Chubb Insurance Company of Australia Limited v Moore (No 2) - [2013] NSWCA 299

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Chubb Insurance Company of Australia Limited v Moore (No 2) [2013] NSWCA 299
Decision date: 10 September 2013
Before: Bathurst CJ at [1];
Beazley P at [2];
Macfarlan JA at [3];
Emmett JA and Ball J at [4].
Decision:
(1) The Court declares that s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 does not apply in relation to any insurance moneys that are or may become payable by any of the plaintiffs under any of the relevant policies in respect of the claims made by the Transform Claimants in the Transform Proceedings (the first and second defendants), or any class of them, or in respect of the claims made by the PDS Claimants in the PDS Proceedings (the third to eleventh defendants), or any class of them.
(2) The Court orders that the Transform Claimants (the first and second defendants) and the PDS Claimants (the third to eleventh defendants) jointly and severally pay 50 per cent of the plaintiffs' costs of the proceedings, including the proceedings in the Court of Appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
COSTS - whether exception to general rule that costs follow event - where questions of public interest - where separate questions removed to Court of Appeal on stated case - where questions of significant continuing interest to plaintiff insurers - where other parties shared some measure of success - nature of parties - where insurers large and recurrent litigants
PROCEDURE - civil - judgments and orders - final orders - where multiple questions removed to Court of Appeal on stated case answered but single answer determinative
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946, s 6
Cases Cited: Bullock v London General Bus Co [1907] 1 KB 264
CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Category: Costs
Parties: Chubb Insurance Company of Australia Limited (First Plaintiff)
Liberty Mutual Insurance Company t/as Liberty Insurance Underwriters (Second Plaintiff)
Allianz Australia Insurance Limited (Third Plaintiff)
Chartis Australia Insurance Limited (Fourth Plaintiff)
AXIS Specialty Europe Public Limited Company t/a AXIS Specialty Australia (Fifth Plaintiff)
QBE Insurance (Australia) Limited (Sixth Plaintiff)
Wesfarmers General Insurance Limited (Seventh Plaintiff)
Margaret Moore (First Defendant)
Michael Snelgrove (Second Defendant)
Peter Clarke as Trustee for the Clarke Family Trust (Third Defendant)
Samantha Murray (Fourth Defendant)
Raymond Drummond (Fifth Defendant)
Laurence Hogan (Sixth Defendant)
Jaclyne Fisher (Seventh Defendant)
Adrian Williams (Eighth Defendant)
Mohetishwar Prasad (Ninth Defendant)
Janet Micallef (Tenth Defendant)
Glenn Ford (Eleventh Defendant)
Great Southern Managers Australia Limited (Receivers & Managers Appointed) (in liquidation) (Twelfth Defendant)
John Young (Thirteenth Defendant)
Cameron Rhodes…

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.

Continue reading Chubb Insurance Company of Australia Limited v Moore (No 2)

Details

AGLC: Chubb Insurance Company of Australia Limited v Moore (No 2) [2013] NSWCA 299
Case: [2013] NSWCA 299
Decision Date: 10 September 2013

CaseChat Overview and Summary

Chubb Insurance Company of Australia Limited and other plaintiff insurers sought declarations regarding the application of section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) to insurance moneys payable under their policies. The defendants, the Transform Claimants and the PDS Claimants, were claimants in separate proceedings who sought to access these insurance moneys. The dispute concerned whether section 6, which allows a claimant to proceed against an insurer directly where the insured is unable to satisfy a judgment, applied to the specific insurance policies and claims in question. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* applied to insurance moneys that might become payable by the plaintiff insurers to the defendants in respect of claims made in the Transform Proceedings and the PDS Proceedings. This involved determining the scope and effect of the statutory provision in the context of the particular insurance policies and the nature of the claims being made.

The Court of Appeal, in answering questions removed to it on a stated case, declared that section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* did not apply to the insurance moneys in question. The Court reasoned that the statutory provision was not intended to operate in the circumstances presented, particularly given the nature of the policies and the claims. The Court also considered the question of costs, noting that while the questions were of significant continuing interest to the plaintiff insurers and had been removed to the Court of Appeal, the other parties had shared some measure of success.

Consequently, the Court ordered that the Transform Claimants and the PDS Claimants jointly and severally pay 50 per cent of the plaintiffs' costs of the proceedings, including the proceedings in the Court of Appeal.

Orders

Orders of the court

(1) The Court declares that s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 does not apply in relation to any insurance moneys that are or may become payable by any of the plaintiffs under any of the relevant policies in respect of the claims made by the Transform Claimants in the Transform Proceedings (the first and second defendants), or any class of them, or in respect of the claims made by the PDS Claimants in the PDS Proceedings (the third to eleventh defendants), or any class of them.

(2) The Court orders that the Transform Claimants (the first and second defendants) and the PDS Claimants (the third to eleventh defendants) jointly and severally pay 50 per cent of the plaintiffs' costs of the proceedings, including the proceedings in the Court of Appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Chubb Insurance Company of Australia Limited v Moore (No 2) [2013] NSWCA 299
Decision date:	10 September 2013
Before:	Bathurst CJ at [1]; Beazley P at [2]; Macfarlan JA at [3]; Emmett JA and Ball J at [4].
Decision:	(1) The Court declares that s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 does not apply in relation to any insurance moneys that are or may become payable by any of the plaintiffs under any of the relevant policies in respect of the claims made by the Transform Claimants in the Transform Proceedings (the first and second defendants), or any class of them, or in respect of the claims made by the PDS Claimants in the PDS Proceedings (the third to eleventh defendants), or any class of them. (2) The Court orders that the Transform Claimants (the first and second defendants) and the PDS Claimants (the third to eleventh defendants) jointly and severally pay 50 per cent of the plaintiffs' costs of the proceedings, including the proceedings in the Court of Appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - whether exception to general rule that costs follow event - where questions of public interest - where separate questions removed to Court of Appeal on stated case - where questions of significant continuing interest to plaintiff insurers - where other parties shared some measure of success - nature of parties - where insurers large and recurrent litigants PROCEDURE - civil - judgments and orders - final orders - where multiple questions removed to Court of Appeal on stated case answered but single answer determinative
Legislation Cited:	Law Reform (Miscellaneous Provisions) Act 1946, s 6
Cases Cited:	Bullock v London General Bus Co [1907] 1 KB 264 CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1
Category:	Costs
Parties:	Chubb Insurance Company of Australia Limited (First Plaintiff) Liberty Mutual Insurance Company t/as Liberty Insurance Underwriters (Second Plaintiff) Allianz Australia Insurance Limited (Third Plaintiff) Chartis Australia Insurance Limited (Fourth Plaintiff) AXIS Specialty Europe Public Limited Company t/a AXIS Specialty Australia (Fifth Plaintiff) QBE Insurance (Australia) Limited (Sixth Plaintiff) Wesfarmers General Insurance Limited (Seventh Plaintiff) Margaret Moore (First Defendant) Michael Snelgrove (Second Defendant) Peter Clarke as Trustee for the Clarke Family Trust (Third Defendant) Samantha Murray (Fourth Defendant) Raymond Drummond (Fifth Defendant) Laurence Hogan (Sixth Defendant) Jaclyne Fisher (Seventh Defendant) Adrian Williams (Eighth Defendant) Mohetishwar Prasad (Ninth Defendant) Janet Micallef (Tenth Defendant) Glenn Ford (Eleventh Defendant) Great Southern Managers Australia Limited (Receivers & Managers Appointed) (in liquidation) (Twelfth Defendant) John Young (Thirteenth Defendant) Cameron Rhodes…