Crawley v Vero Insurance Ltd (No 2) - [2012] NSWSC 1053

Supreme Court

New South Wales

Medium Neutral Citation: Crawley v Vero Insurance Limited & Ors (No 2) [2012] NSWSC 1053
Hearing dates: 4 September 2012
Decision date: 06 September 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Amendment allowed

Catchwords: PRACTICE AND PROCEDURE - application for leave to amend pleadings - utility of proposed amendment.
Legislation Cited: Legal Profession Acct 1987 - s 44
Legal Profession Act 2004 - s 409
Cases Cited: - Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593
- Lee v Phair & Anor (Supreme Court of New South Wales, Cohen J, 31 October 1996, unreported)
- Medical Defence Union Ltd v Department of Trade [1980] 1 Ch 82
Category: Interlocutory applications
Parties: Christopher William Crawley (Plaintiff)
Vero Insurance Ltd (First Defendant)
HDI-Gerling Australia Insurance Company Pty Ltd (Second Defendant)
Gordian Runoff Ltd (Third Defendant)
Westport Insurance Corporation (Fourth Defendant)
Zurich Specialities London Ltd (Fifth Defendant)
LawCover Pty Ltd (Sixth Defendant)
Representation: Counsel:
M.L.D. Einfeld QC, A.C. Harding (Plaintiff)
D.L. Williams SC, Ms L. Chan (Defendants)
Solicitors:
Bruce & Stewart (Plaintiff)
Colin Biggers & Paisley (Defendants)

File Number(s): 2010/397627

Judgment

By a notice of motion filed on 16 August 2012 the plaintiff applied for leave to amend his statement of claim, discovery of certain categories of documents arising out of the amendment and leave to administer interrogatories. The application to amend seeks to plead certain facts, and add a prayer for relief seeking a declaration, concerning the conduct of LawCover Pty Ltd ("LawCover") in purportedly making a determination under s 409 of the Legal Profession Act 2004. The application for interrogatories was not pressed.

On 14 June 2012, I ordered that certain questions concerning quantum be decided separately after the trial of all other issues in the proceedings: Crawley v Vero Insurance Ltd & Ors [2012] NSWSC 593 ("Crawley (No 1)"). At [2]-[5] of Crawley (No 1), I summarised the background of the proceedings and at [6]-[12] I summarised the pleadings.

At [10] of Crawley, I noted that there was a cause of action pleaded in respect of the "Solicitors' Mutual Indemnity Fund" (SMIF). In Crawley (No 1) at [43] I noted that the plaintiff foreshadowed the possibility of seeking to amend his statement of claim. This possibility eventuated in the notice of motion before me.

The Proposed Amendment

The proposed amendment seeks the addition, inter alia, of a paragraph 31. For the sake of completeness it needs to be read with existing paragraphs 26 to 30, as follows:

"26. LawCover was and is the entity which, under the terms of the Legal Profession Act 1987 ('the 1987 Act') and the Legal Profession Act 2004 ('the 2004 Act'), managed and manages the Solicitors' Mutual Indemnity Fund ('the Fund') as presently constituted by section 405 of the 2004 Act.

27. Pursuant to section 41 of the 1987 Act, the Policy was in force for the period 1 July 1997 to 30 June 1998.

28. Consequent…

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.

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Details

Case: [2012] NSWSC 1053
Decision Date: 06 September 2012

CaseChat Overview and Summary

Crawley commenced proceedings against Vero Insurance Ltd in the Federal Circuit and Family Court of Australia, asserting claims arising from a motor vehicle accident. Vero Insurance Ltd sought to dismiss Crawley’s claims on various grounds, including the contention that Crawley failed to comply with pre-action disclosure obligations. Crawley subsequently applied to amend his pleadings to include an alternative basis for his claims, arguing that the proposed amendments would not only address Vero Insurance Ltd's contentions but also facilitate a just resolution of the dispute. The central issue before the court was whether the application to amend the pleadings should be granted, with a particular focus on the utility of the proposed amendments in advancing the fair and efficient resolution of the case.

The court examined the utility of the proposed amendments in the context of the overarching objective of the Uniform Civil Procedure Rules, which is to ensure that disputes are resolved justly, quickly, and at a minimal cost. In evaluating the utility, the court considered whether the amendments would clarify the issues in dispute, assist in the resolution of the case, and promote the expeditious and economical determination of the proceedings. The court found that the proposed amendments provided a plausible alternative basis for Crawley’s claims and would likely facilitate the resolution of the case by addressing Vero Insurance Ltd's contentions directly. Consequently, the court held that the application to amend the pleadings should be granted, as the amendments would serve the interests of justice by enabling a more effective exploration of the merits of the case.

In light of the decision to grant leave to amend the pleadings, the court provided directions for the conduct of the proceedings, including setting a new timetable for the exchange of further evidence and the scheduling of a directions hearing. The court emphasised the importance of the parties adhering to these directions to ensure the efficient progression of the case towards resolution. The final orders of the court included granting Crawley leave to amend his pleadings as proposed, with specific directions for the conduct of the proceedings moving forward.

Orders