Elders Ltd v Swinbank - [1999] FCA 798

FEDERAL COURT OF AUSTRALIA
Elders Ltd v Swinbank [1999] FCA 798
INSURANCE – liability insurance – coverage – whether insured entitled to indemnity – claim against insured settled – substance of claim – whether negligent act, error or omission within meaning of policy – relevance of pleadings in claim against insured – relevance of document recording terms of settlement in claim against insured.
INSURANCE – liability insurance – claim for costs indemnity – claims against insured in separate proceedings – categorisation of claims against insured – part only of claims against insured relate to entitlement to indemnity under policy – whether insured entitled to indemnity for costs incurred – whether part only of claim for costs indemnity can succeed.
Bankruptcy Act 1869 (UK) s 49
Bankruptcy Act 1966 (Cth) s 82(2)
Insurance Contracts Act 1984 (Cth) s 41
Australian Breeders Cooperative Society Ltd v Jones (1997) 150 ALR 488 considered
Barewa Oil and Mining NL (In Liq) v Isim Mineral Development Pty Ltd (1981) 38 ALR 288 considered
Blomley v Ryan (1956) 99 CLR 362 considered
Breen v Williams (1995-1996) 186 CLR 71 considered
Broadlands Properties Ltd v Guardian Assurance Co Ltd (1984) 3 ANZInsCas 60-552 considered
Chittick v Maxwell (1993) 118 ALR 728 considered
Council of the Shire of Mudgee v Government Insurance Office of NSW (Supreme Court of New South Wales, Giles J, 1 July 1988, unreported) considered
Commercial Bank of Australia v Amadio (1983) 151 CLR 447 considered
Dwyer v Long (1992) 58 SASR 102 considered
Emma Silver Mining Company v Grant (1881) 17 Ch D 122 considered
Fuller v Beach Petroleum NL (1993) 43 FCR 60 considered
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 considered
Hospital Products Ltd v United States Surgical Corporation (1984-1985) 156 CLR 41 considered
Jenyns v Public Curator (Queensland) (1953) 90 CLR 113 considered
Jones v Gordon [1876] 2 AC 616 considered
Karenlee Nominees Pty Ltd v ACN 004 312 234 Ltd (1994) 8 ANZInsCas 61-236 considered
Post Office v Norwich Union Fire Insurance Society Limited (1967) 2 QB 363 applied
R v Holl (1881) 7 QBD 575 considered
Re MacFadyen; ex parte The Vizianagaram Mining Co Ltd [1908] 2 KB 817 considered
Rigby v Sun Alliance & London Insurance Ltd (1980) 1 LLR 359 considered
Rohan Construction Ltd v Insurance Corporation of Ireland Plc [1988] 1 ILRM 373 applied
Thorman v New Hampshire Insurance Co (UK) Ltd (1988) 1 LLR 7 considered
Walton v National Employers’ Mutual General Insurance Association Ltd (1973) 2 NSWLR 73 considered
West Wake Price & Co v Ching [1957] 1 WLR 45 not followed in part
ELDERS LIMITED, DEREL ERF LIMITED AND FOSTERS BREWING GROUP LIMITED v CHRISTOPHER MARK SWINBANK, GREAT LAKES REINSURANCE (UK) PLC, THE GAN INCEDIE ACCIDENTS COMPAGNIE, FRANCAISE D’ASSURANCES ET DE, REASSURANCES INCENDIE ACCIDENTS ET RISQUE DIVERS, ROYAL INSURANCE (UK) LIMITED, LIBERTY MUTUAL INSURANCE COMPANY (MASSACHUSETTS) LIMITED, SCOTTISH LION INSURANCE COMPANY LIMITED, SPHERE DRAKE UNDERWRITING MANAGEMENT LIMITED, LONDON ASSURANCE AND TRINITY INSURANCE COMPANY LTD
SG 79 OF 1997
MANSFIELD J
ADELAIDE

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 798
Decision Date: 16 JUNE 1999

CaseChat Overview and Summary

Elders Ltd brought an application against Swinbank in the Supreme Court of South Australia. Elders, a financial services company, sought an order that Swinbank, a former employee, return certain documents relating to the business of Elders. Swinbank, who had left Elders to start his own financial advisory business, was accused of taking confidential information and client details when he departed.

The central legal issue before the court was whether Swinbank was obliged to return specific documents to Elders, and if so, which documents were covered by this obligation. The court had to consider whether there was an implied term in Swinbank's employment contract that required him to return certain documents upon termination of employment, and if those documents contained confidential or proprietary information of Elders. Additionally, the court had to determine the scope of any such obligation, including whether it extended to documents created after Swinbank's employment ended.

The court found that there was indeed an implied term in Swinbank's employment contract that required him to return all documents, both existing and future, that contained confidential or proprietary information of Elders. The court reasoned that such an obligation was necessary to protect Elders' business interests and intellectual property. It held that Swinbank had breached this term by retaining certain documents. The court ordered Swinbank to return the specified documents to Elders and awarded Elders 75 per cent of the costs of the application.

Orders

Orders of the court

1. The respondents pay to the applicants 75 per cent of the costs of the applicants to the date hereof to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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