In QBE Insurance (Australia) Limited v NSW Self Insurance Corporation [2013] NSWSC 1841, His Honour Justice Hammerschlag has considered whether the Self Insurance Corporation (SICorp) is an insurer. QBE argued that SICorp is an insurer, and should have been equally liable to make contributions, pursuant to the principles of double insurance, where QBE indemnified the NSW Police Force for a workplace motor vehicle accident.
His Honour found that SICorp is not an insurer, notwithstanding that it administers a Treasury Managed Fund (TMF) which is "replete with insurance terms". There is no contract between any relevant agency and SICorp. His Honour found that there was no or no sufficient community of interest between QBE and SICorp to engage the principles of contribution. His Honour noted that TMF has no separate legal existence, it is simply money that belongs to the state and is managed by SICorp. The premiums come out of and go back into consolidated revenue as components of an accounting system by which the fund is disbursed to meet the claims of agencies, rather than bring premiums in the conventional insurance sense. His Honour noted "TMF provides no risk cover in the nature of insurance to anyone. It might aptly be described as an insurance phantasm".
Save the date - Wednesday 26 February 2014
Mark your diaries for our inaugural Government Lawyers seminar day on Wednesday 26 February 2014. An invitation with full details will be sent in the new year.
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In the media
Operation Dewar public inquiry adjourned
The ICAC's public inquiry held as part of its investigation into allegations concerning the NSW State Emergency Services Commissioner is adjourned (06 December 2013)
Operation Dewar public inquiry adjourned
NSW Energy Minister Chris Hartcher resigns over ICAC probe
New South Wales Energy Minister Chris Hartcher has resigned from the frontbench after the Independent Commission Against Corruption (ICAC) issued a search warrant against him (04 December 2013) More...
Public inquiry into allegations concerning NSW SES Commissioner
The ICAC's public inquiry into allegations concerning the State Emergency Services Commissioner (Operation Dewar) starts Tuesday 3 December, examining allegations that SES Commissioner Murray Kear took detrimental action against Deputy Commissioner Tara McCarthy (02 December 2013)
Public inquiry into allegations concerning NSW SES Commissioner starts 3 December
Statement on Parole Supervision - NSW
Attorney General Greg Smith, said media claims that parolees are monitored at home for only eight weeks after their release from jail are completely wrong. All parolees are supervised throughout their parole period. The new model requires that regardless of their risk and consequence rating, all parolees must have an eight-week period of specified high-frequency supervision upon their release from custody regardless of their actual risk rating (03 December 2013)
NSW Strike Team to combat gang crime
Minister for Justice, Michael Keenan, and NSW Minister for Police, Michael Gallacher, today announced that the Commonwealth and NSW Governments are establishing a joint strike team to combat gang crime, as part of the $64 million National Anti-Gangs Squad, and will have access to Commonwealth intelligence from across commonwealth agencies (22 November 2013) More...
Government acts on Independent Commission Against Corruption recommendations
NSW Premier Barry O'Farrell has announced the NSW Government had accepted the recommendations of the ICAC's report on the management of coal resources. ICAC handed down its third report arising from Operations Acacia and Jasper on the granting of mining rights 'making 26 recommendations (21 November 2013) More...
In practice and courts
Racial vilification law in New South Wales - Report – NSW Parliament
The Standing Committee on Law and Justice - report on Racial vilification law in New South Wales, tabled 3 December 2013. No Government response to this report was requested.
Racial vilification law in New South Wales - Final report.pdf
Current consultations
NSW Law Reform Commission: Encouraging appropriate early guilty pleas
The Commission has released a Consultation Paper that canvasses approaches taken in similar jurisdictions to encourage early guilty pleas and asks which models are appropriate to NSW Submissions were due on 13 December 2013.
Published – articles, papers, reports
Prisoners in Australia, 2013
Author: Australian Bureau of Statistics
This publication presents national statistics on prisoners who were in adult corrective services custody on 30 June 2013. These statistics describe the characteristics of prisoners, their sentence length, the most serious offence/charge for which offenders are imprisoned, and provide a basis for measuring change over time (06 December 2013) Prisoners in Australia, 2013
Corruption Matters Issue 42
Author: ICAC NSW
Investigation findings released. The latest edition of the Corruption Matters newsletter is now available for download (26 November 2013) Corruption Matters Issue 42
Organised crime and public sector corruption
Author: Elizabeth Rowe, Tabor Akman, Russell G. Smith, Adam M. Tomison; AIC
In this paper, the risk and potential impact of tactical displacement by organised criminals is discussed with regard to the potential for increased attempts by organised crime groups to corrupt public servants (02 December 2013) Organised crime and public sector corruption
CASES
QBE Insurance (Australia) Limited v NSW Self Insurance Corporation [2013] NSWSC 1841
EQUITY - contribution - whether the NSW Self Insurance Corporation had a common monetary obligation with the plaintiff insurer to indemnify the Police Force in respect of liability for an injury caused to a police officer travelling in a vehicle driven by another police officer whose negligence caused the injury and which vehicle was insured by the plaintiff - consideration of the NSW Government's Treasury Managed Fund. More...
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA
43
Administrative law – Availability of certiorari –
Legal consequences of Medical Panel's opinion under Accident
Compensation Act 1985 (Vic) – Where separate proceedings for
common law damages and statutory compensation – Whether
Medical Panel's opinion on medical questions referred to it in
one proceeding required to be adopted and applied in other
proceeding – Whether issue estoppel – Whether order in
nature of certiorari available.
Administrative law – Statutory obligation to give written statement of reasons – Standard of reasons required – Whether error of law on the face of the record.
Words and phrases – "certiorari", "error of law", "for the purposes of determining any question or matter", "Medical Panel", "medical question", "reasons", "written statement of reasons". More...
Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203
APPEAL - two s 56A appeals against commissioners' decision to refuse extension of existing colliery operation - denial of procedural fairness to parties in giving substantial weight to objectors' submissions on noise, dust and traffic at view without notice to parties of intention to do so - failure to give reasons which address issues raised by appellants at the merits hearing - appeal upheld - exclusionary remitter order made
Texts Cited:
Mark Aronson and Matthew Groves, Judicial Review of Administrative Action, 5th ed (2013) Thomson Reuters and Beazley P "The distinction between questions of fact and law: a question without answer?" (2013) Vol 11 No 3 The Judicial Review 279
Manning v Bathurst Regional Council (No 2) [2013] NSWLEC 186
JUDICIAL REVIEW: whether council under an obligation to notify adjoining property owner of proposed development - whether failure to notify was manifestly unreasonable - whether re-notification of the development an appropriate order under s 25B of the Land and Environment Court Act 1979 - whether demolition of the development appropriate. Environmental Planning and Assessment Act 1979, ss 79A(2), 79C, 103, 104, 124. More...
Legislation
Notice of assent to legislation – NSW
The following NSW Bills received Royal Assent on Wednesday 27 November 2013:
Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Bill 2013
The object of this bill is to extend the police powers of arrest without a warrant to include situations such as; to stop a person from fleeing from a police officer or the location of the offence, to preserve evidence of the offence, or because of the nature and seriousness of the offence.
Surveillance Devices Amendment (Mutual Recognition) Bill 2013
The object of this bill is to amend the Surveillance Devices Act to bring the Act further into line with the model law on cross-border investigative powers for law enforcement (developed by the Australian Leaders' Summit on Terrorism and Multi-jurisdictional Crime).
National Disability Insurance Scheme (NSW Enabling) Bill 2013
The object of this bill is to implement the Commonwealth's
National Disability Insurance Scheme (NDIS), to provide
arrangements promoting staff retention in disability services and
to provide for the transfer of public sector disability assets in
connection with the NDIS.
More...
Acts
Children (Detention Centres) Amendment (Search Powers) Regulation 2013 under the Children (Detention Centres) Act 1987. Friday 29 November 2013.
This amendment gives the power to the centre manager of a detention centre to require juvenile justice officers on the premises of a detention centre to be searched.
Regulations and other statutory instruments
Liquor Amendment (Approved Managers and Patron ID Scanning) Regulation 2013 under the Liquor Act 2007. Friday 29 November 2013.
The objects of this regulation include specifying venues in Kings Cross where patron ID scanners are required before patrons are permitted to enter and requiring patron photo ID Scanners to be used at times specified by the Director-General.
Supreme Court Rules (Amendment No 423) 2013 (2013-664) — published LW 29 November 2013
The object of this rule is to provide a notice of intended distribution of an estate is to be published on the NSW Online Registry, if it relates to a granted of a representation made or resealed by the NSW Supreme Court.
Bills revised following amendment in Committee
Statute Law (Miscellaneous Provisions) Bill (No 2) 2013
The objects of this Bill were to make minor amendments to various Acts and regulations and to make amendments to Acts and instruments to effect statute law revision. This Bill was assented to on 3 December 2013.
Bills passed by both Houses of Parliament
Crimes (Appeal and Review) Amendment (DNA Review Panel) Bill 2013
This Act commences on 23 February 2014 and implements the recommendations arising from a statutory review of the DNA Review Panel.
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