Supreme Court New South Wales Medium Neutral Citation: Burwood Council v Jardine Lloyd Thompson Pty Ltd [2019] NSWSC 268 Hearing dates: 23 July 2018 Date of orders: 14 March 2019 Decision date: 14 March 2019 Jurisdiction: Common Law Before: Walton J Decision: The Court makes the following orders: (1) The Council shall file short minutes of order reflecting this judgment within 14 days of the publication of this judgment. (2) In the event that the short minutes of order do not reflect consent as to the question of costs, costs are reserved. (3) In the event costs are reserved, the parties shall provide a program to deal with any issues as to costs within 21 days of the publication of this judgment. Catchwords: CIVIL PROCEDURE – summary dismissal – strike out – unincorporated association – mutual self-insurance scheme – indemnity under contracts of insurance – whether cause of action pleaded – proper person to sue – principal under the self-insurance scheme – parties to the self-insurance scheme – membership of the self-insurance scheme – join association by deed with moving party – contract with many parties – whether moving party has management and control of the self-insurance scheme – defects in pleadings – whether cure by legitimate amendment – action not untenable that cannot succeed – debatable questions of law – mixed questions of fact and law – costs – orders Legislation Cited: Local Government Act 1993 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anglican Development Fund Diocese of Bathurst in its own capacity and in its capacity as trustee of the Anglican Development Fund Diocese of Bathurst (receivers and managers appointed) v The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst; Commonwealth Bank of Australia v The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst (2015) 336 ALR 372; [2015] NSWSC 1856 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority [2018] NSWSC 157 Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 Texts Cited: K L Fletchers, The Law Relating to Non-Profit Associations in Australian and New Zealand (Sydney Law Book Co, 1986) Category: Procedural and other rulings Parties: Burwood Council (Cross-Claimant / Respondent) Jardine Lloyd Thompson Pty Ltd (Cross-Defendant / Applicant on Motion) Representation: Counsel: M Wright SC with Mr D Robertson (Cross-Claimant / Respondent) R Sheldon SC (Cross-Defendant / Applicant on Motion) Solicitors: Matthews Folbigg Lawyers (Cross-Claimant / Respondent) Mills Oakley (Cross-Defendant / Applicant on Motion) File Number(s): 2017/83223 Judgment 1. HIS HONOUR: By a Further Amended Statement of Claim ("the further ASOC") filed 6 July 2017, Ms Elisa Lorenzato ("the plaintiff") brought an action for a declaration, nuisance and negligent misstatement against the first defendant, Burwood Council ("the Council"), and an action for breach of contract (and non-disclosure of draining structures) and negligent misstatement against the second defendant, Mr Michael Lewis Della-Franca. Save for the declaratory relief claim, the plaintiff claimed relief primarily by way of damages. 2. The plaintiff was the registered proprietor of the property at 13 Appian Way, Burwood, being the land in Folio Identifier 33/12249 ("the property"). The property was within the Burwood local government area. The plaintiff had been the registered proprietor of the property since about 12 August 2011. 3. The Council was the local council constituted for the Burwood local government area under the Local Government Act 1993 (NSW). 4. The second defendant was the registered proprietor of the property from about 24 August 1989 to 12 August 2011. The second defendant sold the property to the plaintiff. (The Council and Mr Della-Franca shall hereinafter be collectively referred to as "the defendants"). 5. In summary, the primary proceeding between the plaintiff and the defendants broadly concerned two matters: 1. First, the existence of a drainage pipe running through the property ("the pipe"), which forms part of the local drainage system used by the Council to drain water away from Appian Way. The plaintiff alleged that the defendants had a duty to disclose to her the existence of the pipe running through the property before she purchased the property in 2011 and that both the first and second defendants failed to do so. 2. Second, the plaintiff's allegation that the property is flood affected due to the inadequacy of the local drainage system in and around the property and was flooded in the period between 7 November 2011 and 18 August 2012. Again, the plaintiff alleged that both the Council and the second defendant had a duty to disclose to her the fact that the property was flood affected before she purchased the property in 2011, and that both the first and second defendant failed to do so. 1. Some explanation of the pleadings by the plaintiff against the Council will usefully provide further background. The plaintiff pleaded three claims against the Council: 1. First, a claim that the plaintiff and not the Council is the owner of the pipe running through the property ("the pipe ownership claim"); 2. Secondly, a claim against the Council for nuisance allegedly caused to the plaintiff by a series of flooding events to the property in the period 7 November 2011 to 18 August 2012, caused by the inadequacy of the local drainage system ("the nuisance claim"); and 3. Thirdly, a claim against the Council for allegedly negligent advice given to the plaintiff in a planning certificate issued by the Council on 9 August 2010, pursuant to s 149 of the Environmental Planning and Assessment Act 1979 (NSW), because the Section 149 Certificate issued for the property did not disclose either: 1. the existence of the pipe; or 2. the fact that the property was flood affected ("the Section 149 Certificate claim"). 1. On 11 August 2017, the Council filed a defence. The Council denied that it had any liability to the plaintiff in respect of the nuisance claim or the Section 149 Certificate claim The Second Cross-Claim 1. On 23 February 2018, the Council filed a second cross-claim ("the second cross-claim"). 2. The parties to the second cross-claim were: 1. The Council as the cross-claimant; and 2. Jardine Lloyd Thompson Pty Ltd as the cross-defendant ("JLT"). 1. Under the heading "Pleadings and Particulars", the first sub-heading appearing was "Background". Paragraph 3 under that sub-heading was as follows: 3. At all relevant times, JLT was the manager of the NSW Local Government (Jardines) Mutual Liability Scheme (Statewide), an unincorporated self-insurance scheme for local councils in New South Wales. 1. I pause at that juncture to deal with some uncontentious preliminary factual matters and abbreviations arising in that context. 2. As mentioned in the pleading, an unincorporated self-insurance scheme for local councils in NSW was established. It was known as "the NSW Local Government (Jardines) Mutual Liability Scheme". The Scheme was variously described in communications between parties, in short form, as "Statewide" and "Statewide Mutual". For convenience, the Scheme shall be described as "the Statewide Scheme". 3. Local Councils joined the Statewide Scheme by entering into a Deed entitled: "Deed Establishing the NSW Local Government (Jardines) Mutual Liability Scheme" ("the Statewide Deed"). 4. The parties to the Statewide Deed were specified as "The councils whose names are set out in Schedule 1" and "Jardine Australian Insurance Brokers Pty Ltd" (abbreviated to "Jardines" in the Deed). The scheme of the Statewide Deed will be revisited in this judgment. 5. Ms Keli Law, solicitor for the Council, deposed in her affidavit sworn 22 May 2018 that she believed JLT was the same entity as Jardines Australian Insurance Brokers Pty Ltd ("Jardines") by virtue of the fact that "both entities have the same Australian Company Number, namely ACN 009 098 864". That view has merit. Jardines has the same ACN as JLT. The 2011-2012 certificate of currency, issued to the Council with respect to the Statewide Scheme on 1 July 2011 stated "Statewide Mutual" was managed by JLT. No demur from that approach was advanced by JLT in submissions. I proceed on that basis for the purposes of this judgment. 6. Policies were issued to the Council for 2011-2012 and 2012-2013, which will be discussed further below. However, mention may be made of the pleadings in that respect. 7. The relevant pleadings in the second cross-claim with respect to the 2011-2012 policy were as follows: 5. On 1 July 2011, JLT as manager of Statewide, as insurer, issued to the Council, as insured, a Public Liability - Professional Indemnity policy of insurance for the period 4.00pm 30 June 2011 to 4.00pm 30 June 2012 (2011-2012 Policy). [Particulars omitted.] 6. Subject to the terms of the Policy, the 2011-2012 Policy covered, inter alia: a. Damage to Property happening during the Period of Protection caused by an Occurrence in connection with the Business of the Council, up to a limit of $400,000,000 (Damage to Property Claim); and b. Any Claim or Claims first made against the Council and notified to Statewide during the Period of Protection arising out of any negligent act, error or omission whenever or wherever the same was or may have been committed or alleged to have been committed by the Council in the conduct of the Council's Business (other than any indemnity provided by the policy under (a) Public Liability and (b) Products Liability), up to a limit of $300,000,000 (Professional Indemnity Claim). [Particulars omitted.] 1. The pleading with respect to the 2012-2013 policy was as follows: 7. On 1 July 2012, JLT as manager of Statewide, as insurer, issued to the Council, as insured, a Public Liability - Professional Indemnity policy of insurance for the period 4.00pm 30 June 2012 to 4.00pm 30 June 2013 (2012-2013 Policy), which was in identical terms to the 2011-2012 Policy. [Particulars omitted.] 1. The relevant pleadings entered with respect to the claim made by the Council for indemnity under the 2012-2013 policy for a professional indemnity claim was relevantly as follows: 8. Under the terms of the 2012-2013 Policy, the Council was insured against any Professional Indemnity Claim first made against the Council and notified to Statewide during the Period of Protection. 9. On or about 5 December 2012, the Council notified JLT as manager of Statewide that the Plaintiff, Elisa Lorenzato, had made a verbal demand for compensation from the Council for the Council's alleged negligent failure to disclose the existence of a pipe installed in her property in the Planning Certificate for the Property issued by the Council on or about 9 August 2010 under section 149(2) and (5) of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). [Particulars omitted.] 1. As to the claim for indemnity under the 2011-2012 policy and the 2012-2013 policy for damage to property the following was relevantly pleaded: 14. Under the terms of each of the 2011-2012 Policy and the 2012-2013 Policy, the Council was insured against any Damage to Property Claim happening during the Period of Protection. … 17. On or about 26 July 2017, JLT notified the Council that it had decided to deny coverage to the Council under the 2011-2012 Policy and the 2012-2013 Policy in respect of the Flooding Claim. [Particulars omitted.] 18. In the premises, if the Council is found to be liable to the Plaintiff in respect of the Flooding Claim, the Council is entitled to indemnity under the 2011-2012 Policy and the 2012-2013 Policy in respect of any such liability, on the basis that the Flooding Claim is a Damage to Property Claim to which each of the 2011-2012 Policy and the 2012-2013 Policy responds. 1. By the second cross-claim, the Council sought the following primary relief (when converted into the abbreviations used in this judgment): 1. Declare that the Council is entitled to indemnity under the 2011-2012 policy and/or the 2012-2013 policy issued by JLT, as manager of the Statewide Scheme, in respect of any liability that the Council may have to the plaintiff in respect of the relief claimed in the further ASOC. 2. Further, or alternatively, order that JLT, as manager of the Statewide Scheme, indemnify the Council under the 2011-2012 policy and/or the 2012-2013 policy issued by the Statewide Scheme in respect of any liability that the Council may have to the plaintiff in respect of the relief claimed in the further ASOC. 1. JLT did not file a defence to the second cross-claim. The Notices of Motion before the Court 1. On 27 April 2018, JLT filed two notices of motion seeking the following relief: 1. that the second cross-claim filed on 23 February 2018 by the Council be struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.28 or summarily dismissed pursuant to r 13.4 ("the Motion"); 2. that the notice to produce dated 21 March 2018 issued by the Council to JLT be set aside ("the NTP Motion"); and 3. that the Council pay JLT's costs related to the NTP Motion, the Motion and the costs related to the second cross-claim. (The Motion and the NTP Motion shall collectively be referred to as "the motions"). 1. By the Motion, JLT sought that the second cross-claim be struck out or summarily dismissed on the basis that the second cross-claim does not disclose any cause of action against JLT as "manager" of the Statewide Scheme. That motion was opposed. 2. The issues concerning the NTP Motion dissipated at the hearing of the matter. The focus of the NTP Motion was paras 2 and 3 of the notice to produce. It was indicated by Mr M Wright, senior counsel for the Council (with whom Mr D Robertson appeared), that those aspects of the notice to produce were not pressed. 3. In the result, this judgment concerns the Motion. Prior to turning to the submissions of the parties, with respect to the Motion, it is appropriate to further outline some background circumstances and the terms of the Statewide Deed. FACTUAL BACKGROUND 1. Correspondence from JLT to the Council dated 27 October 1983 would suggest the concept of a mutual self-insurance scheme for local councils in NSW was devised by JLT itself, with JLT carrying out investigations into the feasibility of such a scheme. JLT then marketed the Statewide Scheme to local councils, with membership of the Statewide Scheme offered to all local councils that had their current insurance arrangements administered by JLT. In an attachment to that correspondence described as a "report" there was a section entitled "Key Benefits of NSW Local Government (Jardine) Mutual Liability Scheme known as Statewide". It stated that the benefits derived from "adopting a 'Statewide Mutual' concept" included, inter alia, "the ULTIMATE DECISION (particularly on claims) is made by Local Government itself, and not influenced by external parties, e.g. insurers" (original emphasis). Further, it was stated that the Statewide Scheme was to be "controlled by a Deed of Agreement, which exercises discretionary powers in the settlement of claims and therefore avoids the complications of interpreting technical and complex liability policy wordings" and "Councils CONTROL the future of STATEWIDE" (original emphasis). It was said that the Statewide Scheme would self-insure the first $2 million of each claim and "members" would receive protection on a discretionary basis. 2. A further section of the report dealt with the intended administration of the Statewide Scheme indicating that it could be administered by a "Governing Committee, comprising of Council Officers and Jardine's representatives". Further it stated: "The implementation and day-to-day administration will be attended to by the Fund Manager". 3. The Council joined the Statewide Scheme by entering into the Statewide Deed in about 1994. 4. JLT produced in evidence a report of the Deputy Town Clerk of the Council dated 17 April 1990. In that report, the Clerk referred to the proposal as consisting of legal agreements for "the Scheme" and "The appointment of a Manager". It was said the proposal concerned 14 councils. By that report, it was recommended that the Council do not join the Statewide Scheme. 5. Ms Law deposed that JLT had been the "manager" of the Statewide Scheme at all times since about 1993. 6. On 16 May 2011, a tax invoice was issued to the Council under the heading Statewide Mutual. There appeared on the letterhead "Managed by [JLT]". 7. On 25 May 2011, JLT provided an invoice by "Statewide Mutual" to the Council for its "cover" under the Statewide Scheme for the 2011-2012 year, for which the Council was charged a "contribution" of $416,328 for its "Public Liability-Professional Indemnity" cover. A document attached referred to the Council as "Member". As to the "interest protected" it was stated that "Statewide Mutual will pay to or on behalf of The Member all sums which The Member shall become legally liable to pay by way of compensation…". As to the "scheme wording and conditions", the recipient of the invoice was instructed to refer to the "Statewide Mutual Liability Scheme Wording for full details of Terms, Conditions and Exclusions". 8. In a document entitled "NSW Local Government (Jardine Lloyd Thompson) Mutual Liability Scheme: Statewide Mutual Broad Form Liability Protection Wording", it was stated: "The Member named in the Schedule is a Member of the NSW Local Government (Jardine Lloyd Thompson) Mutual Liability Scheme". It was also stated that, "[s]ubject to payment of the Contribution for the period of protection stated in the schedule the Member will be protected by Statewide…". As to liability coverage, it was stated: "Statewide will pay to or on behalf of The Member all sums for which The Member shall become legally liable to pay by way of compensation…". 9. On 1 July 2011, "Statewide Mutual" issued to the Council a "Certificate of Currency" to certify that the Council's membership of Statewide was current for the 2011-2012 year for the Protection Class "Public Liability/Professional Indemnity" ("the 2011-2012 certificate of currency"). As earlier mentioned, the 2011-2012 certificate of currency stated that "Statewide Mutual" was "Managed by: Jardine Lloyd Thompson Pty Limited". 10. On 24 August 2012, JLT issued to the Council a document entitled "Summary of Insurances: Burwood Council", which stated that, for the 2012-2013 year, the Council had obtained "cover" from "Statewide Mutual" for Public Liability, Products Liability and Professional Indemnity. 11. The Council's cover under the Statewide Scheme for claims for Damage to Property (which was part of the Public Liability cover) was for an "occurrence" happening during the "period of protection". 12. On 5 December 2012, the Council notified JLT that the plaintiff had made a verbal demand to the Council for compensation for the Council's alleged negligent failure to disclose the existence of the pipe in the property in the Section 149 Certificate issued by the Council in respect of the property. The Council notified JLT of the plaintiff's demand for compensation. On that basis, the Council contended that it had notified JLT of a claim made by the plaintiff during the 2012-2013 period of cover under the Statewide Scheme. 13. On 11 December 2012, JLT sent an email responding to a communication from the Council regarding the claim by the plaintiff indicating that: until such time as the claimant or her solicitor indicate they wish to pursue a claim proper against [the] Council, e.g. by indicating the loss / damage they have suffered or the remedy they seek …, there is not much we can do with the claimant's solicitor's statement … Please keep us informed of any further developments. If you would like us to write to the claimant's solicitor in response to their comments to you we are able to do this… 1. The Council contended in argument before the Court the plaintiff's nuisance claim in the primary proceeding alleged that she suffered damage to property as a result of flooding events to the property in the period 7 November 2011 to 18 August 2012, caused by the inadequacy of the local drainage system maintained and operated by the Council. 2. It is unnecessary to reach any final determination on that question, but it would appear, given the dates on which the flooding events occurred, the damage caused by those flooding events constituted "Damage to Property" which was, prima facie, covered by the Statewide Scheme given the Council's membership of the Statewide Scheme over the period 1 July 2011 to 30 June 2013. 3. On 21 April 2017, the Council's claims manager notified JLT that the plaintiff had made the nuisance claim against the Council. 4. On 26 July 2017, JLT wrote to the Council referring to the "Statewide Mutual Broad Form Liability Protection Wording", indicating the Statewide Scheme had "no record of any notifications of complaints, claims or circumstances relating to flooding in the Appian Way" and stating that the Council's knowledge appears to pre-date becoming a Member and stating that if such information had been provided "Statewide Mutual would have excluded claims related to flooding in and about the Appian Way". It was stated coverage was declined by the Statewide Scheme. The Council was invited to make representation to Board. 5. The Council's cover under the Statewide Scheme for "Professional Indemnity" was on a claims-made basis, that is, coverage was in respect of any "Claim" or "Claims" first made against the Council and notified during the period of protection. A Claim in respect of "Professional Indemnity" included any act alleged to have been committed by the Council in the conduct of the Council's "Business", which was defined as "Municipal or other Local Government Authorities, and all incidental and associated functions of The Member". 6. Here, the s 149 Certificate claim was potentially a claim covered by the Council's "Professional Indemnity" cover under the Statewide Scheme in the period 1 July 2011 to 30 June 2013, so long as a claim was notified during the period of protection. 7. On 30 October 2017, JLT notified the Council that "Statewide Mutual" had decided to deny coverage to the Council in respect of the s 149 Certificate claim. 8. As noted above, the Council filed the second cross-claim against JLT on 23 February 2018. 9. On the same day, the Council's solicitors sent a letter to JLT's solicitors which requested, inter alia, that JLT confirm its acceptance that JLT was the proper party to the second cross-claim. 10. On 27 February 2018, JLT's solicitors sent a letter to the Council's solicitors, which stated that: 1. JLT did not accept that it was the proper party to the second cross-claim, on the basis that, when "viewed as a whole", the Statewide Deed "does not provide JLT with any right to determine whether the Claims Committee will exercise its ultimate discretion to make a recommendation to the Board of Management that, in relation to a claim, any payment from the Liability and Annual Fund should be made"; and 2. JLT's solicitors were "instructed to suggest the Council name Albury City Council as a member representative of [the Statewide Scheme]". 1. On 1 March 2018, the Council's solicitors requested that JLT provide a number of documents to enable the Council to "better assess the matters raised in your letter dated 27 February 2018". 2. On 8 March 2018, JLT's solicitors sent a letter to the Council's solicitors, which stated that: 1. JLT refused to provide any of the requested documents to the Council; and 2. JLT's solicitors were now "instructed that, instead of Albury City Council, you should name Queanbeyan-Palerang Regional Council as the representative Council", or alternatively, "you might like to consider suing all of the Members of [the Statewide Scheme], which obviously includes your client". 1. On 21 March 2018, the Council served the notice to produce on JLT, which sought the same documents that the Council's solicitors had previously requested from JLT in their letter dated 27 February 2018. 2. Subsequently, on 27 April 2018, JLT filed the motions. THE STATEWIDE SCHEME 1. The Statewide Scheme was established by the Statewide Deed. In order to become a Member of the Statewide Scheme, each local council was required to enter into the Statewide Deed with JLT "in such a form as Board of Management may from time to time require" (the Council contended an identically worded deed was entered by all Members). That is, the Statewide Scheme was, in effect, established through a series of bilateral agreements between each Member and JLT. The Council correctly described these arrangements as a mutual insurance scheme for local councils in NSW. 2. The parties to the Statewide Deed have been earlier referred to in this judgment. 3. Recital "B" of the Statewide Deed is as follows: B. In order to meet their insurance obligations under the Act, the Members wish to establish a scheme for purposes of: (a) purchasing insurance in respect of public liability (including personal injury, damage to property and products liability) and professional indemnity; and (b) indemnity in respect of liability not covered by such public liability and professional indemnity insurance. 1. Recital "C" of the Statewide Deed stated that: C. The Members wish to engage Jardines to assist in the management of the scheme and the most efficient way of organising their insurance requirements. 1. Part 1 of the Statewide Deed concerns "Definitions and Interpretation". In cl 1.1, a "Member" is defined as "a Member which is a party to this deed and any additional person admitted under clause 10.1". "Fund Manager" is defined as meaning "Jardine Australian Insurance Brokers Pty Limited or a replacement pursuant to clause 9.10" (as mentioned, for the purposes of the judgment the primary part of that definition concerns JLT). 2. "Claim" and "Claiming Member" are defined as follows: "Claim" means any claim made against a Member Council which may give rise to Liability. "Claiming Member" means a Member against which a Claim is made. 1. "Liability" means the amount of liability incurred by a Member which, inter alia, "the Claims Committee determines would be indemnified under the terms and conditions (including exclusions) of the Primary Insurance which would respond if a nil retention applied under that Primary Insurance… less the amount of any deductible which the Member has agreed with Jardines will apply at the relevant time". 2. "Primary Insurance" and "Primary Insurer" are defined as follows: "Primary Insurance" means the public liability and professional indemnity insurance purchased by the Members or any of them from time to time pursuant to this Scheme; "Primary Insurer" means an underwriter or insurer of Primary Insurance. 1. Part 2 of the Statewide Deed deals broadly with the Statewide Scheme itself. It includes clauses with respect to following: 1. "Establishment" (cl 2.1); 2. "Duty to Act fairly and in good faith" (cl 2.2); 3. "No partnership or association" (cl 2.3); 4. "General organisation of the Scheme" (cl 2.4); 5. "Liability of committee members" (cl 2.5); and 6. "Enforcement of this deed" (cl 2.6). 1. Those clauses are extracted below: 2.1 Establishment 2.1.1 Each Member agrees with Jardines to enter into this deed for the purposes of: (a) purchasing insurance in respect of public liability (including personal injury, damage to property and .products liability) and professional indemnity; (b) establishing a scheme to be known as the NSW Local Government (Jardines) Mutual Liability Scheme for their indemnity in respect of Liability not covered by such public liability and professional indemnity insurance; (c) having its Claims managed and resolved; and (d) promoting good risk management practices to minimise the occurrence and effect of Claims. 2.2 Duty to act fairly and in good faith Notwithstanding any other provision of this deed each Member undertakes for itself and its representatives on the Governing and Claims Committees, to act in relation to this Scheme fairly and in good faith. 2.3 No partnership or association No partnership is created by this deed. Except as provided in this deed the parties' obligations under this deed are several and no party has authority to bind another. This deed constitutes separate agreements between each Member and Jardines and does not constitute any agreement between any of the Members. Accordingly, no Member shall have rights against any other Member under this deed (unless arising independently of this deed). To the extent that any provision of this deed creates or may create contractual rights or obligations between any of the Members, that provision is deemed to that extent to be inoperative. 2.4 General Organisation of Scheme 2.4.1 The Scheme will be governed by the Board of Management to be established in accordance with clause 3. The Board of Management is responsible, in accordance with the terms of this deed for: … (c) subject to the function of the Claims Committee, the general management of the Scheme. 2.4.2 The Claims Committee will assess claims by Claiming Members on the relevant Annual Fund. 2.4.3 Jardines will participate in the Scheme to provide advice and assistance in relation to all aspects of the Scheme, to manage Claims in conjunction with the Claims Committee and to arrange Primary Insurance. 2.4.4 The Fund Manager holds and manages the Annual Funds established under this deed for the Members. 2.5 Liability of committee members A member of the Board of Management or of the Claims Committee or any other committee established pursuant to this deed, acting in good faith, has no liability to any Member, Jardines or the Fund Manager in connection with the Scheme. 2.6 Enforcement of this deed 2.6.1 Jardines shall take such actions with respect to enforcement or recovery against any Member as the Board of Management directs. 2.6.2 If the Board of Management or the Claims Committee fails to carry out its obligations under this deed, Jardines shall be entitled to take such action in relation to enforcement or recovery as it considers appropriate, at the request of a Member, or at its own instigation, and each Member appoints Jardines as its agent for the purposes of such action. 1. Part 4 is entitled "The Claims Committee". It provides for the constitution of the Claims Committee as follows (in cl 4.1.1): 4.1.1 The Board of Management must by resolution appoint 3 representatives and Jardines must appoint 2 representatives to the Claims Committee. The first representatives are the persons named in schedule 3. 1. That part also provided for the secretary of the Claims Committee, a person appointed by JLT (cl 4.1.5) and for quorum and voting (cl 4.2). Clause 4.2.1 is in the following terms: 4.2.1 The quorum for a meeting of the Claims Committee is 3 of the representatives then appointed. However, if a quorum is not present within 1 hour of the time set for commencement of a meeting, that meeting must be adjourned for the time, not exceeding 14 days, as those present agree. At least 2 business days' notice must be given of the adjourned meeting by the Jardines representative to all other representatives. Those present at any adjourned meeting constitute a quorum. 1. The functions of the Claims Committee are set out in cl 4.3.1 as follows: 4.3.1 The Claims Committee is a sub-committee of the Board of Management whose functions are: (a) to receive and consider the Claims of a Claiming Member; (b) to make recommendations to the Board of Management in relation to Claims, the payment of Liability and the Annual Fund from which payment should be made; (c) to liaise with the Fund Manager to organise payment of any Liability approved by the Board of Management; and (d) such other functions as are contemplated in this deed or are delegated by the Board of Management. 1. The expression "Fund Manager", as earlier mentioned, is defined in cl 1.1 as meaning JLT or a replacement pursuant to cl 9.10. 2. Part 5 of the Statewide Deed deals with the "Appointment and Functions" of JLT. It is in the following terms: 5. APPOINTMENT AND FUNCTIONS OF JARDINES Each Member appoints Jardines and Jardines agrees to: (a) provide representative's to the Board of Management and the Claims Committees in accordance with this deed; (b) advise Members in relation to loss prevention and risk minimisation techniques; (c) to organise a budget for each Annual Fund in respect of each Fund Year (setting out the current value, the anticipated claims for payment of Liabilities, the aggregate Contributions it recommends be paid and the recommended Contribution from each Member); (d) advise in relation to the required Contributions for any Fund Year and the amount of Contributions to be required from each Member; (e) advise on and effect Primary Insurance on the instructions of the Board of Management; (f) manage the handling of Claims in conjunction with the Claims Committee in accordance with clause 8; and (g) provide budgets and reports to the Board of Management in such form and at such intervals as the Board of Management from time to time reasonably requires as to: (i) the ability of the Annual Fund to meet actual and anticipated Liabilities for any Fund Year; (ii) the desirability or need for further Contributions for any Fund Year; (iii) the availability of money to distribute by way of surplus under clause 9.9; and (iv) such other matters as the Board of Management reasonably requires. 1. Part 6 deals with "Primary Insurances". Clause 6.1 is as follows: 6.1 Determination of Primary Insurances For each Fund Year the Board of Management must determine: (a) the amount and terms of the Primary Insurance to be purchased jointly by the Members in respect of that year; and (b) the amount to be contributed by each Member to the premium for such Primary Insurance. In making such determination the Board of Management must take into consideration the advice of Jardines and such other matters as it considers appropriate. The Board of Management must promptly instruct Jardines to arrange the Primary Insurance for the Fund Year in accordance with its determination. 1. Clause 6.2 provides that, following notification from the Board of Management, JLT must arrange Primary Insurance in a Fund Year. 2. Part 7 deals with the "Establishment of Annual Funds and Contributions". Clauses 7.1 and 7.8.2 is extracted below: 7.1 Establishment of Annual Funds The Board of Management must establish an Annual Fund for each Fund Year by making Calls in accordance with this deed. The Members and the Fund Manager agree that each Annual Fund is a separate and distinct fund vested in and held by the Fund Manager in trust to be applied for the benefit of the Members in accordance with this deed. … 7.8.2 If requested to do so by the Board of Management, the Fund Manager must (at the cost and expense of the Members, which must be paid or secured to the satisfaction of the Fund Manager) take such action to recover unpaid Contributions as the Board of Management requires. 1. Part 8 deals with the "Handling and Payment of Claims". Clauses 8.1.1, 8.2.1, 8.2.2 and 8.3.1 provide: 8.1.1 Subject to clause 8.1.2, a Member must promptly notify the Secretary of the Claims Committee in writing of any Claim, any threatened Claim and any circumstance or occurrence which is likely to give rise to a Claim. The Member must not admit liability for, incur costs in relation to or settle any Claim unless the Board of Management has declined indemnity under the Scheme. … 8.2.1 Subject to clauses 8.2.3 and 8.4, a Claim is covered by this Scheme if and to the extent that any payment which the Member against which the Claim is made would be covered under the Primary Insurance which would respond to the Claim if there was no retention under such Primary Insurance other than the deductible agreed between the Member and Jardines pursuant to clause 7.2.2. 8.2.2 As soon as practicable after receiving the Claims Committee's report under clause 8.1.2, the Board of Management must: (a) firstly, determine whether and, if so, the extent to which the Claim is covered by the Scheme. In making such determination the Board of Management is not bound to follow any Primary Insurer or any recommendation made to it or to the Claims Committee; (b) secondly, either: (i) accept the recommendations of the Claims Committee as to payment of Liability in respect of the Claim; or (ii) in its absolute discretion by special resolution, determine that no Liability or a lesser amount than that recommended by the Claims Committee be paid to the Claiming Member, and notify the Fund Manager accordingly (including the Annual Fund which is to be the source of the payment). … 8.3.1 If the Board of Management determines that a Claim is covered by the Scheme, that Claim will be managed by the Claims Committee (or Jardines on its behalf) who will, in consultation with the relevant Member, as appropriate: (a) determine whether the Claim is to be defended or settled; (b) if it considers appropriate, settle the Claim; (c) if the claim is to be defended, issue instructions to the Scheme's solicitors in connection with the defence of the Claim and its settlement; (d) generally do all things necessary for the efficient management of the Claim; (e) keep the Board of Management informed as to the progress of any Claim; and (f) make payment of the Claim from the relevant Annual Fund. 1. Part 9 deals with the "Management of Annual Funds". An "Annual Fund" is defined in cl 1.1 as meaning: "the Annual Fund established under this deed to provide indemnity to Claiming Members who have suffered Liability in a particular Fund Year". 2. Clause 9.1 deals with the "Appointment of a Fund Manager" as follows: 9.1 Appointment of Fund Manager Each Member appoints the Fund Manager to hold, administer and manage-the Annual Funds on the terms of this deed and the Fund Manager accepts the appointment. 1. Clause 9.3 deals with the "Fund Manager's authority to apply the Annual Fund". 2. Part 10 deals with the "Admission, Retirement and Expulsion of Members". Clauses 10.1 and 10.2 are as follows: 10.1 Eligibility The following are eligible to become Members: (a) a council within the meaning of the Act; (b) the Local Government Association of New South Wales and the Shires Association of New South Wales; and (c) any other person approved for admission by a unanimous resolution of the Board of Management. 10.2 Admission of new Members With the approval (by resolution) of the Board of Management a person who is eligible under clause 10.1 to become an additional Member of the Scheme may become a Member by entering into a deed with Jardines under which it becomes a party to this deed in such form as Board of Management may from time to time require. 1. Part 11 is entitled: "Jardines' and the Fund Manager's Fees and Indemnities and General Powers." 2. Clause 11.2 deals with the "Fund Manager's and Jardines' indemnities" and cl 11.4, the "Indemnity of Members" of the Statewide Scheme. Those provisions are in the following terms: 11.2 Fund Manger's and Jardines indemnities 11.2.1 Subject to clause 11.2.2, each of the Fund Manager and Jardines is entitled to be indemnified out of the relevant Annual Fund against all claims, costs and expenses which it pays or incurs in connection with the performance of its functions under this deed or any action taken by it which in its opinion is necessary or desirable in connection with the Annual Fund. … 11.4 Indemnity by Members Each Member indemnifies the Fund Manager and Jardines against any loss, liability, cost or expense incurred in connection with their obligations under this deed (subject to the limitation below). If the Annual Fund is insufficient to meet any such loss, liability, cost or expense or any fees payable under this deed, each Member agrees to pay the proportion of the amount of any such deficiency on demand that its initial Contribution to the relevant Annual Fund is of the total initial Contributions. 1. Clause 11.6 concerns "General powers" and is in the following terms: 11.6 General powers Jardines and the Fund Manager have all powers which are reasonably necessary to perform their respective functions expressed in or implied by this deed. SUBMISSIONS JLT Submissions 1. In summary, the submissions for JLT were as follows: 1. The second cross-claim fails to disclose a cause of action. 2. The Council does not seek to identify any legal consequence arising from the use of the term "manager", such as might conceivably flow from an allegation that a person is a receiver and manager. 3. The Council does not articulate in the pleadings a legal basis for the result it pleads arises from JLT's role of "manager". 4. An alternative claim for relief seems to proceed without reference to a policy of insurance and merely seeks to have JLT "as manager of [the] Statewide [Scheme]" indemnify the Council. No legal foundation for indemnity is pleaded: in this context it seems to be that the Council contends that this right to indemnity springs from a contract of insurance. The difficulty with that benevolent interpretation is that the Council nowhere alleges that JLT was an insurer or even held itself out as an insurer. 5. There is a dichotomy between JLT and the Statewide Scheme (or the Members of the Statewide Scheme). JLT does not have a majority on the Claim's Committee. JLT would not be in a position to determine outright any claims. 6. JLT is not alleged to be and is not a Member of the Statewide Scheme, that is, the unincorporated self-insurance scheme for local councils in New South Wales. Clause 2.3 of the Statewide Deed provides that "this deed constitutes separate agreements between each Member and [JLT] and does not constitute an agreement between any of the Members". Hence, "no Member shall have rights against any other Member" under the Statewide Deed (unless arising independently of the Statewide Deed). In particular, cl 2.4.3 of the Statewide Deed does not provide for JLT to become a Member of the Statewide Scheme. Rather, JLT participates in the Statewide Scheme as a manager of business. A manager is not a relevant legal relationship in the present context: JLT is not part of an unincorporated association. 7. The pleadings do attempt to define the role played by JLT in the capacity of manager by reference to the legal incidents of its functioning or by characterisation or categorisation so as to identify how JLT comes to have responsibility for accepting the claim. No reference is made to the Statewide Deed to show how JLT comes to be liable to the Council. There was no pleading that JLT would be "underwriting that mutually beneficial enterprise". 8. The authorities make it clear that it is necessary to sue the relevant member. The fact of JLT being a party to the Statewide Deed does not change the nature of the mutual body. It has not joined together with others and it has not contributed financially. 9. The declaration sought in the second cross-claim recognised that dichotomy as indemnity is sought from JLT as Manager of the Statewide Scheme. JLT is not an agent or an insurer. There is no suggestion of a breach of the Statewide Deed. There is no pleading based on contract – the pleading is that JLT has a primary obligation to provide the indemnity. It was not pleaded that JLT had a central role in the administration and management of the Statewide Scheme. 10. Under the heading "Relief Claimed" in the second cross-claim, the order sought at para 2 maintains the dichotomy by seeking an order against JLT "as manager of [the] Statewide [Scheme]". 11. The pleadings are to the same effect in para 3 of the second cross-claim. JLT is described as the manager of the Statewide Scheme. That description is a conclusion and sheds no light on the legal consequences that arise from the conclusion. 12. This pleading as to the 2011-2012 policy refers to "JLT as manager of Statewide, as insurer, issued to the council". Again, there is no identification of what are or might be the legal consequences of JLT being the manager of an insurer. It is not alleged JLT is an insurer. 13. The same distinction is maintained with respect to the 2012-2013 policy for professional indemnity. JLT made a number of submissions regarding this policy (as outlined below). 14. In para 8 of the pleadings, the Council referred to notice to the Statewide Scheme, meaning a notice to the Members of the Statewide Scheme; and in para 9, notice to JLT as manager of the Statewide Scheme (again, including notice to Members of the Statewide Scheme). 15. A subsequent request of JLT "as manager" of the Statewide Scheme was made for confirmation that "it" had accepted liability, in respect of the Section 149 Certificate Claim, under a particular policy year (see para 11 of the pleadings). Paragraph 12 of the pleadings contended that JLT did not notify the Council as to whether "it" accepted liability. 16. The pleadings do not explain how JLT came to be in a position where "it" could (or would or should) be liable, given that the Council accepted that the Statewide Scheme was the insurer. Nor is it pleaded how a manager would be obligated to signify its acceptance of a claim made on the insurer, the Statewide Scheme. It was not identified by what rights and obligations JLT became liable. 17. The Statewide Deed setting up the Statewide Scheme, to which the Council was a party, reposes claims acceptance responsibility in a Claims Committee, which is a sub-committee of the Board of Management. The Statewide Deed makes it plain that, at its highest, JLT's role is one of giving advice and for the provision of logistical support to implement the decisions of the Board of Management. The Statewide Deed does not support the suggestion that JLT had a role involving determination of claims. 18. There was no pleaded basis on which a "manager" would issue a policy of insurance nor any indication as to how a "manager" would be liable under a policy of insurance and nor does the Council seek to draw anything from the governing deed which would support a different view. 19. The term "as manager" has no legal meaning, no meaning is assigned to it by the pleading and nor does the Council plead the nature of the liability JLT is said to have. 20. The Council only contends that the insurer was the Statewide Scheme. When the Council pleads that a "policy" responds, it must be speaking of one or more of the policies issued by the Statewide Scheme and it must be speaking of the legal entities which combine to create the unincorporated body it identifies as the Statewide Scheme. 21. It was not pleaded that JLT is the agent of the Members of the Statewide Scheme or that it is a fiduciary of, either, the Statewide Scheme, the Members of the Statewide Scheme or the Council. 22. The pleading identified no legal basis or conception upon which JLT would come to be liable for the acts or omissions of the Statewide Scheme either generally or with specific respect to the issue of cover in relation to any given claim or set of notified circumstances, which were said to have been claimed or notified by reference to an insurance policy. 23. Overall, the pleading failed to disclose any legal basis on which JLT was said to be the embodiment of the Statewide Scheme, its agent or fiduciary or, for that matter, its insurer. Since the claim was said to be based on an entitlement to indemnity, it is bad for want of any identified basis on which JLT would be liable to indemnify an alleged insured of a third party. 24. Similar submissions were advanced with respect to the claim for indemnity under the 2011-2012 policy for damage to property. 25. A particular submission was made as to the pleading in para 16 of the second cross-claim as follows: In [16] it is said that the Council's claims manager provided a copy of a pleading to "JLT as manager of Statewide". The Council then alleges that JLT told Council "it" had decided to deny the claim. Even if it is accepted that JLT said that "it" had denied the Claim, the Deed makes it clear beyond argument that JLT lacked the legal capacity to deny a claim of a member: that decision involved consideration by the Claims Committee and the making of a recommendation to the Board of Management. JLT's alleged statement would be of no legal effect as between the members of Statewide and the Council. If JLT told the Council the claim was denied on the accepted (in the sense that Council does not claim any limitation in the operation of the Deed) structure of the Scheme it did so as no more than the Board of Management's messenger. 1. Absent some pleading to identify how JLT becomes liable under the policy, or was the issuer of the policy or came into a contractual (or similar) arrangement with Council, the pleading fails to disclose a cause of action. 2. The Statewide Deed confers upon JLT clerical and similar tasks associated with obtaining insurance for the pooled Risk of Member's Claims as determined by a Claims Committee. JLT is involved in the Board of Management, in the constitution of the Claims Committee and it acts as Secretary of the Claims Committee. JLT does not determine or pay claims from its own resources or indemnify a Member. 3. It is clear from the definition of "Primary Insurance" that the Members of the Statewide Scheme purchase insurance. JLT is not the Primary Insurer as defined in cl 1.1 of the Statewide Deed. 4. Whilst cl 2.3 closes off much litigation between Members, it does not shut out litigation which seeks to enforce a right of indemnity under a policy which has been purchased by the Members because that is not a dispute under the Statewide Deed. Rather, it is a dispute under either the arrangement between the Members of the Statewide Scheme and the insurer or it arises under the insurance policy. 5. Clause 10.1 of the Statewide Deed is consistent with the proposition that JLT is not a Member of the Statewide Scheme because membership is confined to a "Member" Council, the local government and the Government Association of New South Wales and the Shires Association of New South Wales and any other person approved for admission by a unanimous resolution of the Board of Management. 6. There is no warrant in the Statewide Deed to find that JLT would have to indemnify a council. That is taken care of by the placement of insurance with others or the Statewide Scheme becoming, through its Members, an insurer of all of the Members. The Council failed to identify how the advisory role performed by JLT rendered it liable to indemnity under the policy of insurance (it was not suggested that it was the insurer or the insurer's agent). It was also not alleged that JLT took a role in the making of the decision to acquire an indemnity. Members of the Claims Committee and the Board of Management made the relevant decisions. Council Submissions 1. In summary, the Council made the following submissions: 1. Primarily it was submitted that it is impermissible to strike out or summarily dismiss the second cross-claim where there exists a debatable question of law. 2. That question is whether JLT is a proper party for the Council to sue in respect of an alleged liability of the unincorporated self-insurance scheme. 3. There are no clearly defined legal rules or principles as to who is a proper party to sue in respect of an alleged liability of an unincorporated entity or association. Rather, it depends on all the facts and circumstances as to whether or not a particular person or entity is a proper party to sue in respect of an alleged liability of an unincorporated entity or association. 4. The relevant facts and circumstances include: 1. the contractual relations between the members of the unincorporated entity or association; 2. the number of members of the unincorporated entity or association; 3. the role performed by particular persons and entities in the conduct of the unincorporated entity or association, in particular, whether the party played "some active or managerial role"; and 4. whether there is some other party or parties who should be liable to the plaintiff in addition to or instead of the party sued by the plaintiff. 1. These matters involve mixed questions of fact and law which are not amendable to strike out or summary dismissal applications because they depend upon the resolution of evidentiary questions. 2. Alternatively, the terms of the Statewide Deed made it clear that JLT is a proper party for the Council to sue with respect to the Statewide Scheme. 3. JLT has the central role in the administration and management of the Statewide Scheme. 4. The only contractual relationship under the Statewide Deed was between a council and JLT. This was a strong indicator that JLT was a proper party. 5. Clause 2.1.1(c) of the Statewide Deed suggests that the contractual relationship for the management and resolution of a Member Council claims under the Statewide Scheme was exclusively between the Member Council and JLT. 6. Given that JLT is authorised by cl 2.6.1 to commence proceedings against a Member Council in respect of a matter arising in relation to the Statewide Scheme, it follows that a Member Council was entitled to commence proceedings against JLT with respect to matters arising in relation to the Statewide Scheme. 7. In its management role, JLT can effectively dictate how the Board of Management must behave. Reference was made to cll 2.2 and 8.2.2(b) of the Statewide Deed, together with cl 4.1.1 which provides that JLT is required to appoint 2 of 5 representatives to the Claims Committee. JLT is not a mere advisor to the Claims Committee. 8. Further, pursuant to cl 11.4, each Member Council indemnifies JLT against any loss, liability, or expense incurred in connection with their obligations under the Statewide Deed. 9. The Statewide Scheme is not an entity capable of committing any acts or omissions and accordingly the Council cannot plead a basis upon which the acts or omissions of the Statewide Scheme are attributable to JLT. 10. The Statewide Deed makes it clear that a council cannot sue another Member Council of the Statewide Scheme in respect of a liability in the unincorporated self-insurance scheme, whether as a representative defendant or otherwise. Clause 2.3 of the Statewide Deed is fatal to the contention raised by JLT that the proper cross-defendants are two councils that were nominated by JLT to act as a representative council on behalf of the Statewide Scheme. RELEVANT LEGAL PRINCIPLES Principles Applicable on Strike Out and Summary Dismissals 1. There was no dispute as to the relevant principles outlined by the Council as to the determination of the Motion. It should also be noted, no delineation was undertaken in the discussion of principles between the requirements of UCPR r 13.4(1)(b) regarding the application to have the second cross-claim dismissed for failing to disclose a cause of action and UCPR r 14.28(1)(a) regarding the application to have the second cross-claim struck out. 2. The Council was correct to submit that JLT has a heavy burden to discharge in moving the Court at an interlocutory stage for relief under the Motion. 3. The principles concerning summary dismissal under UCPR r 13.4(1)(b) were recently discussed in National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority [2018] NSWSC 157 at [51]-[57] as follows: [51] It was common ground that the first prayer for relief in the notice of motion was an application for summary dismissal and that, given the claim deprived NAB of the opportunity to establish its case with the benefit of full hearing of the merits, it should only be granted in the clearest of cases: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129-130; Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 ("Agar") at [57]; Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 ("Spencer") at [55]. [52] NAB also placed reliance upon the judgment of Barrett JA (with whom Beazley, McColl and Macfarlan JJA and McClellan CJ at CL agreed) in Shaw v New South Wales (2012) 219 IR 87; [2012] NSWCA 102 ("Shaw") at [32] which stated the relevant test was as follows: The question is therefore whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated. (His Honour was concerned with whether the claim was "doomed" or "hopeless"). [53] It should be observed that although Shaw concerned an application to strike out certain paragraphs of an amended statement of claim under r 14.28 of the UCPR, the statements of principle are broadly applicable in the present context. [54] The following observations in Agar may also be noted (at [57]): Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [Footnotes omitted.] [55] Reference should be made to the recent judgment of Leeming JA (with whom Macfarlan and Simpson JJA agreed) in Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 ("Perera") at [30] as follows: I would reject the first aspect of Mr Perera's complaint, based on the alleged failure expressly to identify the cautious approach to summary dismissal. There are of course a variety of formulations of the applicable test where a defendant applies for the summary intervention of the court to prevent a plaintiff's case being determined in the usual way at trial. Barwick CJ collected some in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action" and "be manifest that to allow [the pleadings] to stand would involve useless expense". In part that variety stems from whether the application is made in the court's inherent jurisdiction or under the rules (see Dixon J's analysis in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91–92), which may in turn affect the material available to the court. In part it turns on differences in the rules of different courts, and in particular on the relaxation of the test which has occurred in some courts: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [56]. But for present purposes, two matters are clear. One is that common to all the various formulations is the need for "exceptional caution", as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]–[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success. [56] I note Leeming JA's reference to Spencer incorporated the following passage (at [55]): As Barwick CJ also pointed out in General Steel Industries, the test to be applied was expressed in many different ways, but in the end amounted to different ways of saying "that the case of the plaintiff is so clearly untenable that it cannot possibly succeed" (emphasis added). As that formulation shows, the test to be applied was one of demonstrated certainty of outcome. [Footnotes omitted.] [57] No reference was made by the parties to the statutory duty imposed by s 56(1) and (2) of the Civil Procedure Act 2005 (NSW). By reference to the judgment of Hammerschlag J in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 at [57]-[64] and the consideration of that judgment by Ward J in McDonald v Grech [2012] NSWSC 717 at [32]-[34], the learned authors in Ritchie's Uniform Civil Procedure (NSW) suggested that the dismissal power conferred by r 13.4(1)(b) may not be confined to proceedings that are so demonstrative as to be certain to fail. Having regard to the conclusions reached in this matter, it is unnecessary to reach any view as to that opinion, although the proposition is prima facie attractive, provided it is recognised the relevant inquiry is that stated in Perera, namely, the demonstrated certainty of the outcome of the litigation. 1. In the context of a motion seeking the strike out of a statement of claim under UCPR r 14.28(1), the Court recently gave consideration to General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 ("General Steel") in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2018] NSWSC 1954 at [140]-[144] as follows: [140] The Court may strike out a claim if an absence of a viable claim is clearly demonstrated: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ("General Steel") at 129. A pleading may be struck out if the Court is satisfied that, even if all the facts set out in the pleading were proven, those facts would not establish the essential ingredients of a cause of action: see Hubbuck at 91 and 94, and Judicial Commission of NSW, Civil Trials Bench Book, (at 15 November 2018) [2-6940]. [141] The descriptions for the test for the absence of a cause of action were set out in General Steel as follows (at 129): (1) the claim was "so obviously untenable that it cannot possibly succeed"; (2) "manifestly groundless"; (3) "so manifestly faulty that it does not admit of argument"; (4) "discloses a case which the Court is satisfied cannot succeed"; (5) "under no possibility can there be a good cause of action"; and (6) "be manifest to allow [the pleadings] to stand would involve useless expense". [142] Similarly, the Court may strike out pleadings in plain and obvious cases: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 946. [143] The Court may strike out pleadings where, for example, a claim is: (1) doomed to fail (Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392); or (2) untenable in the admitted (pleaded) circumstances: Charles Forte Investments Ltd v Amanda [1964] Ch 240; Australian Mid-Eastern Club Ltd v Elbakht (1988) 13 NSWLR 697. [144] The apparent improbability of impugned allegations of fact does not justify the exercise of the power to strike out a pleading, and any attempt to look into those matters could involve a premature trial of the proceedings: Remmington v Scoles [1897] 2 Ch 1 at 7. 1. Those principles extend to debatable or triable questions of law. Strike out applications should not be used in cases of doubt or difficulty or where the pleading raises a debatable question of law. That is the effect of Dixon J's judgment in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (although his Honour was concerned with the issues of abuse of process and frivolous and vexatious proceedings); (see also General Steel at 130 and Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 ("Brimson") at 941). 2. Further, if the Court reaches the view that the Council may have a good cause of action against JLT but that the pleading of that cause of action in the second cross-claim is deficient in some respect, the appropriate course is to grant the Council leave to amend the second cross-claim not to strike out or dismiss it: Brimson at 942. Principles Applicable to Unincorporated Associations 1. The Statewide Scheme is an unincorporated, mutual, self-insurance scheme for local councils in New South Wales. 2. In addressing the relevant principles as to what entity is the proper party to sue, in respect of alleged liability, both parties made reference to the judgment of Hammerschlag J in Anglican Development Fund Diocese of Bathurst in its own capacity and in its capacity as trustee of the Anglican Development Fund Diocese of Bathurst (receivers and managers appointed) v The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst; Commonwealth Bank of Australia v The Right Reverend Ian Palmer, Bishop of The Diocese of Bathurst (2015) 336 ALR 372; [2015] NSWSC 1856 ("ADF") at [199]-[217]. 3. Some basic principles may be distilled from that judgment as follows: 1. An unincorporated entity, such as a voluntary association, does not, in law, have any existence apart from its members, and in itself can acquire no rights and incur no obligations (see at [199]). 2. However, it is possible for persons, natural or juristic, combining together for a purpose and identifying themselves by a name to enter into legal relations with others. Whether the result is a contract having legal force and in whom vests resultant rights and obligations depends upon the particular circumstances and on the means adopted (see at [199]). 3. Because an unincorporated association has no legal capacity, no contract can be made with the association itself unless provided by statute. Accordingly, when a person contracts on behalf of an unincorporated association, the rules of agency must be applied to ascertain the individuals who are liable as principals on the contract (see at [202]). 4. Where the only contract which can be alleged is one with the members for the time being of an unincorporated association having a fluctuating membership, the allegation of contract will fail (see at [203]). 1. That distillation leads inexorably to the consideration of the law of consensus or contracts. His Honour expanded upon that concept in ADF in the context of voluntary associations as follows (at [201]): [201] The nature and effect of the obligations of a member of a voluntary association are determined conceptually as part of the law of consensus or contracts. The court first ascertains what are the rules adopted by the members as regulating their relationship as members. Such rules may be derived from a written constitution or otherwise agreed in writing. Whether they create legally binding rights and obligations of a legal nature depends on the intention of the parties that they should do so. Whether, considered as a whole, the rules of a particular voluntary association were intended to create such rights and obligations must be determined according to the nature of the association, the terms of the rules, and the general context: Scandrett v Dowling (1992) 27 NSWLR 483 (Scandrett v Dowling) per Mahoney JA at 491 and 504. 1. References were made in ADF to the judgment of Mason P in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 ("Ellis"). In their submissions going to the substantive issues in these proceedings, the parties' discussion did not extend beyond ADF and Ellis. However, attention may also be given to Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 ("Bradley Egg"). For the purpose of discussing this authority it is sufficient to extract [204]-[208] of ADF, incorporating, as it does, passages from the judgment of Scott and Goddard LJJ in that judgment: [204] It is not uncommon for it to be found, where there is evidently a serious intention to contract, that the principals to a contract made on behalf of an unincorporated association are the members of its executive committee. [205] Such liability, if it is found, is not derivative but primary. Thus, in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 (Ellis), the plaintiff sued the then current Archbishop of the Roman Catholic Church for the Archdiocese of Sydney 'for and on behalf of the Roman Catholic Church for the Archdiocese of Sydney', for damages, alleging that he was repeatedly sexually assaulted by an assistant priest of that Church. It was held that there was no viable cause of action against the Archbishop as a representative of such a class, because the Catholic Archdiocese of Sydney was an unincorporated association which could not be sued in its own name because, among other reasons, it did not exist as a juridical entity. At 577 [49]-[51], Mason P said: Recognising their inability to sue an unincorporated body (as to which see London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 33, 38; Williams v Hursey (1959) 103 CLR 30 at 53–54; Smith v Yarnold [1969] 2 NSWR 410 at 414) plaintiffs have proceeded against persons or groups within the body who have assumed some active or managerial role. The persons sued would have acted on behalf of the body as a whole, but this did not confer upon them some species of derivative immunity. If the activity in which they exercised palpable control gave rise to a contractual or tortious claim otherwise recognised by law, they are held liable as principals: see Hrybynyuk v Mazur (2004) Aust Torts Reports 81–774 (66,237) and generally Keith L Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand, (1986), Sydney, Law Book Co, Ch 8, (Tortious Liability). By such means, members of a committee of an unincorporated club or society have been found liable in contract (Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378; Ex parte Goddard; Re Falvey (1946) 46 SR (NSW) 289 at 296; 63 WN (NSW) 168 at 171–172; Smith v Yarnold; Peckham v Moore [1975] 1 NSWLR 353) and tort, for example, as occupiers of dangerous premises or for conducting or authorising particular activities (Ryan v Fildes [1938] 3 All ER 517; Smith v Yarnold). Nevertheless, care is required to select the members of the committee in office at the relevant time (Banfield v Wells-Eicke [1970] VR 481; Peckham v Moore). Liability remains personal not representative in nature. [206] A leading example of liability of individual members of a management committee is Bradley Egg Farm Ltd v Clifford [1943] 2 All ER 378 (Bradley Egg Farm). The plaintiffs were poultry farmers who contracted with the Lancashire Utility Poultry Society, an unincorporated body with a large number of members, to have their birds tested for a disease called bacillary white diarrhoea. The contract was contained in six letters on the note paper of the society and signed by the technical manager. The plaintiffs sued for breach of contract to recover damages for the loss of a large number of fowls which became infected with fowl typhoid. Initially they cited the president, deputy president and the secretary and treasurer, seeking an order that those officers should pay or procure to be paid damages and the costs of the action out of the costs of the society. When the plaintiffs sought a representation order, which the defendants opposed, the names of all the members of all the executive council of the association at the time the contract was made were added as defendants, and the statement of claim was amended to allege that the contract was made with all the defendants other than the person who carried out the test, who was sued for negligence. The majority of the Court of Appeal, Scott and Goddard LJJ, concluded that the fact that a society entrusts its affairs and management to an executive council does not give that council authority to make contracts binding on all members, and that the proper form of judgment was against the members of the council personally. [207] In delivering the judgment of the majority, Goddard LJ said at 380-381: The society thus has some analogy to a members' club with this important difference, that, whereas the property of such a club belongs beneficially to the members jointly, the members of this society have no rights in the funds or property of the society at all. Its affairs are managed by a council, composed of the defendants, who are entrusted with the management and administration of its affairs. The president, deputy president, treasurer and auditors are appointed in general meeting. The secretary is appointed by the council, and the rules do not contain any provision for the appointment of any other officers or servants. In view of the objects of the society as set out in the rules, it is plain that persons must be engaged to further them, and that this appointment and the allocation of duties among them would be part of the duties of management and administration conferred on the council. Gates was appointed as technical manager and laboratory officer on 21 April 1939, at a meeting of the council. All of the defendant committee either voted for or knew and approved of his appointment. In our opinion, it is plain that Gates was employed by the council and must be regarded as their servant. Against whom but them could he claim his salary? It was argued that if he was the servant of anyone it was of the society, that is, of every member of the society, and that, if he in the course of his duties made contracts, he made them as agent for the members of the society jointly. In our opinion, this is an impossible contention. Because members of a society, especially in a case where they have no rights or interest in the funds or property of the society, entrust its affairs and management to a committee, that does not mean that they thereby give the committee authority to make contracts binding on them. Otherwise a person who pays a subscription of 7s 6d to this society might find himself involved in liabilities of an unknown amount. It is the defendant committee who are liable as Gates' principals, and they are his principals, not because they are members of the society, but because they are the committee entrusted with the function of directing the activities of this unincorporated body and putting them into execution. That includes the making and performing of contracts; and the manager appointed by them becomes their agent and servant to act on their behalf in making such contracts as they may direct and approve and appointing experts, etc. Exactly similar considerations apply to Stuart. They authorise his contracts and are liable upon them. He was engaged as a tester by the council and all its members knew and approved of his appointment and of his carrying out tests; payment for his services was received by the council and the moneys became part of the funds of the society of which they had the control. The council paid Stuart's salary; he was their servant or agent and they are therefore liable for his negligence. [208] Scott LJ, although agreeing with Goddard LJ, made the following additional observations at 386: That the plaintiffs intended to make a real contract with somebody is beyond doubt; but it is equally beyond doubt that they had never formed any intention in their own minds beyond the vague one of making a contract with the person or persons the law would hold responsible on the contract. They did not, of course, think about it at all; they merely assumed, with the confidence natural to a nation which normally carries out its contracts, that somebody would be responsible. They expected performance and not breach; but the rest was assumption which they never even began to think out. In these circumstances, what is the function of the law? Surely it is to imply an intention on the plaintiffs' part to make their contract with the person or persons to whom alone in the circumstances of the case the law regards as the persons responsible. That cannot be the society, for it does not exist. The law, therefore, has to choose from the various persons associated together under the umbrella of the society's name, those most concerned in the function of making contracts, those of the associated persons who were most directly concerned, and to discard those who were, for any reason, least directly concerned. In the latter category stand the mere members who, under the society's rules, have no liability beyond their annual 7s 6d membership subscription, and have no right to participate, now or on winding up, in the funds of the society. But the body of members want to see the purposes of the society implemented, almost in the same way as in the case of a charity (in the popular sense); and they appoint an executive council to carry out those purposes. Making a contract, whether for employment of servants, for purchase of office furniture, for keeping a bank account, or for carrying out tests to assist the branch of farming which produces utility poultry, is essentially a function which cannot be performed without somebody accepting personal responsibility to perform the contract and pay money; and the business men who accept the office of being on the executive council, seem to me to be the persons whom the law must regard as pledging their own credit in order to perform the duties which they voluntarily undertake for their so-called "society"; just as do the committee men of a club. CONSIDERATION 1. By the Motion, JLT sought that the second cross-claim be dismissed or struck out, essentially because it disclosed no cause of action against JLT. 2. It was contended that, insofar as the Council pleaded that an indemnity arose out of the 2011-2012 and 2012-2013 contracts of insurance, there was no legal foundation for the indemnity pleaded. 3. Central to JLT's interlocutory application was a contention that there was incurably defective pleadings. 4. Without repeating the expansive summary of JLT's submissions above, JLT contended that, as pleaded, the second cross-claim brings an action against it as a mere manager; a proposition (and position) which conveys no obligation for liability to or indemnification of the Member Councils. It was contended that there was no pleading – by function, characterisation or category – as to how a manager would be obligated to signify its acceptance of a claim made on the insurer, the Statewide Scheme. Neither the pleading nor the Statewide Deed identifies the legal basis upon which JLT is liable for the act or omissions of the Statewide Scheme either generally or with respect to the issue of cover in relation to a given claim or notified circumstances. The Statewide Deed reposes claims acceptance responsibility in a Claims Committee which is a sub-committee of the Board of Management. The manager gives advice and logistical support. The manager does not determine claims. JLT is not a Member of the Statewide Scheme. 5. The Statewide Scheme is not a legal entity and is not capable of committing, itself, any acts or omissions. It is a mutual liability scheme which is an unincorporated self-insurance scheme for local councils in NSW. 6. No party submitted that the "entity" was anything other than an unincorporated entity or association falling, broadly speaking, within the principles governing such bodies as distilled in the judgment from ADF (set out earlier in this judgment). This was notwithstanding the fact that some features of the body differed, as will be discussed below, from those commonly associated with voluntary unincorporated associations (see as discussed below in K L Fletchers, The Law Relating to Non-Profit Associations in Australian and New Zealand (Sydney Law Book Co, 1986) at Ch 3). 7. The circumstances of this matter differ from cases such as Bradley Egg Farm where the question was whether persons or groups of persons who were members of an association (having a set of rules and arrangement intended to create legally binding rights and obligations) were liable as principals under contract because of their role in the organisation. In other words, those persons or groups had, in fact, joined an unincorporated or voluntary association, as such, and were sued in their capacity or role as part of a management committee (see Bradley Egg Farm at 381). 8. JLT is not a "Member" of or under the Statewide Scheme. By cl 1.1, a Member means, inter alia, a Member who is a party to the Statewide Deed. The "Parties" provision of the Statewide Deed provides that the Members shall be Councils whole names appear in Schedule 1 to the Statewide Deed. That Schedule is divided into Regions. The first named Region is "Metropolitan" and the Council is the first name appearing therein. By parity of reasoning, JLT is not a Member of the Statewide Scheme – JLT is a party to the Statewide Deed but is distinguished in the "Parties" provision of the Statewide Deed from Members and does not appear in Schedule 1. 9. Further, the definition of "Member" in cl 1.1 contemplates additional Members being "admitted" under cl 10.1. Clause 10.1 is consistent with membership being confined to entities other than JLT. The clause provides for eligibility of "a council", representative bodies of councils and "any other person approved for admission by a unanimous resolution of the Board of Management". The last mentioned eligibility provision would not seem to contemplate JLT, as cl 10.2 provides that a Member admitted as an additional Member will enter the Statewide Deed with JLT. I note for completeness, there is no pleading by the Council that JLT is a Member. 10. JLT is correct to contend that, by cl 2.3 of the Statewide Deed, the unincorporated self-insurance scheme was created by the Council and other councils entering the Statewide Deed. In the result, no agreement was made between the Members of the Statewide Scheme. No Member of the Statewide Scheme had any right against another Member under the Statewide Deed unless arising independently of the Statewide Deed. 11. The status of JLT as a party but non-member of the Statewide Scheme adds support to the contentions of JLT that it should not be found to be a principal with respect to the Statewide Scheme (and to challenges by JLT to the pleadings in the second cross-claim, which ascribe JLT in the role of manager without necessarily specifying the legal incidents of that role which, absent membership, constituted a basis for JLT being found as a principal under the Statewide Scheme). It was not pleaded that JLT was an agent for the Members of the Statewide Scheme. 12. However, local councils do not become Members by means of joining an unincorporated association as such or, as mentioned above, by agreements reached between prospective or existing Members. The only mechanism by which a local council may become a Member of the Statewide Scheme is by entering the Statewide Deed with JLT. Thus, the only party with which the Council contracted, in becoming a Member of the Statewide Scheme, was JLT via the execution of the Statewide Deed. 13. I accept the submission of the Council that the establishment of an unincorporated mutual self-insurance scheme with attendant legal obligations arising under the Statewide Deed in that manner is suggestive that JLT is the proper entity to be sued under the Statewide Deed as a principal in respect of the Statewide Scheme. 14. That impression is substantially reinforced when regard is had to the management role and functions conferred upon JLT under the Statewide Deed and the level of control under the same afforded to JLT over the Statewide Scheme. Elaboration as to the extent of JLT's management and control, in relation to the Statewide Scheme should, however, be undertaken in considering a further contention made by JLT. 15. JLT submitted that whilst cl 2.3 of the Statewide Deed closes off much litigation between Members, it does not shut out litigation which seeks to enforce a right of indemnity under a policy which has been purchased by the Members because that is not a dispute under the Statewide Deed. Rather, it is a dispute under either the arrangement between the Members of the Statewide Scheme and the insurer or it arises under the insurance policy. 16. However, that submission requires closer analysis both with respect to the nature of the indemnification of Members provided under the Statewide Scheme who have suffered a liability as defined within the Statewide Deed ("Claiming Members"), the management of claims where liability arises and JLT's involvement with respect to the same. 17. Clause 2.1.1(c) of the Statewide Deed provides that each Member agrees with JLT to enter the Statewide Deed for the purposes of having its claims "managed and resolved". I agree with the submission advanced by the Council that that provision suggests that the existence of a contractual arrangement for the management and resolution of a Member's claim under the Statewide Scheme is between the Member and JLT. 18. Clause 8.2.1 provides that a claim is "covered by this Scheme if and to the extent that any payment which the Member against which the Claim is made would be covered under the Primary Insurance which would respond to the Claim if there was not retention under such Primary Insurance…". Under cl 1.1 "Primary Insurance" means that public liability and professional indemnity insurance purchased by the Members from time to time pursuant to the Statewide Scheme. There was no specific evidence before the Court as to any Primary Insurer or Primary Insurance. 19. Clause 7.1 requires that the Board of Management must establish an Annual Fund for each Fund Year. This is a separate and distinct fund vested in and held by the Fund Manager, namely, JLT in trust to be applied for the benefit of Members in accordance with the Statewide Deed. 20. Clause 9.1 provides that each Member appoints JLT to hold, administer and manage the Annual Funds. Clause 1.1 defines the Annual Fund to be one established to provide indemnity to Claiming Members who have suffered a liability in a particular Fund Year. (Clause 1.1 defines "Claiming Member" to mean a Member against which a claim is made). Clause 9.3 authorises JLT to apply the Annual Fund in paying liability to a Claiming Member. Liability is defined under cl 1.1 to mean the amount of liability incurred by a Member which the Claims Committee determines would be indemnified under the terms and conditions of the Primary Insurance or is not covered, inter alia, by any other insurance. Clause 9.3 authorises JLT to pay any liability to the Claiming Member. 21. The Statewide Deed deals with the management of claims under the Statewide Scheme. Clause 4.3.1 provides that the Claims Committee is to consider claims by the Member and make recommendations to the Board of Management in relation to "Claims, payment of Liability and the Annual Fund from which payments should be made". 22. The Board of Management must determine the amount and terms of Primary Insurance to be purchased jointly by the Members and the amount of contribution for such Primary Insurance (cl 6.1). JLT is the entity responsible for the organisation of Primary Insurance. JLT may also commence proceedings against a Member for any unpaid contribution to the Annual Fund. The Board of Management must determine whether and, if so, the extent to which a claim is covered by the Statewide Scheme. In making such a determination the Board of Management is not bound to follow any Primary Insurer. 23. Hence, the Statewide Deed provides for a detailed scheme for the resolution of claims for indemnification against liability under the Statewide Scheme. There are provisions within the Statewide Deed which, in addition to those mentioned in [108]-[114] above, repose in JLT, as a party to the Statewide Deed, substantial and relevant control in the management and administration of the Statewide Scheme. 24. I might interpose, before elaborating upon that observation, to note two matters. First, the resolution of the issue here under consideration is not illuminated by the concept developed by the Council in argument such as JLT was the "embodiment" of the Statewide Scheme, any more than of the concept of a "dichotomy" raised by JLT is helpful to resolution of the issues raised by the Motion. 25. Secondly, whether JLT has, as contended by senior counsel for the Council, the central role in the management and administration of the Statewide Scheme, that issue is unnecessary to decide and, in my view, should properly await further evidence as I will discuss below. 26. It is sufficient for the conclusion I will reach on the Motion to find on the evidence presently before the Court on the Motion that JLT exercises palpable active management and control over the Statewide Scheme for the following reasons: 1. It is true that cl 2.4.3 defines JLT's "participation" in the Statewide Scheme as providing functions which, in the broad, may be described as managerial or administrative in nature. However, that provision does not, on its face, purport to exhaustively define the roles and functions of JLT under the Statewide Deed and, when the Statewide Deed, is read as a whole, such a construction is not properly available. On the material presently before the Court, and having regard to the whole of the Statewide Deed, JLT may not simply be described as having the role and function of giving advice and offering logistical support to implement Board of Management decisions or managing a business to meet the ends provided for in the Statewide Deed. 2. JLT does not have the legal capacity to deny a claim of a Member. However, under cl 3.1, JLT both appoints representatives to the Board of Management (although they do no hold the majority, 3 of 13 votes do not make JLT a mere advisor) and may require a representative of the Board of Management to comply with the terms of the Statewide Deed. It is unclear, on the evidence, whether JLT can, as the Council submitted, effectively dictate how the Board of Management must behave, but it may be accepted that, if JLT formed the view that the Board of Management had breached a duty of good faith imposed on representatives imposed by cl 2.2 of the Statewide Deed in the exercise of the Board of Management's discretion to reject a member's claim (under cl 8.2.2(b)), JLT has power to require, under cl 2.6.2, representatives to the Board of Management to comply with the obligation under those claims. 3. Clause 4.3.1 provides that the Claims Committee is a sub-committee of the Board of Management whose functions include the receiving and consideration of claims by a Member and making recommendations to the Board of Management. It is true, the Claims Committee is to liaise with JLT to organise payment (cl 4.3.1(c)). However, JLT's role is far beyond an advisor or administrator. By cl 4.1.1, JLT controls 2 out of 5 votes in determining which claims made under the Statewide Scheme will be accepted or refused. 4. There is no provision in the Statewide Deed allowing JLT to sue on behalf of all Members. Nor does JLT have a representative status under the Statewide Deed. However, cl 2.1.1(c) provides that each Member agrees with JLT to enter the Statewide Deed "for the purposes of … having its claims managed and resolved". JLT is possessed under the Deed of all powers which are reasonably necessary to perform its roles (as JLT and Fund Manager). This contractual relationship for the management and resolution of Members claims under Statewide Scheme is between the Member Council and JLT. 5. Further, cl 2.6.1 of the Statewide Deed authorises JLT to commence proceedings against a Member Council with regard to a matter arising under or in relation to the Statewide Scheme. When read with cll 2.6.2 and 11.1.4, it is arguable that an implication arises that a Member Council may commence proceedings against JLT arising in relation to the Statewide Scheme. It may also be noted that cl 9.1 provides that each Member Council appoints the Fund Manager, who is defined as JLT, to hold, administer and manage the Annual Fund. 6. Whilst JLT does not have itself the legal capacity to deny a claim, this does not preclude JLT being sued and then joining additional cross-defendants in the primary proceedings or commence separate proceedings. I agree with the submission of the Council that, in the event JLT is sued by a Member Council with respect to the Statewide Scheme, it cannot be "personally liable" because it had contractual rights under the Statewide Deed to have recourse to the Annual Fund and to Members contributions to cover any liability to which it is exposed (see cll 2.4.4, 7.1, 9.1, 9.3, 11.2.1 and 11.4). 7. Hence, in the event that the Court ultimately found that the Statewide Scheme was liable to cover the Council's claims in respect of the nuisance claim and/or the Section 149 Certificate Claim, and judgment was entered against JLT in respect of those claims, JLT would then have its contractual rights under the Statewide Deed with the Member Councils of the Statewide Scheme for the judgment to be paid out of the relevant Annual Fund and/or out of Member Councils' contributions. 8. The various Member Councils nominated by JLT to be sued would not seem to constitute the proper parties for suit given the terms of cl 2.3 of the Statewide Deed. 1. Those deliberations are not finally dispositive of the question as to who is the proper entity to be sued under the Statewide Scheme as principal. I accept the submission of the Council that there remains the need for the Court to hear full argument in that respect and, further, there remains in prospective issues of fact relevant to the resolution of that issue. 2. It is clear from ADF that where a person or entity alleges an entity or person is liable for the acts or omissions of an unincorporated association, the Court is required consider all the relevant facts, matters and circumstances to determine whether that person is liable. 3. It appears to me that there may well be disputed questions of fact arising with respect to the role played by particular persons and entities in the conduct of the Statewide Scheme, particularly with respect to the contractual relations between Members of the Statewide Scheme and the nature and extent of the control exercised by JLT (a modest illustration of such an issue is exposed by paras 16-17 of the pleadings in the second cross-claim). A matter posed of such questions is not ordinarily amendable to a summary dismissal or strike out application. 4. I turn then specifically to the issues raised by JLT as to the pleadings in the second cross-claim. 5. The principal complaint by JLT, in this respect, was the use of various formulations in the relief claimed and the pleadings and particulars which referred to JLT as a manager which, it was contended, did not disclose a legal relationship, no basis (or pleadings), for indemnity and ultimately no cause of action (see, for example, JLT written submissions at paras 4, 11, 18, 19, 20 and 26 and my earlier summary of JLT's submissions). 6. The expression "JLT, as manager of [the] Statewide [Scheme]" (in proposed orders 1 and 2 of the relief claimed on second cross-claim) and "JLT as manager of [the] Statewide [Scheme], as insurer" (in paras 5 and 7 of the second cross-claim) contain some infelicities as they may be, for instance, construed as referring to a role of JLT as other than a "principal" or describing only the roles referred to in cl 2.4.3. 7. I have not understood the expression "manager" as taking its meaning other than by reference to the full functions (or characterisation of functions) of JLT within the relevant provisions of the Statewide Deed as discussed in this judgment. The expression appears to have been employed to give effect to, as I have earlier discussed, the law of consensus or contracts; attributing liability to persons or entities involved in the management and control of unincorporated associations. I do not consider that the pleadings convey that JLT has acted as a third party but as a principal. 8. That said, just whether the pleadings properly contain a pleading (and particulars) that JLT is, in that sense, a principal of the Statewide Scheme and is liable on that basis because of the nature and extent of its management and control of the entity is another matter. The Council referred to an alternate expression such as JLT being sued in its capacity as "manager of Statewide" and that "JLT as manager of Statewide" was the "insurer". 9. The deficiencies, such as they are, are amendable to cure by legitimate amendment. No amendment is presently sought but the issue of amendment was raised in the written submissions of the Council. If sought, I would give leave to bring an application to amend. CONCLUSION 1. It is not plain and obvious that the second cross-claim discloses no cause of action or that it is so deficient, hopeless or untenable as to make it inappropriate to allow the proceedings to continue. 2. The pleadings in the second cross-claim raise a debatable question of law. In fact, I consider the pleadings of the Council to be arguable. An allowance is available to be made for legitimate amendment to cure any defect. Further, I consider there are aspects of the issues raised as to the proper entity to sue under the Statewide Scheme which raises mixed questions of fact and law. 3. It follows that the Motion should be dismissed. The issue should be determined at trial, after any amendment sought by the Council is considered, and once the parties have adduced evidence and the Court has had the benefit of full argument on the issues ventilated in this judgment and otherwise. 4. No submissions were received on the question of costs. The question raised by the Motion was a discrete one. However, there is also the outstanding issue of orders with respect to the NTP Motion. 5. I propose to make orders for the preparation of short minutes of order dealing with the motions. If an agreed position can be reached as to costs then that position may be recorded in the short minutes of order. Otherwise the parties should provide a draft program to deal with the question of costs. ORDERS 1. The Court makes the following orders: 1. The Council shall file short minutes of order reflecting this judgment within 14 days of the publication of this judgment. 2. In the event that the short minutes of order do not reflect consent as to the question of costs, costs are reserved. 3. In the event costs are reserved, the parties shall provide a program to deal with any issues as to costs within 21 days of the publication of this judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2019