Two recent decisions of the Federal Court and the New South Wales Supreme Court can be of assistance to insurers to avoid providing certain documents to opponents. Some correspondence with witnesses, including expert witnesses, and drafts of reports and statements do not have to be produced if legal professional privilege applies to the documents (i.e. if the documents were created for the dominant purpose of a lawyer providing legal advice or for the purpose of litigation).

In the recent case of McKenna v Hunter & New  England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, the New South Wales Court of Appeal held that a hospital and the health district was liable to the family members of a man who was murdered by one of its patients.

Colin Hall, Partner at Holman Webb Lawyers acted as the instructing solicitor for the respondent at trial and in the appeal.

In a recent case (470 St Kilda Road Pty Ltd v Robinson [2013] FCA 1420), the Federal Court ruled against an insurer that sought to rely on a professional services exclusion in a D&O Policy to deny indemnity.

FEBRUARY 2015 - UPDATE: “Please note that this case has been the subject of a successful appeal by Dr Dekker to the WA Supreme Court. Readers should review a report on this appeal in the February 2015 issue of the Holman Webb Law Bulletin”  

A recent finding of the State Administrative Tribunal of Western Australia[1] has sparked debate amongst Australian doctors and brought into focus the wide scope of what might constitute “improper or infamous” conduct by a registered medical practitioner.

The Medical Board of Australia alleged that Dr Leila Dekker was guilty of infamous or improper conduct when she did not stop and try to render assistance following a near miss accident involving her vehicle and another vehicle near Roebourne in North Western Australia. It was night time and Dr Dekker and her passenger were returning from a local tip on a side road and narrowly avoided a collision at a T intersection with the other vehicle travelling on the North West Coastal Highway.

The Miscellaneous Acts Amendment (Directors' Liability) Act 2012, applies to all legislation which contains director and manager liability provisions in NSW (except Work Health and Safety), by reducing the number and severity of provisions which make directors and managers liable for the offences of the corporation.

The Owners  Strata Plan 61288 v Brookfield Australia Investments (New South Wales Court of Appeal, 25 September 2013)

The Insurance Contracts Act (ICA) has been described as one of the most significant and comprehensive pieces of consumer protection legislation ever enacted in Australia. Fundamental changes have recently been introduced, but it has also left matters silent on other fronts. The various provisions begin at different times between 28 June 2013 and December 2015, in order to allow insurers some time to amend their internal policies and procedures to take account of the new changes, many of which apply to general commercial policies. The majority of the provisions also only apply if the policy is entered into after the provision has commenced. It is imperative that brokers and underwriters are made aware of these changes.

The NSW Court of Appeal has decided that a breach of section 62 of the Strata Schemes Management Act 1996 (the mandatory obligation for a strata plan to maintain the common property) does not give rise to an action for damages for breach of its statutory duty.