Late last year the NSW Government implemented its reform of directors' liability creating new offences of executive liability which took effect earlier this year. 

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 path to discovery never does run smoothly. But in a recent case, the High Court has criticized parties to proceedings for going off on a tangent, and incurring unnecessary costs to resolve an issue which the Supreme Court had jurisdiction to resolve. In a Judgment handed down on 6 November 2013 in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, the High Court ordered a firm of solicitors who had inadvertently received legally privileged documents in the course of the discovery process, to return them. The Court also discussed the duties of a Solicitor who receives privileged documents in the course of litigation.

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

BACKGROUND

SP 61288 is the owner of the common property of serviced apartments, the Mantra Chatswood Hotel (rather than a residential development).  The statutory warranties by the builder under the Home Building Act (which allow a 6 year period for the discovery of structural defects) did not apply to the construction, as those warranties only apply to residential building work.

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.

NEWS - Holman Webb appointed to the Commonwealth preapproved Law Firms List

Making further external recognition of Holman Webb’s legal expertise, we are pleased to advise of our recent inclusion in the Commonwealth Government’s Legal Services Multi-User List. All Commonwealth Government departments and agencies (other than Commonwealth companies and government business enterprises) are required to use the law firms included on this list for their external legal services from 1 July 2013.

Summary of article by UK legal academic Gerald Swaby entitled “Blurring distinctions: Should innocent insureds be tarred with the same brush as their fraudulent agents? (Insurance Law Journal April 2013 Vol 24 No. 1).

A husband and wife go through an acrimonious separation. One spouse acts violently against the other by burning the house down. Should the victim forfeit his/her insurance claim?

Mandatory notification has been in place for three years now, and, if we look beyond the encouraging rhetoric about improving patient safety, the scheme has kicked up some surprises, including last year's 40 per cent surge nationally in the number of reports made, which, the Australian Health Practitioner Regulation Authority (AHPRA) has, so far, been unable to explain.

While the increase might encourage belief in the scheme fulfilling its goals of ensuring patient safety, we should aslo bear in mind that the rise also increases the chances that health practitioners, who take the serious step of making a report, may face legal action when they do so. If we drill down into the 40 per cent increase, we find that the most significant contribution comes from Queensland where the number of reports has almost tripled, rising from 85 to 220.The increase is even more troubling because health practitioners making mandatory reports about colleagues are not absolutely protected from defamation. Put simply, doctors reporting colleagues, and members of the public reporting health practitioners, can be sued for defamation.

Does a plaintiff’s grandmother owe her grandchild a duty of care?

In the case of Hoffman v Boland (2013) NSWCA 158, the NSW Court of Appeal was split as to whether a duty of care arose in the circumstances of a domestic situation involving permanent injury to an infant - but the Court agreed after a lengthy opinion that there had been no breach and overturned the primary Judge's decision.

Unlike the Bible, when David takes on Goliath in the real world, Goliath almost always wins. Not any more. Enter the new species of litigation – the class action and the litigation funder. As we become more risk averse to litigation, yet continue to live in an age of consumerism where goods and services are mass produced, the idea of an army of Davids is emerging.

Class actions are a species of litigation emanating from the US, where individuals joined together to take legal action against a company or Government. They are becoming more common in Australia, especially following tort reforms in 2002 and are referred to as ‘representative proceedings’ which can be brought by virtue of the Representative Group Proceedings Act 1991.