Free, T.A. v National Mutual Life Association of Australasia Ltd

[1987] FCA 623

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
TASMANIA DISTRICT REGISTRY	) T. No. G 6 of 1983
)
GENERAL DIVISION	)

TONY ALFRED FREE Applicant

and

NATIONAL " U A L LIFE ASSOCIATION

OF AUSTRALASIA LIMITED

Respondents GEOFFREY CREESE and

m: NQRTHROP J.

: 26 OCTOBER 1987

PLACE: HOBART

MINUTES OF ORDER

THE COURT ORDERS THAT the hearing	of the appllcation	be
adjourned to 22 February 1988.

(Settlement and entry of Orders is dealt wlth In 0.36 of	the
Rule6 of Court).
r

IN THE FEDERAL COURT OF AUSTRALIA )

)

TASMANIA DISTRICT REGISTRY	)	T. No. G 6 of 1983
)

DIVISION	GENERAL	)
BETWEEN:

TONY ALFRED FREE Applicant

and

NATIONAL MUTUAL LIFE ASSOCIATION

OF AUSTRALASIA LIMITED

and GEOFFREY CREESE Respondents

COURT: NORTHROP J.

DATE : 26 OCTOBER 1987

M: HOBART

M TEMPORE REASONS FOR JUDGMENT

This application was commenced on 16 November 1983

and was listed for hearing today. By his appllcation, the

applicant is seeking damages under the Trade Practices Act

1974 based upon non-conformity by the respondents with

sections 52 and 53 of the Trade Practices Act; alternatively,

damages for what is described as negligent misrepresentation,

and alternatively, for an amount due under a contract of

msurance made between the applicant and the respondent,

National Mutual Life Association of Australasia Limited, on

or about 29 August 1979. The applicatlon also includes

claims based upon other remedies, but they are not presently

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being pursued. The claim is based on one or other or all of

the three claims which I have mentioned.

The contract which is the subject of the third

claim 1s an insurance-type policy under which the respondent,

National Mutual Life Association of Australasla Limlted,

agreed, subject to the policy and the terms of the policy,

that it would pay to the applicant a speclfled amount if the

applicant became or suffered total and permanent disablement as defined In that policy. That phrase 1s defined in the policy to mean that the appllcant, after the commencing date,

and in the opinlon of the Association, and	I quote, but I
will change the tense:-

"Became disabled by bodily injury or disease to such

an extent that he or she was at the relevant:	tlme,
and had been throughout the immediate preceding

continuous period of six months ... and will be so

dlsabled for the remainder of h16 or her life. "

The clalms based upon the Trade Practices Act and negligent

misrepresentatlon are based upon alleged statements made by

the agent, the secondnamed respondent, Geoffrey Creese,

during negotiations leading	up to the applicant entering Into
the polrcy of insurance.

During the currency of the policy, the applicant

claims to have suffered bodily injury or disease resulting in

total and permanent disablement,	and it is here that the
difficulties arise.

Looklng at the statement of clam, there IS room

for some doubt as to the basis of the c l a m based upon the

breach of contract clause. Clause 12 of the statement of

claim refers to the insurance policy and that the contents

will be referred to at the trial of the application.

Paragraph 13 is as follows:-

"13. Upon a date unknown to the Applicant but

before the 22nd day of September 1982 the

Applicant was physically disabled by illness

and became and remains unable to	pursue	his
employment as a truck drlver."

It should be noted that in the statement of c l a m there 1s no

speclfic reference to the other provlslons of the deflnltlon

of total and permanent disablement as deflned In the pollcy

and as referring to the appllcant. Paragraph 17 refers to

the fact that the applicant notifled the Associatlon of a

c l a m In respect of the "aforesaid dlsablement." Paragraph

18 refers to the fact that the applicant produced to the

Associatlon medical certiflcates In support of his claim, and paragraph 19 alleges that the applicant has complled with the

terms and condltions of the agreement, and paragraph 20

alleges that the Assoclation has neglected and	refused	to
indemnify the applicant.

There is a certain degree of ambiguity In those pleadlngs as to whether the appllcant is seeking to rely upon

the whole of the definitron of total and permanent

dlsablement; in other words, whether he 15, to use a phrase,

totally and permanently disabled in his profession or

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business or occupation, or from engaging In any other

business or occupation for which he is fltted by his

knowledge, trainlng, status and abllity. The medlcal reports

which have been supplied by the appllcant to the Associatlon

do not assist in the resolution of that amblqulty, since m

the opmions contained in those reports the appllcant "was

unflt for full-time work driving a heavy truck." That 1s In

one report. In the other report he was ald to be

"permanently disabled from driving his truck." There is

nothing said about doing other work of a kind which the

applicant could perform by reason of hls training and

experience.

The matter came to a head when counsel for the

applicant notified counsel for the Association that he

intended to lead oral evidence from the medical witnesses

relating to thelr opinion as to the capacity of the appllcant

to do other work of a klnd withln hls experlence, tralnlnq,

knowledge and sklll. In other words, to lead evldence to

prove, or tend to prove that the applicant came wlthin the

definition of suffermg a "total and permanent dlsablement"

as contained in the agreeement.

The matter is highlighted by the fact that at a

directions hearing on 13 July of this year, directions were

given for the exchange of medical reports which were to be

given by the applicant to the respondents within 21 days

after 13 July 1987. They were not given, although after two

letters from the solicitors for the Association, copies of

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two medical reports were forwarded under cover of a letter

dated 15 October 1987. Those two medical reports were dated

January 1985 and October 1986	respectively and each of those
contained the opinions which	I referred to earlier, and it

was on the basis that there was no expressed m lcal opinlon

dlrected to the wider meaning to be given to the phrase used

in the policy and to the fact that at a directions hearlng

the sollcitors for the applicant stated that the only claim

was In relatlon to the driving of a truck and the Inability

to do that, that counsel	for the respondents clalms that	he
has been taken by surprise.

He argues first that the pleadmgs do not cover the

w d e r c l a m and that if the pleadings do cover the wider

claim, then he 1s at a disadvantage and would require further

time in whlch to prepare and if need be, get medical advice

himself as to the condition of the appllcant. This is

supported by the first of the two letters written by the

sollcitors for the Assoclation seeking the supply of medical

reports which had not by then been supplled. This is

illustrated by reference to the letter of 18 August 1987 when

the solicitors for the Associatlon wrote to the sollcitors

for the applrcant pointing out the fact that there had been a

non-compllance	with	the	dlrections	of 13 July 1987 and
contlnu1ng:-

"We are unsure as to whether we need to call any

medical evldence other than that which was before

our client when the claim was assessed ... may	we
please have a proof within seven days?"

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The letter eventually forwarding on copies of the two medlcal reports makes no reference to the wlder meanlng to be glven

to the deflnltlon in the policy.

In my oplnion, the statement of claim, on its

proper constructlon, is sufficient to include withln It the

claim being made by the appllcant for a breach of the agreement for the non-payment of the amcunt of the pollcy in circumstances where the applicant has suffered permanent and

total disablement withln the wider definition as contained in

the policy. The statement of c l a m is not as clear as It

could be. The reference m paragraph 13 of the statement of

claim seems to llrnit the dlsablllty of the applicant to be

unable to pursue hls employment as truck drlver, but in its

context and the context of the pollcy itself, in all the

clrcumstances, I am of the opinion that the dlsabillty

includes the posltion of the applicant as the result of hls bodlly injury or disease and the extent of that bodily injury

or dlsease in all its ramifications as contained in the

policy. Accordingly, In my opinion, seeing this is a matter which comes within the statement of claim, evidence could be

led, and it would be admissible and relevant, as to the

bodily injury and illness condition of the appllcant at the time of the c l a m and what effect that had on his employment

and whether It comes within the policy. In these

circumstances, I reject the submisslon on behalf of the

respondents that his claim does not come withln the

application and statement of claim.

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There remains for consideratlon whether there

should be an adjournment of the hearing of the application to

enable the Association to prepare Its defence.

I am conscious of the length of tlme whlch thls

case has taken from the time it was lnltiated in December

1983 to today, lust about one month short of four years, and

lndlcate that delays of that kind In thls Court are not to be

countenanced. Under normal circumstances, the matter should

proceed to trial today. At the same tlme the Court is

concerned that It should not force any lnjustice on a party.

The Court acts impartially and with falrness to all partles

before it. In all the clrcumstances, I thlnk it 1s only fair

that I should grant the ad~ournment sought. I do so with

reluctance, but having regard to what I said as to fairness

between the parties, I think It is only fair that the

adjournment should be granted, and In thle regard I should

indicate that the fact that counsel for the appllcant has not

opposed the ad]ournment does not affect me any way

whatsoever. Too often practltloners agree to ad]ournments In circumstances where adjournments should not be granted and It

is important for the profession to reallse that when a date

is fixed for the hearlng of a matter, the Court expects the

matter to proceed on that day of hearlng. I should mdlcate

that the last three cases whlch have been fixed for hearing

in Hobart in this Court have all gone off without resolution.

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The Court was ready and able to hear the matter, but for

various reasons the matters were not able to proceed. The

Federal Court operates on the baals of a flxed date belng

given for the hearing of a matter and it expects the matter

to proceed on that day. That is something which the

professlon In Hobart must understand.

Orders accordingly.