On 29 November 2013, the Western Australia Supreme Court found
that the proportionate liability regime does not apply to
Justice Beech determined the question (at least in part) in the
case of Curtin University of Technology v Woods Bagot Pty
Ltd  WASC 449.
This decision is significant for:
Contracting parties in determining what method of dispute
resolution should be included in contracts, particularly where that
party assumes a liability greater than it would ordinarily assume
such as a lead design consultant
Professionals and professional indemnity insurers in that a
professional, having agreed to arbitrate a dispute, will be placed
in a significantly different position to that which exists where
the dispute is before a court or tribunal
Legislators, as the decision has the potential to undermine the
intent of the legislation to limit a defendant's liability to
an amount proportionate to its degree of fault rather than its
financial capability to fund an award or judgment.
The decision will also be of interest to the proponents of
domestic arbitrations as this will be yet another reason why some
contracting parties will seek to avoid arbitration in order to
protect their rights under the proportionate liability regimes.
Read our more detailed article
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discussion of the subjects dealt with. It is not intended to be,
and should not used as, a substitute for taking legal advice in any
specific situation. DLA Piper Australia will accept no
responsibility for any actions taken or not taken on the basis of
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further information, please refer to www.dlapiper.com
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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