Category Archives: Litigation

Website Infringement

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by Steven Morris, Walsh Halligan Douglas

Many clients have had competitors or at times unrelated parties place something on their website which is in fact owned by you. More often than not it is a photograph, an article in whole or part or indeed your or your company’s name. The first step to remedy this situation is of course to request them to remove the offending material or photographs. Often such requests are ignored. What then?

The best and most effective remedy is to have the host of the offending website switch it off until the offending photographs, material or other items are removed by the website owner.

Our suggestion is for a three phase plan to be activated to achieve this:

  1. Have your IT people find out who is the host of the offending site. If you are IT savvy then you need to search the owner of the domain name and internet service provider (ISP).
  2. Send the host a Take Down Notice. This is a request which identifies the infringing photograph material or other content and requests that it be removed. It is the duty of the host to take down the website expeditiously (generally 48 hours) after receiving a Take Down Notice or the host can become liable themselves for the infringing copyright.
  3. Send a copy of the Take Down Notice to the offending site itself. Generally by this stage the site owner will realise that you mean business and usually will decide to remove the infringing item rather than risk the site being taken down unexpectedly.

If these steps do not achieve the desired result then there is always the legal approach and we can assist in protecting your rights.

Pouring Salt into the Wound

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The Queensland Supreme Court decision of Justice Boddice in Mahoney v Salt [2012] QSC43 confirmed that the choice of privilege over documents may lead to preserving their privileged status irrespective of the various provisions of the Personal Injuries Proceedings Act 2002 (“PIPA”).  This has implications for other legislation dealing with pre-litigation procedures such as the Motor Accident Insurance Act 1994.

In Mahoney v Salt, the applicant sought disclosure of draft statements of one of the respondents and the signed statements of both respondents.  This disclosure was requested in accordance with section 30(2) or, in the alternative, section 20 of the PIPA. The respondents objected to disclosing the documents on the basis that they were subject to a valid claim of legal professional privilege.

The solicitors for the respondent had briefed loss adjustors to investigate the relevant claim.  In the brief to the loss adjustors, the respondents’ solicitors requested that any witness statements obtained by the loss adjusters “be forwarded to us separately from your investigation report, with a ‘With Compliments’ slip which simply notes our reference, not with a covering letter”.  This request was made in an attempt to maintain “the benefit of legal professional privilege” over any statements provided by the Assessor.  The solicitors further qualified the assessor’s instructions by stating that the witness statements should not be attached to or referred to within, either of the investigation report or statement of opinion.

Following disclosure of the investigation report, the applicant’s solicitors requested disclosure of any statements obtained.  The respondents’ solicitors declined to do so.

Section 30 of the PIPA stipulates that the party is not obliged to disclose information protected by privilege.  However, privileged communications such as investigative, medical and other reports relevant to the claimant’s rehabilitation must be disclosed regardless of their privileged status.  The exception to this rule is that statements of opinion may be omitted from such reports for disclosure purposes.  Section 20 of the PIPA waives privilege over “medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss” where an offer of settlement has been made.  The offeror is obliged to produce those documents so the party to whom the offer has been made can appropriately consider it.  Furthermore, section 20 stipulates that once compliance has been given on the notice of claim, a response on liability must be given within six months of that date.

The respondents contended that the statements obtained by the assessors were brought into existence for the dominant purpose of providing the respondents’ insurer with legal advice and hence, were privileged.  Boddice J concluded that the section 20 response on liability had already been provided by the time the statements came into existence and there was no evidence that they had been obtained for the purpose of complying with that section. He also referred to Justice Keane’s judgment in Watkins v Queensland [2008] 1 Qd R 564 in concluding that section 20(3) “expressly required the delivery of medical reports.” On that basis, the respondents were not required to disclose the statements in accordance with section 20 of the PIPA.  Boddice J concluded that he was

“satisfied the respondents have properly established the existence of legal professional privilege in the draft statement and the signed statement.  Each constituted a confidential communication brought into existence for the dominant purpose of obtaining legal advice.”

The applicant attempted to argue that the respondents had waived privilege by referring to the contents of those statements in the loss adjustors’ reports, which had been disclosed.  They relied upon Keane JA in Watkins v Queensland where he remarked “the question of whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it is privileged from production”.  Justice Boddice considered all the circumstances of the current matter with particular reference to the contents of the loss adjustors’ reports and was satisfied that privilege had not been waived in this case.  He held that maintaining privilege over the statements would not be unfair or misleading regardless of the reference within the loss adjustor’s reports to one of the respondent’s version of events.

Unsurprisingly, the applicant finally contended that the instructions given by the respondents’ solicitors to the loss adjustors required them to “deliberately engage in a course of action designed to prevent the applicant from having access to the witness statements, a procedure contrary to the objects of the Act”.  His Honour concluded that the instructions given “highlighted the importance of retaining legal professional privilege” and “did not involve a ruse designed to shroud with privilege a document not properly the subject of legal professional privilege”.

The respondents in Mahoney v Salt were able to successfully argue that the dominant purpose for the creation of the draft and signed witness statements to seek or be furnished with legal advice from their solicitors.  For that reason, they were able to maintain privilege over the documents as they were deemed to fall outside of sections 20 and 30(2) of the PIPA with their privileged status maintained by section 30(1).

The implication to be drawn from this case is that the principles applied to the PIPA in this case are just as likely to apply to the Motor Accident Insurance Act 1994 (“the MAIA”), given the remarkable similarity between the relevant provisions. There is a justifiable claim for privilege over statements obtained by loss adjustors, particularly after a Notice of Accident Claim form has been deemed compliant and a liability response made, irrespective of the provisions in sections 41 (Insurer must attempt to resolve claim) and 48 (Non-disclosure of certain material).  The privilege over such statements would in all likelihood be protected by section 48(1) of the MAIA.

If The Dead Have No Rights, The Living Don’t Either

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By Glen Northway, Solicitor

The recent Queensland Supreme Court decision of Murison & Anor v Nominal Defendant[2012] QSC 221 considered whether dependents were able to claim for loss of dependency and services arising out of the death of the owner of an uninsured vehicle.

The subject accident occurred on 6 November 2009 when the owner of an uninsured vehicle was killed in an accident when he was a passenger in the vehicle when it was being driven by another individual.  The Nominal Defendant admitted that the driver was negligent.  The Plaintiff’s were claiming damages for loss of dependency and loss of services arising out of the death of the vehicle’s owner.  The vehicle was uninsured within the meaning of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”).

The Nominal Defendant argued that pursuant to section 17 of the Supreme Court Act1995, the deceased, had he not died, would not have been entitled to recover damages for personal injuries from the Nominal Defendant.  This argument was based upon the Nominal Defendant’s entitlement to recover as a debt any money paid to an injured person in accordance with section 60 of the MAIA from the owner of an uninsured vehicle.

The Plaintiff’s argued that the Nominal Defendant’s argument of “set off” did not apply because the damages in question could not be quantified until such time as the claim had been settled and damages paid.

Justice Wilson concluded that an equitable set off defence would have been available to the Nominal Defendant as there “would have been such a connection between a claim by the deceased for damages and a cross claim by the defendant for recovery of its costs under section 60 that the cross claim would have impeached the claim so as to make it unfair for the claim to be allowed without taking account of the cross claim”.

Justice Wilson found in favour of the Nominal Defendant in that they were entitled to an equitable set off.

Therefore, because the deceased did not have an entitlement to maintain and recover damages from the Nominal Defendant, the Plaintiffs were unable to maintain their claims.

McCracken’s appeal to proceed following adjournment knock-back

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In an unprecedented move in the Court of Appeal last week, a Respondent (Phoenix Constructions (Qld) Pty Ltd) applied to adjourn an Appeal, in an attempt to gain time to bankrupt the Appellant (Jarrod McCracken). Interestingly the Bankruptcy proceedings related to the judgment under Appeal which is set down to be heard on 29 February 2012.

Justice Fraser heard submissions from both sides as to the prospects of the Appellant being made bankrupt and the potential costs that may be lost if bankruptcy eventuated. McCracken argued the extreme prejudice that would occur if the appeal was adjourned indefinitely allowing time for the Respondent to effect bankruptcy based on the very judgment under appeal.

In delivering his decision, Justice Fraser considered the balance between the parties and noted, in particular, the public interest of ensuring that litigation is conducted efficiently and with justice. To this end, the potential costs that may be lost to the Phoenix should McCracken be made bankrupt, could not outweigh the prejudice to McCracken in not being able to Appeal the earlier decision nor the public’s perception of a legal system that would allow a Judgment Creditor to bankrupt an Appellant based on the judgment under appeal.

 

Road rules: Not the infallible shield you think

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Many of us as drivers like to believe that if we are involved in an accident as a result of someone else entering an intersection without stopping at a stop sign or give way sign, the law is on our side. It is important to note that this is not strictly the case. Case law tells us that even if the other driver breaks the law, we may find ourselves, even if just in part, liable for the accident.

Motorists should be aware of the potential for liability and what is required of us to satisfy the fault. A review of the recent decision of Schimkev Clements v Suncorp Metway Insurance Limited and a general discussion of driver obligations is important to put us squarely in the picture of responsibility.

In that case two drivers in opposite directions were approaching a single lane bridge one party approaching the bridge had a give way sign the other party approaching the bridge was travelling in excess of the speed limit. The driver faced with the give way sign past straight through it without stopping and entered the single lane bridge before the other vehicle reached it.  At the trial the speeding driver stated his belief that the other vehicle would stop at the give way sign and therefore believed it would be safe to enter the bridge.

Upon seeing the “give way” car enter the bridge the speeding vehicle applied his breaks causing a trailer he was dragging to jack knife across the breadth of the bridge which the “give way” driver collided with, causing his death.

In this decision the Judge stated that the “give way” driver had seen the speeding vehicle approaching the bridge and believing that he would reach the bridge first elected to drive through the give way sign without stopping and as such was negligent in not stopping at the give way sign. The Court however did condemn the driving of the speeding driver, in quoting the decision of Sibley v Kais for the speeding drivers excessive speed and lack of control of his vehicle in entering a fairly dangerous situation.

The Court in its decision found contributor negligence on both drivers part and apportioned the damage and liability as 35% to the speeding vehicle and 65% to the give way driver.

Schimkev is a specific example of the downfall that results from assuming a car will give way at a give way sign, but long established principals go even further to requiring motorist to ensure all care is taken on the roads.

A High Court of Australia Decision of Sibley v Kais defined what is required to satisfy ‘reasonable care’ each driver must display when approaching an intersection:

“What amounts to “reasonable care” is, of course, a question of fact to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact should he find another vehicle approaching from his right or from his left in such a fashion that, both vehicle continue, a collision may reasonably be expected.”

This means that regardless of signage at an intersection it is a requirement of all drivers approaching any intersection, to take reasonable care and control their vehicle in such a way that even if another driver disobeys a traffic sign they are capable of bringing their vehicle to a halt or steering it in such a manner as to avoid the collision.

This tells us as motorists that simply hiding behind the shield of “But they ran the red light!” or “They failed to give way!” is absolutely not a total defence in the event of an accident.

As noted from the case of Schimkev courts can apportion 35% and upwards of liability for an accident to driver who does not control his vehicle in a way that ensures he is ready for anything from other motorists.

This principal has serious implications for each motorist and their insurance, keeping in mind that your insurer will be forced to wear a percentage of the damages in the event you are found to be in part liable and this can have very serious consequences for your premiums, as well as overheads for the insurers.

We must let go of the assumption “That everyone is going to obey all road rules, driving carefully at all times”, only to be disappointed when they don’t. Rather we must always “assume that all drivers WILL break the rules, run red lights, cruise through a give way sign and thrash their machines to beat the yellow light”, and simply be grateful when they don’t.

It is important to keep in mind that every time we get behind the wheel of a car, we take control of a 1 tonne wrecking ball and it is our responsibility to ensure we are in full control of that tonne of steel and combustion and be ready for any and all eventualities on the road.

For further information contact our Litigation team on 07 3232 5700 or litigation@whd.com.au

Final cost of Hale St Bridge still to be determined

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Today the Queensland Court of Appeal set aside an earlier decision of the Land Court regarding the valuation of land compulsorily acquired to make way for the Hale Street Bridge.

In 2007, the council compulsorily acquired 5,643m2 of land for the purpose of constructing the new river crossing.

A dispute arose as to the value of the land which came before the Land Court for an assessment of compensation in 2009.  The Land Court determined that the pre-acquisition value of the land be $25,600,000.

The owner and the mortgagee of the land appealed the assessment which was successful in November 2010.  Whilst no monetary value was given by the judges in the Land Appeal Court decision, the land owner and the mortgagee (who is now in liquidation) argued that the valuation was in the order of $40,000,000.

The Land Appeal Court held that the earlier decision had wrongly disregarded a planning proposal published subsequently to the date of resumption in consideration of the size of the development which a prudent vendor and purchaser would have expected to have been approved.

Today the Queensland Court of Appeal allowed the Brisbane City Council’s Appeal, and returned the assessment to the Lower Court for a redetermination of the value of land.  However it also urged the parties to agree on an amount without the need for further costs of a further hearing.

Walsh Halligan Douglas were the Queensland solicitors assisting the interstate liquidators’ lawyers, Griffins Lawyers of Adelaide, in this matter.

For further information, contact us at litigation@whd.com.au.