Nettle v Mathieson Group Pty. Limited - [2007] NSWCA 98

NEW SOUTH WALES COURT OF APPEAL

CITATION: Nettle v. Mathieson Group Pty. Limited & Anor. [2007] NSWCA 98

FILE NUMBER(S):
40669/06

HEARING DATE(S): 26 April 2007

JUDGMENT DATE: 26 April 2007
EX TEMPORE DATE: 26 April 2007

PARTIES:
Warwick Nettle - claimant
Mathieson Group Pty. Limited - 1st opponent
Vero Insurance Limited - 2nd opponent

JUDGMENT OF: Hodgson JA McColl JA Campbell JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC4589/05

LOWER COURT JUDICIAL OFFICER: Judicial Registrar McDonald

LOWER COURT DATE OF DECISION: 20 September 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
Not applicable

COUNSEL:
Mr. G. McVay for claimant
Mr. J.V. Gooley for 2nd opponent

SOLICITORS:
James A. Moustacas & Co., Bondi Junction for claimant
Robin Elizabeth Watson, In House Legal, for 2nd opponent

CATCHWORDS:
INSURANCE - Professional indemnity insurance - Claims made policy - No claim made during the term of policy - Effect of s.54 of Insurance Contracts Act 1984 (Cth) - Application to join insurer in proceedings under s.6 of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Onus of proof in such applications.

LEGISLATION CITED:
Insurance Contracts Act 1984 (Cth) ss.45, 54
Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s.6

CASES CITED:
FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 35, (2001) 204 CLR 641
Ferrcom Pty Limited v Commercial Union Assurance Co of Australia Limited (1993) 176 CLR 332.
Homebush Abattoir Corporation v Bermria Pty Limited (1991) 21 NSWLR 605
House v The King (1936) 55 CLR 499
Tzaidas v Child (2004) NSWCA 252

DECISION:
1. Leave to appeal granted. 2. Appeal allowed. 3. Orders of the judicial registrar set aside. 4. Leave granted to the plaintiff pursuant to s.6(4) of the Law Reform (Miscellaneous Provisions) Act to commence an action against Vero, and Vero joined as a party in proceedings 4589 of 2005 in the District Court of New South Wales. 5. Costs of the application below to be the plaintiff’s costs in the proceedings. 6. Vero to pay the plaintiff’s costs of the leave application and the appeal.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40669/06
DC 4589/05
HODGSON JA
McCOLL JA
CAMPBELL JA
Thursday 26 April 2007

NETTLE V. MATHIESON GROUP PTY. LIMITED & ANOR.

Judgment

HODGSON JA: On 20 September 2006, the judicial registrar of the District Court dismissed a notice of motion by which the claimant (the plaintiff) sought an order that the second opponent (Vero) be joined as an additional defendant in proceedings in which the plaintiff was suing the first opponent (MG) for breach of contract and negligence in respect of the provision of engineering services.
The plaintiff seeks leave to appeal from that order. It is perhaps surprising that an appeal from the judicial registrar comes direct to the Court of Appeal. In any event, the application for leave to appeal has been heard on the basis that, if leave is granted, the appeal will be dealt with without further argument.
The…

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 Nettle v Mathieson Group Pty. Limited

Details

AGLC: Nettle v Mathieson Group Pty. Limited [2007] NSWCA 98
Case: [2007] NSWCA 98
Decision Date: 26 April 2007

CaseChat Overview and Summary

The plaintiff, Nettle, sought to join Vero Insurance Ltd (Vero) as a defendant in proceedings against Mathieson Group Pty. Limited. Nettle's claim against Mathieson arose from alleged professional negligence. The dispute centred on whether Nettle had a right to join Vero, the professional indemnity insurer of Mathieson, as a party to the proceedings, given that no claim had been made against Mathieson during the currency of the insurance policy. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether section 54 of the *Insurance Contracts Act 1984* (Cth) applied to a "claims made" professional indemnity policy where no claim was made during the policy period, and consequently, whether leave should be granted under section 6 of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) to join the insurer as a defendant. The court also considered the onus of proof in applications to join an insurer under section 6 of the *Law Reform (Miscellaneous Provisions) Act*.

The Court of Appeal held that section 54 of the *Insurance Contracts Act* was intended to prevent insurers from relying on technical breaches of policy conditions to avoid liability, particularly where the insured had acted honestly. Applying this principle, the court found that section 54 could operate to prevent an insurer from denying liability on the basis that a claim was not made during the policy period, even for a "claims made" policy, if the insured had acted honestly. The court determined that the plaintiff had established a sufficient case to warrant granting leave to join the insurer under section 6 of the *Law Reform (Miscellaneous Provisions) Act*, thereby shifting the onus of proof to the insurer to demonstrate why it should not be joined.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders of the judicial registrar. Leave was granted to the plaintiff to commence an action against Vero and to join Vero as a party in the District Court proceedings. The costs of the application below were ordered to be the plaintiff's costs in the proceedings, and Vero was ordered to pay the plaintiff's costs of the leave application and the appeal.

Orders

Orders of the court

1. Leave to appeal granted; 2. Appeal allowed; 3. Orders of the judicial registrar set aside; 4. Leave granted to the plaintiff pursuant to s.6(4) of the Law Reform (Miscellaneous Provisions) Act to commence an action against Vero, and Vero joined as a party in proceedings 4589 of 2005 in the District Court of New South Wales; 5. Costs of the application below to be the plaintiff's costs in the proceedings; 6. Vero to pay the plaintiff's costs of the leave application and the appeal.

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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