CIC INSURANCE LTD v BANKSTOWN FOOTBALL CLUB LTD [No 2] [1995] NSWCA 76

CIC INSURANCE LTD v BANKSTOWN FOOTBALL CLUB LTD [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and POWELL JJA 2 February 1995, 7 April 1995 [1995] NSWCA 76

PRACTICE AND PROCEDURE — Court of Appeal — suggested disharmony between reasons of majority judges — held: To confirm the orders of the Court, to avoid uncertainty and to simplify the conduct of the retrial, Priestley JA withdraws his reasons and agrees in those of Kirby P.

INSURANCE — insurance contracts Insurance Contracts Act 1984 (Cth), s58 operation of — observations by Priestley JA supplementary to those of earlier reasons.

PRACTICE AND PROCEDURE — Court of Appeal — reopening of argument of completed appeal — orders not entered — whether Court could and should reopen argument — whether member or members of the Court failed to address issues raised by unsuccessful party — whether orders earlier proposed should be varied — held: (1) The Court of Appeal has power to reopen argument and to amend orders before any final orders are entered. Wentworth v Rogers and Ors [No 9] (1987) 8 NSWLR 388 (CA), applied; (2) In the present case, Kirby P, with one variation, affirmed his earlier conclusions and reasons; so did Powell JA; Priestley JA, to avoid uncertainty and confusion in the conduct of the retrial, withdrew his reasons insofar as they conflicted with those of Kirby P and adopted Kirby P's views to the extent necessary to support the declarations and orders of the Court; (3) The original orders as to costs failed to provide for the respondent's costs of the appeal. As it had substantially succeeded, it should have two-thirds of the costs of the appeal and the originally published orders should be varied to so provide.

INSURANCE — insurance contracts — Insurance Contracts Act 1984 (Cth), s58 — whether inapplicable in a case of purported avoidance where the validity of the avoidance had not been ruled upon prior to the date on which the policy would otherwise have expired — held (per Kirby P): Not necessary to decide; (per Priestley JA): The words of s58 do not reasonably support the submissions of the appellant; (per Powell JA): Not necessary to decide. Insurance Contracts Act 1984 (Cth), s58.