Crawley v Vero Insurance Ltd (No 4) - [2012] NSWSC 1582

Supreme Court

New South Wales

Medium Neutral Citation: Crawley v Vero Insurance Ltd (No 4) [2012] NSWSC 1582
Hearing dates: 5 December 2012
Decision date: 19 December 2012
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Application to administer interrogatories dismissed.

Catchwords: PRACTICE AND PROCEDURE â€“ application to administer interrogatories in relation to resolution under s 409 of Legal Profession Act 2004 â€“ exclusively within knowledge of decision maker(s) â€“ whether necessary â€“ whether reasonably required â€“ whether validity of resolution in issue on pleadings â€“ interrogatories not necessary for the resolution of the issues raised in the pleadings.
Legislation Cited: - Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 13
- Interpretation Act 1987 - s 41
- Legal Profession Act 1987 - s 44
- Legal Profession Act 2004 - s 409
- Uniform Civil Procedure Rules 2005 - r 14.27
Cases Cited: - Attorney-General v Walker (1849) 3 Exch 242; 154 ER 833
- Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; 75 NSWLR 169
- Chong v Nguyen [2005] NSWSC 588
- Crawley v Vero Insurance Ltd [2012] NSWSC 593
- Crawley v Vero Insurance Limited (No 2) [2012] NSWSC 1053
- Crawley v Vero Insurance Ltd & Ors (No 3), NSWSC unrep, 25.10.12
- Lee v Carlton Crest Hotel (Sydney) Pty Ltd [2012] NSWSC 1392
- Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435
- State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 477
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:
Mr M.L.D. Einfeld QC, Mr A.C. Harding (Plaintiff)
Mr D.L. Williams SC, Ms L. Chan (Defendants)
Solicitors:
Bruce & Stewart (Plaintiff)
Colin Biggers & Paisley (Defendants)

File Number(s): 2010/397627

Judgment

The background to these proceedings is set out in Crawley v Vero Insurance Ltd [2012] NSWSC 593 ("Crawley (No 1)") and Crawley v Vero Insurance Ltd (No 2) [2012] NSWSC 1053 ("Crawley (No 2)").

On 5 December 2012 I heard argument on the plaintiff's application to administer interrogatories to the defendant. This application was the last remaining prayer for relief set out in the plaintiff's notice of motion filed 16 August 2012 (see Crawley v Vero Insurance Ltd & Ors (No 3), unreported, 25 October 2012 ("Crawley (No 3)").

The proposed interrogatories

The proposed interrogatories are directed to a resolution said to have been made by LawCover under s 409 of the Legal Profession Act 2004 on 16 May 2012 (see Crawley (No 2) at [11] and [14]). LawCover purported to resolve that, in the event that Mr Crawley failed in these proceedings to establish an entitlement to indemnity under a policy of insurance, "no sum shall be payable out of SMIF" in respect of Mr Crawley's…

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 1582
Decision Date: 19 December 2012

CaseChat Overview and Summary

Crawley commenced proceedings against Vero Insurance Ltd in the Supreme Court of Victoria. The dispute involved the interpretation of a professional indemnity insurance policy. The case reached the point where the court was to decide whether interrogatories should be administered in relation to a resolution under section 409 of the Legal Profession Act 2004. The court had to determine whether the information sought by the interrogatories was exclusively within the knowledge of the decision-maker(s), whether it was necessary and reasonably required, and if the validity of the resolution was in issue on the pleadings. Crawley argued that the interrogatories were necessary for the resolution of the issues raised in the pleadings, whereas Vero Insurance Ltd contended that the interrogatories were not required.

The court considered whether the information sought by the interrogatories was exclusively within the knowledge of the decision-maker(s) and whether it was necessary and reasonably required. The court found that the information sought was not exclusively within the knowledge of the decision-maker(s) and that the interrogatories were not necessary or reasonably required. Furthermore, the court determined that the validity of the resolution was not in issue on the pleadings, and the interrogatories were not necessary for the resolution of the issues raised in the pleadings. Therefore, the court dismissed the application to administer the interrogatories. The court held that the information sought was not exclusively within the knowledge of the decision-maker(s), and the interrogatories were not necessary or reasonably required for the resolution of the issues raised in the pleadings.

The court's reasoning was based on the fact that the information sought by the interrogatories was not exclusively within the knowledge of the decision-maker(s), and the interrogatories were not necessary or reasonably required. The court held that the validity of the resolution was not in issue on the pleadings, and the interrogatories were not necessary for the resolution of the issues raised in the pleadings. Therefore, the court dismissed the application to administer the interrogatories. The court's decision was based on the court's view that the information sought by the interrogatories was not exclusively within the knowledge of the decision-maker(s), and the interrogatories were not necessary or reasonably required for the resolution of the issues raised in the pleadings. The final orders of the court were that the application to administer the interrogatories was dismissed.

Orders