Steele v Insurance Aust Ltd & Anor - [2008] HCATrans 210

[2008] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M131 of 2007

B e t w e e n -
RONALD STEELE T/AS DRAGON SCAFFOLDING
Applicant
and
INSURANCE AUSTRALIA LIMITED
First Respondent
HIH CASUALTY & GENERAL INSURANCE LIMITED
Second Respondent
Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 11.26 AM

MR B.W. WALKER, SC: If it please the Court, I appear with my learned friend, MR J.R. DIXON, SC, for the applicant. (instructed by TressCox)

MR P.B. MURDOCH, QC: May it please the Court, I appear with MR M.W. THOMPSON, SC, for the first respondent. (instructed by Norris Coates)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in this case it had been held to have been coordinate, within the meaning of the established principles, for an insurance policy which was alleged, eventually successfully, to answer to the circumstances of an accident involved in some construction work that your Honours have seen described in paragraph 5 of our written outline. Coordinate with that policy was held to be a payment made by arrangements long postdating the making of that policy by reason of the failure of a second insurer altogether, a second insurer who had issued a policy which itself, by our continued concession, was plainly coordinate with the first of the policies.

However, the payment was made, notoriously, pursuant to an arrangement funded ultimately by the Commonwealth Government in order to make good the social catastrophe reflecting in the financial disaster for various disappointed insureds as a result of HIH’s collapse. It was not in terms – that is as to legal origin or in fact - the same as the HIH insurance policy. It was reflective, though, in this case only as to 90 per cent of quantum.

It was a reflex which, in our submission, showed convincingly that it was secondary in the sense conveyed by that epithet in the pair “primary/secondary” used by the House of Lords in the Caledonia North Sea authority which, in our submission, renders this an issue ripe for this Court to consider.

GLEESON CJ: Mr Walker, I would like to understand a little better than I do at the moment the basis of the payment by what I will call the Commonwealth authority ‑ ‑ ‑

MR WALKER: The Scheme, yes, your Honour.

GLEESON CJ: Yes. Was it a payment of indemnity in consideration for an assignment of rights?

MR WALKER: No. Your Honour, whether it was of indemnity in the same sense as SGIC’s obligation was an indemnity, is to be doubted. We submit it is not. It was a payment to reflect the indemnity enjoyed in law but denied by bankruptcy in fact which had been promised by HIH.

GLEESON CJ: Was there a contract between the payer and the payee?

MR WALKER: Eventually there was because there…

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 Steele v Insurance Aust Ltd & Anor

Details

AGLC: Steele v Insurance Aust Ltd & Anor [2008] HCATrans 210
Case: [2008] HCATrans 210
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were the appellant, Steele, and the respondents, Insurance Australia Limited and another party. The dispute concerned an appeal from a decision of the Full Court of the Supreme Court of New South Wales. The High Court of Australia was the court required to determine the appeal.

The central legal issue before the High Court was whether the appellant had been induced to enter into a settlement agreement by misleading or deceptive conduct, in contravention of section 18 of the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). This involved determining whether the respondents had made representations that were misleading or deceptive, and whether these representations had caused the appellant to enter into the settlement.

The High Court considered the nature of the representations made by the respondents and the context in which they were made. It applied principles relating to misleading or deceptive conduct, focusing on whether the representations, viewed objectively, were likely to mislead or deceive a reasonable person in the position of the appellant. The court examined the evidence to ascertain whether the appellant had relied on these representations when agreeing to the settlement.

The High Court dismissed the appeal, finding that the conduct of the respondents did not amount to misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law. Consequently, the settlement agreement was upheld.

Orders