Guild Insurance Ltd v Hepburn

Case [2014] NSWCA 400

Court of Appeal

New South Wales
Case Title: Guild Insurance Ltd v Hepburn
Medium Neutral Citation: [2014] NSWCA 400
Hearing Date(s): 31 October 2014
Decision Date: 24 November 2014
Before: Macfarlan JA at [1];
Meagher JA at [43];
Gleeson JA at [58]
Decision:

(1) Leave to appeal granted.
(2) Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: INSURANCE - respondent claimed damages from former dentist for injury suffered as a result of allegedly wrongful advice and treatment - primary judge granted leave to join insurer as second defendant to proceedings under s 6 of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - whether arguable that insurer is liable to indemnify insured - whether arguable that insured was aware of circumstances that might give rise to a claim - whether arguable that insured will not be able to satisfy judgment against her - appeal dismissed
Legislation Cited: Insurance Contracts Act 1984 (Cth), ss 40, 54
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Cases Cited: Antico v Heath Fielding Australia Pty Limited [1997] HCA 35; 188 CLR 652
Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; 302 ALR 101
Energize Fitness Pty Ltd v Vero Insurance Limited [2012] NSWCA 213
FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 38; 204 CLR 641
Gosford City Council v GIO General Ltd [2003] NSWCA 34; 56 NSWLR 542
Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33; 88 ALJR 841
Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85
Oswald v Bailey (1987) 11 NSWLR 715
Owners-Strata Plan 50530 v Walter Construction Group Ltd (in Liq) [2007] NSWCA 124; 14 ANZ Ins Cas 61-734
Registrar-General of New South Wales v LawCover Insurance Pty Ltd [2014] NSWCA 241; 17 BPR 33,235
Tzaidas v Child [2004] NSWCA 252; 61 NSWLR 18
Texts Cited: Australian Law Reform Commission Report No 20, Insurance Contracts (1982), Summary of Recommendations
Category: Principal judgment
Parties: Guild Insurance Ltd (Applicant)
Mary Hepburn (Respondent)
Representation
- Counsel: Counsel:
S Donaldson SC/A J Bowen (Applicant)
M Thompson (Respondent)
- Solicitors: Solicitors:
Meridian Lawyers (Applicant)
Gerard Malouf & Partners (Respondent)
File Number(s): CA 2014/8435
Decision Under Appeal
- Court / Tribunal: District Court
- Before: Norton SC DCJ
- Date of Decision:  13 December 2013
- Court File Number(s): DC 2013/123974

HEADNOTE

[This headnote is not to be read as part of the judgment]

By statement of claim filed in the District Court on 22 April 2013 Ms Mary Hepburn, the present respondent, claimed damages for trespass,…

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Guild Insurance Ltd v Hepburn [2014] NSWCA 400
Case
[2014] NSWCA 400
Decision Date

CaseChat Overview and Summary

Guild Insurance Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had granted the respondent, Ms Hepburn, leave to join Guild Insurance Ltd as a second defendant to proceedings. Ms Hepburn sought damages from her former dentist for alleged wrongful advice and treatment. The joinder was sought pursuant to section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW), which permits a claimant to join an insurer as a defendant in proceedings against an insured person in certain circumstances.

The central legal issues before the Court of Appeal were whether there was an arguable case that Guild Insurance Ltd was liable to indemnify its insured, the former dentist, and whether there was an arguable case that the insured was aware of circumstances that might give rise to a claim. Furthermore, the court had to consider whether there was an arguable case that the insured would be unable to satisfy any judgment that might be entered against her.

The Court of Appeal, comprising Macfarlan, Meagher and Gleeson JJA, dismissed the appeal. The court reasoned that the primary judge had correctly applied the relevant legal principles in determining whether to grant leave to join the insurer. The test for granting such leave requires an arguable case that the insurer is liable to indemnify the insured, and that the insured is unable to satisfy a judgment. The court found that Ms Hepburn had established an arguable case on each of these points, thus justifying the joinder of Guild Insurance Ltd as a defendant.

Leave to appeal was granted, but the appeal itself was dismissed with costs.

Orders

Orders of the court

(1) Leave to appeal granted.

(2) Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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