Publications
Newsletter - Joinder of Insurers - Federal Court elects to follow NSW Court of Appeal in claims made cases
The Federal Court has followed the NSW Court of Appeal decision in the Owners of Strata Plan 50530 v Walter Construction Group Limited (in liquidation) [2007] NSWCA 124. That decision held that section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) cannot be used to pursue an insurer directly under a ‘claims-made’ policy where the cause of action upon which the claim is based arose before that policy incepted.
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Newsletter - Case Review Bader v Jelic [2011] NSWCA 255
The NSW Court of Appeal decision in Bader v Jelic was handed down on 31 August 2011.
McCabe Terrill Lawyers who acted for the Appellants, Mr and Mrs Bader were successful in overturning a verdict entered against the Baders in the District Court, which held them liable for injuries sustained by a Foxtel technician who sustained serious injury after tripping upon a rug inside their home.
The decision is important in clarifying both the role and responsibility of a private homeowner to visitors to their homes.
More importantly, the court also confirmed the existing law surrounding the obligations of occupiers as expounded by the decisions of Phillis v Daly (1988) 15 NSWLR 65, Jones v Bartlett (2000) HCA 56, and Neindorf v Junkovic (2005) HCA 75.
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Newsletter - Pre-litigation Protocols Delayed
The NSW Government yesterday advised that it will postpone the introduction of Part 2A of the Civil Procedure Act 2005 which required parties to take reasonable steps to resolve their disputes before they commence court proceedings.
The protocols came into effect from 1 April 2011, however only applied to matters filed from 1 October 2011. The general purpose of this legislation was to require parties to take certain “reasonable steps” prior to the commencement of proceedings in an attempt to either resolve the dispute or narrow the issues in dispute. If parties failed to comply with these requirements they faced possible costs consequences
NSW Attorney General Greg Smith SC said yesterday when announcing the postponement of the Protocols:
“A large number of lawyers and clients already take reasonable steps to resolve a civil dispute before resorting to litigation. The new laws were designed to encourage the remainder to do the same…However, since the laws were passed last year, concerns have been raised by a number of key stakeholders that the provisions may have unintended consequences.”
“Compliance with pre-trial obligations should reduce, not add to, the cost of resolving disputes. The purpose of this postponement is to ensure this is the case.”
The NSW Government has postponed the commencement of the Protocols for a further 18 months to monitor the success of similar provisions which commenced in the Federal Courts on 1 August 2011.
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Newsletter - Legislative Update - New Pre-litigation Protocols for Civil Disputes
From 1 April 2011, Part 2A “Steps to be taken before the commencement of proceedings” were inserted into the Civil Procedure Act 2005 (see Schedule 6 of The Courts and Crime Legislation Further Amendment Act (2010) (the legislation).
This legislation is likely to affect a substantial number of claims received by insurers and it is therefore important that insurers understand and appreciate the possible costs ramifications for failing to comply with these requirements.
Whilst the obligation to comply with the pre-litigation protocols will only apply to proceedings commenced from 1 October 2011, the pre-litigation protocols will need to have been followed before this time; therefore insurers may begin to shortly receive correspondence from claimants in an attempt to comply with the prelitigation protocols.
The legislation, in many ways, is unclear and it is difficult to determine exactly what is required to comply with the pre-litigation protocols. The legislation allows for the implementation of Rules in this area which have not yet been enacted. It will be interesting to see exactly how Parliament expects these protocols to be implemented in due course and we also await any guidelines or Practice Notes to be issued by the Courts.
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