Welcome to William Roberts’ Insurance bulletins, where we share our thoughts on relevant or interesting legal issues.
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2026 series
Ownership vs Bailment vs Equitable Ownership -Someone bringing a claim needs to first show that they are entitled to do so – i.e. “standing”. Proving standing generally means proving that the party who says they suffered the loss actually owned the property, or that they were a “bailee”.
Navigating Titles and Protocol for Australia’s Judiciary – Australia’s justice system can appear intimidating, not because it is designed to be exclusive or inaccessible (in fact, the opposite is true), but because it relies heavily on tradition, hierarchy and formal terminology that can be daunting for those unfamiliar with the system.
Judicial Notice – Did you know – that the doctrine of “Judicial Notice” allows a court to accept certain facts without requiring formal proof or evidence. The principle applies where the fact in question is so well known, indisputable, or readily verifiable that requiring evidence would serve no practical purpose.
Pre-Litigation Discovery– A prospective litigant may be unsure about who to sue or whether a viable cause of action exists.
Res judicata (A matter judged) – What if someone sued you for breach of contract, and after losing the case, they came back months later with new evidence, trying to get the same issue re-litigated? Doesn’t sound fair right? That’s where res judicata comes in.
Volenti non fit injuria (voluntary assumption of risk) – Did you know: Some legal principles are so fundamental that they can completely defeat a negligence claim, even where fault is admitted? One such principle is volenti non fit injuria.
Res Ipsa Loquitur (the inference of negligence without direct evidence) – Did you know: A court may find a defendant negligent even in the absence of direct evidence that the defendant’s actions contributed to the plaintiff’s loss? This legal maxim is known as res ipsa loquitur.
Legality vs. Liabiltiy – Did you know: Illegality does not always equal liability.
Affidavit 101 – Did you know: In some instances, an Affidavit can be used instead of a person’s oral evidence.
When is a full and final settlement, not? (the Morganite Principle) – Did you know: if your insured settles their claim for uninsured losses with a third party when the third party knew about your subrogated claim for insured losses, you may still be able to recover?
2025 series
Australian Courts and Tribunal Series – This series covers the different courts and tribunals in High Court & Federal Court, Australia Capital Territory & Northern Territory, Victoria & Tasmania, New South Wales, Queensland and Western Australia & South Australia, it is designed to be your quick reference guide to the appropriate Australian Courts and Tribunals to use in each State and Territory of Australia as well as appropriate methods of appeal.
The Tort of Interference with a Contract – Did you know – A third party who intentionally interferes with the operation of a contract (including a policy of insurance) that causes you or your insured customer loss and damage, may be liable to the party that suffered the loss. This is referred to as the “tort of contractual interference”.
Claim Farming Practices Prohibition Act 2025 – Did you know – The New South Wales Government recently passed new legislation to ban “claim farming”, a practice in which a third party “farmer” approaches a potential civil liability claimant and pressures them to make a compensation claim, then sells their target’s information to an interested party for financial gain.
Questioning a Witness at Trial or Hearing – Did you know – Legal practitioners must follow strict rules at trials and hearings when questioning a witness to avoid having evidence discredited or excluded. This bulletin outlines the three key stages of witness examination.
Bullock and Sanderson Orders – There are, however, special circumstances which may give rise to a Court ordering that an unsuccessful Defendant also pay the costs of the successful Defendant.
Insurance Consent Refusal – Did you know – where an insured refuses to (or does not) provide the insurer with consent to commence proceedings in the insured’s name, the insurer may need to actually commence proceedings against its own insured to compel the insured to lend their name to the litigation.
2024 series
Calderbank Offers – Did you know – The principles for when offers can be relied upon to obtain a cost advantage were first outlined in the case of Calderbank v Calderbank (1975) 3 ALL ER 333, hence the term “Calderbank-offer”. The critical question the Court will ask when considering a Calderbank-offer is whether the rejection of the offer was unreasonable in the circumstances.
Dual Insurance – Did you know – Subrogated recovery against a third party isn’t your only potential recovery path. There may be another insurance policy that covers your insured for their loss. In other words, there may be dual insurance!
Legal Professional Privilege – The term “privileged” is often thrown around and slapped on the top of letters and emails. But do you understand how legal professional privilege applies, and when it is appropriate to use?
The curious case of the snail in the bottle – Did you know – One of the pivotal moments in tort law history features a decomposed snail found in a bottle, which was the subject of the dispute in Donoghue v Stevenson [1932] AC 562.
Negligence vs Nuisance – In certain situations, both the law of negligence and the law of nuisance may apply to damages caused by one party to another. Have you ever wondered what is the difference between the law of negligence and the law of nuisance?
How to determine loss if a supervening event causes further damage –Did you know – Supervening events do not affect your recovery of damages!
No hire car charges for unroadworthy vehicles and unlicensed drivers – Did you know – You can (and should) oppose hire car or loss of income claims where the damaged third party vehicle was (i) unroadworthy, or (ii) illegally modified, or (iii) where the third party driver was unlicensed.
Subrogation –Did you know – When either the insurer or the insured commences proceedings in a recovery action that involves subrogation, they are obligated to protect the rights of the other party.
Betterment –Did you know – The issue of “betterment” is often raised in tort and contract claims for replacement or repair costs.
Recoveries against third party insurers direct – Did you know – When an at-fault third party cannot be found or is dead, or a third party company is deregistered, a cause of action exists against the third party insurer direct!
The duty of utmost good faith – In life, they say that honesty is the best policy. But did you know that it is actually also one of the most important provisions in an insurance contract?
Goods and Services Tax (GST) – Whether you, or the other side, are able to claim GST can sometimes be very confusing. So that you don’t have to read the relevant tax rulings and case law, we have summarised
The Briginshaw Test – Did you know – that the Briginshaw-test requires a higher standard of evidence in civil matters where serious allegations are made, such as fraud. This principle was established in the divorce case of Briginshaw v Briginshaw [1938] HCA 34.
Can you sue if a “registered” company is “in liquidation”, “under administration” or has become “deregistered”? – When a company is created, it is “incorporated” and placed on the register of companies maintained by the Australian Securities and Investment Commission (ASIC). This means that a company is “registered”. That is when a company becomes a separate legal entity that can sue or be sued in its own name. But what if a “registered” company is “in liquidation”, “under administration” or has become “deregistered”?
What happens if you, as an insurer, have not yet concluded whether or not to indemnify an insured, and a third party commences Court proceedings against your insured (with the indemnity decision still pending)? – When these types of claims arise, an insurer (and its panel firm) can continue to act for an insured on a “reservation of rights” basis.
Offer of Compromise -vs- Calderbank Offer– Did you know – There are different types of offers than can be made in a claim, namely (i) an Offer of Compromise or (ii) a Calderbank-offer?
Unjust Enrichment and Money Had and Received – Did you know – When you discover that a payment on a claim has been made by mistake, or that fraud may be involved, recovery of that payment can be pursued in reliance on the general concept of “unjust enrichment” / “money had and received”.
Veni, Vidi, Vici – Did you know – Latin phrases and terms are still widely used in Australian law due to the historical influence of Roman law on the development of legal systems. Here are a few often used Latin phrases or maxims that you will no doubt see come across your desk at some point, and an example of how they apply in our legal system.
Contra Proferentem –Did you know – there is a further Latin phrase that is very relevant in the insurance context, and that is the phrase contra proferentem.
Contracts 101 – Let’s take it back to basics and explore the requirements for a legally binding contract, namely: Offer/Acceptance/Consideration/Intention
Uninsured v Insured losses –Do you know – who gets paid and in what order in circumstances where you have settled a matter and there are insured and uninsured losses?
Inevitable Accidents – An unusual defence can sometimes arise in motor vehicle accidents, namely that of an “inevitable accident”.
The Harman Undertaking – Did you know – There is an implied undertaking that provides that documents obtained in legal proceedings are only allowed to be used for their intended purpose and not for anything else. The implied undertaking is called the “the Harman Undertaking”. It is a fundamental rule that applies to all parties in Australian courts and tribunals.
What is Bailment? – Bailment can arise when one person has temporary possession of another person’s property with an understanding to return the property to the original owner. It usually occurs when property is given to a person for undertaking a task or to keep the property for an agreed period of time.
Onus and Burden of Proof in Civil Claims – In civil cases involving monetary claims for damages, breaches of contract, or tort actions, understanding the concepts of onus of proof and burden of proof is essential. They dictate how evidence is presented and assessed by the Court, ultimately affecting the case’s outcome.
Vicarious Liability – Vicarious liability is the liability of a person (in this example, the employer) for the wrongdoing of another, even if the employer has done nothing wrong.
Navigating Subrogation Limits – Section 65 of the Insurance Contracts Act 1984 – Did you know: A key provision of the Insurance Contract Act 1984 is section 65 on subrogation. Specifically, subrogation of rights against family members or others closely related to the insured.
Duty to Mitigate and the Reasonableness Standard – When a party (Plaintiff) suffers loss and damage (usually from a breach of contract or tort), the approach of the Courts will be to put the Plaintiff back in the position they occupied before the loss event took place.
The Jones v Dunkel inference – Did you know – The decision in Jones v Dunkel (1959) HCA 8, 101 CLR 298 is a significant case for civil litigation. It relates to the inference that may be drawn from a party’s failure to call a witness or produce evidence in a trial.
Enforcement of Judgments – Once a judgment is obtained against a party who fails to pay the judgment sum, various enforcement options are available.
The Nemo Dat Rule – Did you know – A purchaser may not automatically gain ownership if the seller obtained the property unlawfully.
Preservation of Evidence – Did you know – Preserving key evidence, such as the burnt out salvage of a vehicle, is crucial, and disposing of such evidence may be considered an abuse of process and result a claim being permanently stayed.
An Insured’s Burden of Proving a Claim – Did you know – There is a burden on an insured to prove that a claim made by the insured under a policy of insurance is covered by that policy.
The Pitfalls of Uninsured losses – Did you know – When pursuing subrogation in insurance claims, it’s important to consider uninsured losses
Please do not hesitate to contact Brian Silva (02 9552 2111), Fred van Reede (07 3894 0780) or any member of our team should you have any questions.
