INSURANCE – where claims brought against the Uniting Church arising from alleged sexual abuse in school run by the Church – whether applicant gave notice of facts to insurer that might give rise to claims against insurer – whether insurer precluded from denying indemnity by operation of s 40(3) of the Insurance Contracts Act 1984 (Cth) (Act) – consideration of the relevant principles – where multiple “bulk notifications” given by insured – whether notifications given by insured as soon as reasonably practicable – consideration of whether s 54 cures omission to give notice under s 40(3) of the Act – where appropriate to make orders in respect of third-party claimants – form of relief INSURANCE – whether solicitors retained by insurer to act for insured had authority to receive notice of facts that might give rise to claim on behalf of insured – whether solicitors retained by insurer for insured received notice of facts that might give rise to claim against insured to insurer – consideration of principles of agency – scope of retainer -where solicitor engaged as panel solicitor – consideration of Avant Insurance Ltd v Darshn [2022] FCAFC 48
INSURANCE – whether insurer bound by representations of indemnity due to waiver, election or estoppel – whether insurer failed to act with utmost good faith – whether insurer denying efficacy of notifications constitutes breach of utmost good faith pursuant to s 13 of the Act – whether reliance by insurer on exclusion clause constitutes breach of duty of utmost good faith pursuant to s 14 of the Act – consideration of the relevant principles – consideration of Allianz Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38; (2022) 97 ALJR 1
CONTRACTS – construction of policies of insurance – consideration of relevant principles – exclusion clauses – where policies of insurance purport to exclude liability for claims that arise from matters that were known or of which the insured was aware prior to the period of cover – whether exclusion clauses under polices void or unenforceable as an attempt to contract out of non-disclosure code under Div 3 Pt IV of the Act – alternative question as knowledge of insured – unincorporated associations – consideration of relevant principles – observations on principles concerning attribution of knowledge
PRACTICE AND PROCEDURE – non-publication and suppression orders – where orders made under Part VAA of the Federal Court of Australia Act 1976 (Cth) (FCA Act) – observations on whether orders necessary in the administration of justice – Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 – orders made to prevent prejudice to the proper administration of justice
EVIDENCE – where respondent insurer did not call evidence from representatives of their agent – whether Jones v Dunkel inference should be drawn
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0190
For more information, see the original judgement.
