence Claims And Awards Of Damages

January 9th 2009 11:31

Previously, the Victorian Court of Appeal awarded damages for the distress caused by the unauthorised showing of a private sex tape. It is worth looking at the decision in Giller v Procopets [2008] VSCA 236, and its potential consequences, in more detail.

Key Points

* Damages are now available for pure mental distress for breach of confidence claims, where the essence of the claim is that there has been a misuse of private information. This could have important consequences for the media in Australia.

* In this case, the Victorian Court of Appeal chose to adapt the existing action of breach of confidence rather than recognise a novel action for breach of privacy.

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Posted By: Craig Hill - Category: Litigation

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Second Thoughts Do Not Justify Reinstatement

January 7th 2009 10:08

In Fitzsimmons and Comcare [2008] AATA 919, the Administrative Appeals Tribunal (Tribunal) rejected Mr Fitzsimmons's application to reinstate his claim on the basis that it was 'dismissed in error' under section 42A(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act).

BACKGROUND

Mr Fitzsimmons appealed a decision by Comcare that it was not liable to pay compensation for viral hepatitis B, allegedly contracted as a result of his employment with the Australian Customs Service.

In August 2006, Mr Fitzsimmons's lawyer, Mr Stockley, wrote to the Deputy Registrar of the Tribunal seeking withdrawal of his application on the basis that there was insufficient evidence to directly support the claim.

On 25 August 2008, Mr Fitzsimmons wrote to the Tribunal requesting that his application be reinstated.

Mr Fitzsimmons argued that the application should be reinstated on the basis that it had been dismissed in error because Mr Stockley had not investigated all possible causes of hepatitis B.

Mr Fitzsimmons also argued that his withdrawal was also compounded by his depression, which affected his understanding of the withdrawal.

DECISION

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Posted By: Craig Hill - Category: Litigation

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Jurisdiction To Review An Out Of Time Claim

January 5th 2009 09:58

In Bain v Military Rehabilitation and Compensation Commission [2008] AATA 884, the Administrative Appeals Tribunal (Tribunal) was satisfied that it had jurisdiction to review decisions which the Commission had conceded could be reviewed out of time.

BACKGROUND

Mr Bain was injured during his Army Service in October 1969. Claims for compensation and other relevant records were lost, however determinations had been made on 19 April 1971 and 26 November 1975 rejecting the claims for compensation. A request made in 1999 for an extension of time to request a reconsideration of the determinations was subsequently refused.

By a decision given on 27 September 2006 (Bain and Military Rehabilitation and Compensation Commission [2006] AATA 822), the Tribunal made a provisional decision on the following matters:

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