NEW SOUTH WALES MEDICAL DEFENCE UNION LTD v CRAWFORD [No 3]; NEW SOUTH WALES MEDICAL DEFENCE UNION LTD v BAILEY [No 3]; BAILEY v CRAWFORD [No 3] [1994] NSWCA 231

NEW SOUTH WALES MEDICAL DEFENCE UNION LTD y CRAWFORD [No 3]; NEW SOUTH WALES MEDICAL DEFENCE UNION LTD v BAILEY [No 3]; BAILEY v CRAWFORD [No 3]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and SHELLER JJA 11 and 12 August 1994, 23 September 1994 [1994] NSWCA 231

PRACTICE & PROCEDURE — correction of orders — differential majorities among judges — accurate reflection of majority opinions in orders not yet entered — held: orders corrected.

EQUITY — subrogation — quia timet injunction — claim to relief against insurer by reason of entitlements of insured — held: relief not available — issue not litigated — relief based on statute.

PRACTICE & PROCEDURE — Court of Appeal — inconsistent orders of judges — deriving order of the Court — practice of the Court of Appeal to reflect opinion of the majority Judges — necessity to bring orders into line with majority opinion — error in discerning majority in relation to appeal in respect of orders against judgment on a cross-claim — motion, before orders entered, to review proposed orders and to correct them to reflect the opinions of the Court — held: (1) The orders of the Court should reflect the majority opinion of the Judges of the Court of Appeal upon the issue to be determined by such orders. Woolworths Ltd v Kelly (1991) 22 NSWLR 189 (CA) applied; (2) Upon that basis, the orders earlier announced did not reflect the majority opinion in respect of the judgment on the cross-claim; (3) Accordingly, no orders having been entered, it was competent to the Court, and it should, withdraw the earlier orders as pronounced and substitute orders which reflected its majority opinion.

EQUITY — subrogation — quia timet injunction — whether available to sustain claim by insured, denied indemnity by insurer to enforce in its own name claim against insurer pursuant to s6 of the Law Reform (Miscellaneous Provisions) Act 1946 — held (1) (per Kirby P; Mahoney finding it unnecessary to decide; Sheller JA agreeing in the course proposed): The claim for relief should be rejected upon the footing (a) that it was not litigated at trial and to permit it on appeal to be litigated would involve procedural unfairness. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1 applied; (b) it would involve extending beyond the enactment of Parliament and its purpose, the entitlements afforded to a plaintiff by s6 of the Law Reform (Miscellaneous Provisions) Act 1946; and (c) the equitable principles relied upon did not sustain the claim made; (2) (per Mahoney JA) The appeal against the judgment on the cross-claim should be allowed, as the estate of the insured had no claim against the insurer either under the insurance contract or under the Act; (3) Accordingly (by majority) appeal against judgment on the cross-claim upheld and orders earlier pronounced altered to give effect to such holding.