Hellyer v AMP General Insurance Ltd - [2002] NSWSC 866

Reported Decision:
(2002) 12 ANZ Insurance Cases 61-541

New South Wales

Supreme Court

CITATION: Hellyer & Anor v AMP General Insurance Ltd [2002] NSWSC 866

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20367/97

HEARING DATE(S): 16 July 2002

JUDGMENT DATE: 20 September 2002

PARTIES :

Kerry Hellyer (Williams) and Mark Williams - Applicants
AMP General Insurance Ltd - Respondent

JUDGMENT OF: Smart AJ at 1

COUNSEL : D. Toomey - Applicant
R. Cavanagh - Respondent

SOLICITORS: Porters Lawyers - Applicant
Henry Davis York - Respondent

CATCHWORDS: Seeking to sue insurer direct - interaction of s 6 Law Reform (Miscellaneous Provisions) Act 1946 and s 54 Isurance Contracts Act 1984 (Cth) - what constitutes a claim

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946
Insurance Contracts Act 1984 (Cth)

CASES CITED: Walton v National Employers Insurance Association [1973] 2 NSWLR 73
Junemill Ltd (In liq) v FAI General Insurance Co Ltd (1996) 9 ANZ Insurance Cases 61-315
West Wake Price and Co v Ching [1956] 3 All ER 821
East End Real Estate Pty Ltd v C.E. Heath Casualty & General Insurance Ltd (1991) 25 NSWLR 400
East End Real Estate Pty Ltd v C.E. Heath Casualty& General Insurance Ltd (1992) 7 Leg Rep SL2
Greentree v FAI General Insurance (1998) 44 NSWLR 706
Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 399
FAI General Insurance v Jarvis (1999) 46 NSWLR 1
McMillan v Mannix (1993) 31 NSWLR 538

DECISION: Application dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SMART AJ

Friday, 20 September 2002

20367/97 Kerry Hellyer (formerly Williams) and Mark Williams v AMP General Insurance Limited

JUDGMENT

1 About 16 March 1994 each of the plaintiffs entered into an agreement with Diveteach Pty Ltd, which subsequently changed its name to Aquateach Pty Limited, in which Diveteach was, during a five day introductory course, to teach them the basic elements of safe scuba diving. The course was to be conducted in accordance with the procedures, practices and standards laid down by the Professional Association of Diving Instructors (PADI). Diveteach engaged Andrew Gunst, a qualified diving instructor, for the purpose of teaching, providing instruction and supervising the plaintiffs in scuba diving. During the course of diving instruction provided by Gunst and supervised by him from 16 to 20 May 1994 the plaintiffs suffered decompression illness, loss and damage.

2 Gunst had effected a professional indemnity insurance policy with AMP General Insurance Limited (AMPG) through a scheme underwritten by AMPG for the Australian Underwater Federation. That policy with AMPG was current during the period December 1993 to 31 October 1994 and renewed for 2 years thereafter. Gunst died on 8 November 1996.

3 The plaintiffs seek leave to commence proceeding against AMPG pursuant to the provisions of section 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946 and leave to amend the statement of claim so as to join AMPG as the second defendant. The actual policy with completed schedules cannot be found. AMPG has…

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.

Continue reading Hellyer v AMP General Insurance Ltd

Details

AGLC: Hellyer v AMP General Insurance Ltd [2002] NSWSC 866
Case: [2002] NSWSC 866
Decision Date: 20 September 2002

CaseChat Overview and Summary

In the matter of Hellyer v AMP General Insurance Ltd, the Federal Court considered the interaction between section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 and section 54 of the Insurance Contracts Act 1984 (Cth). The plaintiff sought to bring a direct claim against the insurer, AMP General Insurance Ltd, regarding a dispute over an insurance policy. The primary issue revolved around the interpretation of what constitutes a valid claim under these legislative provisions.

The court had to determine whether the plaintiff's action was permissible under the statutory framework. Specifically, it examined how section 6 of the Law Reform (Miscellaneous Provisions) Act 1946, which generally prohibits direct actions against insurers, interacts with section 54 of the Insurance Contracts Act 1984 (Cth), which provides exceptions to this prohibition under certain circumstances. The court considered whether the plaintiff's action met the criteria set out in section 54, which requires that the claim be in relation to the making of a policy or its operation.

The court concluded that the plaintiff's action was not a valid claim under section 54 of the Insurance Contracts Act 1984 (Cth). It held that the plaintiff's dispute did not pertain to the making of the policy or its operation but rather involved a post-policy issuance claim. As a result, the prohibition on direct actions against insurers, as set out in section 6 of the Law Reform (Miscellaneous Provisions) Act 1946, remained applicable. The court ruled that the plaintiff's claim was not permissible under the statutory framework. The court did not provide any specific orders as the claim was dismissed on the basis of the statutory interpretation.

Orders