Hellyer & Anor v AMP General Insurance Ltd [2002] NSWSC 866

Hellyer & Anor v AMP General Insurance Ltd [2002] NSWSC 866

The May 1994 telephone conversation fell short of making a claim, although it did make Mr Gunst aware of circumstances likely to give rise to claims which he should have notified to AMPG. No notification was given. Because the Court was bound by FAI General Insurance v Jarvis, s 54 of the Insurance Contracts Act 1984 (Cth) could not be relied on in the s 6(4) leave application, and the insurer's entitlement to disclaim liability prevented the grant of leave. The notification requirements could not be treated as merely procedural so as to be displaced by the charge under s 6(1).

Jurisdiction
Australia
Judgment Date
20 September 2002
Procedural Posture
Application for Leave to Commence Proceedings Against Insurer Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 and to Amend the Statement of Claim to Join the Insurer / Leave Application
Outcome
Application dismissed with costs.
Legal Topics
['direct Action Against Insurer' 'claims Made and Notified Policy' 'notification of Claims and Circumstances' 'section 54 Insurance Contracts Act 1984 (cth)' 'section 6 Law Reform (miscellaneous Provisions) Act 1946']
['insurance Law' 'civil Procedure' 'professional Indemnity Insurance'] ['direct Action Against Insurer' 'claims Made and Notified Policy' 'notification of Claims and Circumstances' 'section 54 Insurance Contracts Act 1984 (cth)' 'section 6 Law Reform (miscellaneous Provisions) Act 1946']

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Procedural Posture

Application for Leave to Commence Proceedings Against Insurer Under S 6(4) of the Law Reform (miscellaneous Provisions) Act 1946 and to Amend the Statement of Claim to Join the Insurer / Leave Application

Legal Issues

  1. 1 ['Whether the telephone conversation between Mrs Hellyer and Mr Gunst in May 1994 constituted a claim for the purposes of the professional indemnity policy.' 'Whether Mr Gunst was made aware during the period of insurance of circumstances which may subsequently give rise to a claim and should have notified AMPG in writing.' 'Whether s 54 of the Insurance Contracts Act 1984 (Cth) could be relied on in an application for leave under s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946.' "Whether s 6(1) of the Law Reform (Miscellaneous Provisions) Act 1946 created a substantive charge that overcame the insured's failure to comply with notification provisions."]

Ratio Decidendi

The May 1994 telephone conversation fell short of making a claim, although it did make Mr Gunst aware of circumstances likely to give rise to claims which he should have notified to AMPG. No notification was given. Because the Court was bound by FAI General Insurance v Jarvis, s 54 of the Insurance Contracts Act 1984 (Cth) could not be relied on in the s 6(4) leave application, and the insurer's entitlement to disclaim liability prevented the grant of leave. The notification requirements could not be treated as merely procedural so as to be displaced by the charge under s 6(1).

Court Disposition

Application dismissed with costs.

Orders

  • ['The application of the plaintiffs is dismissed with costs.']