HIH Casualty & General Insurance Australia Ltd v DellaVedova [1999] FCA 456

FEDERAL COURT OF AUSTRALIA

HIH Casualty & General Insurance Australia Ltd v DellaVedova [1999] FCA 456 INSURANCE – professional indemnity insurance – claims made and notified policy – refusal of indemnity on grounds of non-disclosure, misrepresentation and by operation of policy – failure to volunteer information – whether breach of duty of disclosure under s 21 Insurance Contracts Act 1984 (Cth) – whether claim arose out of a circumstance or occurrence of which insured were aware when entering policy – no action had been commenced against the insured at the time of entering policy – level of knowledge required by insured to constitute pre-existing awareness – whether circumstances gave rise to the prospect of a claim under policy. PRACTICE AND PROCEDURE – whether facts determined by trial judge rested upon impressions formed and could be redetermined on appeal – application of Warren v Coombes – role of an appellate court in reviewing conclusions of fact.

Insurance Contracts Act 1984 (Cth) s 21 and s 54(1) Antico v Heath Fielding Australia Pty Ltd (1997) 188 CLR 652 applied Antico v C E Heath Casualty & General Insurance Ltd (1995) 8 ANZInsCas 61-286 considered Australian Breeders Co-operative Society Ltd v Jones; Done v Jones; King v Jones; Jones v Mortgage Acceptance Nominees Ltd; Jones v C E Heath Casualty & General Insurance Ltd (1997) 150 ALR 488 applied Drayton v Martin (1996) 67 FCR 1 considered Dwyer v Long (1992) 58 SASR 102 considered FAI General Insurance Co v Perry (1993) 30 NSWLR 89 considered Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (1998) 153 ALR 529 applied News Limited v Australian Rugby Football League Ltd (1996) 139 ALR 193 applied Walton v National Employers' Mutual General Insurance Association Ltd [1973] 2 NSWLR 73 considered Warren v Coombes (1979) 142 CLR 531 distinguished