Clark v Avant Insurance Ltd; Stevens v Avant Insurance Ltd

The plaintiffs, Clark and Stevens, sought leave to appeal a decision of the primary judge who had refused them leave to proceed against the defendant insurer, Avant Insurance Ltd, under section 5(1) of the *Civil Liability (Third Party Claims Against Insurers) Act 2017* (NSW). The underlying dispute concerned claims for damages brought by the plaintiffs against a doctor for alleged medical negligence. The primary judge had found that the plaintiffs’ claims were "first made" before the commencement of the relevant policy period with Avant Insurance Ltd.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing leave to proceed against the insurer. Specifically, the court had to determine if there was an arguable case that the insurance policy held by the doctor responded to the plaintiffs' claims, notwithstanding the primary judge's finding that the claims were made prior to the policy period.

The Court of Appeal considered the meaning of "first made" in the context of the *Civil Liability (Third Party Claims Against Insurers) Act 2017* (NSW) and the relevant insurance policy. The court reasoned that for the Act to apply, the claim must be "first made" during the currency of the policy. As the primary judge had made a finding of fact that the claims were made before the policy commenced, there was no arguable case that the policy responded to the claims. Consequently, the court found no error in the primary judge's refusal to grant leave to proceed against the insurer.

The Court of Appeal ordered that the requirement for Leslie Blackstock to be joined as a party to the leave applications and proposed appeal proceedings be dispensed with.