NOT FOR GENERAL DISTRIBUTION JUBGMENT No. 023.41 IN ERAL CO OF AUS A) ) TAS DISTRICT ISTRY ) T. No. G 6 of 1983 ) GENERAL DIVISION } BETWEEN: 'ONY FRED Applicant and ATI LIFE ASSOCIATION OF AUSTRALASIA LIMITED and GEOFFREY CREESE Respondents COURT: NORTHROP J. DATE : 26 OCTOBER 1987 PLACE: HOBART MINUTES OF ORDER THE COURT ORDERS THAT the hearing of the application be adjourned to 22 February 1988. (Settlement and entry of Orders is dealt with in 0.36 of the Rules of Court). IN ERAL C T_OF 'RALT. he MANIA DISTR REGISTRY T. No. G 6 of 1983 GENERAL DIVISION TONY ALFRED FREE Applicant and NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED and GEOFFREY CREESE Respondents COURT: NORTHROP J. DATE : 26 OCTOBER 1987 PLACE: HOBART EX TEMPORE REASONS FOR JUDGMENT This application was commenced on 16 November 1983 and was listed for hearing today. By his application, the applicant 15 seeking damages under the Trade Practices Act 1974 based upon non-conformity by the respondents with sections 52 and 53 of the Trade Practices Act; alternatively, damages for what is described as negligent misrepresentation, and alternatively, for an amount due under a contract of insurance made between the applicant and the respondent, National Mutual Life Association of Australasia Limited, on or about 29 August 1979. The application also includes claims based upon other remedies, but they are not presently being pursued. The claim is based on one or other or all of the three claims which I have mentioned. The contract which 1s the subject of the third claim is an insurance-type policy under which the respondent, National Mutual Life Association of Australasia Limited, agreed, subject to the policy and the terms of the policy, that 1t would pay to the applicant a specified amount if the applicant became or suffered total and permanent disablement as defined in that policy. That phrase is defined in the policy to mean that the applicant, after the commencing date, and in the opinion of the Association, and I quote, but I will change the tense:- "Became disabled by bodily injury or disease to such an extent that he or she was at the relevant time, and had been throughout the immediate preceding continuous period of six months ... and will be so disabled for the remainder of his or her life." The claims based upon the Trade Practices Act and negligent misrepresentation are based upon alleged statements made by the agent, the secondnamed respondent, Geoffrey Creese, during negotiations leading up to the applicant entering into the policy of insurance. During the currency of the policy, the applicant claims to have suffered bodily injury or disease resulting in total and permanent disablement, and it is here that the difficulties arise. Looking at the statement of claim, there 1s room for some doubt as to the basis of the claim based upon the breach of contract clause. Clause 12 of the statement of claim refers to the insurance policy and that the contents will be referred to at the trial of the application. Paragraph 13 is as follows:- "13. Upon a date unknown to the Applicant but before the 22nd day of September 1982 the Applicant was physically disabled by illness and became and remains unable to pursue his employment as a truck driver." It should be noted that in the statement of claim there 15 no specific reference to the other provisions of the definition of total and permanent disablement as defined in the policy and as referring to the applicant. Paragraph 17 refers to the fact that the applicant notified the Association of a claim in respect of the "aforesaid disablement." Paragraph 18 refers to the fact that the applicant produced to the Association medical certificates in support of his claim, and Paragraph 19 alleges that the applicant has complied with the terms and conditions of the agreement, and paragraph 20 alleges that the Association has neglected and refused to indemnify the applicant. There 1s a ocertain degree of ambiguity in those Pleadings as to whether the applicant is seeking to rely upon the whole of the definition ef total and permanent disablement; in other words, whether he is, to use a phrase, totally and permanently disabled in his profession or business or occupation, or from engaging i1n any other business or occupation for which he is fitted by his knowledge, training, status and ability. The medical reports which have been supplied by the applicant to the Association do not assist in the resolution of that ambiguity, since in the opinions contained in those reports the applicant "was unfit for full-time work driving a heavy truck." That 1s i1n one report. In the other report he was said to be "permanently disabled from driving his truck." There 15 nothing said about doing other work of a kind which the applicant could perform by reason of his training and experience. The matter came to a head when counsel for the applicant notified counsel for the Association that he intended to lead oral evidence from the medical witnesses relating to their opinion as to the capacity of the applicant to do other work of a kind within his experience, training, knowledge and skill. In other words, to lead evidence to prove, or tend to prove that the applicant came within the definition of suffering a "total and permanent disablement" as contained in the agreeement. The matter is highlighted by the fact that at a directions hearing on 13 July of this year, directions were given for the exchange of medical reports which were to he given by the applicant to the respondents within 21 days after 13 July 1987. They were not given, although after two letters from the solicitors for the Association, copies of two medical reports were forwarded under cover of a letter dated 15 October 1987. Those two medical reports were dated January 1985 and October 1986 respectively and each of those contained the opinions which I referred to earlier, and it was on the basis that there was no expressed medical opinion directed to the wider meaning to be given to the phrase used in the policy and to the fact that at a directions hearing the solicitors for the applicant stated that the only claim was in relation to the driving of a truck and the inability to do that, that counsel for the respondents claims that he has been taken by surprise. He argues first that the pleadings do not cover the wider claim and that if the pleadings do cover the wider claim, then he 1s at a disadvantage and would require further time in which to prepare and 1f need be, get medical advice himself as to the condition of the applicant. This is supported by the first of the two letters written by the solicitors for the Association seeking the supply of medical reports which had not by then been supplied. This is illustrated by reference to the letter of 18 August 1987 when the solicitors for the Association wrote to the solicitors for the applicant pointing out the fact that there had been a non-compliance with the directions of 13 July 1987 and continuing: - "We are unsure as to whether we need to call any medical evidence other than that which was before our client when the claim was assessed ... may we please have a proof within seven days?" The letter eventually forwarding on copies of the two medical reports makes no reference to the wider meaning to be given to the definition in the policy. In my opinion, the statement of claim, on its proper construction, is sufficient to include within it the claim being made by the applicant for a breach of the agreement for the non-payment of the amcunt of the policy in circumstances where the applicant has suffered permanent and total disablement within the wider definition as contained in the policy. The statement of claim is not as clear as it could be. The reference in paragraph 13 of the statement of Claim seems to limit the disability of the applicant to he unable to pursue his employment as a truck driver, but in its context and the context of the policy itself, a1nall the circumstances, I am of the opinion that the disability includes the position of the applicant as the result of his bodily injury or disease and the extent of that bodily injury or disease in all its ramifications as contained in the policy. Accordingly, in my opinion, seeing this is a matter which comes within the statement of claim, evidence could be led, and it would be admissible and relevant, as to the bodily injury and illness condition of the applicant at the time of the claim and what effect that had on his employment and whether it comes within the policy. In these circumstances, I reject the submission on behalf of the respondents that this claim does not come within the application and statement of claim. There remains for consideration whether there should be an adjournment of the hearing of the application to enable the Association to prepare its defence. I am conscious of the length of time which this case has taken from the time 1t was initiated in December 1983 to taday, just about one month short of four years, and undicate that delays of that kind in this Court are not to be countenanced. Under normal circumstances, the matter should proceed to trial today. At the same time the Court is concerned that 1t should not force any injustice on a party. The Court acts impartially and with fairness to all parties before it. In all the circumstances, I think 1t 1s only fair that I should grant the adjournment sought. I do so with reluctance, but having regard to what I said as to fairness between the parties, I think it is only fair that the adjournment should be granted, and in this regard I. should indicate that the fact that counsel for the applicant has not opposed the adjournment does not affect me any way whatsoever. Too often practitioners agree to adjournments in circumstances where adjournments should not be granted and 1t 15 important for the profession to realise that when a date is fixed for the hearing of a matter, the Court expects the matter to proceed on that day of hearing. I should indicate that the last three cases which have been fixed for hearing in Hobart in this Court have all gone off without resolution. The Court was ready and able to hear the matter, but for various reasons the matters were not able to proceed. The Federal Court operates on the basis of a fixed date being given for the hearing of a matter and it expects the matter to proceed on that day. 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