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.

The case provides useful guidance on the court’s approach in construing exclusion clauses and the meaning of ‘profession’ and ‘professional’.

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 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.

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.

Like the US, Australia is experiencing the proliferation of mobile medical apps (software applications that can be executed on a mobile platform) which seek to provide a number of functionalities, many of which operate between traditional disease management and health and wellness. Some of these new apps assist consumers with their health and wellness management, whilst others provide healthcare providers with tools to improve and facilitate the delivery of patient care.

As part of the 2010/11 Federal budget, the Government announced a $466.7 million investment over two years for a national Personally Controlled Electronic Health Record (PCEHR) system for all Australians who choose to register on-line, from 2012-2013. This initiative has the potential to be a revolutionary step for Australian health care, in terms of both consumer's access to their own health information and improvement in information which will be available to health professionals when they treat a patient.

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.

Australia privacy rights are regulated by Commonwealth and State legislation and the laws protecting confidential information under the common law.

Australian privacy laws govern the collection, use and disclosure of “personal information”.  Further, individuals are provided with a right of access and correction of their own personal information.  There are also data security, data quality and cross-border transborder data flow requirements.

In the 2012-13 financial year, the Compliance Branch of the Office of the Australian Information Commissioner (OAIC) received 1496 privacy complaints, and increase of 10% over the 1357 received in 2011-12. In addition, the OAIC dealt with 13 own motion investigations and 61 voluntary data breach notifications. Here is one case (misuse of a mobile phone number by a bank to direct market a bank related insurance product) that may be of interest…

The case was based on an alleged breach by the bank where it used or disclosed personal information about an individual for a purpose other than the primary purpose of collection.

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.