Nettle v. Mathieson Group Pty. Limited & Anor. [2007] NSWCA 98

New South Wales Court of Appeal

CITATION: Nettle v. Mathieson Group Pty. Limited & Anor. [2007] NSWCA 98

HEARING DATE(S): 26 April 2007

JUDGMENT DATE: 26 April 2007

JUDGMENT OF: Hodgson JA at 1; McColl JA at 33; Campbell JA at 34

EX TEMPORE JUDGMENT DATE: 26 April 2007

DECISION: 1. Leave to appeal granted. 2. Appeal allowed. 3. Orders of the judicial registrar set aside. 4. Leave granted to the plaintiff pursuant to s.6(4) of the Law Reform (Miscellaneous Provisions) Act to commence an action against Vero, and Vero joined as a party in proceedings 4589 of 2005 in the District Court of New South Wales. 5. Costs of the application below to be the plaintiff's costs in the proceedings. 6. Vero to pay the plaintiff's costs of the leave application and the appeal.

CATCHWORDS: INSURANCE - Professional indemnity insurance - Claims made policy - No claim made during the term of policy - Effect of s.54 of Insurance Contracts Act 1984 (Cth) - Application to join insurer in proceedings under s.6 of Law Reform (Miscellaneous Provisions) Act 1946 (NSW) - Onus of proof in such applications.

LEGISLATION CITED: Insurance Contracts Act 1984 (Cth) ss.45, 54 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s.6

FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 35, (2001) 204 CLR 641 Ferrcom Pty Limited v Commercial Union Assurance Co of Australia Limited (1993) 176 CLR 332. CASES CITED: Homebush Abattoir Corporation v Bermria Pty Limited (1991) 21 NSWLR 605 House v The King (1936) 55 CLR 499 Tzaidas v Child (2004) NSWCA 252

Warwick Nettle - claimant PARTIES: Mathieson Group Pty. Limited - 1st opponent Vero Insurance Limited - 2nd opponent