Insurance Australia Ltd t/as NRMA Insurance v GIO General Ltd
[2009] ACTCA 4
•11 February 2009
INSURANCE AUSTRALIA LTD t/as NRMA INSURANCE v GIO GENERAL LTD
[2009] ACTCA 4 (11 FEBRUARY 2009)
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 9 – 2008
No. SC 286 of 2007
Judges: Higgins CJ, Refshauge and Marshall JJ
Court of Appeal of the Australian Capital Territory
Date: 11 February 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 9 – 2008
) No. SC 286 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:INSURANCE AUSTRALIA LTD t/as NRMA INSURANCE
Appellant
AND:GIO GENERAL LTD
Respondent
ORDER
Judges: Higgins CJ, Refshauge and Marshall JJ
Date: 11 February 2009
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed to substitute a sum of $104,774.09 in place of that which was originally calculated by the Master.
The appeal be otherwise dismissed.
The cross appeal be dismissed.
The judgment be amended as to amount but not as to date.
The costs be allowed, that the appellant pay the respondent’s costs of the appeal awarded and apportioned as to 75% of the ordinary costs of the appeal applicable, to take account of the costs of the cross appeal and of the modest success that the appellant had in respect of the amount.
No order as to the costs of the cross appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 9 – 2008
) No. SC 286 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:INSURANCE AUSTRALIA LTD t/as NRMA INSURANCE
Appellant
AND:GIO GENERAL LTD
Respondent
Judges: Higgins CJ, Refshauge and Marshall JJ
Date: 11 February 2009
Place: Canberra
REASONS FOR JUDGMENT
HIGGINS CJ:
In this matter there are two appeals, an appeal and a cross-appeal. Dealing first with the appeal that has been placed by Mr Lunney, counsel for the appellant, on the basis that the settlement before the Master of the primary cause of action brought by Mr Gray did not differentiate between the two causes of action, relevantly, that were pleaded in the statement of claim. I know there was a subsidiary cause of action as well, but that would give rise for separate consideration. It is true that the judgment is for a lump sum and costs also in a lump sum, and there is no differentiation between the amount to be attributed, if any, to the first cause of action and the amount to be attributed, if any, to the second cause of action.
Now the argument, as I understood Mr Lunney to put it, was that because there was no differentiation, then the Master ought not to have proceeded, and had no business proceeding to differentiate between the two causes of action by assigning a value to one and a value to the other for the purposes of apportioning the liability of the appellant to pay one half of the dually insured cause of action. Mr Lunney does not dispute that there was a dually insured cause of action, but he also says that in the other one, the plaintiff was not dually insured. Of course, that is not in contention. It seems to me, that the argument, with respect, is not acceptable.
If there are two causes of action, one covered by the relevant insurance and the other not, then it must be open to a party to say the value the of cause of action is so much, and to seek the indemnity as to 50% by reason of the joint insurance. To say otherwise means that simply because there are two causes of action, the second being that of the dual insurer’s, that is the one against whom contribution is sought, simply escapes without any contribution whatsoever. That is not only unjust, it simply cannot be right, and as far as I am concerned, it is not right.
The question is then, of course, a practical one. How do you determine the value of each of the two causes of action when there is a settlement? The answer is you cannot go to the settlement itself and find that out, you have to undertake a process of reasoning which looks at all the relevant circumstances, as far as they are known to you, and thus make a determination. The Master did that. He could have determined the cause of action, in respect to the hand, gave rise to 10% of the resultant settlement, 20% or some other percentage of it. As it happened, for reasons which he gave which are certainly rational and relevant reasons, he decided there was nothing that would be attributed to the second cause of action in the settlement, so that the result was that the appellant was liable to pay one half of the total amount adjudged to be paid.
It seems to me that the Master’s reasoning in that respect is right, and I would therefore dismiss the appeal against his judgment in that respect. It has been conceded that the appeal needs to be allowed to substitute a sum of $104,774.09 in place of that which was originally calculated by the Master, for reasons which have been advanced, the old sum being $107,682.71. I would make an order to that effect. Otherwise, as I say, the appeal should be dismissed.
This is a variation of the original judgment in my opinion. Therefore the judgment will be amended as to amount but not as to date. As far as the cross appeal is concerned, as I indicated in argument, in discussion of the matter with Mr Stretton, it was a case where, before the judgment was given in the matter of Mr Gray’s claim, the second insurer was asked to accept that there was dual insurance in respect of the cause of action which arose out of the use of the motor vehicle. It is certainly true to say that the second insurer declined to do that at that point, for reasons which, although no doubt sounded convincing to them at the time, but turned out to be somewhat ambitious and were, of course, abandoned.
Once judgment was given for Mr Gray by virtue of the agreed settlement, then the issue as to apportionment arose. It was open to the second insurer, the appellant, to argue, as the second insurer did, that it was not liable at all because of the lack of apportionment. It was also open to that insurer to argue in the alternative that the second cause of action for which they were not liable should be valued at a greater amount than ultimately the Master allowed it to be. It was open, too, to the respondent to have put a proposal to the second insurer to agree upon the apportionment. That may have involved a compromise on the part of the respondent, indeed, I would think it would have, as the Master found it to be, but it would have been open to that party to have done that. It did not do so.
The matter proceeded to a hearing and determination by the Master. He made the determination and considered the question of costs that flowed from that determination and decided, albeit not without some hesitation, that it was appropriate to order costs in favour of this respondent against this appellant on the ordinary basis. That was a discretionary judgment. I see nothing wrong with it and I would dismiss the cross appeal accordingly.
It is agreed that the judgment should date from the time of the its original pronouncement and, of course, the reduced amount.
The court has agreed, of course, that costs should be allowed. The appellant should pay the respondent’s costs of the appeal awarded and apportioned as to 75% of the ordinary costs of the appeal applicable, to take account of the costs of the cross appeal and of the modest success that the appellant had in respect of the amount. There be no order as to costs in the cross appeal.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour the Chief Justice.
Associate:
Date: 11 March 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 9 – 2008
) No. SC 286 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:INSURANCE AUSTRALIA LTD t/as NRMA INSURANCE
Appellant
AND:GIO GENERAL LTD
Respondent
Judges: Higgins CJ, Refshauge and Marshall JJ
Date: 11 February 2009
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
I agree with the orders that the Chief Justice proposes and, in general terms, with his reasons. I add merely this. It seems to me that there is some force in the submission made by Mr Lunney that the Master may have misconstrued his obligation to respect the judgment by suggesting that no quantum of value could be assigned to the injury, the claim that was not the subject of dual insurance. In the events that have happened in this court, and some value has been given to that, which is the reason why the appeal has been partially upheld as to a small amount of quantum, I do not consider that the Master’s decision should otherwise be disturbed.
I expressly reserve for decision of another day, as it has not been really argued as to whether, had there been an express apportionment in the judgment itself, there would have been any opportunity for agitation as to whether that amount was excessive or not, where that judgment was entered by consent.
I certify that the preceding paragraphs numbered eleven and twelve (11 and 12) are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 11 March 2009
IN THE SUPREME COURT OF THE ) No. ACTCA 9 – 2008
) No. SC 286 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:INSURANCE AUSTRALIA LTD t/as NRMA INSURANCE
Appellant
AND:GIO GENERAL LTD
Respondent
Judges: Higgins CJ, Refshauge and Marshall JJ
Date: 11 February 2009
Place: Canberra
REASONS FOR JUDGMENT
MARSHALL J:
On the appeal, I agree with the reasons for judgment of the Chief Justice. On the cross appeal, it is sufficient to say that there was nothing special or extraordinary about the circumstances of the matter before the Master which required the payment of costs on other than the usual basis.
I certify that the preceding paragraph numbered thirteen (13) is a true copy of the Reasons for Judgment herein of his Honour, Justice Marshall.
Associate:
Date: 11 March 2009
Counsel for the Appellant: Mr G Lunney SC
Solicitor for the Appellant: Moray & Agnew
Counsel for the Respondent: Mr G Stretton
Solicitor for the Respondent: Sparke Helmore
Date of hearing: 11 February 2009
Date of judgment: 11 February 2009
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Appeal
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Costs
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Remedies
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