The court delivered three reserved judgments in its December 2022 sittings, the last for the year.

Electricity Networks Corporation (t/as Western Power) v Herridge Parties [2022] HCA 37; (2022) 96 ALJR 1106, delivered on 7 December, concerned an electricity supplier’s duty of care to prevent damage to property.  In 2014 a bushfire damaged or destroyed several properties around Parkerville, WA.  It started when a timber power pole on private land failed and caused electrical arcing to ignite dry grass.  The appellant’s contractor had installed a connection cable to the pole without checking its structural integrity.  In proceedings for negligence and nuisance in the Supreme Court of WA, the primary judge found that Western Power was not liable to compensate the affected property owners because it did not owe them a non-delegable duty of care in overseeing its contractor, and that any such duty would have been discharged by engaging a contractor who was competent.  The WA Court of Appeal, to the contrary held that Western Power owed a duty of care that was breached by failing to have a system for the periodic inspection of privately-owned wooden poles used to support live wires.

In its appeal to the High Court, Western Power challenged the concept that as a statutory authority it owed a duty of care at common law in connection with the exercise of its statutory powers.  The court unanimously dismissed the appeal, holding that the exercise of those powers created a relationship between the appellant and all other persons within the vicinity of its distribution system, from which arose a duty in tort to take reasonable care to avoid or minimise the risk of injury to persons and property from fire caused by electricity distributed via that network.

Moving from bushfires to cyclone damage, in Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 97 ALJR 1 delivered on 14 December, a majority of the court held that the insurer of buildings forming a residential apartment complex in north Queensland was entitled to revoke a representation made to the insured, to the effect that it would not seek to reduce its liability by reason of a relevant non-disclosure.  The complex’s body corporate took out building insurance with the appellant five days before Cyclone Debbie struck north Queensland.  The proposal did not disclose known, non-structural defects.  Following the cyclone the body corporate made a claim on the policy.  The appellant became aware of the non-disclosure but accepted indemnity on terms which became the subject of dispute.  Although entitled to reduce its liability under the Insurance Contracts Act 1984 (Cth), s 28(3), Allianz at first waived the entitlement but later purported to qualify or revoke the waiver.  The majority of the High Court ultimately held that as the insured had not established that any detriment had been suffered, Allianz was not precluded by reason of estoppel from revoking the waiver, nor did the decision to revoke it involve an election between alternative and inconsistent sets of rights: the doctrine of election by affirmation could not apply to make the waiver irrevocable.  The majority further held that Allianz did not breach its duty of utmost good faith when, acting lawfully and honestly, it clarified the extent of its offer of indemnity but stipulated that the waiver was conditional on acceptance of that offer.

Finally on 14 December, the court handed down its decision in Realestate.com.au v Hardingham [2022] HCA 39 (coming in the February 2023 issue of ALJR).  The respondent Mr Hardingham and an associated company were in the business of providing photography and floorplans to aid real estate agents in marketing residential properties.  No written agreement was entered into between the agencies and the respondents.  Once the respondents’ product was received, the agencies incorporated it in marketing presentations which were uploaded to a website operated by the first appellant.  When the marketing campaigns concluded, the presentations were archived on a second website operated by the second appellant. 

A dispute arose between Mr Hardingham and the website proprietors.  He claimed that indefinite publication infringed his copyright in works consisting of his photographs and plans.  While these had been licensed to the agencies for their use, he claimed that there was no licence given to publish them once the marketing campaigns concluded.  The terms and conditions on which the agencies subscribed to the website services included “an irrevocable, perpetual, world-wide, royalty free licence” in respect of the uploaded material, which extended to publication on the second, archival website.  In proceedings before the Federal Court, Thawley J held that Mr Hardingham was aware of the terms of the agreements made by the agencies, and that those terms were non-negotiable.  The parties’ objectives called for a sub-licence from Mr Hardingham in favour of the end-users to be either inferred so as to give business efficacy to the transactions, or to be implied as a term of his contracts with the agencies.  Mr Hardingham’s appeal against those findings was allowed by a majority of the Full Federal Court.  The website proprietors appealed successfully to the High Court which held that copyright in the works was not infringed because a reasonable person in the position of the parties would have known that the purpose of supplying the works to the agencies was for them to place them with the websites and that the agencies had no real choice but to supply them on the website proprietors’ terms.

The court stands adjourned for the summer vacation until 6 February 2023.