LYNCH v ZURICH AUSTRALIAN INSURANCE LTD [1998] NSWCA 132

LYNCH v ZURICH AUSTRALIAN INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

STEIN, GILES JJA and FITZGERALD AJA 4 November 1998, 10 November 1998

[1998] NSWCA 132

Disqualification — apprehended bias — judge indicates knowledge of insurer's practices — whether could be reasonable apprehension of prejudgment — Livesey v NSW Bar Association (1983) 151 CLR 288; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

Stein JA I agree with the reasons given by Giles JA for the dismissal of the appeal.

Giles JA The appellant insured his prime mover and trailer with the respondent. They were stolen on 1 January 1988. The respondent declined indemnity and avoided the contract of insurance for fraudulent misrepresentation at the time of proposal. The appellant brought proceedings in the District Court to recover under the insurance. McLachan DCJ upheld the avoidance and gave judgment for the respondent with costs. The only ground maintained in the appeal from this decision was that, on an application made by the appellant on the fourth day of the hearing, his Honour should have disqualified himself from the further hearing of the proceedings. At the conclusion of the hearing of the appeal orders were made that the appeal be dismissed with costs, with the reasons to be published later. These are my reasons for joining in the orders.

The insurance was first taken out in September 1986, running to | September 1987. It was issued on a proposal signed by the appellant which inter alia asked about convictions for driving offences (other than parking matters) for the previous five years and about driving offences for the previous three years, and contained a declaration that no information likely to affect the acceptance of the proposal had been withheld. The disclosure made was far less than the appellant's true driving record. McLachlan DCJ referred to, and apparently accepted, a driving record of twenty two "offences/cancellations or warnings" in the previous nine years, ten in the previous two years. The proposal disclosed in the previous three years one negligent driving offence, three speeding offences, and one offence of having backed trailer wheels over the yellow line, but the true position for that period was four negligent driving offences, six speeding offences, two offences of disobey traffic lights, and four other offences. The appellant's licence had been cancelled in 1983, another cancellation was imposed in August 1986, a month before the proposal, and the appellant was at the time of the proposal on a probationary licence: none of this was disclosed.