The bill of rights promises, among other things, full refunds for trips that are cancelled due to mechanical failure, and a backup power source on every ship to keep emergency systems running in the event of a main generator failure but at this stage applies only for North American (US and Canada) passengers.

The CLIA, which represents 25 major companies including Carnival, Royal Caribbean, Norwegian, Holland America and Cunard, has said it has submitted the bill of rights to the International Maritime Organization, “requesting formal global recognition and applicability.”

In reality, the so-called bill of rights adds no significant benefits to cruise ship passengers over and above what is currently provided as standard industry practice and is criticised by many as being merely a public relations fiasco to neutralise the furore over earlier incidents including the Carnival Triumph fire that left passengers stranded aboard a drifting cruise vessel in the Gulf of Mexico for 5 days in February and the Grandeur of the Seas fire in May.

Also in May, Paul Rossington and Kristen Schroder from New South Wales were reported missing as their ship the Carnival Spirit docked in Sydney at the end of a 10 day Pacific cruise. Surveillance footage captured them as they went over a balcony railing outside their cabin on the night of May 8 when the ship was about 65 nautical miles east of Forster, on the mid north NSW coast.

Far more important for passengers is that their ticket imports the terms of the Athens Convention of 2002 or, if it doesn’t, the country of the port of departure or return has confirmed its ratification of that convention.

A less-regailed, but equally illustrious Redcliffe alumni was James Atkin, born there in November 1867 and who later fathered the modern law of negligence in his celebrated 1932 court ruling in the landmark “snail in the bottle” lawsuit, which has ramifications for industry and consumers up to this day.

Lord Atkin as he was later to become, articulated his famous “neighbour principle” – “treat others as you expect to be treated yourself” – in the legendary House of Lords case of Donoghue v Stevenson.

The lawsuit was the product of battler May Donoghue having become violently ill after consuming what was thought to be a snail that emerged from a bottle of ginger beer served in a Paisley (Scotland) café, on a Sunday afternoon in August 1928.

Having no legal remedy as against the cafe proprietor – her companion had placed the cafe order and thus only he had traditional standing to sue over the adulterated “ice cream floater” – she happened to consult one of the few lawyers with the requisite determination and knowledge to successfully pursue her expenses and loss of income the injury caused.

Glasgow lawyer Walter Leechman, who had earlier failures in “bottle cases” including that of a decomposed mouse, set course on a strategy against the soft drink manufacturer that would ultimately lead to the highest court of the Empire.

Providing his services on what would today be called a “no win no fee” basis, Leechman unexpectedly succeeded at trial having proved the grossly unsanitary conditions under which Stevenson’s beverages were bottled.

The Scottish Court of Appeal reversed this decision prompting, as a last resort, a petition the House of Lords in London to review the case for Leechman’s “pauper” client: “Not more than £5 in the world, does she possess,” read the papers.

Their revolutionary contention was simple – one that for modern communities goes without saying – that Stevenson owed a duty to take reasonable care in manufacturing a product that was intended for human consumption.

The orbits of Atkin, Leachman and Donoghue coincided briefly in the law courts that May of 1932 but long enough to allow the articulation of a legal principle that endures to this day. The famous passage from Lord Atkei’s judgment that was to become an essential component of life and industry for the entire common law world including the UK and Australia,  reads as follows:

“The rule that you are to ‘love your neighbour’ becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply.

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

Mrs Donoghue had succeeded by bare majority (3-2) and the case was sent back to Scotland for retrial. Controversy surrounds the existence of the snail but not the severe shock and gastroenteritis that was the cause of her financial woes.

The case – which was ultimately settled for a mere £200 – has been the subject of much legal commentary, many books and a documentary “The Paisley Snail”.

Lord Atkin’s upbringing in Redcliffe, and the egalitarian values he gained from that experience, feature throughout this writing.

Certainly a legacy – but on a different note to that of the famous Gibbs brothers.

The High Court emphatically pronounced that “Canberra” was complicit in illegally shoving Moti into a seat that had been “freed up” on the 3.10pm Solomon Airline 737 service from Honiara to Brisbane on 27 December 2007. 

For that reason his subsequent indictment in the Queensland Supreme Court for sex-tourism crimes was tainted with an “abuse of process” and will be quashed. 

The government’s case – it can only fairly be described as exactly that: a prosecution with all the worst features of Executive interference – spectacularly collapsed when it failed to clear the first hurdle, albeit that it took the scrutiny of three appeals for the debacle to materalise. 

Revelations of the facts relating to other defence arguments and issues will prove equally shameful, if they can ever be fully brought to light. 

First, the High Court left open the question for others to decide whether the curious payments of living expenses by the thoroughly discredited Australian Federal Police to crown witnesses would unfairly colour their evidence: “That issue could be the subject of suitable instructions to the jury” if the trial were to proceed. 

Second, the law under which Moti was charged was enacted in 1994 to prevent Australian tourists and ex-pats going unpunished for child sex crimes committed in another country when that other country was unwilling or unable to prosecute. 

It was never intended to be mis-used in the way it was: to harass a resident of another nation and where judicial process had already been engaged to determine the alleged offence. 

If Moti was resident elsewhere at the time – as he was – on what basis can Australia claim to have properly interfered? 

If the events were already been dealt with by a court elsewhere – as they were – why should he have been compelled to defend the charges again in Australia? 

Third, Moti was a central figure in the government of former PM Sogovare that thumbed its nose at the Howard government’s do-what-we-say agenda in the Pacific. The popular unrest that brought Sogavare to power was seen byAustralia to be against its interests and those of the Regional Assistance Mission (RAMSI) that was predominately led by the AFP. 

Moti himself was seen as an antagonist of the new Solomon Islands PM who took power on 20 December 2007,  just seven days before the  illegal abduction. The Solomons’ government – with whom Australia was found to have conspired – “had more than once” been told by Canberra that it wanted Moti removed. 

The extra-territorial application of a domestic law is controversial in itself. But to rope-collar a minister of a foreign government and extend a foreign law to depose him in his domicile to aid the establishment of a regime more favourably disposed to becoming a client state? 

It is nothing other than Executive abuse in the extreme, so abhorrent, that it must be fully exposed and the perpetrators themselves offered a taste of justice. 

Fourth, what exactly was the mission of the AFP in the latter part of 2007? To what extent did it operate as a para-military organ of arrogant and even illegal Australian foreign policy? 

Abuse – and possibly, crimes – have been committed against Mr Moti but also against the Solomon Islands people. Not to mention the ultimate integrity of this nation. 

The full story must be told: what is our Bay of Pigs must not be allowed to brand us as Ugly Australians in the many eyes of the region.

Moti v The Queen [2011] HCA 50 (7 December 2011)

The rethink – which follows the industry’s call in May for a moratorium on further ill-considered regulation and an email petition campaign from agents – is the best chance yet to topple the absurd scheme that has already cost agents and consumers nearly $2 billion.

Nearly 200 agents have already joined the e-mail protest to Deputy Premier Paul Lucas to support a joint ADL software – Carter Capner Law submission that the current regime be dumped.

More support is needed to demonstrate the depth of feeling over this issue.

The current rules import huge compliance, disputation and transaction costs: more than 50% of the legal effort for any transaction is expended on compliance issues that have nothing to do with its legal imperatives.

The triple liability that agents currently face from the overly prescriptive PAMDA laws – fines, lawsuit damages and not getting paid by opportunistic sellers – is grossly unfair.

The multitude of forms and disclosure is confusing to consumers to the extent that they are (including the PAMDA form 30c & BCCM 14 warning statements) mostly ignored. On the contrary, disclosing parties are immunised from liability by the very act of disclosure.

The submission urges that sensible legislative measures should be directed against the few shonks that are responsible for any rorts – not the entire industry and consumers themselves.

There is now for the most part, adequate protection under the general law – the Australian Consumer Law for example that came into force from January 1 2011 – that renders much of PAMDA’s specific consumer protections redundant. Any new regime of regulation should therefore be far less prescriptive.

And if deregulation of commissions does occur, this needs to happen without imposing further overheads and costs on agents.

Given Queensland real estate offices are currently suffering their worst decline in many years, with stamp duty rising and sales at rock bottom, it is time to make a change that will help rejuvenate a key part of our economy.

Peter Lawlor – the minister who oversaw the $1.5 billion PAMDA fiasco - was originally at the forefront of this further drive to madness.

The amendments provide for a complex new lot entitlements system.

Contribution schedule lot entitlements must be set equal according to the “equality principle” or if permissible, by reference to one or more prescribed relevant factors under the “relativity principle”.

Interest schedule lot entitlements must reflect the market values of the lots, subject to “just and equitable” exceptions.

Because of the intricacy of the changes, complex transitional provisions mean that it is safer (but expensive) to reissue any contracts that were given to potential buyers prior to cut over but hadn’t been signed by then.

The changes bring with them new disclosure and contract termination rules. You guessed it, buyers will once again have termination opportunities due to agent’s inadvertent paperwork errors and once again, it will take the courts a decade or more to determine exactly what the new rules mean.

Rather, the seller must disclose in the BCCM 206 disclosure statement “the extent” to which contributions are based on the contribution schedule entitlements on the one hand and on the interest schedule on the other.

How can this be done in practice?

Contracts and forms provider, ADL sought advice from the BCCM commissioner as to how the “extent” should be expressed or explained. The advice given, without of course accepting any responsibility for its accuracy was: “It has been suggested that this breakdown between the two schedules could be expressed in terms of a dollar figure, ratio or percentage”.

For many body corporates, the “extent” questions will be answered as “the whole” or “100%” for either the contribution or the interest lot entitlement questions and “nil” or “zero” for the other.

But to understand how to answer when there are variations from the norm, we need to digress – just for a moment – from our story.

There are at least two different types of variations. In some cases, $60k of the annual budget may be contributed according to one schedule of entitlements and $40k according to the other. In that scenario, assuming the body corporate administrator has recorded this on a per lot basis, the “extent” can be expressed as a dollar figure in the disclosure statement.

In another variation to the norm, contributions may be divergent, because say, a body corporate has resolved to “levy” (that term since Thursday is obsolete) a greater proportion of landscaping expenses upon the ground floor apartment lots because they have a far greater use of a common garden area.

Eventually such body corporates must adjust their contribution entitlements so that, if they cannot be “equal”, they are “relative”, i.e. any variations to equality must be referenced to one or more specific factors referred to in new s 46A. Until such adjustment has been formally accomplished (usually through QCAT), sellers must notify the “extent” of divergence.

This explains the need to disclose but not how such divergence is to be expressed. Consider again the ground floor garden apartment in our example. The “extent” of divergence is very unlikely to be able to be expressed as a ratio or percentage. Can it be expressed as a dollar amount? Only if the body corporate administrator has accurately calculated what it is.

Where that information is not available, the best way to express the divergence in our example may be to answer: “The whole, except that lots G1 & G2 pay a X% of the Z garden expenses (higher than in accordance with their contribution schedule lot entitlements) as a result of which other lot owners (including the lot which is the subject of this proposed sale) pay a lesser sum – refer to CMS and body corporate resolutions for further particulars”. But is this sufficiently accurate to comply?

I don’t know. Your suggestions (‘comment’ below) welcome.

Before we finish on the new disclosure rules, you need to know that the BCCM 206 disclosure statement must be accompanied by a copy of the community management statement (CMS) for the body corporate and both given to the buyer before they sign the contract.

Just remember that not getting it all right will most likely give a buyer an out at any time up until settlement if they are at all “materially prejudiced”.

My guess overall is that it’s another $1.5 billion at least that buyers, sellers and real estate agents will have to pour into the toilet.

But more on termination traps and other horrors to be careful of in our next post. You can’t wait I’m sure.

WorkCover had appealed the interpretation of 308C of the WCRA where the trial judge had ruled the section did not prevent the award of damages for gratuitous services – lawn mowing -which were provided post accident on a partly gratuitous; partly commercial basis.

The trial judge and ultimately the Court of Appeal ruled that because the section did not specifically refer to such ”hybrid” service provision methods, the section could not be considered as applying.

In the words of the President, parliament could not be presumed to have intended s 308C of the WCRA to have such a “peculiar and unjust result”.

To illustrate his point that the section “may give rise to injustice”, Chesterman J gave two examples comparing workers who suffer injuries at the same time.

In the first example, one of the injured workers – an “affluent worker” – could afford to pay for  services and the other relied on the charity of friends and family. In this example, only the affluent worker could recover the value of the services provided to him and s 308C prevented recovery by the other.

In the second example one worker was injured more seriously than the other. The one who struggles along putting up with the discomfort without the services he needs can recover the estimated cost of future paid services but the more seriously injured worker whose needs are met by friends or family will be unable to recover any damages for future services.

In the end, a small win for workers – one that is sure to be short lived.

His Honour noted part 10 of the WCRA was meant to remedy the “mischief” of “awards of damages thought to be excessive”.  However the part did not completely abolish the right to gratuitous services damages but rather constructed a scheme that prevented the award of damages in such circumstances.

When the executive via WorkCover, prevails upon parliament to remedy the perceived lacuna by extending application of the section in the manner it contended for in the subject case, as no doubt it will, the perceived injustice will prevail.

These machinations reveal ever so crudely, how a non-Jeffersonian democracy such as ours, lacking as it does any reservation of rights to the people, can fail to meet the ambitions of the people.

*Foster & Anor v Cameron [2011] QCA 048 Margaret McMurdo P and Chesterman JA and Ann Lyons J 22/03/2011

Seated in the back and wearing a lap belt only, she sustained serious spinal and abdominal injuries requiring three weeks hospitalisation and a body cast to be worn for three months after discharge.

Despite an optimistic interpretation to the warnings given at the hospital concerning her future occupational and recreational prospects, she knew it would be unlikely that she could pursue her chosen career in personal training.

She took an additional year to complete year 12 and then enrolled in 2007 at QUT in drama, a course that required rehearsals at least twice weekly.

She was taken to be aware of the possibility of making a claim because her father had showed her a solicitor’s letter in October 2004 but none of the other passengers had claimed compensation and she was anxious that her ex-boyfriend might have some personal liability.

The coming of her 21st birthday on 9 April 2009, meant that because of s29(2)(c) of the Limitation of Actions Act 1974, she could no longer seek compensation for her injuries unless she obtained a limitation extension under s30 or Suncorp agreed not to defend on that ground.

Note: There is a poll embedded within this post, please visit the site to participate in this post's poll.When Suncorp’s compassion failed to materialise, her s31 application was grounded on the extent of her injuries not coming to her knowledge until 15 October 2009 when she began to experience significant back pain and physical limitations from strenuous rehearsals for a theatrical production.

She had “got on with her life and did not experience any significant pain or restriction in her activities” including when working “part time in various casual jobs”.

She first consulted her lawyers, Murphy Schmidt, on 29 November 2009. The lawsuit was filed on 7 October 2010.

The pertinent questions before the Supreme Court* were therefore those under s30(1)(c):-

• did any material facts of a decisive nature come to her knowledge of within the 12 months following 7 October 2009 (the year before commencement of the proceedings)?
• if known to her before then, would a reasonable person having taken appropriate advice, commenced proceedings at that earlier time?

Her Honour was of the view that Ms Hargans “knew at least from the time of her discharge from the hospital that her injuries were going to prevent her from carrying out a wide range of activities given the doctor’s specific advice”

The October 2009 symptoms “were in fact the realisation of the prediction that had been made to her in 2004″ and did not themselves qualify as material decisive facts.

Further, in Her Honour’s view, with “all the knowledge that the applicant had it was not reasonable for her to take no further action or seek further advice given the state of her knowledge from at least early 2007”.

Ms Hargans failed in her quest for a limitation extension and barring appeal, all avenues to her for compensation have been closed.

The court accepted that she had a “tumultuous personal life until at least 2007″ when she commenced her studies at QUT. It does not seem to have been contended however that such factors constituted any additional disability that might have itself extended the relevant period under s29.

One wonders the extent to which the naivete as to her legal rights was contributed to by governmentcensorship of personal injury statements and the legal services commission enforcement of un-legislated “guidelines”.

Suncorp is certainly not complaining.

* Hargans v Kemenes & Anor [2011] QSC 015 (10/10890)  Ann Lyons J 14/02/2011

The difference is only the degree of loathing.

Locally, we are still some distance from the tipping point. But now we have a call for “people’s revolt” from the leader of political parties that command between 49% and 51% – let’s say half – popular support across the nation.

Mr Abbott’s call for uprising legitimises the peoples’ cause. And he has solid historical foundation for making it – not just by way of echoing the jasmine revolt – but in pursuit of the ideals of Jefferson himself, who famously observed that the tree of liberty needs frequent bloody refreshment.

Let’s not have his cry die on the wind. Even if Mr Abbott’s call for an armed rebellion gets no legs, we still can – with the authority lent by his charge - finally get the chance at our own Australian revolution without a drop of blood having to be spilt.

And so we must. Now – while the rhetoric is hot. Or put another way: Yes We Can.

Our revolution won’t be orange or lavender. It won’t even have a colour. We will advance ourselves alphabetically or more precisely, it will be the Vowel Revolution.

“E” is for, you guessed it, electronic. “I” is the subjective personal pronoun and also ‘i’ as in the information age, internet or whatever i-thing that takes your fancy. “O” is for goooooogle and “U” is for ‘you’, as in the objective “I”.

I don’t have to tell you what “A” is for.

The Vowel Revolution will be entirely on-line: a web based constitutional convention starting on 1 May for three months. Everyone who can spell may participate. We will ask the AEC or GetUp! to provide the back end and the AEU to disqualify bad spellers except for mid word capitalizations like GetUp and for the number of’ o’s in google.

Before then convenors from each state must be elected. The conveners’ job is to moderate delegates’ wiki edits to the WikiConstution which will include a Bill of Rights preserving the people’s control over the legislature and an elected president.

Any citizen, other than a sitting federal politician, can nominate before 1 April for the five convenor positions for each state.  I am thinking Ian Frazer, Kevin Sheedy, Dick Smith, Murrandoo Yanner would agree to be on the ballot.  State parliaments can also have one convener each, ex officio. Tony Abbott will only be allowed if he quits parliament and renounces violence.

Everyone with an Australian IP address is a delegate and entitled to propose edits. Edits will also be moderated algorithmicly – so each fortnightly draft of the WikiConstitution improves in quality over the previous one. The convenors will select among algorithms resolved and submitted by Facebook and Google as part of a sponsorship package.

On 1 August, the final draft - compiled in (electronic) peace and tranquility reminiscent of Philadelphia in 1787, but on this occasion drafted by the entire Australian internetocracy – will be put to the vote.

One vote per IP sub-address with public computer instalations created for those without a their own computer or an internet enabled mobile device. Voting on a star system (one to five) will be conducted online for seven days. To record a vote, at least one star must be submitted but voting is not compulsory.

The new constitution would be ratified and become the law of Australia law from 1 September if the star vote averages 3 or more.

And there we have it – a revolutionary Australia in six months with the voices of you and I heard – without a shot fired. The improvement in national spelling prowess will just be a bonus.

I departed Brisbane midday Sunday and arrived in Miami, via Los Angeles, at 5 pm the same day. Having missed the first day of meetings and the opening reception the night before, I  had to keep up a brisk pace to fit everything in over the next 5 days.

It was Super Bowl Sunday. The taxi from MIA had dropped me at the well located but less than salubrious, Parisian hotel. After a drying off from a quick shower with the hotel’s threadbare towels and an hour on the laptop – the working week was already underway in Brisbane – I took a taxi back across the causeway to a pub in downtown Miami where I had arranged to watch the match with friend, colleague and renowned medical malpractice attorney, Randy Reinhardt of Milwaukee. Randy spoke at a memorable APLA (now ALA) annual conference at the Mariott Surfers Paradise in 2004.

One hour of American football field time takes four hours to complete. That also means four times my usual single match-time schooner. After the popular Green Bay Packers win – in the end comfortably by 6 points – I cabbed it to my first convention event: the NLD (new lawyer’s division) party at Cameo nightclub on Washington Avenue in South Beach.

It was well under way when I arrived. A quick hand shake with former president and many time ALA speaker Les Weisbrod at the bar and a chat to stalwart Mike Hugo, saw me out and I decided to call it a night.

The next morning I made a hotel change. At 8.00am, I wheeled my luggage directly across Collins Ave to the Royal Palm, on the beach and next door to the convention hotel – Loews South Beach – but at half its price. I reserved an 11^th floor ocean front room for 5 nights, left my bags with the porters and rushed to my first session.

Monday morning’s Advocacy Track subject was “story development”: trial themes, keywords, mind maps, REPTILE and the like. Completely irrelevant, I can hear you say, in judge-alone trials to which we are accustomed down under. Not really: if the potential quantum can warrant it, all these devices can be useful tools of persuasion even in our courtrooms.

The International Practice and the Aviation sections were both scheduled for 1pm, fortunately on opposite sides of the hall. Bruno Paris (Paris) and 2009 Penguin Award recipient Marc Weingarten (PA) were already waiting outside the I.P. meeting room when I arrived to see a “cancelled” stamp over the meeting details on the program board.

Clash resolved, I joined the aviation section meeting and greeted many long standing colleagues including Kriendler New York attorney, Dan Rose.  As they are for all section and litigation group meetings, the discussions are completely confidential.

Then back to the Royal Palm to check-in and after briefly quickly admiring the fabulous outlook on to Miami Beach from the balcony, I was on the laptop to catch up on work and discuss progress with my team. This led me to miss the Civil Justice Foundation Reception at cocktail hour. After shutting down, I was just able to catch one drink at a lawn party at Loews held by one of the convention exhibitors where I spotted famous Chicago family lawyer, Mike Minton.

I was fortunate to receive a dinner invitation from Mike Slack and Ladd Sanger of Dallas aviation law firm Slack & Davis for their event at the famous Emeril’s at the St Moritz (the top-end annex to Loews). It was a real pleasure to meet and chat with fellow guests: George Machin (FL), Richard Dodd (TX), Mike Doyle (TX), Matthew Logue (PA) and of course our Slack & Davis hosts.

A fabulous night and lots of fun was brought to an abrupt and sobering end by tethering once again to office for Tuesday afternoon email traffic, correspondence and the usual queries.

I woke to a spectacular Tuesday morning in Miami: a light land breeze and every hint of warming to about 26C.

With no time to spare for the view, I was quickly out the hotel door at once confirming how great the day looked and felt. Once down the hedged driveway and briskly to the right along Collins, I scooted up past the Loews’ valets and porters into the lobby.

Howard Nations – a famously articulate and persuasive Houston trial lawyer I remembered from my first convention in 1994 and who has been doing trial work “since before Columbus found the Americas” – had already begun a customarily outstanding delivery on overcoming bias against personal injury claimants and their lawyers.

Office deadlines pulled me back to the hotel room for a couple more hours of work. I took a few minutes though to appreciate the serene outlook from the balcony: the hazy horizon, a glassy blue ocean, 100m wide white beach, sun lounges and beach umbrellas sparsely platooned in their differing hotel livery – bright Miami Dolphin orange directly in front, navy blue to the left and so on up and down the beach.

I sat at the desk and let the outside drift in – between emails and document mark ups – the gentle wave break, the wafting laughter from the playing children at the shore, the warmth in the air and drone of descending aircraft bringing in their cargos of travellers anxious to meld into the splendid scenery. (The approachs to the parallel 26 runways at MIA are high over the Miami Beaches).

At 12:30 precisely I was jolted from my finishing touches to a very courteous rule 444 demand – and my reverie of my perfect Mediterranean vacation – by an email from Tom Young reminding me that I had to be at slip C18 at Miami Beach Marina for a 12:45 ocean cruise.

I was out the hotel front door in two minutes. After settling into a cab hailed down on Collins, I faxed the demand I had been working on from my iPhone and soon after my Haitian driver pulled in to the marina. Hatians now appear to dominate that and similar industries unlike my last visit in 2002 when, you may be interested to know, the Australian dollar bought only US 57c as compared to today’s parity.

Tom Young heads up Tampa based consumer safety group, Injury Board. I first met Tom at Injury Board’s screening of Susan Saladoff’s feature documentaery Hot Coffee in San Francisco in 2009. We have been corresponding about safety issues since and it was a real delight to meet up with him and Patrick and Nick, aboard the 54’ game boat Island Soul.

If at all possible, the already spectacular day was even more perfect with a Heineken in hand, a deck underfoot, blue calm sea in all directions, Miami Beach off the port side and great company: a perfect way, as they say, to mix business with pleasure by comparing  strategies with colleagues like Michael Phelan (VA), James Krenis (TN), Roy Turner (VA), Greg Eiesland (SD) and Claire Wilkinson (Ontario).

Tom’s crew got us all back to the Marina very well fed, well watered and above all, reinvigorated.

Once back at the Royal Palm, it was time to check in via VPN & RDP for Wednesday’s start in Brisbane. I dragged myself away from the desk about 5pm for a walk to the beach and my first swim. The Atlantic was much warmer than southern Queensland in our non-summer months.

My dinner Tuesday night was bar-side at Prime Italian, where Shaq O’Neil is reputed to be a regular. From there to the world famous Delano Hotel, for the 9pm closing convention dessert reception.

Right on the dot of 11pm at the official end of the reception, the pool was opened to Miamians and they came in impressive numbers and dress styles: Tuesday as it turns out, is the Delano’s night of the week among competing hotels and nightclubs, so it was some party.

Wednesday was the final day of the convention. After taking in a morning session on the how social media can be used for case preparation, the Board of Governors meeting got underway at 1pm.

President, Gibson Vance chaired the 4 hour meeting of 100 or so board members which worked through both internal administrative issues as well as political action objectives. Then followed the final event – a post meeting reception for board members in the president’s suite.

Great to see again there, former president and APLA speaker Rich Hayley as well as aviation lawyer and former president Anthony Tarricone and our Nevada co-counsel Herb Friedman.

Off to dinner at – in the tradition of Miami cool – the completely unsigned STK restaurant (I had been looking for ‘Estique’ which made finding it quickly even more difficult) at the Ganesvoort Miami Beach, where the truffles were liberally sprinkled on my snapper and seven apparent models at the next table, were being entertained by one host. I had an after dinner drink at the roof top pool and bar – Plunge – that I am told hosts a wild daytime sun-lounge and cabana scene.

Although the convention was now over, for me there was still 3 days before my flight home. Thursday was equal parts laptop, beach – it was windy but warm – and shopping.

Friday was surprisingly cold. I hired a car and broke my stay in Miami by driving via route 1 and the I95 to Del Ray Beach to meet up with my 15yr old brother-in-law and 24 yr old sister-in-law.

Farewelling them after an early dinner at Deck 84 – which is on the Intercoastal Waterway – a 4800km shipping channel that runs the entire length of the eastern seaboard - and missing with some disappointment the Del Ray Beach Garlic Fest that opened that evening, I headed over to Boca Raton to meet up with famous personal injury attorney and our Florida co-counsel, Paul Finizio. It was great to see Paul again – I had last seen him on his visit to Brisbane in 2007.

My return to South Beach was via the Florida Turnpike. The $2.50 toll was well worth it, shaving about 30 min and bringing me into South Beach at 17th Street after only 55 mins, right where I needed to be.

Exhausted, I had dinner and a beer a short walk from the hotel, in the touristy Espanola Way. Friday night in Miami was already Saturday in Brisbane so I could afford to stay unconnected. I enjoyed just one Friday evening night-cap at the Delano before heading back to the hotel for bed.

Checking out at midday, and my bags with the porters, I wandered from the Royal Palm towards Lincoln Road. It was even cooler on Saturday, getting up to only 16C – a rare event in Miami.

I meandered up and down Lincoln before stopping for some well needed nourishment at Sushi Samba. Then with a taxi back to the hotel, my luggage retrieved, I continued on to MIA for a 6pm departure to Los Angeles for the midnight flight to Brisbane.

I hit the recline buttons at top of climb out of Los Angeles, skipped dinner and managed  a good seven hour sleep before waking refreshed and in time to get in a movie before breakfast.

Arriving 30 min prior to schedule at 7:05am, Brisbane International airport was quiet on Valentine’s Day Monday morning.

The cab driver to the city updated me on all the important events I had missed and was especially vocal about insurance companies refusing claims by flood survivors. He dropped me at my Charlotte Street office where I showered and began a new week, Miami now a very satisfying memory of a well worthwhile journey.

Regrettably this statement will soon prove true for many Queenslanders – because their policy simply does not extend to flood cover.

A Carter Capner Law comparison of the policies of all major providers, shows that – when it comes to payment – many leading names will leave their customers, high and dry: RACQ, QBE, Allianz, NRMA and AAMI don’t include river flooding cover as part of the usual risk.

Our highest ranked insurer – Summit Prestige (1) – provides cover direct from Lloyd’s of London via an Australian underwriting agency, SRS. Summit policies include unlimited cover for all types of flood, including for swimming pools, jetties, fencing and other outdoor improvements.

Suncorp (3), while covering a home & contents for flood, excludes pools and some other external improvements. APIA (4) also provides river flood cover except for retaining walls. Australian Unity (2) provides flood cover that extends to pools.

Then there is a large gap between those top 4 and other insurers, in terms of the cover that their policies provide.

QBE (5) only covers “flash floods” and RACQ (6) does likewise to a limited extent. AAMI (7), Allianz (9) and NRMA (8) cover ‘run-off’ and these policies will be the subject of considerable conjecture and probably litigation, especially for affected home owners in Brisbane and Ipswich while it is likely ‘flash flood’ and ‘run off’ cover will extend to homes in Toowoomba and the Lockyer Valley.

More than 28,000 Brisbane-Ipswich properties were inundated by the January 12-13  flood.  Another 5000 in regional centres and towns. By yesterday, the Insurance Council reported 12,000 claims worth $410 million had been recieved. With many properties likely to be the subject of at least two claims (owners for property and tenants for contents) one would expect the number of claims to at least quadruple. The average value of claims is also likely to at least double as owners of the most seriously damaged homes begin to tabulate their bottom lines.

How much litigation will there be? That’s anyone’s guess.

Here is the result of our analysis so far. Please email or comment with any observations or if you have a policy from an insurer that we have not listed.

SUMMIT PRESTIGE Home Insurance

Does policy cover flooding?

Yes. This policy covers all events unless specifically included. There are no exclusions for flood, actions of the sea, storm or sea surge, tsunami or tidal wave. They are therefore all covered.

Does cover extend to fencing, pools, outdoor improvements?

Policy defines ‘building’ to include all of these. They are all covered provided that the insured maintains the property in a satisfactory state of repair at all times.

Other notables

There is no cap on claimable amount for flooding – up to the maximum insured sum.

AUSTRALIAN UNITY Home and Contents Insurance (Everyday Care)

Does policy cover flooding?

Yes. Policy covers river flood and storm/rainwater damage.

Does cover extend to fencing, pools, outdoor improvements?

Policy does not extend to retaining walls; or wooden gates and fences over 15 years old. The policy does cover other permanent structural improvements which would include swimming pools.

Other notables

Policy does not cover damage by actions of the sea including high water, storm surge or tsunami. A $250 standard excess applies PLUS $500 excess when claiming for damage caused by flood. The PDS does not reveal a maximum benefit payable for flood claims.

* AUSTRALIAN UNITY Home and Contents Insurance Extra Care and Elite Care do not offer additional flood and storm damage cover.

SUNCORP Home and Contents Insurance (Classic)

Does policy cover flooding?

Yes. Policy covers loss and damage cause by storm and flood, inc. damage caused by rain, wind, hail and flooding from rivers, streets and canals.

Does cover extend to fencing, pools, outdoor improvements?

Policy does not cover swimming pools, retaining (or free standing) walls or garden borders and only covers gates and fences if they were not previously in an obvious state of disrepair.

Cover limit

No specific limit for flood: Subject to above, claims will be paid for all damage.

Other notables

Policy does not cover damage by actions or movements of the sea, but does cover damage caused by a tsunami or storm surge – if the storm surge is concurrent with storm or flood damage.

* SUNCORP Home and Contents Insurance (Platinum) offers the same level of flood and storm damage cover, but with additional features such as payment of temporary accommodation costs.

APIA Home Insurance

Does policy cover flooding?

Yes. Flood is defined as ‘the inundation of normally dry land by water overflowing from the natural confines of any natural or artificial watercourse or lake. Flood does not mean storm water run off from areas surrounding the site or water escaping from any water main, pipe, street gutter, guttering or surface.’ Limited cover is provided for storm, hail or rainwater damage.

Does cover extend to fencing, pools, outdoor improvements?

Yes. Damage to retaining walls not covered but pools and most other improvements are covered.

Other notables

Policy does not cover any action of the sea or tsunami. The PDS and Policy Wording does not specify a prescribed ‘maximum benefit’ payable for a flood. Other events are listed, but flood is conspicuously absent from the available information.

* APIA Home Insurance Extra offers no additional flood cover.

QBE Direct Home Cover Policy

Does policy cover flooding?

Flash flooding is covered. River flooding is not. Flash flood is defined as ‘what occurs when there are heavy, intense bursts of rainfall, usually during thunderstorms where so much water falls in a very short time that it cannot get away quickly enough and connects and flows into your home, but does not include when rainwater on the site cannot run off into a water catchment system, because it is overflowing in flood; and mixes with the flood water coming from the water catchment system and then flows into your home.’ Limited cover for storm and rainwater damage is also provided.

Does cover extend to fencing, pools, outdoor improvements?

River flooding not covered at all. For flash flooding, storm or rainwater, cover does not extend to gates, fences, retaining walls or swimming pools. Additional cover may be purchased for damage to gates and fences only.

Cover limit

No specific limit for flash flooding or storm (river flood not covered by policy).

Other notables

Policy does not cover any action of the sea, apart from a tsunami. High seas or a wave arising from any other event is not covered.

RACQ Household Insurance Policy

Does policy cover flooding?

No. This policy does not include flood cover as standard. Flood is defined as ‘rising water which enters your home as a result of it running off or overflowing from any origin or cause.’ Limited cover is provided for flash flood and stormwater run-off, defined as ‘a sudden flood caused by heavy rain that fell no more than 24 hours prior to the flash flood or stormwater run-off.’

Does cover extend to fencing, pools, outdoor improvements?

Flooding not covered. For flash flooding and stormwater run-off, cover does not extend to retaining walls or swimming pools. Storm cover does not extend to damage to swimming pools, retaining (or free standing) walls. Fences are not covered at all.

Cover limit

For flash flood and stormwater run-off: up to 50% of your insured home and contents sum, or $25,000 for each, whichever is higher. Maximum of $50,000. If the extra flood and storm surge cover has been purchased, will pay up to the sum insured for home and contents.

Other notables

Flood and storm surge protection may be covered by purchasing the option and paying more. Standard policy does not include these or other actions of the sea (excluding tsunami).

AAMI Home Building & Contents Insurance

Does policy cover flooding?

No. However ‘flood’ does not include stormwater runoff from areas surrounding the site, or water escaping from any water main, drain, pipe, street gutter, guttering or surface. Rather, flood is defined as ‘the inundation or covering of normally dry land by water which escapes or overflows from, or cannot enter, because it is full or has overflowed, or is prevented from entering because other water has already escaped or been released from it, the normal confines of any watercourse or lake, including any that may have been modified by human intervention, or reservoir, canal, dam or stormwater channel.’

Does cover extend to fencing, pools, outdoor improvements?

Flooding not covered. There is no exclusion of fencing, pools or other outdoor improvements in terms of damage suffered due to storms/rain water.

Cover limit

No limit specified for the limited flood cover available.

Other notables

Policy does not cover storm surge, tidal wave, tsunami, high tide or other action of the sea.

NRMA Home and Contents Insurance

Does policy cover flooding?

No. However policy does provide limited cover for storms, and the definition of storms includes ‘a sudden, excessive run-off of water as a direct erupt of a storm in your local area’. All other actions of the sea (storm surge, tidal wave) are expressly excluded.

Does cover extend to fencing, pools, outdoor improvements?

Flood damage not covered at all. Storm cover does not extend to damage to swimming pools; retaining walls; or fences that weren’t in good order and repair.

Cover limit

No specific limit for storm run-off (flood not covered by policy)

Other notables

Policy does not cover any action of the sea – high water, tidal wave or tsunami.

ALLIANZ SureCover Home Insurance

Does policy cover flooding?

No. The policy also excludes flood water combined with run-off and/or rainwater. Limited cover is provided for storm, rainwater and run-off damage. Run-off is defined as ‘rainwater that has collected on or has flowed across normally dry ground or has overflowed from swimming pools or spas’.

Does cover extend to fencing, pools, outdoor improvements?

Flood damage not covered at all. Storm/rainwater/run-off cover does extend to walls, gates, fences swimming pools and other fixtures.

Cover limit

For storm/run-off damage (no flood cover), will pay up to $1,000 for open-air contents. No other limits specified.

Other notables

Policy does not cover any action of the sea – high water, tidal wave or tsunami.

QTCU MemberCare Home Insure

Does policy cover flooding?

No. Floods are expressly excluded. Policy does provide limited cover for storms and rainwater damage.

Does cover extend to fencing, pools, outdoor improvements?

Flood damage not covered at all. Storm cover does not extend to damage to swimming pools or retaining walls. Fences and all other structural improvements are covered.

Other notables

Policy does not cover any action of the sea – high tide, high water, tidal wave, tsunami or storm surge.

* QTCU MemberCare Home Insure Plus offers no additional flood/storm cover.