Allianz Australia Insurance Limited v Uniting Church in Australia Property Trust (NSW) [2025] FCAFC 8

Federal Court of Australia Allianz Australia Insurance Limited v Uniting Church in Australia Property Trust (NSW) [2025] FCAFC 8 Appeal from:

File number:

Judgment of: DERRINGTON, COLVIN AND MCEVOY JJ

Date of judgment: 7 February 2025

INSURANCE – liability insurance – composite policy held by Uniting Church of Australia covering all entities, persons and associations within it – cover sought in respect of liability to students of Knox Grammar School for sexual abuse by teachers – policies did not extend to cover claims arising from facts and circumstances of which the insured was aware prior to inception – Headmaster and School Council aware of investigator's report identifying sexual abuse of students over many years and culture of paedophilic conduct amongst several teachers prior to inception of policies – whether policies cover subsequent claims made by former students against school INSURANCE – facts and circumstances that might give rise to a claim – report obtained by insured disclose history of repeated sexual abuse of students by a particular teacher and instances of sexual abuse by a number of other teachers – report also identified relatively unchecked culture of paedophilic conduct by teachers and insufficient response when misconduct was detected – subsequent claims made by students against school for sexual abuse by teachers – report disclosed facts in the nature of a "problem", "hornets' nest" or "can of worms" – subsequent claims arose out of facts disclosed by report INSURANCE – attribution of knowledge – composite policy of insurance with severed indemnity – policy in respect of all entities, persons and associations within large church organization – church uses single legal entity as "nominal defendant" to defend claims against any person or entity within organization – nominal defendant made claim on insurer for indemnity of claim made in respect of liability of another church entity – whether other entity's knowledge of prior claims relevant to operation of policy terms or for the purposes of s 40(3) of the Insurance Contracts Act 1984 (Cth) – knowledge of insured whose liability is sought to be indemnified relevant for purposes of policy terms – or knowledge of that insured is attributed to nominal defendant claiming on insurer – claims for indemnity not within cover because claims arose from pre-inception knowledge of facts or circumstances from which claims arose Catchwords: INSURANCE – s 40(3) of the Insurance Contracts Act – whether notification given to insurer of facts which might give rise to claim "as soon as reasonably practicable" after insured aware of them – insured aware of fact or circumstances some years prior to claims being made – investigator's report disclosed relevant problem from which subsequent claims arose – subsequent notification of investigator's report to insurer being too late to trigger extension of cover under s 40(3) INSURANCE – whether clause that limits cover to claims which do not arise from facts or circumstances which were known to insured prior to the policy's inception is void by reason of s 33 of the Insurance Contracts Act – whether any right arose in the insurer to decline indemnity because claim is not within cover – whether, if such right existed, right arose "in respect of a failure by the insured to disclose a matter" – policy clause did not operate in respect of any failure to disclose – whether exclusion clause limiting scope of cover inconsistent with s 52 of the Insurance Contracts Act – clause not inconsistent with either s 33 or s 52 INSURANCE – whether scope of operation of s 40(3) of the Insurance Contract Act extended by operation of s 54 of the Insurance Contracts Act – whether operation of s 40(3) within meaning of "effect of a contract of insurance" as term used in s 54 – s 40(3) not within scope of s 54 because it is does not have effect as a part of the contract of insurance INSURANCE – application of estoppel, waiver, election or breach of duty of good faith – claims in this respect without merit – insufficient evidence adduced of any representation or reliance – no lack of good faith established