Allianz Australia Insurance Limited v. Delor Vue Apartments CTS 39788
Case No.
S42/2022
Case Information
Lower Court Judgment
09/07/2021 Federal Court of Australia (McKerracher, Derrington and Colvin JJ)
Catchwords
Insurance – Insurance contracts – Indemnity – Election – Estoppel – Waiver – Duty of utmost good faith – Where s 28(3) of Insurance Contracts Act 1984 (Cth) enables insurer to reduce liability in respect of claim where, relevantly, insured breached duty of disclosure – Where insured notified claim under insurance policy following cyclone damage – Where insurer agreed to indemnify despite non-disclosure of prior defects – Where insurer took steps consistent with providing indemnity – Where insurer emailed insured stating, despite non-disclosure, claim would be honoured – Where insurer subsequently sought to disclaim liability on basis of non-disclosure – Where majority of Full Court of Federal Court of Australia dismissed appeal, holding insurer had elected not to raise defence under s 28(3) – Whether insurer elected not to raise defence under s 28(3) – Whether, if doctrine of election did not apply, insurer waived entitlement to raise defence under s 28(3) – Whether insurer estopped from raising defence under s 28(3) – Whether insured suffered detriment – Whether insurer breached duty of utmost good faith and, if so, whether insured suffered loss justifying relief.
Documents*
17/03/2022 Hearing (SLA, Canberra by remote connection)
30/03/2022 Notice of appeal
06/05/2022 Written submissions (Appellant)
06/05/2022 Chronology (Appellant)
02/06/2022 Written submissions (Respondent)
23/06/2022 Reply
10/08/2022 Hearing (Full Court, Canberra)
09/08/2022 Outline of oral argument (Respondent)
10/08/2022 Outline of oral argument (Appellant)
11/08/2022 Hearing (Full Court, Canberra)
14/12/2022 Judgment (Judgment Summary)
Electricity Networks Corporation Trading as Western Power v. Herridge Parties & Ors
Case No.
P5/2022
Case Information
Lower Court Judgment
02/07/2021 Supreme Court of Western Australia (Court of Appeal)(Buss P, Murphy & Mitchell JJA)
Catchwords
Torts – Negligence – Duty of care – Breach of duty – Statutory authority – Where Western Power ("WP") statutory authority established under Electricity Corporations Act 2005 (WA) with functions including management, provision and improvement of electricity transmission and distribution services in South West Interconnected System ("SWIS") – Where service cable owned by WP ran from WP's termination pole into mains connection box secured adjacent to top of point of attachment pole ("PA pole") on Mrs Campbell's property – Where PA pole owned by Mrs Campbell – Where electricity passed from wires of WP's service cable to wires of Mrs Campbell's consumer mains cable – Where WP had systems for regular inspection of WP's network assets, but did not regularly inspect or maintain consumer-owned PA poles – Where WP engaged Thiess to replace WP's network poles in Parkerville area, including termination pole, but inspection did not comply with industry standards or Thiess' contractual obligations – Where PA pole fell causing electrical arcing, igniting dry vegetation around base of pole – Where resulting fire spread, becoming Parkerville bushfire, and causing property damage – Where primary judge found WP owed duty to take reasonable care to inspect PA pole to ascertain whether safe and fit condition for supply of electricity before and when undertaking works on pole, but duty discharged by engaging Thiess – Where trial judge apportioned liability for losses 70% as to Thiess and 30% as to Mrs Campbell, and dismissed claims against WP – Where Court of Appeal formulated duty as one owed to persons in vicinity of SWIS to take reasonable care to avoid or minimise risk of injury, and loss to property, from ignition and spread of fire in connection with delivery of electricity through distribution system – Where Court of Appeal held WP had breached duty by failing to have system in place to respond to risk of harm and apportioned liability for losses 50% as to WP, 35% as to Thiess and 15% as to Mrs Campbell – Whether WP, as statutory authority with defined duties, owes common law duty to take reasonable care to avoid fire, discharge of which would oblige WP to exercise discretionary statutory powers in relation to property not owned or controlled by WP – Whether duty of care asserted inconsistent with statute – Proper test for inconsistency between common law duty and statutory scheme which regulates statutory authority.
Documents
17/03/2022 Hearing (SLA, Canberra and remote connection)
30/03/2022 Notice of appeal
05/05/2022 Written submissions (Appellant)
05/05/2022 Chronology (Appellant)
01/06/2022 Written submissions (Second Respondents)
01/06/2022 Written submissions (Fifth Respondent)
02/06/2022 Written submissions (First Respondents)
02/06/2022 Written submissions (Fourth Respondent)
23/06/2022 Reply
06/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
06/09/2022 Outline of oral argument (Appellant)
06/09/2022 Outline of oral argument (Fourth Respondent)
06/09/2022 Outline of oral argument (Fifth Respondent)
07/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
07/09/2022 Outline of oral argument (First Respondents)
07/09/2022 Outline of oral argument (Second Respondents)
08/09/2022 Hearing (Full Court, Canberra) (Audio-visual recording)
07/12/2022 Judgment (Judgment summary)
Audio-visual recordings of Full Court hearings heard in Canberra
Case: Hoang v The Queen
Date: 16 March 2022
Transcript: Hearing
AV time: 4h 22m
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Audio-visual recordings of Full Court hearings heard in Canberra
Case: Bell v The Queen
Date: 15 March 2022
Transcript: Hearing
AV time: 55m
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Access to the audio-visual recordings of the Court is subject to the following conditions:
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(2) The audio-visual material available via our web-site of Court proceedings does not constitute the official record of the Court.
(3) Copyright of the footage of the proceedings is retained by the Court.
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Audio-visual recordings of Full Court hearings heard in Canberra
Case: Garlett v The State of Western Australia & Anor
Date: 10 March 2022 , 11 March 2022
Transcript: Hearing
AV time: 2h 6m, 4h 29m,
You accept the terms of use (below) by playing this audio-visual recording.
10 March 2022
11 March 2022
Terms of use
Access to the audio-visual recordings of the Court is subject to the following conditions:
(1) You will not record, copy, modify, reproduce, publish, republish, upload, post, transmit, broadcast, rebroadcast, store, distribute or otherwise make available, in any manner, any proceeding or part of any proceeding, other than with prior written approval of the Court. However, schools and universities may broadcast/rebroadcast proceedings in a classroom setting for educational purposes without prior written approval.
(2) The audio-visual material available via our web-site of Court proceedings does not constitute the official record of the Court.
(3) Copyright of the footage of the proceedings is retained by the Court.
By clicking "play" (the triangle controls on the video player), you agree to be bound by these terms of use.