In this Supreme Court decision, Hargrave J confirmed that an Insured’s proactive conduct may constitute reasonable defensive action covered under the Defence Costs extension of a D&O Policy, depending (as always) on the Policy’s wording. However, Mr Hird could not establish that his Federal Court action seeking declaratory relief against ASADA was causally linked to the Defence Costs extension.
Author: Clive Madder
In Pantaenius Australia Pty Ltd v Watkins Syndicate 0467 at Lloyds  FCA 1 Foster J considered whether one insurer (‘Pantaenius’) could claim contribution from another insurer (‘Nautilus’) regarding damage to a yacht.
The case demonstrates that the courts continue to interpret the scope of s 54 of the Insurance Contracts Act 1984 (Cth) (‘ICA’) broadly, and beneficially to insureds. The case also confirms that a co-insurer can rely on s 54 to establish double insurance for the purpose of obtaining contribution.
The Full Court of the Federal Court held unanimously that the advocate’s immunity does not apply to an interlocutory decision to strike out a cause of action.
In 470 St Kilda Road Pty Ltd V Robinson  FCA 1420 Kenny J considered the ‘professional services’ exclusion in a directors’ and officers’ liability insurance contract. The case provides a useful review of the authorities dealing with this exclusion, and is relevant in respect of interpreting exclusion clauses in insurance contracts more generally.
In Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management & Marketing Pty Ltd & Ors  HCA 46 the High Court has confirmed that accidental disclosure of documents over which legal professional privilege is claimed will not amount to a waiver of such privilege. The appropriate course, in accordance with good practice management, will normally be for the recipient of the documents to return them to the solicitor of the party claiming privilege, and for that party to seek leave to amend its List of Documents. Failing to take such a pragmatic approach and raising technical legal points may in the circumstances be a breach of a party’s and its legal representatives’ obligations under the NSW Civil Procedure Act (and, it follows, the Victorian Civil Procedure Act).
The United Kingdom Supreme Court has recently decided a case interpreting the ‘inherent vice’ exclusion under the widely used Institute Cargo Clauses (A) policy and the equivalent exclusion under the Marine Insurance Act 1906 (UK) (‘MIA’) in contradistinction to the insurance coverage term ‘peril of the sea’. Because the Marine Insurance Act 1909 (Cth) is for all intents and purposes identical to the MIA, and because of the wide customary usage of the Institute Cargo Clauses, the case is important to all practitioners in the fields of marine insurance and international trade law.