FAI General Insurance v Australian Hospital Care

[2000] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B49 of 1999

B e t w e e n -

FAI GENERAL INSURANCE COMPANY LIMITED

Applicant

and

AUSTRALIAN HOSPITAL CARE PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 9.30 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:  May it please the Court, I appear with my learned friend, MR R.G. BAIN, QC, for the applicant.  (instructed by Clayton Utz)

MR S.S.W. COUPER, QC:  May it please the Court, I appear for the respondent.  (instructed by McLaughlins Solicitors)

GUMMOW J:   Yes, thank you, Mr Keane.  We will be assisted by hearing first from the respondent.

MR COUPER:   Thank you, your Honours.  Your Honours, the proposition advanced to support the application of special leave appears to be that there is a necessary conflict between the decision of the Court of Appeal in this case and the decision of the New South Wales Court of Appeal in Greentree.  In my respectful submission, what is said by the applicant is that the explanation of the basis upon which FAI v Perry can still be sustained in Greentree, that explanation is, in my respectful submission, both a dictum and, on analysis, really unsustainable.

The explanation is really that which appears in the judgment of the President and which is excerpted at is paragraph 10 on page 5 of the respondent’s written outline, if I might take your Honours to that for a moment.  That explanation, in my respectful submission, turns on the notion that there is a distinction of validity between terms of a policy of insurance which can be seen to be conditions to be satisfied by the insured and terms which can properly be described as expanding the scope of the policy itself. 

In my respectful submission, that analysis of the basis of the decision in FAI v Perry fails as an adequate explanation.  It involves the notion that if a term of a policy is one which falls within the definition of the risk, that section 54 does not go to such a term.  The notion of a term which expands the scope of the policy is one which, in my respectful submission, can properly be described as a term which goes to the definition of the risk which the policy is intended to cover.

GUMMOW J:   You may be perfectly correct in the end about all this but there does seem to be a problem which is vexing the several intermediate courts in the States, is there not, which is going to continue, I suspect?

MR COUPER:   There is certainly a difference of view between the Court of Appeal in this State and, patently, the New South Wales Court of Appeal in Greentree.  In my respectful submission ‑ ‑ ‑

GUMMOW J:   Well, what is going to happen if the problem arises, say, in the Full Court of Western Australia?

MR COUPER:    If, your Honours, for example, special leave were refused in this case on the basis that there was not sufficient doubt about the decision of the Queensland Court of Appeal, then the problem would substantially be laid to rest.  I mention only that, as some support for that view, without taking your Honours to it, the decision of his Honour Justice Rolfe in Einfield v HIH Casualty & General Insurance Limited ‑ ‑ ‑

GUMMOW J:   Well, there is an application for leave in that matter that is pending, I think, being brought direct on the basis that it should be brought direct because of the intermediate appellate situation.  So, it really just emphasises the problem I was putting to you.

MR COUPER:    Your Honours, the only submission I can make as to that, is this, that Mr Justice Rolfe was, with respect, correct to say that his apprehension that Antico had overruled the central reasoning in Perry; that the pronouncement of the New South Wales Court of Appeal in Greentree was a dictum, and that he ought to follow the decision that this application concerns.  In my respectful submission, an indication in response to this application by the Court that the decision is not attended by sufficient doubt would effectively put an end to the matter.  Those are the submissions of the respondent, your Honour.

GUMMOW J:   We do not need to trouble you, Mr Keane.  There will be a grant of leave in this matter.

Mr Keane, are we right in assuming, and I address this to Mr Couper too, that this would be a one day case.

MR KEANE:   At the most, your Honours.  It would certainly finish within a day.

GUMMOW J:   Yes, that seems right.  Thank you.

There will be a grant of leave in this matter as indicated.

AT 9.36 AM THE MATTER WAS CONCLUDED