Ali v Insurance Australia Limited

Court of Appeal (NSW)|2022-05-02|Before: Ward P, Leeming JA, Mitchelmore JA

or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2021] NSWDC 369 Date of Decision: 06 August 2021 Before: J Smith SC DCJ File Number(s): 2019/323518

HEADNOTE [This headnote is not to be read as part of the judgment] In June 2013, the appellant, Mukhtar Ali, took out a home and contents insurance policy with the respondent, Insurance Australia Ltd. On 10 October 2013, following a break-in at his Bonnyrigg Heights home on the previous day, Mr Ali made a claim under the policy, which the respondent denied on 20 May 2014. On 16 October 2019, Mr Ali commenced proceedings against the respondent in the District Court, seeking damages for failure to comply with the policy. The respondent, relying on s 14 of the Limitation Act 1969 (NSW), argued that Mr Ali's action was brought outside of the relevant six-year limitation period, and was therefore statute-barred. In so arguing, the respondent claimed that its liability under the policy arose on the occurrence of the claimed break-in (9 October 2013), and not the later date on which it denied cover (20 May 2014). The application of s 14 of the Limitation Act was heard as a separate question. On the primary judge's construction of the policy, the respondent's liability under the policy arose on the occurrence of the claimed break-in. It followed that Mr Ali's claim had been brought out of time, and the proceedings were dismissed. The primary issue on appeal was whether the primary judge erred in concluding that, on the proper construction of the policy, Mr Ali's cause of action accrued on the occurrence of the alleged break-in. Mr Ali also sought to challenge the primary judge's reliance on and application of the decision of this Court in Globe Church Incorporated v Allianz Australia Insurance Limited (2019) 99 NSWLR 470; [2019] NSWCA 27 ("Globe Church"). The Court (Mitchelmore JA, Ward P and Leeming JA agreeing), granting leave to appeal the decision of the primary judge but refusing leave to reconsider the correctness of the decision in Globe Church, held: As to the correctness of Globe Church: 1. Mr Ali's policy of insurance was drafted in distinctly different terms from the policy considered in Globe Church, such that the decision in Globe Church is not determinative of the construction of the present policy. There being no reason to reconsider that decision, leave to do so is refused: at [1], [2], [9]. Globe Church Incorporated v Allianz Australia Insurance Limited (2019) 99 NSWLR 470; [2019] NSWCA 27 distinguished. As to the construction of the policy: 1. Mr Ali's policy did not contain a clear contractual promise to the effect that the respondent was liable under the policy to indemnify an insured upon the occurrence of a listed event: at [1], [2], [51]-[52], [61]. The primary judge erred in finding that, where used in the policy, "cover" was interchangeable with "indemnity". A reasonable non-expert in insurance law would not have construed the policy in that manner: at [1], [2], [62], [77]. HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 applied. 1. The respondent's promise under the policy was to compensate a claimant for their loss following the process described in the Product Disclosure Statement ("PDS"). That obligation only arose upon the respondent's decision to accept or decline a claim: at [1], [2], [74]. In circumstances where the respondent had a choice as to the wording of the PDS, it could not rely on the plain English drafting as supporting the construction for which it contended: at [1], [2], [78].

Judgment

WARD P: I agree with Mitchelmore JA.
LEEMING JA: I agree with Mitchelmore JA.
MITCHELMORE JA: This application for leave to appeal concerns the proper construction of a policy of home and contents insurance that the applicant, Mr Mukhtar Ali, took out with the respondent, Insurance Australia Limited, in June 2013.
On 10 October 2013, the applicant made a claim under the policy, after an unknown person forced entry into his home at Bonnyrigg Heights on 9 October 2013, stole goods, and caused damage. On 20 May 2014, the respondent denied the claim.
On 16 October 2019, the applicant commenced proceedings against the respondent in the District Court, seeking damages for failure to comply with the policy. By way of defence, the respondent relied on s 14 of the Limitation Act 1969 (NSW), which relevantly provides: "(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims - (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on a deed …"
The primary judge heard a separate question in relation to the application of s 14 of the Limitation Act. Resolution of the question turned upon "whether the defendant was liable under the policy on the occurrence of the claimed break in (9 October 2013) or only when it denied cover (20 May 2014)": at [5]. On the construction of the policy that his Honour adopted, the defendant (now respondent) was liable on the occurrence of the claimed break-in: at [27]. It followed that the applicant's cause of action was not maintainable due to the limitation period and the primary judge dismissed the proceedings on that basis.
The draft Notice of Appeal contains two grounds of challenge to the primary judge's decision. First, the applicant alleged that the primary judge's conclusion that the cause of action arose upon the happening of the break-in rested on a misconstruction of the policy. Second, and in the alternative, the applicant alleged that the primary judge erred in following and applying the decision of this Court in Globe Church Incorporated v Allianz Australia Insurance Limited (2019) 99 NSWLR 470; [2019] NSWCA 27 ("Globe Church"). As part of that ground, the applicant sought leave to argue that Globe Church was wrongly decided.
Both parties referred to the general principles governing the question of leave to appeal as set out in Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; and Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]. Apart from outlining the applicable principles and, ultimately, submitting that the application should be refused, the respondent did not advance any submissions specifically on the question of leave. The applicant submitted that the issues in the appeal were confined and important, and that there was an arguable case of injustice in circumstances where the determination of the separate question led to the dismissal of the proceedings. I accept the applicant's submissions and would grant leave to appeal, save to the extent that the applicant sought to challenge the correctness of the decision in Globe Church.
Extensive submissions in writing were made concerning the correctness of Globe Church, with submissions proceeding on the basis that an insurance contract which indemnified the insured for damage to property gave rise to an obligation from the time damage was suffered. However, at the outset of the concurrent hearing of the application for leave and the appeal, the Court indicated that leave to challenge Globe Church would be refused. The application for leave to appeal involves the construction of a policy of insurance that was drafted in distinctly different terms from the policy considered in Globe Church. The differences are such that the decision in Globe Church is not determinative of the construction of the policy here in issue. As there was no reason to reconsider the decision, leave to do so was refused.
A key point of difference between the policy at issue in Globe Church and the policy documentation in the present case is that the latter was written, as the primary judge described it, "in plain English" and prepared for retail purposes. The corollary was that "there are a number of high level statements explaining the terms of the policy as well as more specific statements concerning the way in which the policy is intended to work": at [9]. Unfortunately for a policy of insurance that was directed at general consumers, the drafting features which his Honour identified are productive of an undue level of complexity in ascertaining the terms of the policy and determining their proper construction. A particular difficulty arises from the frequent use of the word "cover" throughout the documents that comprise the policy.
I consider that the primary judge erred in determining that the respondent was liable under the policy from the occurrence of the claimed break-in. In this respect, his Honour erred in concluding that the word "cover" had a largely fixed meaning throughout the policy documentation that was interchangeable with the word "indemnify". The appeal should be allowed.

The policy of insurance: legislative framework

The policy in the present case comprised the following three documents: 1. the "2013-2014 Certificate of Insurance, Home Buildings and Contents Renewal" ("Certificate of Insurance"); 2. the "Home Insurance Buildings & Contents Product Disclosure Statement and Policy Booklet" ("the PDS"); and 3. the "Home Insurance Building & Contents Supplementary Product Disclosure Statement" ("Supplementary PDS").
Both the Certificate of Insurance and the PDS confirmed that upon the applicant's payment of the premium (or the first instalment thereof), those three documents constituted the contract between the applicant and the respondent.
It was common ground between the parties that the PDS contained the terms of the policy. There is a legislative background against which that document is to be understood. The relevant provisions are contained in Chapter 7 of the Corporations Act 2001 (Cth). Section 760A provides that the main object of Chapter 7 is to promote, inter alia, "confident and informed decision making by consumers of financial products and services while facilitating efficiency, flexibility and innovation in the provision of those products and services": s 760A(a). The financial products regulated in the Chapter include a "general insurance product", which is defined in s 764A(1)(d) to mean "a contract of insurance" (with a number of exceptions that are not presently relevant).
Section 1012B(3) of the Corporations Act requires a "regulated person" (defined in s 1011B to include, relevantly, the issuer of a financial product) to give a person a Product Disclosure Statement for a financial product if, inter alia, the regulated person offers to issue the financial product to the person and the financial product is, or is to be, issued to the person as a retail client. Section 1013C makes provision for the content of a Product Disclosure Statement. Relevantly for present purposes, s 1013C(1)(a)(i) stipulates that a Product Disclosure Statement must include the statements and information required by s 1013D, while s 1013C(3) stipulates that the information included in the Product Disclosure Statement "must be worded and presented in a clear, concise and effective manner".
Section 1013D(1) of the Corporations Act provides that a Product Disclosure Statement must include the statements for which the subsection makes provision, together with such of the information for which the subsection makes provision "as a person would reasonably require for the purposes of making a decision, as a retail client, whether to acquire the financial product". The information described in s 1013D(1) includes, in paragraphs (b) and (f): "(b) information about any significant benefits to which a holder of the product will or may become entitled, the circumstances in which and times at which those benefits will or may be provided, and the way in which those benefits will or may be provided; and … (f) information about any other significant characteristics or features of the product or of the rights, terms, conditions and obligations attaching to the product; …"
Section 1013D(4) states that the regulations may provide that particular information is not required by a provision of s 1013D(1) (para (b)), or may provide a more detailed statement of the information that is required by a provision of s 1013D(1) (para (c)), either in a particular situation or generally. Regulation 7.9.15E of the Corporations Regulations 2001 (Cth) provides that, for the purposes of s 1013D(1)(f), a more detailed statement of the information required by that provision must be included in a Product Disclosure Statement that relates to a general insurance product, namely: "(a) the terms and conditions of the policy document (within the meaning of the Insurance Contracts Act 1984) being terms and conditions that are not provided in a Schedule to the policy document; and (b) information that, if the issuer were seeking to rely on subsection 35(2) and section 37 of the Insurance Contracts Act 1984, the issuer would have had to provide to the insured before the contract of insurance was entered into."
The term "policy document" in relation to a contract of insurance is defined in s 11 of the Insurance Contracts Act 1984 (Cth) to mean: "(a) a document prepared by the insurer as evidence of the contract; or (b) a broker's placing slip that constitutes evidence of the contract; and includes, in relation to an interim contract of insurance, a document of the kind usually known as a cover note prepared by the insurer or by an insurance intermediary with the authority of the insurer."
In this case, the terms and conditions of the policy were set out in the PDS, rather than in a separate schedule to a policy document. Although reg 7.9.15E(a) of the Corporations Regulations contemplated and sanctioned that course, the formulation of the PDS remained subject to the requirement in s 1013C(3) of the Corporations Act, that the information be worded and presented "in a clear, concise and effective manner". Having regard to the language and style in which it is drafted, to which I will come, the PDS is not a model of concision or clarity. It is difficult to distinguish between the information that was intended to constitute the terms and conditions, and material intended by way of guidance. Additionally, in adopting a plain English approach, the PDS eschewed precise legal terms such as "indemnity" and instead used the word "cover" in a multitude of senses and parts of speech. While plain English drafting is undoubtedly in the interests of consumers, in the present case its attempted use did not produce the intended result.

The decision of the primary judge

On 26 March 2021, the Judicial Registrar of the District Court ordered, by consent, that the following be determined as a separate question: "Whether the plaintiff's claim in these proceedings is barred by s 14 of the Limitation Act 1969 (NSW) as raised in Prayer 4 of the Further Amended Statement of Claim and paragraph 28 of the Defence to the Amended Statement of Claim, or any further or amended pleadings in relation to this question."
The primary judge noted that the PDS was "written in plain English and prepared for retail, rather than commercial purposes", and that there was a combination of high level and more specific statements in the document which needed to be read together: at [9]. At [10]-[16], his Honour identified a number of features of the PDS which he considered were relevant to the applicant's argument. I will come to the terms of the PDS in more detail, but for present purposes it is sufficient to note that the passages that were of significance to his Honour included the following: 1. the following explanation of the "Insurance Cover": "Your policy is made up of cover for your home and cover for your contents. The insurance cover we provide under your policy depends on: … the listed events you're covered for and any other cover that applies…"; 1. the following statement under the heading "Listed events", with the words in bold emphasised by his Honour: "We cover your home or contents when certain things happen - for example, fire, theft, storm and earthquake. … You can make a claim if a listed event you are covered for takes place and causes loss or damage to your home or contents during the policy period. …" 1. the statement, under the heading "Paying your premium", that "In return for paying your premium, we provide the cover you have chosen"; 2. what his Honour described as "the critical paragraph", in Section 3 of the document, which relevantly provided: "We cover your home or contents when certain things happen. These are known as 'listed events'. You can make a claim if a listed event takes place and causes loss or damage to your home or contents during the policy period. In this section, we tell you what events you're covered for and any specific exclusions and conditions that apply to the event. General exclusions may also apply - see Section 5. Also, if you don't meet your responsibilities when you make a claim you may put your claim or cover at risk - see page 55. How we settle a claim is set out in Section 6." 1. Section 6, which dealt with claims, explaining "what happens when you make a claim" and including, under the heading "What we pay for - Contents Insurance", the following statement: "If we agree to cover your claim under Contents Insurance, then we will: - pay the cost to repair or replace your contents (whichever is lower) - pay for any extra costs we cover under 'other cover' - see below."
In relation to the use of the word "cover" in the PDS, the primary judge referred to its ordinary meaning as "protection" (or "to protect" when used as a verb): at [18]. Of particular significance to his Honour was that "the 'cover' provided is separate from the concepts of claims and settlement of those claims", giving particular emphasis to a passage in the PDS which explained that a person's "claim or cover" (using his Honour's emphasis) may be at risk if he or she did not meet his or her responsibilities: at [19].
The primary judge concluded that the word "cover", in the sense of "protect", was used in the PDS as "no more than a different word for 'indemnify'": at [20]. Although the policy in Globe Church was drafted in different terms and was intended for a different audience, his Honour noted the insuring clause in that case, which used both "indemnify" and "cover". In his Honour's opinion, this suggested that the words "have the same meaning": at [20].
The applicant emphasised that Section 6 of the PDS contained the following statement in relation to a claim that may be made on the occurrence of a "listed event": "If we agree to cover your claim under Contents Insurance then we will… pay…". The applicant submitted that this indicated that coverage of any claim involved two prior steps: the occurrence of the listed event, and the making of a claim. The primary judge accepted that the meaning of the word "cover" as used in this statement was "at odds" with the meaning of "protect" that he had earlier adopted, and here meant "meet": at [22]. His Honour then reasoned as follows: 1. Emphasising the "critical passage" in Section 3 of the PDS that I have extracted above, the respondent's agreement was to "cover" the home and contents of an insured in respect of a "listed event": at [23] 2. That same passage distinguished between the "cover" provided and the settlement of claims, which is dealt with in Section 6: at [23]. 3. The promise in the "critical passage" arose immediately on the occurrence of a listed event: at [24]. 4. The way in which the promise was met was dealt with by the claims mechanism in Section 6: at [24].
His Honour continued at [24]: "Importantly, the document provides only that the insured 'may' make a claim. There are no words that suggest that the making of a claim is a pre-condition to the existence of the obligation to 'cover'. Further, and for the same reasons, the defendant's liability under the contract does not depend on its own decision as to liability. That would be a strange conclusion even assuming the defendant fulfilled its obligation to act in good faith and one that would require very clear language indeed."
His Honour again referred to Globe Church, noting that the determination of a claim was not held in that case to be a precondition to coverage, even though the indemnity was "subject to" various matters, including the making of a claim: at [25]. His Honour also relied on the explanation on page 10 of the PDS, that an insured may make a claim "if a listed event you are covered for takes place", which highlighted the separation of the obligation to "cover" and the making of a claim: at [26]. His Honour stated: "Put simply, the claims mechanism and the statement that the defendant will pay upon acceptance of a claim are no more than mechanisms by which the obligation to cover the insured will be met by the defendant."
On his Honour's construction of the PDS, it followed that the applicant's cause of action arose on 9 October 2013, and his claim was statute barred. This result was consistent with the conclusion reached in relation to the policy in Globe Church.

General principles of construction

The applicable principles were not in dispute and were summarised in HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 ("Wonkana"), which concerned policies of insurance for business interruption. Meagher JA and Ball J addressed the principles at [18]-[31], as did Hammerschlag J at [114]-[118]. As with any written contract, the task for the Court is to determine the intention of the parties as expressed in the words in which they have recorded their agreement: Wonkana at [18]. That task is to be approached objectively, ascertaining the meaning of words "by reference to what a reasonable person would have understood the language of the contract to convey": at [19], citing Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [40]; Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35].
It is necessary to construe the language of a contract according to its natural and ordinary meaning, having regard to "the circumstances which the document addresses, and the objects which it is intended to secure": Wonkana at [22]-[23]. Specifically in relation to policies of insurance, Meagher JA and Ball J stated that "[w]here the written contract evidences the terms on which a financial product or service is offered for acquisition, the meaning of its language is to be construed from the perspective of a reasonable person in the position of the offeree, in this case the prospective insured": at [21]. Their Honours referred in this context to the judgment of the plurality in Australian Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32, which concerned a sickness and accident policy. Noting that the policy in that case was "a standard document used by Australian Casualty in the course of its insurance business", which was offered "to ordinary working people … who are unlikely to have the advantage of the advice of a commercial lawyer when they purchase [it]", the plurality identified the starting point as being (at 525): "… what the words of the policy convey, as a matter of contemporary language read in the context of the whole policy, to a reasonable non-expert in this country."
The insurance policy at issue in Globe Church was an Industrial Special Risks Insurance Policy: at [2]. In circumstances where the insurer pleaded the Limitation Act in defence of Globe Church's cause of action for breach of the policy, the issue was whether the policy contained a promise to indemnify, and, if so, whether the principal loss against which the insured was to be held harmless arose "on the occurrence of the property damage in question": at [9]-[10], [122]. The clauses of the policy in issue included cl 2, which relevantly read: "Provided the Insured has paid or agreed to pay the premium, the Insurer will indemnify the Insured against Damage occurring to Property Insured during the Period of Insurance and shall provide the additional cover referred to in Clause 3 up to the value of the Limit(s) and Sub-Limit(s) of Liability referred to in the Schedule, but subject to: … 2.2 the Limit(s) and Sub-Limit(s) referred to in the Schedule; 2.3 the amount of the indemnity being calculated in accordance with the Basis of Settlement Clause 4; … 2.6 the application of any Deductible referred to in the Policy Wording and the Schedule; and 2.7 the Conditions set out in Clauses 7 and 14." [Emphasis added.]
Clause 3 of the policy in Globe Church, to which cl 2 referred, relevantly provided that "if Damage to Property Insured occurs in circumstances giving rise to Indemnity under Section 1 of this Policy, the Insurer will also pay" specified additional costs, where those costs were "necessarily and reasonably incurred". Clause 4 addressed the basis on which claims were to be settled, while cl 14 set out the procedure for making claims. Clause 14.2.1 provided: "On the discovery of any Damage giving rise to a claim under this Policy, the Insured shall forthwith give notice thereof in writing to the Insurer and shall as soon as reasonably practicable deliver to the Insurer a statement of claim in writing containing as particular an account as may be reasonably practicable of the items of property Damaged, and of the amount of Damage having regard to their value at the time this occurred and of the amount of any claim made under Section 2 of this Policy, together with details of any other insurances which may apply to the claim."
Clause 14.2.6 also provided: "Provided that liability has been admitted, the insurer shall make reasonable progress payments on account of any claim to the Insured at such intervals and for such amounts as may be agreed upon production of a report by any loss adjuster appointed by the Insurer. Any such amount shall be deducted from the amount finally determined upon adjustment of the claim."
The majority (Bathurst CJ, Beazley P and Ward JA) took the view that the policy was "plainly in its terms a policy of indemnity insurance", with a number of clauses containing obligations to indemnify the insured: at [118]-[119]. Their Honours did not accept the competing construction for which Globe Church contended, namely, that the policy gave rise to an obligation to pay money within a reasonable time of demand. Globe Church had relied in that respect on the clauses dealing with claims provision and the basis of settlement: at [124]. However, their Honours considered that the notification provisions in cl 14 were not expressed as conditions precedent and were instead more naturally read as setting out the mechanism for making claims: at [125]-[126].
The majority observed that the insured was obliged under cl 14 to provide notice of a claim forthwith, and that non-compliance with the requisite claims procedure may have had an impact on recovery under the indemnity provisions: at [125], [139]. However, making a claim was not required before there was a breach of the promise to make good the loss: at [126], [139]. Similarly, the basis of settlement clauses set out the agreed basis for calculating the way in which the promise to indemnify was to be discharged, but those clauses said nothing about when the cause of action, for failure to hold harmless against loss, had accrued: at [127]. The majority stated its conclusion at [209]: "Absent a provision in an indemnity insurance policy that makes lodgement of a claim a condition precedent to liability, the concept of a promise to indemnify (to make good the loss or to hold harmless against loss) in the context of a property damage insurance policy is such that the promise is enlivened when the property damage is suffered."
As I stated above, the correctness of that statement of principle does not arise for consideration because the preliminary, and decisive, question in the present case is whether the PDS contains a promise of that character.
It is worth noting in this context that there is a distinction between a promise to indemnify and a promise to make a payment to compensate in respect of a loss. In Paterson v Pongrass Group Operations Pty Ltd [2011] NSWSC 1588, White J was considering a claim to enforce an indemnity given by the defendant ("PGO") to the plaintiff against his liability to penalties (levied by the Commissioner of Taxation) that he incurred as a director of four subsidiaries of PGO. In denying the claim, PGO contended that it was not presently liable to pay any moneys under the indemnity because the plaintiff had not paid any part of the penalties. The plaintiff, on the other hand, contended that PGO was liable either to pay the Commissioner or to pay him the amount of the penalties, so that he was not exposed to the threat of a suit. The deed of indemnity stated, inter alia (at [31]): "The Indemnifiers will indemnify, and pay to the Indemnified monies to compensate for, and be in respect of, any loss suffered by the Indemnified arising out of any claim connected to, or directly or indirectly related to, any act committed or omitted to be done by the Indemnified in his capacity as such a director, including such acts or omissions that are offences against any laws, including but [not] limited to taxation laws."
For the purposes of that clause, "loss" was defined to mean "any amount payable in respect of a claim against the Indemnified", with a non-exhaustive list of examples of amounts that might be payable. Noting that in each case what is promised must depend on the terms of the contract (at [59]), White J emphasised the punctuation of the above extract in [63]: "The punctuation of the first paragraph of the indemnity is important. PGO's promise was not merely to pay to Mr Paterson moneys to compensate for any loss suffered by him arising out of such a claim. If that were the extent of the indemnity then even given the extended meaning of 'loss' as including amounts payable in respect of a claim (and not merely amounts paid in respect of a claim), there would be force in the submission that to require PGO to pay the Commissioner of Taxation or Mr Paterson the amount of the penalties for which Mr Paterson is admittedly liable would go beyond compensating him, where no step has been taken to require him to pay those moneys beyond the service of a demand." [Emphasis added.]
In his Honour's opinion, the words of the first paragraph of the indemnity were wider (at [64]): "PGO's promise to pay Mr Paterson moneys to compensate for any loss suffered by him arising out of a claim as described is additional to its promise to indemnify Mr Paterson in respect of any loss suffered by him arising out of any such claim. When the word 'loss' is read in its defined sense as including an amount payable in respect of the claim and not merely an amount paid in respect of a claim, that indemnity, being additional to the promise to pay moneys as compensation, amounts to a promise to relieve Mr Paterson by preventing his having to pay the debt."
White J's conclusion at [65], that the draftsman had provided "both a promise to prevent Mr Paterson from suffering loss arising out of a described claim and a promise to compensate him in respect of any such loss" (emphasis added) highlights the existence of the distinction.
The applicant in the present case sought to draw a further distinction within the concept of an indemnity. By reference to dictionary definitions of that word, the applicant noted that "indemnity" could mean "compensation for loss" as opposed to conventional indemnification. Accordingly, the applicant submitted, the use of the word "cover" was ambiguous, and even if it meant "indemnify", that did not resolve the ambiguity as to its meaning.
The applicant's reliance on ambiguity calls for something to be said about the contra proferentem rule. In Wonkana, Meagher JA and Ball J described the rule as providing "that any ambiguity in a policy of insurance should be resolved by adopting the construction favourable to the insured", which was justified on the basis "that the party drafting the words is in the best position to look after its own interests and has had the opportunity to do so by clear words": at [30]. Although their Honours described the rule as "now generally regarded as a doctrine of last resort", they stated that it continued to have a role to play in insurance and other standard form contracts for two reasons (at [31]): "First, by their nature, standard form contracts are not negotiated between the parties, and the surrounding circumstances relevant to the entry into one contract or another are less likely to shed much light on the meaning of the written words. Secondly, the contra proferentem rule complements the principle that standard form contracts should be interpreted from the point of view of the offeree. The offeror has the opportunity to, and should, make its intentions plain. The point was made by Dixon CJ (at 30) in Halford v Price, citing with approval the following statement in Halsbury's Laws of England (3rd ed, 1958, Butterworth & Co) vol 22, p 214: 'The printed parts of a non-marine insurance policy, and usually the written parts also, are framed by the insurers, and it is their language which is going to become binding on both parties. It is therefore their business to see that precision and clarity is attained and, if they fail in this, any ambiguity is resolved by adopting the construction favourable to the assured …'"
Their Honours' observation in Wonkana echoed the observation that Kirby J had made in McCann v Switzerland Insurance Australia Limited (2000) 203 CLR 579; [2000] HCA 65 ("McCann") at [74]. Discussing the rule in LCA Marrickville Pty Ltd v Swiss International SE [2022] FCAFC 17; (2022) 401 ALR 204, Colvin and Derrington JJ (Moshinsky J agreeing) considered the description of last resort to be "apt", in the sense that it applied where, after ascertaining the literal or grammatical meanings and evaluating them against the text, context, and purpose of the contract, "there remains 'real doubt' as to the correct construction": at [102].
Writing separately in Wonkana, Hammerschlag J described the contra proferentem rule as having "some continuing but perhaps limited vitality": at [118]. In making this passing observation, a number of the authorities that his Honour cited involved the construction of contracts in the nature of standard form contracts, including the reasons of Kirby J in McCann.

Construction of the PDS

The first two pages of the PDS, before the Table of Contents, contained a diagram titled "Home Insurance at a glance - a quick summary", which identified a number of features of the policy developed in the PDS:

It is apparent from the content of the diagram that the word "cover" was deployed in various senses. That said, the word was used consistently to explain the scope and content of the insurance with which the PDS was concerned. So much is confirmed by a review of the Table of Contents, the headings in which include "Your insurance cover", "Buildings and contents we insure", "What you're covered for", and "Optional cover you can add to your policy".
Section 1, titled "Key details about your policy", provided more detail around the framework in the diagram. The first subsection addressed "Who's covered by the policy" (emphasis added), stating that the policy "covers" the insured and the family who normally lives with the insured at the insured's home. In this context, and as the applicant submitted, "cover" is used descriptively, to convey who falls within the scope of the policy. In the following segment of text, under the heading "Your insurance cover", the word "cover" is used interchangeably with (and, in the heading, in combination with), "insurance". Thus, the PDS stated: "Your policy is made up of cover for your home and cover for your contents. The insurance cover we provide under your policy depends on: the type of insurance you choose the level of cover you choose the amount of insurance you choose the listed events you're covered for and any other cover that applies, and any optional cover you add to your policy." [Emphasis added.]
It is pertinent here to observe, as did Senior Counsel for the applicant, that the meanings of "cover" in the Macquarie Dictionary include "to insure against risk: covered by a comprehensive policy" and "insurance - coverage". The word "coverage" is defined separately to mean, inter alia, "the total extent of risk, or the total number of risks, as fire, accident etc covered in a policy of insurance".
The primary judge referred expressly to the passage from the PDS that I extracted above, but appears to have focused on the use of language and not considered the passage as a whole. Specifically, the passage highlighted that the nature and extent of insurance under the policy was subject to the choices that an insured made. Consistently with the legislative requirements, the PDS needed to address each of those choices notwithstanding that they would not all be applicable to an individual insured. Thus, for example: 1. Under the heading "Type of insurance", the PDS identified what each of Building and Contents Insurance, Buildings Insurance and Contents Insurance "covers". 2. Similarly, under "Level of cover", the PDS stated that it provided "two levels of cover for your home" and referred the policyholder to the Certificate of Insurance for "the level of cover you have chosen". The "Home" level was described as providing "our standard level of cover", while "Home Plus" provided "a higher level of cover - so you get our standard cover plus more". The accompanying Table 1.1 set out in more detail the differences between the Home and Home Plus levels, by reference to "Cover we give you". That table listed the provisioning made for various events and/or things under the two available levels of cover (Home or Home Plus). In relation to "spoiled food and prescription medicine", for example, up to $500 was available under the Home level of cover, while up to $2,000 was available under the Home Plus level. 3. Under the heading "Sum insured", the PDS referred to the Certificate of Insurance as showing "the amount of insurance you have under your policy", by reference to the "Buildings sum insured" and the "Contents sum insured". These sums were explained, in turn, as "the amount of insurance you choose to cover" the home and/or its contents (emphasis added).
The context is relevant when one comes to the next portion of text on the same page of the PDS. The respondent placed significant reliance on this text, in support of its contention before the primary judge that the policy was one of indemnification. In accepting that argument, the primary judge relied on the passage and its repetition in Section 3. Under the heading "Listed events", the PDS stated: "Listed events We cover your home or contents when certain things happen - for example, fire, theft, storm and earthquake. These are known as 'listed events'. You can make a claim if a listed event you are covered for takes place and causes loss or damage to your home or contents during the policy period. The listed events we cover under your policy are shown in Table 3.1 on page 22." [Emphasis added.]
The respondent contended that the first sentence of the above extract, which is repeated in Section 3, evidenced a contractual promise to indemnify the applicant. It submitted that the word "when" in the first sentence was used in a temporal sense to signify that the respondent's promise to "cover" (in the sense of "protect" or, more usually in this context, "indemnify") commenced from the happening of the relevant "thing". The respondent also relied on the framing of the making of a claim in the second paragraph in permissive terms: "You can make a claim if" (emphasis added). The permissive language was said to tell against the applicant's submission that making a claim was a step along the way to the respondent incurring an obligation to indemnify. I have noted above that the primary judge accepted that argument.
I do not consider that "when" is used in a temporal sense in the first sentence. Considered from the perspective of a reasonable person in the position of offeree, the word does no more than indicate the events to which the policy of insurance will apply. Reading this section as a whole, including the last sentence, and the section that immediately follows it (which addresses "Other Cover"), the word "when" performs a conditional rather than temporal function, drawing the reader's attention to the fact that the policy has no application unless a "listed event" occurs. In context, the reference to "cover" in relation to "when certain things happen", which is repeated later in the PDS, is not obviously to be construed as a contractual promise to indemnify an insured from the time of occurrence of the listed event. Indeed, to construe it in that manner involves an overly technical reading of words, in a sentence that was intended for a non-technical audience.
For similar reasons, I do not consider that "can" in the second paragraph is used in a permissive sense, to indicate that the respondent's liability was already triggered and in no way contingent on the making of a claim. Remembering that this is a retail policy formulated in plain English, the second paragraph outlined the circumstances in which an insured could make a claim, namely, "if a listed event you are covered for takes place and causes loss or damage to your home or contents during the policy period". The use of "can" in that context cannot reasonably be understood as permissive, with the respondent's liability already having arisen.
Next, after outlining the concept of "Optional cover" (by which an insured may add certain options to their policy "to increase your cover"), Section 1 addressed "What we pay for your home or contents", stating: "Various things affect what we pay for your home or contents. These include: whether you have a Home policy or a Home Plus policy (we provide a higher level of cover under a Home Plus policy…) what causes the loss or damage - that is, was it caused by a listed event that is covered under your policy? the amount you have insured your home or contents for and any optional cover you have chosen where your contents are when the loss or damage takes place, and any limits that apply to what we pay. We provide more details about what we pay in Section 6." [Emphasis added.]
I will examine Section 6 in more detail below. However, it is important to note that the second bullet point, which I have emphasised, picked up the content of the earlier "Listed events" outline. Consistently with the view I have taken above, the bullet point is not directed to the timing of the insurer's liability under the policy, but, rather, to whether the event causing the loss or damage was one for which the policy made provision.
Finally, under the heading "Our agreement with you", after setting out what the contract comprised, Section 1 of the PDS stated: "Certificate of Insurance Your current Certificate of Insurance shows the insurance cover you have chosen and any optional cover you have under your policy. It also shows the period your policy covers - we only cover you for incidents that happen during this time. Exclusions and conditions Exclusions and conditions may apply to the cover you have chosen: in section 5, we set out the general exclusions that apply to your policy throughout this PDS, we set out any specific exclusions and conditions with the cover they apply to on page 55, we set out your responsibilities when you are insured with us and make a claim. Special conditions We may impose special conditions on your policy that may exclude, restrict or extend cover for a person or a particular matter. Your current Certificate of Insurance shows any special conditions that apply to your policy. Embargo for listed events We may not cover you for some events - for example, bushfire or flood - if they cause loss or damage during an embargo period. Under 'Special conditions' in your current Certificate of Insurance, we show any embargo event and the period it applies to. Paying your premium In return for paying your premium, we provide the cover you have chosen. You can pay your premium annually or by monthly instalments - for details about how to pay your premium and what happens if you don't pay, see Section 8." [Emphasis added.]
Again, "cover" is liberally used in the above extract in a number of senses but generally as a proxy for "insurance", save for one instance where it is used to refer to the scope of the policy: "the period your policy covers". Neither use says anything about the operation of the policy in terms of the time at which liability arose.
As I noted above, of critical significance to the issues on the appeal are Section 3 of the PDS, which was headed "What you're covered for" and repeated some of the content in Section 1, and Section 6, headed "Claims and what we pay". Starting with Section 3, as its title suggests it addressed the circumstances in which the application of the policy of insurance was triggered, by reference to certain events. The summary on the cover page stated: "We cover you in certain situations. We describe what you're covered for in: - The events we cover - Other cover - Liability cover - claims made against you." [Emphasis added.]
The PDS proceeded to address the above bullet points in turn. The critical passage for the primary judge was under the heading "The events we cover", which repeated the sentences from Section 1 that I have addressed above. The passage from Section 3 bears repeating: "We cover your home or contents when certain things happen. These are known as 'listed events'. You can make a claim if a listed event takes place and causes loss or damage to your home or contents during the policy period. In this section, we tell you what events you're covered for and any specific exclusions and conditions that apply to the event. General exclusions may also apply - see Section 5. Also, if you don't meet your responsibilities when you make a claim you may put your claim or cover at risk - see page 55. How we settle a claim is set out in Section 6." [Emphasis added.]
The respondent submitted that the first sentence of this passage was the operative provision which denoted its obligation. It submitted that, where it was used in that section, there was nothing else that "cover" could mean except to indemnify the policyholder. It further submitted that its construction was consonant with the observations of the majority in Globe Church, who held that "cover" was synonymous with "indemnify" in the context of an insurance policy.
The surrounding context is important. Adjacent to the critical passage was Table 3.1. Headed "Listed events", the table set out the listed events and their availability by reference to the type of insurance, namely, Buildings Insurance and Contents Insurance (indicated by a tick or cross). The PDS proceeded to catalogue each of the events listed in Table 3.1, with a brief description of the event followed by what was "Covered" and (if applicable) "Not covered", sometimes with separate references to Buildings Insurance and Contents Insurance. By way of example, for the event "Water and oil leaks" is the following: "If loss or damage is caused by water or oil leaking or escaping from an item shown in this section. Covered - water leaking or escaping from: - house gutters, drainpipes or pipes - sanitary fixtures - for example, baths or toilets - appliances - for example, washing machines or dishwashers - waterbeds - aquariums - water tanks - swimming pools - oil leaking from a fixed heating system or sealed portable heater - costs to locate the cause of damage (if we agree to pay these costs before you make any arrangements). Not covered - water leaking or escaping from a: - shower recess or shower base - stormwater channel or canal - stormwater pipe off your site - costs to repair or replace the item that the water or oil leaked or escaped from - loss or damage caused by flood - see page 23 - loss or damage caused by storm surge - see page 79 for the storm surge definition."
Having regard to how "Covered" and "Not covered" are used in the catalogue of listed events, the use of "cover" in the statement on which the respondent places primary reliance - "We cover you when certain things happen" - does not constitute a clear contractual promise to the effect that the respondent is liable under the policy to indemnify an insured upon the occurrence of a listed event. The word "cover" instead performed the function of delineating the particular events to which the policy of insurance applied, consistently with the heading of Section 3, "What you're covered for" (emphasis added). As the applicant submitted, the use of "cover" in the critical passage was descriptive. This is supported by the next paragraph, which described Section 3 as telling the insured "what events you're covered for and any specific exclusions and conditions that apply to that event".
For the reasons I have already set out, the use of "when" and the contingent manner in which the making of a claim was formulated do not call for a contrary conclusion. In so far as the primary judge separately relied on the phrase "claim or cover" in the penultimate sentence of the critical passage, their use was likely intended to refer to different things. However, it does not follow that "cover" had the meaning for which the respondent contended, namely, "indemnity". Properly understood, the sentence directed the reader's attention to the existence of responsibilities on their part, which were set out under the heading "Your responsibilities" on page 55, which is in Section 6. That page of the PDS dealt with the insured's responsibilities not only upon the occurrence of listed events, but also in relation to what is referred to as "liability cover". The latter is described in the PDS as protecting the insured or their family for claims that may be made against the insured or their family for an incident which causes death or bodily injury to someone else, or loss or damage to someone else's property. The reference to "claim or cover" is understandable in that context.
It is relevant to consider the surrounding sections of the PDS. Section 2 was titled "Buildings and contents we insure", and identified, by reference to types of buildings and types of contents, what the respondent "insure[d]" and did not "insure". In relation to contents, the respondent explained "Where we insure your contents", noting that "[o]ne of the things that affects what we pay for your contents is where your contents are when the loss or damage takes place". Section 2 also contained a two-page section dealing with "General Contents". That section drew to the insured's attention that the respondent provided a "certain level of cover" for General Contents. However, the insured could "add options to your policy to increase the amount we insure your contents for and the locations where we insure your contents", as well as options "to increase the events we cover under your Contents Insurance Policy".
The option to increase the events "covered" under the policy was addressed in further detail in Section 4, which was titled "Optional cover you can add to your policy" and was described as outlining the options available "to increase your cover for your home or contents". Relevantly, the PDS stated, by way of general explanation: "Increasing the events we cover We cover your home and contents when any of the 14 listed events shown in Table 3.1 on page 22 takes place. You can increase the events we cover by adding these 3 options to your policy: - Accidental damage - Burn out of electric motors - fusion [noting at the bottom of this section that if the insured has a Home Plus policy, "we automatically cover you for" both of the above options] - Pet lover's pack. Increasing what we pay for your contents We limit how much we pay for certain valuable items that are part of your General Contents - for example, we pay up to $2,500 in total for your 'jewellery and watches'. You can increase your cover for certain valuable and portable items by insuring them as: - Valuable Contents - inside your home, or - Portable Contents - anywhere in Australia or New Zealand."
Noting that this section appears after Section 3, it is of some significance that Table 3.1 was described as setting out the listed events for which the respondent "covers" the home and contents, with Section 4 conferring on the insured the option to "increase the events we cover", just as the amount that was paid could be increased. The use of "when" in the first sentence under the heading "Increasing the events we cover" provides some support for it being used in a conditional and not temporal sense in the similarly-worded sentence in Section 3.
Turning, then, to Section 6, it was headed "Claims and what we pay". The applicant submitted that it was this part of the PDS that contained the operative promise that was relevant to the accrual of his cause of action. Section 6 commenced with the following introductory summary: "This section provides information about our claims process and what we pay when you make a claim: - What happens when you make a claim - Working out what we pay for your claim - What we pay for - Buildings Insurance - What we pay for - Contents Insurance - How we settle certain things - Business registered for GST - Recovery against another party - How we pay claims - some examples. When you need to make a claim, we want to help you as much as we can. We're available 24 hours a day, 7 days a week on 131 123."
Under the first heading, "What happens when you make a claim", the PDS stated: "When you make a claim, we will: - ask you some questions over the phone - tell you if you need to pay any excess and how to pay it."
During oral argument, the applicant sought to characterise the words "we will" as conveying a mandatory requirement for the respondent to carry out the actions in the two subsequent bullet points. It is not necessary to characterise this sentence in that manner, but I do note that, as a matter of context, the invitation to "help" on the previous page was accompanied by a telephone number. In circumstances where it was envisaged that claims be made by phone, the flagging of questions being asked over the phone is unsurprising. The prospect that the respondent would also provide advice as to payment of any excess at this time was also unremarkable having regard to the context. Viewed in this way, the two bullet points were descriptive of the likely process that would follow the making of a claim, rather than themselves constituting an obligation on the respondent to deal with claims in precisely that manner.
The part of Section 6 which dealt with "Working out what we pay for your claim" took the form of a flow chart. Relevantly, Step 4 referred to "The incident", with the relevant queries being, "is it a listed event?", "is it covered under 'other cover'?", and "is it covered under any optional cover you have?". The nature of those questions was consistent with the focus of Section 3 on identifying the events or things causing the loss or damage which were the subject of "cover" under the policy.
Section 6 moved next to "What we pay", dealing separately with Buildings Insurance and then Contents Insurance. Using Contents Insurance as the example, under the heading "What we pay for - Contents Insurance" is what the applicant submitted was the operative promise, namely: "If we agree to cover your claim under Contents Insurance, then we will: - pay the cost to repair or replace your contents (whichever is lower) - pay for any extra costs we cover under 'other cover' - see below." [Emphasis added.]
Implicit in the conditional clause in the first line was a choice to be made by the respondent, either to cover the insured's claim or not cover it. The applicant submitted that the time for performance arose at the point of making that decision. Senior Counsel for the applicant put the argument in this way: "One sees a fairly clear progression of things that happened. First of all, you pay a premium, you get the protection of a policy. If a listed event occurs you can make a claim. If you make a claim, we will process it according to our methodology. We will come out with a decision and that decision is we pay the claim or we refuse it. It's the refusal which in our case is the relevant act. That's the time at which the cause of action is crystallised because at that point we say you've refused it wrongly."
The PDS went on to address what was to be paid, starting with Buildings Insurance and moving to Contents Insurance. Again, using Contents Insurance as the example, consistently with the form in which "what we pay" was expressed, the policy stated: "If we agree to cover your claim under Contents Insurance, then we will: - pay the cost to repair or replace your contents (whichever is lower) - pay for any extra costs we cover under 'other cover' (see below)."
The balance of this section was consistent with the "Basis of claims" material in Section 4, stating: "The most we pay What we pay to repair or replace your damaged contents depends on whether the contents are covered under: - General Contents - Valuable Contents - Portable Contents The most we pay is the Contents sum insured. Other cover We may also pay some costs on top of the General Contents sum insured under 'other cover' for: - Safety net (Home Plus policy only) - see page 31 - Temporary accommodation for tenants or strata scheme owners - see page 36 If we agree to pay you for 'other cover', then we will choose the method of settlement. How we settle your contents claim If we agree to cover your claim under Contents Insurance, then we can choose to pay your claim through any of these ways: - repair an item, or - replace an item with the same or similar type and quality, or - pay you the reasonable costs of what it would cost us to repair or replace the items, or - provide you with store credits to replace an item from one of our nominated suppliers, or - pay you the sum insured or provide you with store credits from one of our nominated suppliers to the value of the sum insured that applies to - General Contents - Valuable Contents - Portable Contents. Conditions [as amended in the Supplementary PDS] - we can nominate the repairer or supplier and claims settlement method - we may enter into any contract with the repairer or supplier on your behalf - if you don't agree with the method of settlement we choose, we will pay you what it would cost us to repair or replace the item. What happens after we pay a sum insured If we pay the Contents sum insured or the General Contents sum insured then: - your policy ends and you don't get a refund of any premium."
The detail with which Section 6 of the PDS informed the insured about making a claim, and the steps that would follow thereafter, including the respondent's options for payment if it agreed to cover the claim, supports the construction of the PDS for which the applicant contended, that the relevant promise for the purposes of his cause of action was to compensate a claimant for their loss following the process for which Section 6 made provision. The cause of action arose on the respondent's decision to accept or decline the claim.
The respondent submitted that Section 6 was "purely mechanical" and did not lay out a prescriptive set of steps that the respondent was obliged to take under the policy. It relied in this respect on the reasoning in Globe Church, in which the majority held that the hold harmless obligation in cl 2 arose immediately upon the occurrence of the event causing damage, notwithstanding that it was expressly subject to the clause which governed the making of a claim. True it is that the PDS did not condition Section 3 by reference to Section 6, with the critical passage directing the reader to Section 6 as to "how we settle claims". However, the fact that the critical passage in Section 3 does not support the construction for which the respondent contended undermines the premise on which it called Globe Church in aid. Further, there is nothing to suggest, contrary to the respondent's submissions, that the insured was entitled to sue for breach of contract immediately upon the occurrence of a listed event, and much to suggest that this was not the case.
In this respect there was force in the applicant's submission that the construction for which he contended was consistent with the objects of the policy, which included making payments in respect of losses arising from listed events in conformity with the Insurance Contracts Act and the cost-effective resolution of disputes about claims in accordance with the dispute resolution mechanism in the policy. By contrast, the primary judge's construction of the policy would enable a policyholder to bypass the dispute resolution procedures contemplated in the policy and seek relief in court proceedings, even in circumstances where there may be no dispute as between the insured and the insurer.
In circumstances where the policy did not contain any use of the term "indemnity" and having regard to the multitudinous use of "cover" to which I have referred above, I accept the applicant's submission that the primary judge's conclusion that "cover" was interchangeable with "indemnity" was erroneous. Consistently with the observations of Meagher JA and Ball J in Wonkana, it was unlikely that a reasonable non-expert in insurance law would understand "cover" to mean "indemnify", still less that "indemnify" would have a special legal meaning.
The contra proferentem rule has a role to play in this context. The respondent had a choice as to the wording of the PDS, and in particular to use the word "indemnity" in a manner that put beyond doubt that the nature of the indemnity was to hold the insured harmless. In circumstances where the respondent did not use that wording, it could not, as the applicant submitted, escape an unfavourable outcome by relying on the plain English nature of the drafting. The respondent's reliance on the uncommercial outcome of the construction I have adopted, where the running of the limitation period would be in the hands of the insured, is a relevant consideration but not a decisive one. On the construction for which the respondent contended, the running of the limitation would be in its hands; that construction would give rise to the equally uncommercial possibility to which I have referred above.
The applicant's second ground of appeal was that even if the policy were construed as containing a hold harmless "indemnity", on its proper construction that indemnity was conditional. In circumstances where I have concluded that the policy should not be so construed, it is unnecessary for me to consider that ground.

Conclusion

As a result of the primary judge's answer to the separate question, the proceedings were dismissed. Given the different view to which I have come, the dismissal should be reversed.
I would propose the following orders: 1. Grant leave to appeal. 2. Order that the applicant file a notice of appeal in accordance with the draft Notice of Appeal within 7 days. 3. Appeal allowed. 4. Answer the separate question, ordered by consent in the District Court on 25 March 2021: "The plaintiff's claim in these proceedings is not barred by s 14 of the Limitation Act 1969 (NSW) as raised in Prayer 4 of the Further Amended Statement of Claim and paragraph 28 of the Defence to the Amended Statement of Claim, or any further or amended pleadings in relation to this question." 5. Set aside the order of the District Court dated 22 September 2021, dismissing the applicant's claim and awarding costs to the respondent and in lieu thereof order that paragraph 29 of the Defence to the Further Amended Statement of Claim be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). 6. Remit the proceedings to the District Court for determination. 7. The respondent pay the appellant's costs of the appeal and the costs below of the determination of the separate question.

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: 08 September 2022

Corporations Regulation 2001(Cth)

(2020) 104 NSWLR 634

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Judgment (11 paragraphs)

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Cases Cited (19)

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