Wayland v Bird

The plaintiffs, Wayland and another, sought leave to appeal from a decision of the primary judge who had refused their application for leave to join the defendant's professional indemnity insurer as a party to proceedings pursuant to s 6(4) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW). The application for leave to appeal was heard concurrently with the substantive appeal, should leave have been granted.

The central legal issues before the Court of Appeal were whether the primary judge erred in finding that the insured's conduct had caused such prejudice to the insurer that it was entitled to disclaim liability, and whether the primary judge had wrongly failed to find a real possibility that the insured would be unable to satisfy an adverse judgment.

The Court of Appeal considered the principles governing the discretion to grant leave under s 6(4) of the Act. It was noted that the amount in dispute was relatively small and that other avenues were available to the plaintiffs. The Court found no error in the primary judge's assessment of prejudice or the likelihood of the insured being unable to meet a judgment. Consequently, the Court refused leave to appeal.

Leave to appeal was refused with costs.