GIO GENERAL LIMITED v NEWCASTLE CITY COUNCIL [1995] NSWCA 174

GIO GENERAL LIMITED v NEWCASTLE CITY COUNCIL

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 24 April 1995

[1995] NSWCA 174

Clarke JA. The claimant declined to indemnify the opponent, that is the Newcastle City Council, in respect of the latter's liability to pay injured persons damages arising from the events surrounding the Newcastle earthquake. The trial of the issue whether the opponent was entitled to an indemnity was heard by O'Keefe J who, on 30 August 1994, gave judgment in favour of the opponent in the course of which he determined a number of issues which conceivably could have been of relevance in a later proceeding which I will shortly mention.

Following the delivery of judgment, Mr Kinsella, the manager corporate insurances of the claimant, gave consideration to the question whether an appeal should be brought from O'Keefe J's judgment. He set out in an affidavit the reasoning process which led him in the end to decide not to appeal. He has been cross-examined on the evidentiary material and this cross-examination, I think, clarified a few matters of doubt.

What does appear is that Mr Kinsella gave thought to the question whether the failure to appeal might prejudice the claimant in other proceedings which had been or might be brought against it by the opponent. In the course of his consideration he sought and received oral advice from junior counsel from the claimant in the trial before O'Keefe J. That advice concluded, and I am only putting it broadly, that to allow the judgment of O'Keefe J to stand would be unlikely to prejudice other claims.

Mr Kinsella was faced with the need to make a fairly practical decision havingregard to the emotional issues surrounding the personal injury claims arising out of the Newcastle earthquake. He wished, as he makes plain, to pay the injured persons but to do so in a way that did not prejudice the position of the claimant in other proceedings.