By Lana Remedi -
Snapshot
- In Registrar-General of NSW v LawCover Insurance Pty Ltd [2014] NSWCA 241, the Court analysed the application of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (in the context of the claim) and gave a very thorough analysis of the meaning of ‘event’ for the purposes of the section.
- The Registrar-General claimed that the relevent ‘event’ was the third party’s commencement of proceedings against him in relation to compensable loss and was, accordingly, covered by policy.
- The Court of Appeal established however that the ‘event’ was the event that caused loss to the third party and since it occurred before the policy became effective, the Registrar-General’s right of subrogation was not engaged as an event within the meaning of the section.
Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (the Act) has, throughout its troubled history, received a number of critical remarks from the judiciary. It was characterised as ‘undoubtedly opaque and ambiguous’ by Kirby P in NSW Medical Defence Union v Crawford (1993) 31 NSWLR 469 at 479. And in McMillan v Mannix (1993) 31 NSWLR 538, his Honour also said that ‘ambiguity may be its only clear feature’ (at [542]). In more recent times, the Court of Appeal suggested that ‘it should be repealed altogether or completely redrafted in an intelligible form’ (Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212).
Whilst section 6 of the Act awaits the attention of the legislature, the judiciary has a difficult task of interpreting its scope and limitations on a case by case basis. The authorities on this section are scarce and the most recent judgment providing much needed guidance on the general application of s 6 (particularly in the context of a claim made pursuant to a subrogated right acquired under s 133(2) of the Real Property Act 1900 (NSW)) was given by the NSW Court of Appeal in Registrar-General of NSW v LawCover Insurance Pty Ltd [2014] NSWCA 241. Notably, this judgment has since been cited in a more recent Court of Appeal decision in Guild Insurance Ltd v Hepburn [2014] NSWCA 400.
In this case, the Court of Appeal unanimously upheld the decision of Harrison J at first instance (Registrar-General of NSW v LawCover [2013] NSWSC 1471), refusing leave to the Registrar-General to commence proceedings under s 6 of the Act against Lawcover.
