Yasseen v NRMA Insurance Limited

[1990] HCATrans 59

IN THE.HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Slll of 1989

B e t w e e n -

MICHAEL YASSEEN

Applicant

and

NRMA INSURANCE LIMITED

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

McHUGH J

Yasseen

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 APRIL 1990, AT 11.03 AM

Copyright in the High Court of Australia

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MR J.A. McCARTHY, ~C:  May it please Your Honours, I appear

with my earned friend, MR R.J. BRENDER, for the

applicant in this matter.	(instructed by Christie
and Partners)

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR R.G. FORSTER, for the

respondent.	(instructed by Abbott Tout Russell
Kennedy)

BRENNAN J: Yes, Mr McCarthy.

MR McCARTHY:	Your Honours, this comes to the High Court on an application for special leave from the Court of
Appeal of New South Wales. The matter is one which
is important. but is a point within a narrow field
of contract law but we say is a point of general
importance in the law in any event and arises,
Your Honours, from the contrast in the attitude to
remedies in cases of failure of notice of terms
between the Court of Appeal in New South Wales and
the recent approaches on these issues by the Court
of Appeal in England in 1988 in a case called special leave.
Your Honours, the matter arises in this way: what is concerned in the judgment of the Court of
Appeal that we bring before you is actually also extremely limited. It is a matter of two sentences
and what those two sentences said was, in effect, this: that while His Honour Judge Nash in the district court found with, Justice Priestley said, considerable justification that in relation to the clauses on jewellery in this contents policy, that the respondents had not properly brought to the attention of the applicant the detail of the change
of their policy.

In the Court of Appeal it was said that while

they could see why His Honour said that and, indeed,

they did not demur from that finding, they said

that even if that were so, so what? What followed

from that? And even if you, they said, at page 42,

if Your Honours would turn to that, these are the

two sentences from which this application comes.

At point 5 of the page, Justice Priestley said,

speaking for all the court:

Assuming, without deciding, that both

propositions ·involved in this argument -

that is, that the plaintiff did not have and should

not have been treated as having notice of the terms

of the new policy -

are right, I do not see how they can help
the plaintiff in the claim he made under

the new policy, which was the only claim

he brought before the Court.

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The second sentence is at point 25 of the page where it says:

If there was a contract, as the plaintiff

asserted, the words in it were fatal to

the claim he brought.

What the Court of Appeal were saying was

this: that, in effect, if it was the case - and

the argument was laid out in some detail to me by

the Court of Appeal - that the only contract

concerning unspecified jewellery was what was

alleged in the 1984 policy and you say you do not have notice of that clause, that clause goes out.

There can be no other remedy. It is not an example

of the Eiclcet cases where you take out the clause

and you can go to the general law. You can go to

the law of negligence to provide yourself with a

remedy. They were saying that if you take that

clause out there is nothing left in the contract

whatsoever and you have no coverage, in effect,

and you can turn to nothing else to rely on.

BRENNAN J:  Do you say your claim is one in negligence

under the general law?

MR McCARTHY:  No, it is not. That is the way the Court of

Appeal was approaching the matter, Your Honour. argument - that is what they mean by saying they

could not see how this could help the plaintiff.

That if that clause went out - of course, there

seemed, on their argument, to be no other way

in which it could be approached, that is, within

the terms of the contract itself, then they said

that that argument, even if it was right, could

not give him a remedy.

Your Honours, that arises in this way, and I just want to briefly show Your Honours where

it was that the argument went in the Court of

Appeal in terms of the documents. I think it is

important in understanding our point. If I could

take Your Honours to page 57 of the application book

Your Honours will find there set out the relevant

insurance policy in terms of the booklet that was

sent in 1984 and was the offending document.

What I want to draw - - -

BRENNAN J: Let me understand this correctly. You say

"the relevant insurance policy". Are you saying

that this is the terms of the insurance policy?

MR McCARTHY:	I am saying this, Your Honour, that this was one of the three documents that, on its own terms
from the NRMA, ceased to be the policy for 1984/1985.
Now, we do not demur from that, Your Honour, but
we say that - - -

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BRENNAN J: Well, let us understand it clearly. Does this

embody, in your submission, the contractual terms

binding upon the NRM:A and the insured?

MR McCARTHY: Yes, it does, Your Honour, but it consists of

three documents, Your Honour. It says that

"This Policy" consists of the booklet, the schedule

to the renewal and "Your Proposal Form". Now,

Your Honour, the relevant term was at page 58 where

it says, at the top of that page: items of jewellery not specified in

current Schedule up to $1,000 in total.

Now, in the renewal document and the schedule,

Your Honour, which you will find at page 65, there is reference there to a schedule and Your Honours

will find the schedule of the insurance at page 68

which set out the specified items. I draw

Your Honours' attention in the document on page 65

to the fact that it is called "Homesure Contents
Renewal", that it refers to an invitation to rewnew

a policy, that it talks about "Your Renewal Certificate",

that the policy number was the same as the policy
number from the previous year, that in the reference
to "Last Year's Value" they were referring to the

policy that had been insured the previous year

and there was the "Increased Value" which was the

$90,000.

Now, if Your Honours would go back to page 57 you will see that what is incorporated as being

the policy, in the final document is "Your Proposal

Form". Now, Your Honours, this is the essence of

the case: what the NRM:A did when they changed their

policies is they did not send out a new proposal

form. They incorporated the proposal form,

Your Honours, from the previous year and that document,

Your Honour, unfortunately not in the most appropriate

reproduction but will be found at page 53 and,

Your Honours, I would like to take you to that and

ask you to turn to the document where it has

"Valuable Contents" written which is on the top

right-hand side and if Your Honours will bear with

me I will read to you what the clause there says,

and it says this:

Cover for an individual item of jewellery,

fur, curio, work of art and any item

containing gold or silver is limited to

$1,000 unless you name and value it below.

2. Coin or stamp collections -

that clause is not relevant, but the first is:

Cover for -

any -

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item of jewellery ..... limited to

$1,000 -

that is up to $1000 for each item except for those

that are below that are above $1000 and that writing that you can see there, Your Honours, is the writing

of the applicant in this matter. Now, Your Honours,

that was. by the NRMA's own admission, a part of the

contrsct in this case.

Now, what we said below and what was not accepted

was this:  that if you took the proposal form as being,

as the NRMA says, a part of the contract, and it says

there that they are insuring each item for $1000

unless they are specified, and that that is a part

of their proposal. If you have, as you will see on

page 54 - 'ft is set out that there was $47,000 worth

• •	of jewellery declared in this matter - that if they
send a document to an insured in which they refer
to this as being a renewal, if they take the figure,
it being $80,000, and bring it back to his attention,
if they say that they are increasing that to $90,000,
and in actual fact they have not - and we submit that
is what has been found by Justice Nash in the Court of
Appeal - brought to his attention that by their clause
at page 58 that they are actually reducing his contents
cover by an amount amounting to $29,000 and, in fact,
leave him in a position where he believes and does
insure for $90,000, that if that clause cannot be said to have been brought to his attention, you read the rest of the documentation in this matter, including
that proposal form, go back to the proposal in relation
to individual items to $1000 and in that way find what the meaning of the contract was and find for the
plaintiff. That was rejected in those two sentences
by the Court of Appeal.

It was brought to their attention as to what had

been said in the English case of INTERFOTO, Your Honours,

which represented the most recent statement in the

United Kingdom by the Court of Appeal as to notice of

terms and I hand up to Your Honours four copies of that

judgment, and I provide one for my friends. In that

the sections, Your Honours, that were relied upon

were, in particular, Justice Dillon at page 620

where, in terms of an argument that had been that

the old cases going back to PARKER only referred	to
exemption clauses as of statutory rights, where it
was said that:

In the ticket cases the courts held that the cormnon law required that reasonable steps be taken to draw the other parties'

attention to the printed conditions or they

would not be part of the contract. It is,

in my judgment, a logical development of

the common law into modern conditions that

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it should be held, as it was in THORNTON

V SHOE LANE PARKING LITD, (1971) 2 QB 163,

that, if one condition in a set of printed

conditions is particularly onerous or

unusual, the party seeking to enforce it

must show that that particular condition was

fairly brought to the attention of the other

party.

And we would rely, Your Honours, on what is said

by Lard Justice Bingham at the bottom of that page,

particularly in the contrast between the civil system

and the common law system of saying this at about

point J of the page:

its effect is perhaps most aptly conveyed

by such metaphorical colloquialisms as

"playing fair," "coming clean" or "putting

one's cards face upwards on the table."

It is in essence a principle of fair and

open dealing.

And, Your Honours, on page 621, at about point C,

there is this reference:

The common law also has made its contribution -

talking about the establishment of fair dealing -

by holding that certain classes of contract

require the utmost good faith, by treating

as irrecoverable what purport to be agreed -

but His Honour goes on to say:

The well known cases on sufficiency

of notice are in my view properly to be read

in this context.

That is of the fair dealing and the utmost good faith.

Your Honours, the point of general importance

that this case raises, that is, that it would appear
that that analysis is not accepted by the Court of

Appeal, even in a situation of contracts of the utmost

good faith, being insurance' cases, and where there is
an acceptance - because this was put to the Court of

Appeal that notice of terms cases can involve insurance contracts. There is a Scottish case to

that effect that is referred to in Judge Nash's

decision.- that the failure of the Court of Appeal

to develop an exposition or, indeed, to find
that if it is established that there has not been

proper notice given, that there is a remedy that can

be found by looking at the contractual terms themselves.

Your Honours, we have reduced these to three principles and I would hand those up to the Court as examples of

the questions that have been, in our submission,

raised by the approach of the Court of Appeal.

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BRENNAN J:  Mr McCarthy, I am not sure I understand

precisely was the proposition is. Is it that the

terms of the policy appearing on pages 57 and 58

did not become part of the contract between the

insured and the insurer?

MR McCARTHY:  No, Your Honour. It is only in relation to

the term concerning"items of jewellery not specified .....

up to $1000 in total."

BRENNAN J: Where is that?

MR McCARTHY:  We are saying that that did not become part of the contract because - - -

McHUGH J: Where was that clause?

MR McCARTHY:  The top of page 58, Your Honour. That was the

limitation from the previous year. In our submission,

Judge Nash and the Court of Appeal have found

that that was not brought to the attention of the applicant in this matter; one by direct decision,

the other by	saying that they assume but not
decide.	We say, Your Honours, therefore that

limitation has not become part of the contract

between the applicant and the NRMA for that year.

DEANE J: Well, really, you say the words "in total" have not?

MR McCARTHY: The words "in total" have not, Your Honour, yes.

Your Honours, we say that if those words come out,

that the rest of the documentation in the contract

would stand and that includes the proposal form, and

since it is clear that $90,000 worth of cover was

what was offered and paid for, and the meaning of

that can be found in the proposal form, that that

is a basis on which a finding allowing the coverage

at that level including the unspecified jewellery

to be maintained.

Your Honours, we put it this way in terms of notice of terms - ticket - cases, should not be narrowly the questions of law of public importance: that the

restricted and may have application in a number of

contractual arrangements and should apply in a

contractual context where a term has been excised

for one of the parties failure to properly notify

the other of its existence. The contractual

relationship thereafter between the parties should

be adjusted by reference to the remaining terms of
the contract and by reference, where appropriate,

to previous dealings between the parties.

In the context of an insurance contract and

its renewal, where the insurer proposes to alter

the terms of coverage and where a level of coverage

is proposed and premium calculated and paid for on

that coverage, following the excision of a restricting

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clause forwant of notice, the remaining terms in
the policy should be so construed to give the

insured the insurance cover which he has paid

for to the knowledge of the insurer.

Thirdly, in the context of a renewal of a

contract, which requires the utmost good faith,

as does an insurance contract, between the parties,

when a term of restriction is ineffective for lack
of notice and such term purports to affect an
alteration from a previous contract, reference
may be made to the terms of the previous contract
when the existing contract is being construed.

Your Honours, we say that those are matters of importance to insurance law, to contract law and

general legal principle in Australia and arise in a

suitable vehicle for this to be decided because it

comes, firstly, in a time context of a division

between an approach in England and the approach in

New South Wales; secondly, in a fact context where

Your Honours have a review of the Court of Appeal

in New South Wales of Judge Nash's decision where

there is a finding there had been an actually

misleading situation and, thirdly - - -

BRENNAN J: There does not seem to be in the judgment of

the Court of Appeal any reference to the argument

that you have been addressing, is that right?

MR McCARTHY:  It is addressed, Your Honour, at page 42.

DEANE J: What, on your approach, would have been the

position if your client had read the clause

containing "in total"?

MR McCARTHY:  He would have been - would Your Honour put

that to me? · If he had read the - - -?

DEANE J: If he had read it.

MR McCARTHY:  If he had read it or had read that other document,

he would have been on notice about the clause.

DEANE J: Well, does that mean that the approach in this sort

of case is to be on the assumption that the person

does not read the contract he signs?

MR McCARTHY:  No, Your Honour. The approach arises out of a

context where it is established that there is that

and more, that is, that - - -

DEANE J:	I can follow the context and I can understand an argument in principle based on estoppel by representation that what was involved was a renewal
when, in fact, it was not but the case never seems
to have been put on that basis and I am having

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trouble following the basis on which it is said
that the two parties to this contract formed a

contract not containing a term which one party

believed it was contracting on the basis of.

MR McCARTHY: Well, Your Honour, the applicant - - -

DEANE J:	I am not trying to shoot you down, as it were, I
am just trying to understand the conceptual basis
of your argument.  I follow assertions but I do not
quite follow the principle which you say applies.
MR McCARTHY:	Your Honour, the principle that we say is

applying is this: is that absent notice about the

term that the insurance in relation to unspecified

items had been reduced from $1000 per item to

$1000 in total. My argument starts from the

position, Your Honour, that I can establish that, that

that has been accepted by the district court and by
the Court of Appeal, that that term was not brought
to the plaintiff's attention. That being so, the

plaintiff had entered into - - -

DEANE J:	But that does not answer what I am concerned about.
MR McCARTHY:	I understand that, Your Honour.
DEANE J:	I mean, the question is what is the contract?

MR McCARTHY: Well, the contract, Your Honour, we say is

a contract for contents to the value of $90,000

with coverage within that $90,000 for all the

unspecified jewellery that had been notified to

the NRMA, that is, that it is ineffective for

the NRMA, in this context, to have limited their

liability to $1000 for -his jewellery because that

term was not brought to his·attention.

BRENNAN J: But why is it, in effect - what is the legal

principle which denies effect to a document which

is, as I understand it, concededly part of the

contractual material?

MR McCARTHY:  Your Honour, we submit that the words go out

because they were not brought to our attention.

BRENNAN J: What is the principle which takes them out because

they were not brought to your attention?

MR McCARTHY:  It is the ticket cases themselves, Your Honour,

that is, that notice - - -

BRENNAN J: What is the principle of the ticket cases?

MR McCARTHY: Well, the principle of the ticket cases,

Your Honour, as restated recently in the English

Court of Appeal, are based on sufficiency of

notice, to quote the words of Lord Justice Bingham:

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The well known cases on sufficiency of

notice are in my view properly to be read

in this context.

That is, certain classes of contract require

the utmost good faith.

At one level they are concerned with a

question of pure contractual analysis,

whether one party has done enough to give

the other notice of the incorporation of

a term in the contract. At another level

they are concerned with a somewhat different

question, whether it would in all the

circumstances be fair (or reasonable) to

hold a party bound by any conditions or by

a particular condition of an unusual and

stringent nature.

McHUGH J: But, to get your case off the ground, do you not

have to amend the submission you made earlier?

You cannot succeed if the booklet is part of the

contract, as you seemed to concede. Your case has got to be that because this booklet contains terms

which are incorporated into the contract by

reference, an adverse term in that booklet could

only be incorporated in the contract if you were

given sufficient notice of it.

MR McCARTHY:  Yes, Your Honour.

McHUGH J: Well, I thought earlier you agreed that the booklet

was part of the contract. If that is the case, you

must lose, must you not?

MR McCARTHY: Well, in the sense, Your Honour, that for the

relevant clause that we are discussing, it is

certainly our case that that does not become

part of the contract and if I had given Your Honours

the impression of meaning that in any other sense,

then I had not really made myself clear but,

Your Honurs, that is certainly what I was trying

to convey, that we do not accept that that clause

that is in the booklet concerning the limitation to

$1000 is, in actual fact, part of the policy between

the NRMA and the applicant in this case.

BRENNAN J: And leave aside that provision in the booklet,

take an innocuous provision in the booklet, does

~	an innocuous provision of the booklet become part
of the policy and, if so, how:and why?
MR McCARTHY:	Your Honour, it would depend on what part of the booklet is, in the sense of the argument that
we have been advancing, for instance, contradicted
by other things that have been put forward.

BRENNAN J: Let us assume that part of the booklet which says

"Your Plain English Homesure Contents Policy consists

of", is that part of the policy?

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MR McCARTHY: Well, Your Honour, to the extent that it is no

change from what the previous policy had been and

to the extent that it was something for which it

cannot be shown that we did not have sufficient

notice, yes, it would be. One of the things

about - - -

BRENNAN J: What are we looking for? Are we looking for -

is this a search for consensus?

MR McCARTHY:  No, Your Honour, it is, in terms of - - -

BRENNAN J: Is it a question, then, of construction?

MR McCARTHY:  Your Honour, that is certainly an element of

it but it is not a consensus case in the sense

that it is put here on other than a pure principle

point, Your Honour, that if a clause is out, in

this case the jewellery clause, that the coverage -
that this would arise is that for the amount for

which he had paid, that is, the whole of the

coverage.

DEANE J: Well, do you say there was a consensus or do you

say there was not a consensus?

MR McCARTHY:  Your Honour, there was only a consensus in

the sense that they asked him for a premium for

$90,000 of coverage and they referred that $90,000

to a previous coverage for $80,000 - - -

DEANE J: But that does not answer my question. Was there or

was there not a consensus as to the terms of a

contract, on your argument?

MR McCARTHY:  Your Honour, there was in the sense that there

was a - well, there is consensus, I would say, in

the final analysis of the proper construction of

the contract., Your Honour, that he has paid for a

policy - they have accepted a policy or,they have proffered a

policy that amounts to something that excludes the"$1000

in total" clause.

DEANE J: What if:~ instead of saying, "You're invited to

renew", they had said, "Take care, this is a new

policy", would you have any case?

MR McCARTHY:  If that had bee~~pt9perly brought to our

attention?

DEANE J: Yes if, instead o·f inviting renewal, they had said,

"Take care, this is a new policy"?

MR McCARTHY:  No, Your Honour, we would not have a case

particularly, if there was going to be a new policy,

for instance, in this case, there may have been -

the notice by which that came would be that you

had to fill in a new proposal - - -

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DEANE J: Well then, does that not mean that this is a case

of estoppel by representation?

MR McCARTHY: It can amount to that, yes, Your Honour.

DEANE J: That is what I raised before because that is

my problem, that it seems to have never been

put forward on that basis.

MR McCARTHY:	No, Your Honour, it was not put in that basis in front of His Honour Judge Nash and it did not
come up to the Court of Appeal in that way.

DEANE J: Well, it probably does not matter in front of

Judge Nash because you won there and it is hard to

see that th~re would have been any additional

factual evidence.

MR McCARTHY: That is true but, Your Honour, in terms of the

consensus, we did not put it below and, indeed,

I think, ultimately, we do not put it here, that there was a consensus about insurance for everything other than just the question of the jewellery. That is the only matter that is in dispute. The context

had been that he had taken out that policy to cover

the contents of his house, only the previous year

had taken all steps to achieve that, and they were
writing to him saying that, "You were renewing

what you already had with us" - - -

BRENNAN J:	We are familiar with the facts, Mr McCarthy. You need not tell us those again but it is a question
of the concepts that are involved. Justice Deane has
put to you the question of estoppel. That was not
argued in the case below.
MR McCARTHY:	No, Your Honour.
BRENNAN J:	I suppose another way in which your argument

might have been put is that an objective bystander,

looking at what passed between the parties and the

history of it, might not have concluded that they

were agreeing upon the term which you object to

but that is a question of a search for consensus

and that evidently was not put in the court below.

MR McCARTHY: It wasnot, Your Honour.

BRENNAN J:  As at present advised, I do not see any

alternative ways beyond those two of putting it.

It does not seem to me to advance things very much

to say the ticket cases are notice. We are looking

for the underlying principle. Neither of the

two bases on which it could have been put were

advanced, why should we now grant special leave?

MR McCARTHY:  Your Honours, what was put below and I put here

is that even in terms of the cases about failure of

notice of terms, that that approach itself can yield

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the remedy under the policy of a coverage of

all the jewellery, that is that if that clause is

taken out there is enough to show what the rest of the arrangement was, had been between the parties, and what was being put forward on this occasion to

show that he had - and they were apparently

offering - $90,000 worth of coverage, that is,

that that is what the meaning was of the arrangement

T4 that they had effected.

McHUGH J:  But it was policy subject to various exclusions.

Take the general exclusions on page 61, the:

Policy does not cover:

loss or damage which is caused by wear,

tear, rust -

et cetera. Now, was that part of the agreement

between the parties?

MR McCARTHY:  Yes, Your Honour, and that had been the agreement

in the previous year.

McHUGH J:  But how did that come to be part of the agreement

between the parties?	How was that part of this
booklet incorporated	into the contract between the
parties?

MR McCARTHY:  Your Honour, it was incorporated because it was -

well, it was not something that was in dispute between

the parties and it had been something that he had had

previous notice of and to which they had - it had

been reasserted as being a part of the continuing

contract, Your Honour.

McHUGH J: Yes, but a new contract came into existence between

the parties in 1984 and the question is what were

its terms. Now, the booklet itself is incorporated

by reference and the fact that it was sent to your

client. What I am not clear on is how you say part

of that booklet becomes part of the contract between

the parties and a particular clause does not become

part of the contract between the parties.

MR McCARTHY:  Your Honour, it has been found that he received

that booklet and that is not argued against. What

was also found is that in relation to the change in a

cover that that booklet was trying to assert in

relation to the jewellery, that that had not been

brought to his attention, therefore, for that reason it was not part of the cover. I cannot say that the rest of the booklet was not in because it has been

found, Your Honour, by the courts below that he had

received the booket and it was, in part, a part of

the contract between the applicant and the NRMA. In

that sense, Your Honour, all those terms, it was said,

had been brought to his attention and, indeed, were

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consistent with the terms that had been used in the

previous contract between the plaintiff and the NRMA

in the other year. So, Your Honour, it is in that

way that the rest of the terms and the term that

Your Honour refers to becomes a part of the contract.

What we say, concerning a special change that had

been made in 1984 from 1983 concerning the jewellery,

that that term, being inconsistent with what was in the

previous policies, Your Honour, had not been sufficiently

brought to our notice and therefore it was not part of

the contract. When that is taken out, we say that
the principles as we have put them forward as to

how an analysis would go would become applicable.

Now, Your Honour, that is what - - -

DEANE J:  Mr McCarthy, were the ticket cases squarely raised in
the court below?

MR McCARTHY: Th.ey were, Your Honour.

DEANE J:	I suppose one way you might seek to escape from your
present difficulties might be if the proper conceptual basis of the ticket cases were seen as, at least some of them, lying an estoppel.
MR McCARTHY:	Your Honour, that is.:cwhat was a part of the

import that we wished to put to the Court of Appeal

and what, I thought, was being conveyed by the

recent English Court of Appeal decision in

INTERFOTO but, Your Honour, that did not find any

acceptance with the Court of Appeal at all. They

just said that even if we were right about the fact

that they did not have notice of that term in

relation to the reduction of the coverage for the

jewellery, even if he had paid for a coverage that

included unspecified items of jewellery, they could

not see how what followed from that,in terms of

the ticket cases themselves, yielded any result.

That is why they say it was fatal.

Now, Your Honour, that seems to be an unnecessarily

restrictive view as to what the ticket cases are

meaning, particularly as they have been put in a

context of fair dealing by the Court of Appeal in

England recently. That it would, in my submission,

seem to be open to our courts to find that the

concepts of what is fair and reasonable between the

parties, particularly where one party is using standard

forms, that this goes out to thousands of people,

they are using a similar number and suggesting that

he is receiving the same coverage as he was on a

previous occasion, that if that is so that that is

the coverage that he ought to be able to receive.

BRENNAN J:	Mr McCarthy, do you have anything to say about the finding that is made on page 9 about his knowledge
of the terms of the policy - his knowledge of the policy?

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MR McCARTHY:  Page 9 of the - - -?

BRENNAN J: Page 9 of the application book, paragraph 15.

He had not read the policies, that:

he admitted in cross-examination, he knew

the policy affected his rights with the

defendant and was important.

MR McCARTHY:  Yes, Your Honour, that is accepted but what

is also clear and is accepted is that in terms

of a proposal form, which is at page -

BRENNAN J: Yes, we have seen the proposal form.

MR McCARTHY:  Your Honour, that was filled in by the applicant.

That in terms of specifying his jewellery and as to

what his coverage would be concerning the other

items of jewellery, that was to his knowledge,
either taken expressly or inferentially, Your Honour.

So that while it might be said that he had not otherwise

relied on it, there was no doubt in relation to the

jewellery that he filled in a proposal form.

BRENNAN J: Is it right to say that the finding there, that is:

he knew the policy affected his right -

is a reference to the document which accompanied
the 1984 renewal form, that is the one at pages 57

and 58?

MR McCARTHY:  I am sorry, Your Honour, if you could just

repeat that.

BRENNAN J: The finding:

he knew the policy affected his rights with

the defendant and was important.

Does the word "policy" there refer to the document

which is to be found at pages 57 and 58?

MR McCARTHY: Yes, Your Honour, it does - it is making a

reference to those.

McHUGH J:  Why do you say that? Exhibits C and D were the

actual policies, were they not? That document

that is at pages 57 and 58 was exhibit 5. At page 6

it said:

The pale blue document, Exhibit 5 -

it is at the top of the page -

was folded twice with one of the visible

sides reading, "IMPORTANT CHANGES TO YOUR

POLICY", "Homesure Contents Policy".

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MR McCARTHY:  I am sorry, Your Honour, I had understood

that to be a reference to the actual 1984 policy

but it would appear that - certainly, if it is a

reference to the letter, Your Honour, there is

no - - -

BRENNAN J: Well, that might be an understanding based on

what the learned trial judge said at page 8,

line 16.

MR McCARTHY:  Yes. Well, I think it would follow from that,

Your Honour, from what is found there that what is

at the top of page 9 would - - -

BRENNAN J:	It is hard to see what else it would refer to.
MR McCARTHY:	I think that is right, Your Honour.

Your Honour, what is being said is that he had

been given to believe that he had had $90,000 worth of coverage including all that coverage
for his jewellery but because it suited the NRMA

not to send another proposal form and because they

sent a document called a "renewal form" and

related their coverage to the previous year's

coverage, this man who had taken all steps to try

and have a proper insurance for all his jewellery

was left uncovered and this was not in a context

where it could be said that they had done other

than give him the impression that he was having

the coverage that he had previously had,which

had been operative for 1983 and would appear to
be operative for 1984. In fact, Your Honour, on

page 9 Your Honour would have noticed that, at 6,

there is the last sentence:

There is no evidence that he knew the

1984 policy altered his rights with the

defend.ant and this was not put to him by

the defendant's counsel.

Your Honours, they are - except to say that

I would have thought, given the length of time

in the Court of Appeal, the argument in this matter

would be fairly brief. They are our submissions,

Your Honour.

BRENNAN J:  Thank you. We need not trouble you, Mr Bennett.

MR BENNETT: If the Court pleases.

BRENNAN J: Having regard to the findings which were made

by the judge at first instance and to the arguments

as they were formulated for consideration by the

Court of Appeal, the questions of principle

which are now sought to be agLtated do

not seem to have been sufficiently illuminated
to make this case a suitable vehicle for the

consideration of those questions. In those

circumstances the order of the Court is that the

application for special leave be dismissed.

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MR BENNETT:	Your Honour, I seek costs.
MR McCARTHY:	I have nothing to say.

BRENNAN J: With costs.

AT 11. 52 AM THE MATTER WAS ADJOURNED SINE DIE

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