Government Insurance Office of New South Wales & Anor v Kimmedy

The applicants, the Government Insurance Office of New South Wales and Qantas Airways Limited, sought special leave to appeal from a majority decision of the Court of Appeal of New South Wales. The dispute concerned a claim made by the respondent, a former airline pilot, under a Voluntary and Contributory Loss of Licence Insurance Plan administered by the applicants. The respondent's claim was rejected based on an exclusion clause within the plan, which excluded illnesses "of a nature as to be incapable of diagnosis by objective medical". The respondent had lost his airline transport pilot licence due to a failure to meet medical standards by reason of migraine.

The High Court was required to determine two primary legal issues. Firstly, whether the exclusion clause in question was a part of the insurance plan at the relevant date, being 22 October 1985, when the respondent's licence was cancelled. Secondly, if the exclusion clause was indeed part of the plan, whether the respondent's illness, migraine, satisfied the description of the exclusion.

The Court of Appeal had been divided on these issues. Mr Justice Yeldham, at first instance, had found that the exclusion clause was part of the plan but that the respondent's migraine did not meet the criteria of the exclusion. However, the majority in the Court of Appeal, Justices Samuels and Clark, held that the exclusion clause was not part of the rules governing the respondent's membership. It was against this majority decision that the applicants sought special leave to appeal to the High Court.