New HCA Judgments

The High Court handed down two new judgments yesterday (sorry for the late post):

Aktas v Westpac Banking Corporation Limited [2010] HCA 25

This was a defamation action against Westpac who had erroneously returned 30 of the appellant’s cheques to the bearers as dishonoured. Westpac had succeeded in the courts below on the defence of qualified privilege. French CJ, Gummow and Hayne JJ (Heydon and Kiefel JJ dissenting) allowed the appeal holding that there was not the requisite reciprocal interest in the subject matter to make out a defence of qualified privilege. The case emphasises the importance of the interest of the receiver of the defamatory imputation in determining reciprocity of interest.

CGU Insurance Limited v One.Tel Limited (In Liquidation) [2010] HCA 26

The insurer of one of the former directors of the collapsed One.Tel Limited, sought to avoid an insurance policy by which they may be liable to indemnify a $20m settlement against the former director.
This case deals with whether a cause of action which has been assigned under a Part X Bankruptcy Agreement, can continue to be enforced by the assignee after the Part X Agreement has been terminated (by expiry of time). The Court unanimously allowed the appeal and held that the assignee had a continuing right to maintain the action which subsisted outside of the Part X Agreement.
There is also consideration of whether it could be said that the insured has actually suffered “loss” (capable of indemnity by the insurer) when the settlement is the subject of a moratorium under the Part X agreement.