Green v AMP Life

DECISION : Plaintiff's claim dismissed. Declaration of terms in which insurance policy has been amended.

CATCHWORDS : INSURANCE - life insurance - whether a disability income protection policy not necessarily of more than three years duration is a life policy - CONTRACT - whether variation of contract agreed - whether defendant estopped from asserting variation to contract agreed - TRADE PRACTICES - misleading and deceptive conduct - alleged to arise from terms in which notification of acceptance for insurance given - DAMAGES - circumstances in which a person insured under a policy providing periodical payments during disability can recover a lump sum for loss of future benefits under the policy - INSURANCE - group insurance policy taken out by trustees - consideration of nature of legal rights of person insured under such a policy - DAMAGES - assessment of damages for personal injury - RECTIFICATION - when available

Industrial Relations Act 1996 Insurance Contracts Act 1984 (Cth) LEGISLATION CITED : Jurisdiction of Courts (Cross-vesting) Act 1987 Life Insurance Act 1995 (Cth) Trade Practices Act 1974 (Cth)

AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655 AMP Financial Planning v Green [2004] NSWSC 1099; (2004) 51 ACSR 693 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Broadlands Properties Ltd v Guardian Assurance Co Ltd (1984) 3 ANZ Ins Cas 60-552 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 79 ALJR 308 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 Cullen v Trappel (1980) 146 CLR 1 DTR Nominees Proprietary Limited v Mona Homes Proprietary Limited & Anor (1978) 138 CLR 423 Farrow Mortgage Services Pty Ltd (in liquidation) v Slade and Nelson (1996) 38 NSWLR 636 CASES CITED : Galaxidis v Galaxidis [2004] NSWCA 111 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Judd v Suncorp Insurance & Finance (1987) 5 ANZ Ins Cas 60-832 Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638 NSW Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740 Russell Young Abalone Pty Ltd v Traders Prudent Insurance Co Ltd (1993) 7 ANZ Ins Cas 61-182 Todorovic v Waller (1981) 150 CLR 402 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

Gary Sydney Green - Plaintiff/Cross-Defendant AMP Life Limited - First Defendant/First Cross-Claimant PARTIES : Roger Patterson - Second Defendant/Second Cross-Claimant John Kelly - Third Defendant/Third Cross-Claimant Kevin McLean - Fourth Defendant/Fourth Cross-Claimant

M J Heath - Plaintiff/Cross-Defendant COUNSEL : N Perram - Defendants/Cross-Claimants

Malcolm J Wright - Plaintiff/Cross-Defendant SOLICITORS : Mallesons Stephen Jaques - Defendants/Cross-Claimants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

3268/04 GARY SYDNEY GREEN v AMP LIFE LIMITED & ORS JUDGMENT HIS HONOUR: Nature of the Claim 1 The plaintiff had the benefit of a policy of insurance ("the Policy") which was underwritten by the first defendant ("AMP"). Under it, the plaintiff was entitled to receive periodical payments if he became unable, through illness, to carry out his usual occupation. He became unable to carry out his usual occupation, and was paid benefits under the Policy for two years. The insurer then ceased paying benefits, claiming to be entitled to do so because the illness from which the plaintiff was suffering was a type of mental illness, and there was a two year limitation on benefits where inability to carry on the occupation of an insured arose from a mental illness. 2 The plaintiff seeks either a payment of the present value of the benefits which would accrue due to him under the Policy to age 65 (the date when benefits under the Policy cease), or alternatively a declaration that the Policy remains on foot. The plaintiff also sues AMP for misleading and deceptive conduct contrary to section 52 Trade Practices Act 1974 (Cth). He sues the Trustees who held the Policy for, inter alia, the benefit of the plaintiff, alleging that the Trustees have breached their fiduciary obligations towards him. 3 AMP, by cross-claim, seeks a declaration that the Policy contains the two year limitation on benefits, or alternatively rectification of the Policy to include such a limitation in it. Factual Background to the Dispute 4 The plaintiff was an agent of AMP between 20 April 1976 and 5 April 2002. In that capacity he marketed insurance policies underwritten by AMP. Between 1986 and 2002 he was also a representative of AMP Financial Planning Pty Limited, and in that capacity carried on business as a financial planner. 5 For the whole of the time he was an AMP agent, the plaintiff was a member of the Australasian Association of AMP Society Agents ("the Association"). The Trust 6 The second, third and fourth defendants ("the Trustees") have been the trustees of a trust known as the Income and Agency Protection Plan ("the IAP Plan") at all relevant times. That Plan is established under a trust deed made on 11 April 1997, to which the second defendant, the third defendant and a Mr Max Kinnersley were the only parties. That Deed contained the following provisions: "1. ESTABLISHMENT: By this deed (Deed) the Trustees intend to constitute a trust (Trust) known as the Income and Agency Protection Plan ("the IAP Plan") to purchase and own a policy of insurance that will provide income protection in the event of disability ("the Policy") for the benefit of Participants. Each Participant is bound by this Deed. The Trustees are appointed as the Trustees of the Trust and consent to the appointment. 2. VESTING: All property of the Trust which consists of the Policy vests in the Trustees on trust for the Participants. 3. TRUST PROPERTY: The Trustees must hold the Trust Property as one undivided trust fund which is separate from, and not available to meet liabilities of any other trust. … Within the Trust the Trustees will purchase and own the Policy. 4. PARTICIPANT'S BENEFICIAL INTEREST: A Participant has a beneficial interest in the Trust as a whole, not in parts (whether or not identified with any Strategy) or single assets. A Participant may neither interfere with, nor exercise rights or powers of, the Trustees in respect of any Trust Property, Trust Liability or obligation and has no right to lodge any caveat affecting any Trust Property. 5. APPLICATIONS: A person intending to join the Plan and become an insured under the Policy must provide an application in a form acceptable to, and any other information reasonably required by, the insurer and pay the application money, to the insurer (Application Money). The Application Money must be not less the sum required from time to time to meet premiums for the insurance cover for the Participant under the Policy. The Trustees may reject any application or contribution without giving any reason. A Participant's interest in the Trust is created on amounts paid or consideration so transferred. … … 7. POWERS: Subject to this Deed, the Trustees have within and outside Australia all the powers in relation to the Trust, Trust Property and Trust Liabilities, that it is legally possible for a natural person or corporation to have. In addition, the Trustees may exercise any powers conferred by law including to implement a Participant's directions. … 9. DISCRETION: The Trustees may determine whether to exercise and the manner, mode and time of exercise of their powers in their absolute discretion. … 13. FORM OF BENEFITS: Benefits are payable to a Participant or Participant's dependants as provided by the Policy and are determined only by the insurer in accordance with the Policy."

Clause 27 contains some definitions, including: " Participants means members of the AMP Agent's Association … Insurer means the provider of the Insurance Policy." 7 Pursuant to a Supplemental Deed made on 22 September 1999, Mr Kinnersley retired as a trustee of the Trust, and the fourth defendant was appointed as a trustee in his place. The Policy Document 8 At some stage the then trustees of the IAP Plan took out with AMP an insurance policy of the type contemplated by the Trust Deed. The precise date they did so does not emerge from the evidence, but the Policy was one which commenced on 1 January 1996. The Policy came to be embodied in a document dated 16 May 1997. It contained the following provisions: "In consideration of the contributions made in accordance with Clause 3, AMP will, subject to the conditions and provisions of this Policy, pay to the Member the benefits provided in this Plan … CONDITIONS 1.1 In this Policy … "Application Form" means such form as may be issued to the Policyowner by AMP from time to time for use in respect of such Advisers …as the Policyowner intends to nominate for cover under this Policy. … "Member" means an individual who is an Adviser … who has been accepted by AMP for cover under this Policy. To be a Member, an Adviser … must be a financial member of the Australasian Association of AMP Society Agents. … "Benefit Ceasing Date" means the day before the sixty-fifth birthday of the Member for Personal Exertion Cover … "Plan" means the AMP Agents' Association Income and Agency Protection Plan created by the Trust Deed. "Policyowner" means the Trustees for the time being of the Plan. "Review Date" means the Commencement Date and the first day of January in each subsequent year or such other date as agreed by the Policyowner and AMP. … "Total Disablement" of a Member means disablement occurring on or prior to the Member's Benefit Ceasing Date resulting from injury or illness as a result of which he or she is completely and continuously unable to carry out his or her usual occupation as an adviser, provided that - (a) the Member remains under the regular care and attention of a legally qualified medical practitioner in relation to that injury or illness; and (b) the Member does not carry out any remunerative work. "Totally Disabled" has a corresponding meaning. "Waiting Period" means the period of either four weeks or thirteen weeks, as chosen at the time of application or varied in writing subsequently, which must elapse between the Date of Disablement and the day from which the monthly benefit in respect of Total Disablement become payable. … 2.1 The Policyowner shall nominate to AMP such Advisers … as are eligible to apply to become Members and the Policyowner shall supply such information relating to such Advisers … as may be required by AMP for the purposes of this Policy. After considering such information and such other evidence as it considers appropriate AMP shall determine whether and, if so, in what amount and on what terms AMP shall grant any insurance in respect of an Adviser … and shall notify the Policyowner accordingly. 2.2 AMP will insure each Member for the benefits as described in Clause 4. 2.3 An Adviser … shall become a Member under this Policy on being accepted by AMP as such in accordance with Clause 2.1 and the insurance in respect of the Member shall commence from a date forthwith. 2.4 Insurance in respect of a Member shall continue in force until the first to occur of the following: (a) termination of this Policy; or (b) the Member ceases to be a member of any class of Advisers … who are eligible for insurance under this Policy; or (c) a contribution or instalment of a contribution in respect of such Member's insurance under this Policy has become due and remained unpaid for a period of thirty (30) days; or (d) subject to Clause 7, the Member ceases (otherwise than on account of Total Disablement or Partial Disablement) to be actively engaged in work on a full time basis as an Adviser …PROVIDED THAT, for the purpose of this paragraph, a Member shall be deemed to be actively engaged in work on a full time basis as Adviser or Specified Employee during any specified period of leave of absence (not exceeding twelve (12) months) granted of which the Policyowner gives notice to AMP in advance and which AMP agrees is to be deemed to be active service ; or (e) the survival of the Member to the Member's Benefit Ceasing Date. 3. CONTRIBUTIONS 3.1 Subject to the other provisions of this Clause, each Member accepted on AMP's standard terms shall in respect of each year commencing on a Review Date contribute to the Plan the premium applicable to the annual benefit levels chosen by the Member in his or her Application Form (or as otherwise agreed between the Member and AMP) relating to that Review Date. Contributions are payable semi-monthly at the rate of one twenty fourth of the annual amount. … 3.6 AMP will deduct all amounts payable by a Member as his or her contributions to the Plan … from commission earnings, other remuneration or other income of the Member … and apply these amounts in terms of this Policy. … 4.1 Total Disablement Benefit In the event of the Total Disablement of a Member and provided the Member remains Totally Disabled for the whole of the Waiting Period, AMP will pay to the Member the monthly benefit calculated as follows: A. One twelfth of the level of benefit the Member chooses in his or her application, representing no more than 85% (being 75% plus 10% for superannuation benefit) of Average Net Income over the previous two financial years as at the time of the most recent Review Date provided: (a) the maximum benefit payable to the Member will be $20,000.00 per month unless a higher amount has been agreed in writing between AMP and the Member; and (b) that level of benefit is substantiated by appropriate supporting documentation. 4.2 The percentage and the amounts referred to in Clause 4.1 may from a Review Date be altered by AMP, subject to negotiation with interested parties (including but not limited to the Policyowner and ABOM), and the altered percentages and amounts will apply in respect of the benefit payable where a Member becomes Totally Disabled on or after the date on which the alteration takes effect. 4.3 The benefit payable in accordance with Clause 4.1 shall commence to accrue after the expiration of the Waiting Period PROVIDED THAT a benefit shall be payable under the Plan only if the Member becomes Totally Disabled - (a) after acceptance by AMP of his or her written application to become a Member; and (b) on or prior to the Benefit Ceasing Date. 4.4 If a benefit is payable to a Member and if the benefit payments continue for a period greater than twelve consecutive months, the amount of the monthly benefit payable after the first twelve payments will be increased annually during the continuance of the period of Total Disablement. The amount of each such increase will be a percentage of the amount of the monthly benefit paid at the end of the previous twelve month period, such percentage being the lesser of - (a) ten per cent; and (b) the percentage change in the most recently published CPI over the period of the preceding twelve months. … 6.1 If the Member becomes Partially or Totally Disabled, AMP shall, subject to the other provisions of this Policy, pay or apply the benefit payable under the Plan to or for the benefit of the Member in such manner as the Member determines. 6.2 The monthly benefit payable in accordance with this Clause shall accrue on a daily basis and shall be paid at monthly intervals in arrears and shall cease to be payable on the date on which the Member ceases to be Partially or Totally Disabled or dies or on the Member's Benefit Ceasing Date, whichever is the earliest. … 10.8 Death Benefit If a Member dies whilst receiving the Total or Partial Disablement Benefit, Crisis Benefit or the Accreditation Benefit, a benefit equal to three times the Total Disablement Benefit will be paid to the Member's estate as a Death Benefit. …

12. PROOF AND NOTICE OF CLAIMS The amounts hereby contracted to be paid shall become payable on proof of the age, identity and Total … Disablement … of the Member being furnished to the reasonable satisfaction of AMP provided that: [benefits are not payable in two circumstances not presently relevant.] … 16 TERMINATION BY AMP AMP may at any time give the Member at least three months' notice in writing of its intention to terminate either or both of the following obligations, namely, (a) to accept any further Advisers … as Members' and/or (b) to increase the benefits in respect of Members but the termination of such obligations shall not affect AMP's liability under this Policy in respect of the benefits payable under the Plan at the date of expiry, of such notice on the lives of Advisers … who are Members at such date. 17 DISCHARGE AMP's liability under this Policy shall be discharged by payment to the Member of the amounts hereby contracted to be paid.

"ABOM", referred to in Clause 4.2 of the Policy, is the Australasian Board Of Management of the Association. 9 Thus, the Policy was one whereby contributions were payable by a Member direct to AMP, benefits were payable by AMP direct to a Member, and the payment of Members was not dependent upon the formation of any opinion or exercise of any discretion by the Trustees. A person became insured under the Plan by the Trustees nominating that person to AMP, and AMP then deciding whether it would grant any insurance in respect of that person. The Trustees, as the "Policyowner", had ongoing functions of agreeing with AMP on whether, and if so when, there would be any Review Date other than on the first of January on any year, nominating Advisers to AMP for membership, supplying information to AMP concerning such nominees, and taking part in negotiations with AMP under Clause 4.2 concerning any changes in the percentage of Average Net Income, and the number of dollars, which can be insured for as benefits under the Policy. Operation in Practice of the Plan 10 Even though AMP was the insurer under the Policy, it had reinsured its risk to the extent of ninety percent with Swiss Re Life and Health Australia Limited ("Swiss Re"), under a quota share reinsurance treaty. AMP consulted with Swiss Re concerning premiums, terms and conditions, and claims management relating to the Policy. 11 After the terms of the Plan were finalised the Trustees and Swiss Re agreed that the terms of the Plan would be reviewed in three years (that is, in 1999). 12 It was the practice of AMP to not make a copy of the insurance policy available to Members of the Plan, or to people applying to become Members of the Plan. Instead, AMP produced from time to time a document called a Customer Information Brochure ("CIB") which it made available to such people. A CIB sought to state in plain English the benefits which were available under the Plan, and to give some information about how the Plan operated. As well, it contained some worksheets to assist an applicant to decide how much cover he or she should apply for, and an application form. Start of Negotiations to Introduce Limitation on Mental Illness Benefits 13 In early March 1999 Mr Roger Patterson, and Mr John Kelly (two of the Trustees) met with Mr Jeff King of Swiss Re, to discuss the review of the Plan which was due in 1999. Mr King agreed to extend the terms until 30 June 1999 to allow further negotiations. 14 From July 1998 to April 2000 Mr Stuart Campbell was the Manager, Group Risk Products for AMP. Management of the Plan was part of his responsibilities. 15 On 20 May 1999, at a meeting attended by Mr Patterson and Mr Kelly on behalf of the Trustees, and Mr Jeff King and others on behalf of Swiss Re, Mr King tabled a letter setting out Swiss Re's proposals to amend the Plan. There were two proposed topics for amendment. One of them was introduction of a two-year limitation on claims arising from mental and nervous causes. The letter contained a draft clause which provided for such a two-year limitation, subject to benefits continuing after two years if the insured continued to be hospitalised. Mr King told the Trustees that the claims experience on the Plan was unacceptably high to Swiss Re. He presented some figures to the effect that, concerning the two agency plans which AMP then had on foot, the percentage of mental illness claims was forty percent, and the average duration of claims for mental illness was substantially higher than for causes other than mental illness. Mr King told the Trustees that there was a market trend to an inclusion of a mental illness limitation. 16 Mr Kelly said that the definition of "mental disorder" proposed by Swiss Re was too broad. He also said he would like to see some evidence of the market trend that Mr King had mentioned. Swiss Re made it clear at the meeting that the wording was open to discussion, and offered to provide evidence of the market trend. The Trustees understood that AMP had not favoured such a clause in the past, and that AMP's agreement would be needed. 17 Mr Ian Laughlin, Head of Customer Solutions at AMP Financial Services, had previously been the person at AMP with whom Swiss Re had dealt concerning the Plan. Initially Swiss Re approached him about AMP's attitude to Swiss Re's proposal for amendment. He asked Mr Campbell in or about May 1999 to take over the negotiations with Swiss Re and the Trustees. June 1999 Meetings 18 In June 1999 Mr Campbell met with Mr O'Carra and Mr King, both from Swiss Re, on several occasions. In the course of those discussion, Mr King said that the proportion of claims from mental causes exceeded the industry average, and the average duration of those claims was longer than some industry experience statistics would lead one to expect. He said that Swiss Re would not renew the reinsurance agreement unless the Policy terms were amended to limit benefits for mental illness claims with effect from 1 January 2000. He proposed that benefits be limited to the greater of two years or the period of hospitalisation. No specific policy wording to impose the limitation was then discussed. 19 Mr Campbell stated AMP's position: AMP was unlikely to offer the insurance without majority reinsurance support, and he hoped they would be able to agree on insurance terms that were also acceptable to Swiss Re and the Trustees. He said that the Trustees' agreement would be needed to any changes before they could be implemented, and as well there would need to be a more detailed review of the claims experience to demonstrate the extent of the problem and justify the proposed solution. 20 On 23 June 1999 Mr Campbell had a telephone conversation with Mr Patterson. He passed on the news that Swiss Re would not continue reinsuring the Policy unless the terms were amended, and summarised Swiss Re's proposal about what the amendments should be. Mr Patterson said he would probably accept it, subject to actuarial analysis to support Swiss Re's assertions. Mr Campbell told Mr Patterson that AMP agreed with the proposal, and would not continue with the Policy without reinsurance. 21 On 29 June 1999, Mr Campbell emailed Mr Laughlin, outlining the amendments to the benefit terms which Swiss Re proposed, and enquiring whether (a) given his past involvement Mr Laughlin accepted the changes, and (b) who else in AMP he should contact to "get sign off". 22 On 30 June 1999 Mr Laughlin wrote a note on Mr Campbell's email, "Stuart, I am comfortable", and that was passed on to Mr Campbell. Negotiations July to Mid October 1999 23 On 12 July 1999 Mr Campbell wrote to Mr O'Carra, as follows: " AMP Agents Association - Disability Insurance: Modified Benefit Design I am writing to confirm that the product changes proposed by Swiss Re in Jeff King's letter of 20 May 1999 are acceptable from AMP's perspective. The changes have the support of our product management team, our underwriting and claims team and our legal team. I understand that you will be obtaining separate confirmation and support from the trustees of the AMP Agents' Association. As discussed at our recent meeting on 28 June, we will work towards implementing these new terms with effect from 1 January 1999. [sic] In the meantime, I believe the next step is for you to perform an experience analysis and advise new premium rates, recognising the positive effect of the benefit design modifications. I look forward to hearing from you when you have preliminary results to discuss." 24 On 23 September 1999 Swiss Re wrote to AMP saying: You may remember that I wrote to you at this time last year, formally terminating the above reassurance agreement with effect from 1 January 1999, pursuant to the terms of Article 9 of the agreement. Subsequently, ongoing negotiations between Swiss Re and AMP resulted in an agreement in principle to modify the extent of the cover and review the pricing of the arrangement. However, as these negotiations continued far longer than expected, Swiss Re agreed in July of this year to support AMP using the existing benefit and pricing structure until 31 December 1999. As we have not yet finalised the revised structure of the scheme, I am again writing to you to give formal notice of Swiss Re's intention to terminate the agreement effective 1 January 2000. Discussions are ongoing and we are confident we can develop a mutually acceptable and sustainable contract for the future. We are hopeful therefore that this notice of termination is merely a formality, and look forward to a more profitable arrangement in the years to come." 25 On 20 September 1999 Mr Campbell had sent to Swiss Re a draft for an amended CIB. The amendments which he proposed were ones which aimed to bring the brochure up to date, in various respects not including the two topics on which Swiss Re wanted the plan amended. Mr O'Carra wrote to Mr Campbell on 24 September 1999 saying "I do not think we should proceed on the basis of the CIB in its current form, as this would simply increase the agent's expectation that the cover may continue without amendment next year." Mr O'Carra stated his belief that agreement had been reached on the two amendments that Swiss Re sought, and that the pricing of the insurance required review. He continued, "As Swiss Re's participation in this scheme in future is unlikely to be possible without all of the above amendments, we feel it would be imprudent to circulate it in its current form". He went on to give some statistics concerning the claims experience under the Policy, concerning both the proportion of total illness claims which were mental illness claims, and the average duration of mental illness claims, and how in each of those respects the claims experience under the AMP policy was worse than the industry averages. He gave some preliminary calculations which showed Swiss Re as making a loss of around $400,000 from reinsuring the scheme between 1996 and 1999. 26 Mr Campbell sent a copy of that letter to Mr Corrigan, Executive Manager of AMP Agents' Association, under cover of a facsimile dated 27 September 1999. That facsimile referred to the Trustees having approved of the draft CIB which Mr Campbell had prepared, but which Swiss Re had said it did not want to have distributed. Mr Campbell told Mr Corrigan, "Swiss Re have indicated they will only support the current terms to 31 December 1999 and will seek to agree new terms to apply from 1 January 2000." Mr Campbell proposed a meeting should occur on 14 October 1999 "to discuss and agree the terms to apply from 1 January 2000". 27 An AMP internal memorandum written by Mr Campbell on 28 September 1999 recorded that Swiss Re "… are finalising new premium rates and insurance terms to apply from 1 Jan 2000." 28 Also on 28 September 1999 Mr Corrigan sent a fax to Mr Patterson, Mr Kelly and Mr Kevin McLean (the third Trustee) informing them of the meeting which was to take place on 14 October 1999, and saying: "Stuart will ask Swiss Re to provide a draft of the new plan at least one (1) week prior to the meeting. I'll forward a copy of that wording to you as soon as a copy is received in this office." 29 On 5 October 1999 Mr Campbell replied to Swiss Re's letter of 23 September 1999 (para [24] above), which gave formal notice of intention to terminate the reinsurance agreement. He said: "You will be aware of my ongoing negotiations with Sean O'Carra and Jeff King to establish new terms. I have already formally accepted the benefit design modifications they proposed. Sean and his team are currently completing an experience analysis with the intention of advising new premium rates, recognising the positive effect of the benefit design modifications. Upon receipt of their revised premium rates, we plan to jointly meet with the trustees of the AMP Agents' Association on 14 October to finalise these new terms. We look forward to renewing this treaty, on terms acceptable to all parties, with effect from 1 January 2000. … I will continue to work with Sean O'Carra and Jeff King to implement new terms and renew the reinsurance agreement with effect from 1 January 2000." 30 On the evening of 7 October 1999 Mr O'Carra sent an email to Mr Campbell which discussed the revised premium rates, and attached a draft of a new CIB, which included a limitation of benefits to two years or the period of hospitalisation for any injury or sickness arising in connection with any mental disorder. As the wording of that portion of the CIB changed somewhat, it is not necessary to set it out here. 31 Later on 7 October 1999 Mr Campbell wrote a letter to Mr Corrigan, which he sent on 8 October 1999. It said: "… I now have the proposed new terms for this insurance. These new terms have been proposed by Swiss Re Life & Health and are supported by AMP Life. We intend for them to take effect from 1 January 2000. We plan to meet with you, the trustees and Swiss Re at your office on 14 October, to discuss and hopefully agree these new terms. I am pleased to enclose the following documents in preparation for the meeting: · copy of the new Customer Information Brochure (CIB), now being rolled out, effective from 1 October 1999 to 31 December 1999. · a marked up document, showing Swiss Re's suggested changes to the CIB to reflect the proposed new terms · an agenda for the meeting on 14 October 1999. Could you please circulate this information to the other trustees and invite them to join us at the meeting on Thursday 14 October. I will circulate this information to the other attendees from AMP Life and Swiss Re. Thanks for your help. I look forward to our meeting and to confirming the terms to apply from 1 January 2000." 32 The enclosure in that letter was a draft customer information brochure, which included provisions imposing a limit of two years or the period of hospitalisation for any injury or sickness arising out of, or in connection with, any mental disorder. As some amendments were made after that date to the wording by which that benefit limitation was imposed, it is not necessary to set out its terms. 33 On 11 October 1999 Mr Campbell wrote to Mr Corrigan enclosing what he described as "a copy of the new premium rates, to take effect from 1 January 2000." He said that the rates: "… allow for the proposed changes to the insurance terms, as outlined in the attachments to my letter dated 7 October. AMP Life supports the new premium rates. Could you please circulate this information to the other trustees, in preparation for our meeting on Thursday 14 October? I will circulate this information to the other attendees from AMP Life and Swiss Re." The Meeting of 14 October 1999 34 On 14 October 1999 there was a meeting attended by Mr Campbell and Mr Boner from AMP, Mr O'Carra and Mr King from Swiss Re, Mr Corrigan from the AMP Agents' Association, and the three Trustees. The agenda for the meeting on 14 October 1999 (which appears from a footer to have been prepared on 7 October 1999) included the item "new terms from 1 January 2000 - draft wording provided by Swiss Re". 35 Before the meeting on 14 October 1999, the Trustees met privately with Mr Corrigan. Mr McLean, in particular, expressed dissatisfaction with both the principle, and certain details, of the mental illness limitation. 36 By the time of that meeting the Trustees had all received a copy of the draft CIB which Mr Campbell had sent to Mr Corrigan. There was no separate document which identified precise clauses of the Policy which it was proposed would be amended, nor the precise wording of those amendments to the policy document. 37 Mr Campbell gives evidence, which I accept, that the meeting included the following: "KING: "We can't continue reinsuring this Plan on the current terms. Claims experience has been very poor [at this point he referred to the claims analysis as set out in his letter of 24 September 1999]. We propose the two year limitation. AMP supports this proposal and we believe its in the best interests of the members of the Plan." BONER: "AMP supports the proposal." KELLY: "I'm disappointed that it has come to this but we need to recognise that for us to continue with the Plan we may need to do it on restricted terms because we don't want a couple of claims spoiling the arrangement for the whole membership." The wording of the limitation as expressed in the CIB and the new premium rates were then discussed. There was considerable discussion about the definition of mental disorder." 38 Some of that "discussion about the definition of mental disorder "emerges from the minutes of the meeting, which include the following: "The proposed marked up document, showing Swiss Re's suggested changes to the CIB to reflect the proposed new terms was outlined by S Campbell. … J King said it would improve the wording if chronic fatigue syndrome and fibromyalgia was "moved" up to the previous para, - following the words, mental disorder. S Campbell agreed to make that alteration in the CIB and policy document from 1 January, 2000." 39 What was meant by the reference to "moving up" chronic fatigue syndrome and fibromyalgia was that the form of the CIB which was being discussed at the meeting had a paragraph saying: "The benefit period is limited to the maximum of two years or the period of hospitalisation for any injury or sickness arising out of or in connection with any mental disorder." 40 That paragraph was followed by another paragraph which began: "Mental disorder means any disorder classified in the Diagnostic and Statistical Manual of Mental Disorders (DSM) current at the date of disability. Such disorders include, but are not limited to …"

• followed by a fairly long list of disorders. Chronic fatigue syndrome and fibromyalgia were on that list. Mr King's proposal was to remove chronic fatigue syndrome and fibromyalgia from being part of that list, and to place them at the end of the previous paragraph, so that the end of the previous paragraph then read: "arising out of or in connection with any mental disorder, chronic fatigue syndrome or fibromyalgia" . 41 The meeting also included discussion of the means by which the new terms would be communicated to members of the Plan. 42 Mr Campbell's evidence, which I accept, continued: "At the end of the meeting one of the trustees, I believe it was John Kelly, said words to the effect "the trustees agree to the proposed limitation on benefits for mental disorders as stated in the draft CIB tabled at the meeting"." 43 One of the Trustees, whose identity Mr Campbell cannot recall, asked "can we be advised when a claim has reached the two year limitation?". Mr Boner replied "we will notify the Trustees if the two year limitation applies to any claims made after 1 January 2000." At the end of the meeting Mr Campbell said: "I will revise the Plan document to reflect the agreement on the limitation on benefits for mental disorders. The wording to use in the Plan document should be the same as the wording agreed for inclusion in the CIB."

There was no dissent from that statement. 44 Mr Campbell's notes of the meeting, written up soon after it, includes the entries: "2. New wording. a) 2 year exclusion We agreed claims manager should notify Trustees if any claims arise where the 2 year mental disorder clause will apply. Same words into policy document."

Under the heading "Premium Rates" his notes said "new rates allow for 2 yr limitation" . Events 14 October 1999 to end 1999 45 After the meeting of 14 October, the Trustees spoke with Mr Campbell and Mr Boner of AMP about the possibility of finding another reinsurer who would reinsure the Policy without the two-year limitation on claims for mental disorders. At some stage (it is not clear whether it was in this meeting or not) Mr McLean of the Trustees was told that no other reinsurer would take on the Plan. 46 On 15 October 1999 Mr Campbell sent an email to numerous people within AMP which said: "I'm pleased to let you know that we have agreed new product terms and premium rates for this salary continuance plan for AMP advisers. The new terms take effect from 1 January 2000. Swiss Re were threatening to withdraw their 90% reinsurance support for this business. But we met with the AMP Agents Association trustees yesterday and resolved all issues to everyone's satisfaction. Heres an update of where we are up to: 1. New CIB - now in place · we've updated and completely redesigned the CIB to match the AMP look · it's now available, it's current until 31 December 1999 · PDF format, meaning no expensive typesetting and offset printing · will soon be on the Adviser Infonet 2. New Terms Agreed · to take effect from 1 January 2000 · introduced a 2 year limitation on benefits due to any mental disorder · Swiss Re continue to carry 90% of the risk and provide the full claims management service … Next Steps · rollover the CIB and incorporate new terms and rates, to be effective 1 January 2000 (I've already kicked this off with Peter Richardson) · update the policy document (I'll be talking with Amanda Findlay in Legal) · inform members of the changes (I'm meeting with the Agents' Association to jointly agree how to do this) · CSD to perform the annual review and update of insured amounts (working with Sean Boner to achieve this). It's great to have the future of this plan resolved. We have confirmed Swiss Re's support and the AMP Agents' Association has signed off the new terms and premiums. Onwards …" 47 On 22 October 1999 Mr Campbell sent to Mr Corrigan a draft of the proposed new CIB. That draft described itself on the front cover as "Issue 5 - issued 1 January 2000. Expires 31 December 2000". Mr Campbell said: "The trustees signed off Issue 4 only 4 weeks ago, and the new premium rates, terms and their wording were agreed at our meeting with the trustees on 14 October. Consequently, I am anticipating that the trustees will be comfortable with the proposed first draft of Issue 5. … Could you please circulate this draft to the trustees for their preliminary signoff."

That draft was based on the draft CIB which had been discussed at the meeting on 14 October 1999, but incorporated the change which had been discussed on 14 October, concerning "moving up" chronic fatigue syndrome and fibromyalgia. 48 Also on 22 October 1999, Mr Corrigan sent to each of the Trustees a copy of that revised draft of the new CIB, under copy of a memorandum saying: "Stuart Campbell left the revised draft of the new CIB at this office today, with a request for the Plan Trustees to consider the wording prior to sign-off. The plan is to have the CIB ready for distribution to members during the last week of November 1999. With that in mind would you kindly read the draft - and let Roger know your comments by Monday 1 November 1999 to co-ordinate a response back to Stuart." 49 Also on 22 October 1999 Mr Campbell sent a copy of the then current draft of Issue 5 of the CIB to Mr O'Carra, with a request for feedback by Monday, 1 November 1999. 50 There were some minor subsequent changes to that draft of the CIB, insofar as it related to the mental illness limitation. Those changes involved moving a paragraph of text from one place in the document to another, and correcting an error in the portion of the brochure headed "Recurrent Disablement" which had said that there was a two year limitation on claims for mental illness, and had not mentioned the possibility that benefits for mental illness could go on longer if the member was hospitalised. There were no changes of substance. All those changes were made prior to 17 November 1999. 51 On 17 November 1999 Mr Campbell sent the then current draft of the CIB to Mr Corrigan, and to Mr O'Carra. On 23 November 1999 Mr King told Mr Campbell he was happy with the CIB as drafted. Also on 23 November 1999 Mr Corrigan telephoned Mr Campbell saying he had spoken to each of the trustees and they agreed with the final draft of the CIB. He said "you have sign-off". 52 On 23 November 1999 Mr Campbell executed a document entitled "Sign Off Certificate". AMP's internal procedures required such a certificate to be completed before a standard form document relating to insurance is issued. That certificate is a form which identifies various topics concerning which information is required, followed by a blank. Following the part of the form which identifies the project in question, Mr Campbell wrote "CIB Rollover". His certification was that issue number 5 of the CIB met the requirements of AMP, the Trustees, and Swiss Re, and was in order for implementation. 53 Also on 23 November 1999 Mr Campbell issued an instruction for a copy of Issue 5 of the CIB to be sent to every member of the Plan, along with the annual review letter which was due to be sent to those members. He also gave an instruction that that mail-out include a document which included the following: "Important Notice to Members AMP Agents' Income & Agency Protection Plan Changes From 1 January 2000 New Insurance Terms This notice advises members of changes to the terms and conditions for insurance through the Income & Agency Protection Plan (the Plan). The changes take effect from 1 January 2000 and apply to all insured members. Full details of the insurance terms applying from 1 January 2000 are outlined in the Customer Information Brochure (CIB) Issue 5. A copy of this CIB is enclosed with this notice. New Insurance Premium Rates From 1 January 2000, new premium rates will apply to your insurance through the Plan. These premium rates result from a review of the emerging claims experience from the Plan over recent years. The table below gives a summary of how the new rates compare to the current rates. … Limitation On Claims Due To Mental Disorders For new claims commencing on or after 1 January 2000, we have introduced a clause to limit payment of benefits relating to mental disorders. We will pay the claim (while the member continues to be disabled) for the greater of the period of hospitalisation or 2 years. This change is necessary to ensure ongoing premiums and benefits for all members can be maintained at competitive levels. … Why Did We Make These Changes We have made these changes to ensure the benefits and premium cost remains competitive and attractive for all members. By making these small changes to the benefits provided, we have been able to secure ongoing group insurance support, avoid dramatic premium increases and continue the automatic acceptance of insurance for new members."

That document is one which states it is issued by the "Trustees" . I infer that Mr Campbell's instruction concerning the sending out of that notice to every member of the Plan, accompanied by a copy of the new CIB No. 5, was carried out. 54 On 1 December 1999 Mr Campbell instructed an AMP officer to lodge a copy of the new CIB with the Australian Securities and Investment Commission, which was duly done. 55 Section 116(1) Life Insurance Act 1995 (Cth) provides: "(1) A life company must not issue policies of a particular kind unless the appointed actuary has given the company written advice about: (a) the proposed terms and conditions on which policies of that kind are to be issued; and (b) the proposed basis on which the surrender value of policies of that kind is to be determined; and (c) if the policies provide for benefits to be calculated by reference to units - the proposed means by which the unit values are to be determined." 56 On 30 December 1999 Mr Craig Lamb, an actuary, gave written advice, which stated that it was under section 116. He identified the topic of the advice as: "changes to the pricing and terms and conditions for the Income & Agency Protection Plan. The changes are designed to address a decline in the profitability of the Plan. The changes will take effect from 1 January 2000".

His report included the statement: "I am satisfied that the terms and conditions of this product are adequately described in the: · Customer Information Brochure · The Policy Document." 57 Earlier, on 2 December 1999, Mr Campbell had notified various people within AMP of developments since his email of 15 October 1999. It included the statement that since then he had: "updated the policy document. It's with Swiss Re (who carry 90% of the risk) for sign off.":

Whatever might have been the policy document which Mr Campbell referred to in this email, and Mr Lamb referred to in his certificate, it has not been produced in evidence. No updated policy document has ever gone through the process of being formally signed off, in the way that the CIB was formally signed off. Relevant Terms of CIB Issue 5 58 CIB Issue 5 includes the following relevant provisions: "How To Apply The only way to apply for membership of the AMP Agents' Association Income and Agency Protection Plan is to complete the Application form at the very back of this brochure and forward it to: The Trustees AMP Agent's Association C/- Group Claims AMP Life Limited Level 6, 31-39 Macquarie St Parramatta NSW 2150 Expiry This brochure is current until 31 December 2000. It cannot be used after that date. … Key features statement This Key Features Statement follows guidelines set by the Australian Securities and Investment Commission. It will help you to decide whether this policy meets your needs, and to compare the policy with others you may be considering. … Benefits Payment on Disablement We will pay you a monthly benefit if you suffer an illness or injury which results in your continuous inability to carry out your usual occupation and which lasts beyond the selected waiting period. The benefit is payable monthly in arrears until age 65, and is conditional upon you remaining under the regular care and attention of your doctor in relation to that illness or injury and not carrying out any remunerative work. The benefit period is limited to a maximum of 2 years or the period of hospitalisation for any injury or sickness arising out of or in connection with any mental disorder, chronic fatigue syndrome or fibromyalgia - for more information refer to "Benefit Limitations" on page 7. … Recurrent Disablement We will waive the waiting period if a disablement recurs from the same or a related cause within 6 months of previous benefits being payable. The disablement periods will be added together when determining the benefit payment period. At the end of that period, no further benefit will be paid for the same disablement (or related cause) until you have returned to full-time work for at least 6 months. For disablement arising out of or in connection with any mental disorder, chronic fatigue syndrome or fibromyalgia, the overall maximum benefit period is the greater of 2 years, or the period of hospitalisation. … Policy Information Statement A Policy Information Statement will be sent to you showing personalised details of the policy you have selected. … Trust Deed The Plan is owned by Trustees under a Trust Deed. The Trustees have chosen to purchase a policy with AMP to provide income protection to advisers. This brochure is a summary of the policy's main provisions. The wording of the Policy Document will always be regarded as the final authority should any dispute arise concerning the application of the Plan features. You also have rights under the Trust Deed. … Benefit Limitations The benefit period is limited to the maximum of 2 years or the period of hospitalisation for any injury or sickness arising out of or in connection with any mental disorder, chronic fatigue syndrome or fibromyalgia. Mental disorder means any disorder classified in the Diagnostic and Statistical Manual of Mental Disorders current as at the date of disability. Such disorders include, but are not limited to, anxiety, depression, adjustment disorders, stress, mental exhaustion, anorexia nervosa, bulimia, psychiatric complications of physical disorders, drug or alcohol abuse, obsessive/compulsive syndrome, behavioural disorders, somatization disorders or any complications thereof. …"

The brochure also included a table of premium rates effective from 1 January 2000. These were the rates which Swiss Re had approved on the basis that the amendments that it wanted to the Policy were made. 59 The brochure also included an application form which began: "The application form is part of the AMP Income & Agency Protection Plan Brochure issue 5 dated 1 January 2000. It is only valid from 1 January 2000, and it expires on 31 December 2000. Applications signed after the expiry date will be declined. Any application received more than 21 days after the expiry date will also be declined."

It made provision for an applicant to give certain information about himself or herself and the level of cover required. It had a section entitled "Agreement and Declaration" , which included the statement that: "I agree that … I have received and read the AMP Income & Agency Protection Plan Customer Information Brochure Issue 5 dated 1 January 2000."

There was provision for the applicant to sign the application form, and an instruction to send the application to the Trustees. Events Re Policy Amendment 2000 and After 60 It was not until 2000 that Mr Campbell spoke to an in-house lawyer at AMP, Ms Findlay, about amending the policy document. On 31 May 2000 he said to her that the changes should be handled by the same procedure as a CIB update, thus, she should instruct Minter Ellison to undertake the drafting (and also update the CIB at the same time) then formal sign-off should be obtained from interested parties, then a variation to policy document issued. 61 While various of the people responsible for the Plan at the AMP, and the Trustees, realised from time to time that the Policy wording had not been signed-off on, nothing was done to sign off on a set of words which, in terms, amended the Policy until after these proceedings were begun. 62 These proceedings were begun on 4 June 2004. On 5 August 2004 someone from AMP signed the following document: " MEMORANDUM OF ALTERATION AMP ADVISERS' ASSOCIATION INCOME AND AGENCY PROTECTION PLAN DATED 16/5/97 - TABLE CODE 637 ("the Policy") By agreement with the Trustees of the AMP Advisers' Association Income and Agency Protection Plan, the Policy is amended with effect from 1st January 2000 by: 1. inserting the following definition in clause 1.1: "Mental Disorder" means any disorder classified in the Diagnostic and Statistical Manual of Mental Disorders current as at the date of disability. 2. substituting "$250,000" for "$1,000,000" and "5 years" for "8 years" where they appear in clause 5.2B. 3. deleting the existing clause 6.2 and inserting the following: "6.2 Monthly benefits payable in accordance with this Plan shall accrue on a daily basis and shall be paid at monthly intervals in arrears. Benefits shall cease to be payable on the earlier of: (a) the date the Member ceases to be Partially or Totally Disabled or dies; or (b) the Member's Benefit Ceasing Date; or (c) where the Member is Partially Disabled, one (1) year from the end of the Waiting Period; or (d) where the Member's disablement arises out of or in connection with any Mental Disorder, chronic fatigue syndrome or fibromyalgia (and notwithstanding anything in this policy to the contrary), the date the Member ceases to be hospitalised or the date monthly benefits have been paid for two (2) years (whichever is the later).""

That document was executed with the consent of each of the Trustees. Plaintiff's Application for Membership 63 At some time during the year 2000 the plaintiff received a copy of CIB Issue 5. On 18 December 2000 the plaintiff filled out and signed a copy of one of the application forms at the back of the CIB Issue 5. He applied for personal exertion cover at the rate of $100,000 per annum. He posted that application on 3 January 2001, to the Trustees, at the address indicated on the application form. Did the Plaintiff Send a Second Application Form on 15 January 2001? 64 The plaintiff gives evidence that on 15 January 2001 he received a telephone call from a person who introduced herself as Denise Smith of AMP Group Claims - Life and Disability. He says that she said to him: "We have received your application for Income Protection Cover under the AMP Agents Association Income and Agency Protection Plan. However the form that you completed was part of the Customer Information Brochure which expired on 31 December 2000 and is therefore out of date. AMP have not yet issued a new Customer Information Brochure for 2001. However I will fax you another application form. When you receive this you should complete this and then sign and date this January 2001 send it back to me."

He goes on to say that on or about 15 January 2001 he received by facsimile two printed pages, consisting of a new application form and Agreement and Declaration which were not attached to any Customer Information Brochure, that he completed them in the same way that he had completed the first application form, and posted them to Ms Smith at AMP on 15 January 2001. He says that he completed the application form in identical fashion to the application form and Agreement and Declaration which he completed and signed on 18 December 2000, except that the date on the new document was stated to be 15 January 2001. 65 AMP disputes that any such conversation occurred, and that any such document was signed and sent. Apart from its possible marginal relevance to the plaintiff's credit, I cannot see how anything turns on whether this evidence of the plaintiff is right. After all, there is no dispute that the plaintiff had a complete copy of Issue 5 of the CIB, or what, apart from its date, the contents of the application form were. However, as the parties have litigated the issue, I will decide it. 66 AMP maintains a separate file relating to each Member of the Plan. The entire file relating to the plaintiff was tendered, and it contains no application form dated 15 January 2001. The only application form in it is the one dated 18 December 2000, which also bears a date in the plaintiff's handwriting "3/1/00 [sic]", and is a photocopy. It contains a letter from Denise Smith (a Claims Officer - Group Claims at AMP) to Swiss Re dated 18 January 2001, attaching an application and personal statement from Mr Green, and asking for it to be assessed. There is only one personal statement in the file, which is dated 15 January 2001, and which Mr Green accepts he sent on or about that date. 67 No CIB to replace Issue 5 had been approved in January 2001. It was only on 26 February 2001 that the Trustees agreed for a new CIB to be released. 68 I cannot see any sense in the statement which the plaintiff attributes to Ms Smith. Even though Issue 5 of the CIB had expired on 31 December 2000, the plaintiff had signed his application before the expiry date, and (if what the plaintiff attributes to Ms Smith is true) AMP had received it within the 21 days after 31 December 2000 during which applications on the form in Issue 5 of the CIB had to be received to be eligible for acceptance. Absolutely nothing would be achieved by getting the plaintiff to sign and send back a copy of precisely the same application form that AMP already had a copy of. Even though there is a note in the plaintiff's handwriting "sent again 15/1/01" on the plaintiff's copy of the application form, it is not clear when that note was put on it. Also, the plaintiff kept a copy of the personal statement which he submitted to AMP on 15 January 2001, but not of any second application form. 69 In my view, it is more likely than not that the plaintiff is mistaken in thinking that he filled out and sent a second application form. Insofar as that involves a finding that part of the plaintiff's evidence is incorrect, I do not regard the giving of that incorrect evidence as anything other than the sort of mistaken recollection that everyone suffers from, from time to time. I do not regard it as detrimental to his credit. The Defendant Accepts the Plaintiff as a Member 70 After AMP had received and considered various medical reports which it requested, it wrote to the plaintiff on 10 May 2001 saying that his claim "has been assessed standard effective the 31 August 2000". That letter enclosed a single-page document headed "2001 IAPP Individual Member Cover Details". It was a standard form, which had provision for being filled out to give certain personal details which identified a member and when he had entered the Plan. It said, "Date of Entry to IAPP: 04/05/2001". It then had three separate sections, relating to the three different types of cover which were available under the Plan. Concerning each type of cover, there was provision for the form to state the sum insured, the monthly benefit, the premium rate, the annual premium, and the semi-monthly premium. In relation to each of the types of cover there was a brief statement of when the benefit was payable. Concerning the agency profit cover, the statement was "benefit is payable for 12 months after disablement to age 65 (provided your register has been sold)". Concerning the agency losses cover, the statement was "benefit is payable for 12 months after your waiting period (provided your register has not been sold)". The plaintiff had not applied for those types of cover, so the cover details showed each amount relating to those types of cover as being zero. Concerning personal exertion cover, the form stated "benefit is payable after your waiting period to age 65 (except for new advisers who are restricted to a 1 year benefit)." As the plaintiff had applied for personal exertion cover, the sum insured, monthly benefit and premium amounts were stated. The Plaintiff's Claim on the Policy 71 In October 2001 the plaintiff was diagnosed as suffering from an illness which his doctor described as "severe dysautonomia, depression anxiety and panic attacks". He made application to AMP for payment of a Total Disablement Benefit, and that claim was accepted. The plaintiff's illness has never required him to be hospitalised. AMP accepts that his medical condition continues to be one which makes him unfit to carry out the usual duties of his occupation. However, it ceased paying benefits to him after two years. The Plaintiff's Contractual Entitlements

Does the Plaintiff have Standing to Sue for Breach of the Policy? 72 The plaintiff claims to be entitled to sue AMP for breach of contract, for failing to provide benefits after the initial two years. When it is the Trustees and AMP who have entered the contract embodied in the Policy, there is a preliminary question about whether the plaintiff has standing to sue the defendant at all, for breach of contract.

Under Section 48 Insurance Contracts Act? 73 One basis upon which the plaintiff asserts he is entitled to sue the defendant is pursuant to section 48(1) Insurance Contracts Act 1984 (Cth). That section provides: "Where a person who is not a party to a contract of general insurance is specified or referred to in the contract, whether by name or otherwise, as a person to whom the insurance cover provided by the contract extends, that person has a right to recover the amount of the person's loss from the insurer in accordance with the contract notwithstanding that the person is not a party to the contract." 74 Section 11(6) Insurance Contracts Act 1984 (Cth) says: "For the purposes of this Act, a contract of general insurance is a contract of insurance that is not a contract of life insurance." 75 Section 11(1) provides that "contract of life insurance" means a contract that constitutes a life policy within the meaning of the Life Insurance Act 1995 (Cth). 76 The Life Insurance Act 1995 (Cth), section 9(1) provides that a life policy includes: "(a) a contract of insurance that provides for the payment of money on the death of a person or on the happening of a contingency dependent on the termination or continuance of human life … (e) a continuous disability policy …" 77 Section 9A Life Insurance Act 1995 (Cth) defines a continuous disability policy as a contract of insurance: "(a) that is, by its terms, to be of more than three years' duration; and (b) under which a benefit is payable in the event of … (ii) injury to, or disability of, the insured as a result of accident or sickness …" 78 The terms of the Policy are not such as require it to be of more than three years duration, because the provision in Clause 16 (para [8] above) for termination by AMP contemplates that AMP can terminate the Policy, subject to at least three months notice, whenever it chooses. That is a sufficient reason why the Policy is not a "continuous disability policy". 79 The Policy is, however, a contract of insurance that provides for the payment of money on the happening of a contingency dependent on the termination or continuance of human life. Benefits under it are payable to a Member who has commenced to suffer from Total Disablement (as defined in the Policy), and continues to suffer from Total Disablement. However, pursuant to Clause 6.2 of the Policy, one of the circumstances in which the benefit can stop becoming payable is if the Member dies. Thus, the payment of money under the policy is on a contingency dependent on the continuance of human life. 80 Thus, it is a contract of life insurance, hence is not a contract of general insurance, and hence section 48 Insurance Contracts Act 1984 cannot be availed of by the plaintiff.

At Common Law? 81 An alternative basis upon which the plaintiff asserts he has standing to sue the defendant for breach of the Policy is that the present is within the exception to the privity rule which was recognised by the High Court in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. The defendant accepts that Trident enables the plaintiff to sue the defendant direct, and to enforce the Policy insofar as it conferred benefits on him.

As Beneficiary of a Trust? 82 A further basis upon which the plaintiff asserted standing to sue was that he was the beneficiary of a trust of the contractual rights between the Trustees and AMP under the Policy, that the Trustees had refused to enforce his contractual rights when asked to do so, and that both AMP and the Trustees have been made defendants in the present action. The plaintiff is correct in asserting that the Trustees were requested to take action to cause the plaintiff to receive benefits under the Policy for the period after the first two years of his disability, and that the Trustees did not do so. 83 The plaintiff does not assert that this alleged basis for suing AMP gives him any different rights to those which he has pursuant to Trident. The question of whether the circumstances on which the plaintiff relies are sufficient in law to give him a right to sue AMP is of some complexity (Jacobs, Law of Trusts in Australia, 6th ed, para [2303]). It is unnecessary to decide it.

Is the Mental Illness Limitation Part of the Policy? 84 The plaintiff sues on the policy document in its original form, which contained no mental illness limitation. AMP asserts that, by at the latest 2 November 1999 agreement had been reached between the parties to the contract of insurance, namely the Trustees and AMP, that the benefits offered under the Policy would be amended with effect from 1 January 2000 by introducing the mental illness limitation. AMP bears the onus of proof of the factual elements of this contention, and of persuasion by argument, that the contention is correct. 85 The defendant accepts that the Trustees and AMP intended that a written document would come into existence which would amend the Policy, and that no such document came into existence until the Memorandum of Alteration was executed in 2004. Even so, it submits, the parties intended to be bound to amend the terms of the Policy, with effect from 1 January 2000, even before such a document was executed. 86 Concerning whether an exchange of correspondence amounted to a binding agreement, McHugh JA (with whom Kirby P and Glass JA agreed) said, in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634: "… the decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances: Godecke v Kirwan (1973) 129 CLR 629 at 638; Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 332-334, 337. If the terms of a document indicate that the parties intended to be bound immediately, effect must be given to that intention irrespective of the subject matter, magnitude or complexity of the transaction."

The same applies to an alleged variation of a contract, and also where there is a question of whether contractual relations have been entered orally rather than by a document or documents. 87 Derrington and Ashton, The Law of Liability Insurance, 2nd ed, para 2-133 say: "The terms of a policy may be varied during its period by mutual agreement and, in the absence of any statutory requirement of writing, this may be done verbally, the variation commencing at the time of agreement unless otherwise arranged: AW &E Palmer v Cornhill Insce Co Ltd (1935) 52 Ll Lrep 78; Calder v H Kitson Vickers [1988] ICR 232."

There is no statutory requirement under the Life Insurance Act 1995 (Cth) for a policy of life insurance to be in writing. While that Act refers on several occasions to an insurer "issuing a policy" and cognate expressions, section 10(1) Life Insurance Act 1995 (Cth) says: "(1) For the purpose of this Act: (a) a life company issues a policy when the company enters into the contract that constitutes the policy; and (b) a policy is issued to the person with whom the life company enters into the contract." 88 The defendant submits that the objectively ascertained intention of the Trustees and AMP was to amend the Policy by insertion of a mental illness limitation, in the terms set out in CIB Issue 5. Mr Campbell said as much at the meeting on 14 October 1999, and no one disagreed with him, then or later. While it is true that there were some minor amendments to the wording of the relevant parts of CIB Issue 5 after 14 October 1999, agreement was reached between AMP and the Trustees about the precise terms of CIB Issue 5, and nobody said anything about departing from the principle that the policy document would be amended to give effect to those terms. 89 As well, the defendant points out that both parties knew that Swiss Re had said repeatedly it would not continue to reinsure the Policy after 1 January 2000 unless there were amendments, including the mental illness exclusion, acceptable to it, and that AMP had said that it would not offer the Policy without reinsurance. The prospect of finding another reinsurer had been considered by the Trustees and AMP, and given up on. Yet both parties clearly intended that insurance, on the terms of the Policy, would continue to be offered after 1 January 2000. 90 The history of the Policy shows, the defendant submits, that a policy document was less important in the present case than it often is in insurance law. When the cover provided by the Policy first came into effect, on 1 January 1996, there was apparently no formal policy document - the formal policy document is one dated 16 May 1997. Further, the fact that the manner of administration of the Plan involved the policy document not being sent to members, but rather that members were informed of their rights under the Policy only by a CIB document, also lessened the importance of the policy document. 91 The defendant points to the fact that the parties, to each other's knowledge, took steps as though the amendment had been carried out. Every single member of the Plan was notified, by being sent a copy of CIB Issue 5, that the Policy made provision for the limitation on mental illness claims. Agreeing to the amendment of the Policy terms, by including the mental illness limitation, resulted in the premium rates for the 2000 year being lower than they otherwise would have been. When AMP deducted the regular instalments of premium from its members, from the beginning of 2000, it did so at a rate which reflected the reduced premiums which had been struck as a result of the mental illness limitation being agreed upon. 92 The defendant also points to the fact that AMP notified ASIC of the new CIB, and obtained the necessary actuaries certificate under section 116 Life Insurance Act (Cth). It is not shown that these two actions on AMP's part were ones which were known to the Trustees, so I omit them from consideration. 93 Against these factors, the plaintiff points to the way that the terms of CIB Issue 5, upon which the Trustees and AMP had agreed, said that it was " a summary of the policy's main provisions" and that "the wording of the Policy Document will always be regarded as the final authority should any dispute arise concerning the application of the Plan features". The plaintiff submits that, when the parties knew that the CIB containing those clauses would be issued to members and prospective members of the Plan, this case should be regarded as analogous to a "ticket" case, where the ticket states that detailed terms, which can be ascertained from some other particular document, are incorporated into the contract arising from the purchase of the ticket. In such a "ticket" case, it is the terms of the document which is referred to on the ticket which are incorporated into the contract, not those terms as varied by some oral arrangement. 94 It is appropriate to recall that the question at issue here concerns what are the terms of the contract between the Trustees and AMP. So far as they are concerned, I accept that the objective evidence shows that each of those contracting parties intended the amendment to the terms on which the Plan was offered to be effective from 1 January 2000, by including a mental illness limitation, in the terms of the issued version of CIB Issue 5. To the extent that the clauses in CIB Issue 5 to which the plaintiff points lead to a conclusion that it is only when a written amendment of the Policy is made that it will become effective, that conclusion is contrary to all the other evidence about the Trustees and AMP intending the limitation on mental illness benefits to be effective from 1 January 2000. That other evidence of intention strongly outweighs the indication derived from the words to which the plaintiff points. 95 I do not regard the "ticket" cases as detracting from that conclusion. The "ticket" cases are concerned with ascertaining what are the terms of the contract between the purchaser of the ticket and the issuer of the ticket. When the plaintiff seeks to enforce, through Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, the contract entered between the Trustees and the AMP, he is not asserting any direct contract between himself and AMP, whose terms are established by CIB Issue 5. Thus, the occasion for application of the "ticket" cases does not, in my view, arise. 96 The plaintiff presented a somewhat elusive argument, that the CIB proceeds on the basis that there is a policy document, and that it is the terms of that document rather than the CIB itself which are determinative. I do not see how, even if there is a direct contractual relationship between the plaintiff and AMP, the operative terms on which insurance benefits would be provided under that contract, could be any different to those on which insurance benefits are provided pursuant to the contract between the Trustees and AMP. As well, the particular parts of the CIB to which the plaintiff points are in conflict with the parts of the CIB which clearly describe the two year limitation on mental illness benefits. 97 The plaintiff's counsel points to various concessions he obtained in cross-examination, to the effect that both the Trustees and Mr Campbell fully expected and intended that they would be shown, and would need to give their assent to a particular form of wording of amendment to the policy document themselves. I consider some of the detail of that evidence at para [172] - [180] below, concerning rectification. What matters about it for present purposes is that (a) it is all evidence of the subjective intention of the parties, not the objective intention which is relevant to contract formation, and (b) it is not inconsistent with an intention that the variation take effect from 1 January 2000. 98 As well, the plaintiff points to ongoing discussion between the Trustees, AMP and Swiss Re concerning wording of a mental illness limitation. Discussion on that topic seems to have revived at a meeting between the Trustees, and representatives of the Association and AMP on 5 October 2000, by which time the Trustees were aware that some advisors were wanting to go to a different type of policy (an "IPA Policy") to overcome the two-year "stress limit" under the group plan. At that meeting Mr Kelly asked Mr Boner of AMP to look at "the ratings for next year - and the stress wording". Thereafter, periodically, the Trustees continued to express dissatisfaction with the wording of the mental illness limitation, but no agreement was reached about what, if anything, would be done about their dissatisfaction in the period before these proceedings were commenced. 99 Those discussions do not detract from there having been an agreement, which was put into effect from 1 January 2000, concerning introduction of the mental illness limitation. Rather, what they show is that the Trustees continued to be dissatisfied with the agreement that they had reached, and were seeking, unsuccessfully, to change it. Estoppel 100 The plaintiff submits that, even if there had been an effective variation of the Policy from 1 January 2000, so as to include a mental illness limitation, AMP is estopped from asserting any such amendment against him. The basis for that estoppel is the Member Cover Details document sent to him in May 2001 (para [70] above), and in particular the portion which said, concerning personal exertion cover, "Benefit is payable after your waiting period to age 65 (except for new advisers who are restricted to a 1 year benefit)". Though this estoppel had been pleaded only in response to the cross-claim, AMP raised no objections to it being dealt with concerning the plaintiff's claim. 101 The plaintiff's affidavit evidence said nothing about what he had taken that Member Cover Details document to mean, or what if anything he had done in reliance upon it. Nor was supplementary oral evidence called on those topics. However, in cross-examination the plaintiff gave evidence that on receiving the document he tried to read it carefully, to see that it was for the right amount of money that he had applied for, that it "went to 65", and that there were no exclusions such as back injury. 102 Notwithstanding that CIB Issue 5 contained a clear statement concerning the existence of a mental illness limitation, and that the plaintiff had signed the application form containing the "agreement and declaration" that he had received and read CIB Issue 5, he says (and I accept) that in fact he had not read it. He says that if the words "benefit is payable after your waiting period to age 65 (except for new advisers who are restricted to a one year benefit)" had not appeared on the Member Cover Details document, he would probably have sent it back. He accepts that there was nothing in the personal statement which he filled out which gave him the impression that cover would last until he was sixty five, and he does not say that any other document gave him that impression - rather, his idea that he was to have cover through to age sixty five came, he said, from "general knowledge". He had been assisted in filling out the application form and personal statement by his agency manager, Mr Saunders (who was not called as a witness). The plaintiff says that Mr Saunders did not tell him anything about the two-year limitation on mental illness benefits. He says that his state of mind was: "I accepted that, because it was designed by AMP agencies as trustees and the association, that it would be the same as the policy that I sold for 26 years, which had no exclusions and that if anything it would be better." 103 If the wording about benefits to age sixty-five had not appeared on the Member Cover Details document, he says that he would have terminated his cover and refused to pay any further premiums. Then an alternative situation was put to him: "Q. And if those words had come back including the 2-year limitations for mental disorders what would you have done then? A. Well, I think I would have taken an AMP policy out and not a reps policy because there is no exclusion in the one I am selling to every other person." 104 The elements of the type of estoppel relevant in the present case are stated in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-9 by Brennan J as follows: "… it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs."

That passage is one described, in Meagher, Gummow and Lehane's Equity Doctrines and Remedies , 4th ed, paragraph 17-050 at 550 as one in which "the current state of authority in Australia as to equitable or promissory estoppel is encapsulated …". I note that the wording of the first element of the estoppel, as reported in (1988) 76 ALR 513 at 542, differs slightly from the wording in the CLR. I have used (and Meagher, Gummow and Lehane have approved) the wording as set out in the CLR version of the decision. 105 The test for the degree of clarity and freedom from ambiguity which a representation should have to give rise to a promissory estoppel has been stated by Tobias JA (with whom Giles and Hodgson JJA agreed on this matter) in Galaxidis v Galaxidis [2004] NSWCA 111 at [93]: "… even if a representation is insufficiently precise to give rise to a contract (as in the present case), that fact does not necessarily disqualify the representation from founding a promissory estoppel. Much will depend upon the circumstances in which the representation is made and the context against which it is to be considered. In its context, the representation is sufficiently clear and unambiguous if it is reasonable for the representee to have interpreted the representation in a particular way being a meaning which it is clearly capable of bearing and upon which it is reasonable for the representee to rely. In these circumstances, it would be unconscionable for the representor to deny responsibility for the detriment that arises because of that reliance." 106 I accept the plaintiff's evidence that he assumed that any benefits he would receive under the policy would continue until he was aged sixty-five. Thus, the first element of the estoppel is made out. 107 I turn to whether the defendant induced the plaintiff to adopt that assumption or expectation. The Member Cover Details document is a one-page document, which does not purport to be an accurate summary of the entirety of the Policy. Further, the particular words to which the plaintiff points are, in a broad sense, true - most of the benefits are payable to age sixty-five, but there are detailed limitations and qualifications. As well as the limitation relating to mental illness benefits, there are other circumstances like mis-statement and non-disclosure which can result in benefits being refused or lessened. As well, the Policy has limitations on benefits caused wholly or partly, directly or indirectly by intentional self-injury; committing or aiding and abetting an assault or other unlawful act; war, invasion, civil commotion and riot; or normal pregnancy or childbirth. Further, the Policy has provisions for reduction of the monthly benefit by reference to amounts received under other policies of insurance, as damages, workers' compensation or pension. The most that can be said, in my view, is that the wording in the Member Cover Details document to which the plaintiff points confirmed the plaintiff in an assumption which he was already making, that he would have cover until age sixty-five. I have some doubt about whether that that amounts to the defendant "inducing" the plaintiff to adopt that assumption, as he was making that assumption already, before he received the Member Cover Details document. However, I shall assume, without deciding, that the second element of the estoppel is made out. 108 I do not accept that, if the Member Cover Details had not included the words to which the plaintiff points, he would have sent it back, and not continued with the Policy. In May 2001 there was no reason, on the evidence, to conclude that the plaintiff had any concern about himself possibly suffering from a mental illness. He had disclosed, in his personal statement, that in approximately 1976 AMP had offered him non-standard terms, in that he had been offered insurance on the basis that it included a back injury exclusion. He also disclosed that he had a thyroid disorder which caused him tiredness but had resulted in no time off work, and for which he was on medication, and that there was some family history of problems concerning heart, kidney and diabetes. He denied having any brain, neurological, or other nerve pathway disorder. If he had a suspicion that there was a real practical risk that he might be suffering from a mental illness, it would have been his duty to disclose that fact to AMP. When the plaintiff is a man who has worked in the insurance industry for many decades, I am entitled to infer that he knows about the duty of disclosure. His general practitioner, Dr McKay, sent AMP a medical attendant's report, which disclosed nothing in any way related to any mental illness, and showed that the last time the plaintiff had attended his GP was on 29 January 2001. That report is undated, but was not sent to AMP until after 20 March 2001, as on 20 March 2001 Dr McKay was refusing to send it until he was paid for it. I do not accept that, in the plaintiff's mind in mid-May 2001, the lack of a limitation on mental illness claims had any particular importance. In these circumstances, the third element of the estoppel is not made out. 109 Nor am I satisfied that AMP knew or intended that the plaintiff would act, or abstain from acting, in reliance on the assumption or expectation that he would have cover until age sixty-five, without there being any limitation on the mental illness claim. So far as AMP knew, the plaintiff was someone who had read CIB Issue 5, and there was no reason for AMP not to expect that he had understood it, including its explanation of the limit on mental illness claims. Further, the Member Cover Details document is one intended to be addressed to people who have already informed the first defendant that they have received and read CIB Issue 5. It is CIB Issue 5 which purports to inform members, or intending members, of the Plan of the substance of the benefits which will be provided under the Policy, and the limitations, including the mental illness limitation. The Member Cover Details document was not the type of document which purported to give a full and accurate statement of the terms of cover, on which a recipient was likely to rely. As AMP would have well known, it failed to mention numerous limitations on when benefits were payable under the Policy - see para [107] above. Thus, I am not satisfied that the fourth element of the estoppel is made out. 110 The plaintiff has not satisfied me that, if he had, on or very soon after 10 May 2001 set about seeking to obtain a disability insurance cover which did not include a mental illness limitation, he would actually have obtained one. In June 2001 he returned to Dr McKay for some treatment, relating to palpitations that he was having at that time. Dr McKay informed him that those palpitations related to stress he was feeling at the time. 111 By then, the plaintiff had occasion to be feeling stress. A short time after he had filled out the application form for the insurance, the NASDAQ share index fell by forty five percent. That was an event which had most deleterious effects on both the plaintiff's own financial position, and the financial position of his clients as well. He had started investing in technology stock in October 2000. By January 2001 he was aware that his personal financial position had deteriorated. As well, he had recommended that various clients invest in technology stock, and had received complaints from clients by January 2001 about the poor performance of that stock. As at January 2001 he was somewhat anxious about the position, but that falls well short of having a psychiatric illness. 112 It was in October 2001 that the plaintiff made a claim under the Policy. The progress of his condition from January 2001 to October 2001 is described in a history which he gave to Dr Leong: "Mr Green reported the onset of his nervous problems following the share market falls in 2001. He reported that he incurred substantial financial losses for himself and a number of his clients, totalling in excess of $4 million. Mr Green described feeling increasingly stressed, as a majority of his clients were friends and family, including his father and his partner at the time. He also allegedly felt pressure from his clients in relation to the share market losses, as well as from AMP. AMP subsequently terminated his agency, reportedly due to breach of agency agreement, which Mr Green denied. In October 2001, Mr Green reported that he was informed that his agency licence was suspended by AMP, which occurred on the day after his father died. His father had been ill for nearly two years after a number of strokes and Mr Green stated that it was a relief that his father died at that time. Mr Green described the onset of chest pain, palpitations and shortness of breath in June 2001. He consulted various medical practitioners and had an electrocardiograph performed, which was apparently reported as normal, and his chest pain was attributed to stress. Mr Green reported that he was faced with huge financial losses. He experienced difficulty sleeping, had diarrhoea and palpitations. He was worrying constantly about his financial situation and that of his clients. He could not concentrate and he could not think. He experienced a loss of energy and he had difficulty making decisions. He consulted his general practitioner, Dr McKay, who treated him with sleeping tablets and the antidepressant medication Cipramil." 113 I am not satisfied that, if the plaintiff had started, on or shortly after 10 May 2001, to seek some alternative disability insurance, it is likely that it would have been granted to him prior to the emergence of the condition which led to his claim being made in October 2001. When AMP had taken roughly four months to decide whether to accept his application, there is no basis for believing any other insurer would have been any faster. If the plaintiff had applied to AMP for a different policy, it is pure speculation whether AMP itself would have taken less than four months, in view of the information already in its files. I say this particularly bearing in mind that AMP accepted the plaintiff as a Member only after referring his application to Swiss Re. The evidence does not disclose whether, for any other policy AMP offers, the underwriting criteria are the same as those used for the Plan, or whether there is any reinsurer involvement in acceptance of risks under any such other policy. 114 There is no evidence, in any greater detail than the evidence to which I have already referred, of the extent of cover and limitations on which alternative disability cover is available, or the amount of income which can be insured under such a policy. There is evidence that there was not much difference in the premiums charged under the Plan and for other disability policies. There is no evidence from the plaintiff that he would have been prepared to insure on those alternative terms. 115 For these reasons, I am not satisfied that the fifth element of the estoppel is made out. 116 As the sixth element of the estoppel is dependent upon being satisfied of the "detriment" element in the fifth, I am likewise not satisfied that the sixth element of the estoppel is made out. 117 Thus, the plaintiff's estoppel allegation fails. Ineffectiveness of the Memorandum of Agreement? 118 The plaintiff submitted that the Memorandum of Agreement was not able to make a retrospective change to the terms of the Policy. That submission is based upon various propositions of law. The defendant disputed it by invoking various propositions of law. In circumstances where I have held that the terms of the Policy were already effectively varied, years before the Memorandum of Agreement was executed, and where it is not necessary to make factual findings to enable the Court of Appeal to deal with this submission, I shall consider it no further. The Plaintiff's Trade Practices Act Claims 119 The plaintiff also sues AMP for damages for breach of section 52 Trade Practices Act 1974 (Cth). The claim relies upon two pieces of conduct. The first is the same representation, in the 10 May 2001 Member Cover Details document, as was the foundation for the estoppel claim. The second is a failure to advise the plaintiff at any time between 15 January 2001 and 4 May 2001 that AMP intended to amend the Policy terms and conditions to provide that disability payments for mental disorders would cease after two years. 120 AMP does not dispute that it conducts its business "in trade and commerce", within the meaning of section 52. 121 For reasons substantially the same as those why the estoppel claim fails, I do not accept that it was misleading and deceptive conduct for AMP to send to the plaintiff the Member Cover Details. The words of which the plaintiff complains (para [102] above) are ones which, if read literally and with no regard for context, are untrue, because there were exceptions to the proposition that benefits were payable after the waiting period to age sixty-five, which were not stated in the document. That is not enough to make AMP's conduct in sending the document to the plaintiff misleading and deceptive. In deciding whether conduct is misleading and deceptive, for the purpose of a claim for damages under section 82 Trade Practices Act 1974 (Cth), one considers the particular person who complains about the conduct, quite apart from any class into which such a person might fall: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 79 ALJR 308 at [36] - [37]. In deciding whether supply of a particular document is misleading or deceptive, one can take into account "… the nature of the parties, the character of the transaction contemplated, and the contents of the [document] itself": Butcher, at [40]. 122 Here, AMP had every reason to believe that the plaintiff was someone experienced in insurance matters. It had every reason to believe (because the plaintiff had told it so) that the plaintiff had read CIB Issue 5, which expressly identified the mental illness limitation. It had every reason to believe that the plaintiff wished to obtain insurance on terms which included that mental illness limitation, because the plaintiff had filled in the application form at the back of CIB Issue 5, applying for the policy described in that CIB. When AMP sent the Member Cover Details document, it had no reason to believe that it would be read by the recipient as saying anything other than that AMP had agreed to provide the insurance cover which the plaintiff had applied for. The document, being a one-page document, which included a lot of blank paper on even that one page, was not the type of document which a reasonable recipient (particularly a reasonable recipient who was experienced in the insurance industry) would be likely to read as containing a complete statement of all limitations to which the policy was subject. Nor do I accept that the plaintiff has suffered any damage in consequence of the making of the statement to which the plaintiff points in that document. 123 If the plaintiff was in any way misled, about there being no limitation on mental illness claims, he has misled himself, by failing to read CIB Issue 5, which he had in his possession, and which explains those limitations. 124 The plaintiff pleaded that the representation in question was in respect of future matters, and at the time of the making of the representation AMP had no reasonable grounds for making it. 125 Given that section 51A Trade Practices Act 1974 (Cth) casts the onus of proving that there were reasonable grounds for making a representation with respect to a future matter upon the corporation which made it, there was no need for the plaintiff to prove that AMP had no reasonable grounds for making it. However, I record that the particularised basis for making that allegation, namely that AMP intended to amend the Policy terms and conditions to limit payments for mental illness to two years, is not made out, because AMP had no such intention, except in the trivial sense that it intended to bring into existence a document to record the amendment which had already been orally agreed upon. AMP having that intention in that trivial sense has caused the plaintiff no damage. 126 More important is that the representation alleged that "benefit(s) payable pursuant to the Personal Exertion Cover would be payable after the waiting period to the age sixty five except for new advisors who are restricted to a one year benefit". While that representation was made, in the sense that it appeared in the Member Cover Details it is not, in its context, a representation which should be taken as an exhaustive statement of the circumstances in which benefits would be paid. AMP had reasonable grounds for making it, because the representation was not, in its context, one which was intended to provide an exhaustive statement, and because the representation was made to a person who had already been provided with the CIB which described in all relevant respects, the limitations on the cover, and the document purported to be nothing more than a confirmation of the issue of the cover which the recipient had already applied for. 127 For these reasons the plaintiff's Trade Practices claim fails. The Plaintiff's Claim Against the Trustees 128 The plaintiff alleges that the Trustees had the following fiduciary obligations: "b) the Second, Third and Fourth Defendants/Cross-Claimants had the following fiduciary obligations: i. an obligation to provide reasonable assistance to Participants in their pursuit of claims made against the First Defendant/Cross-Claimant under the Policy; ii. an obligation not to engage in any conduct which would obstruct, hinder or prevent Participants in making or pursuing claims under the Policy against the First Defendant/Cross-Claimant; iii. an obligation to preserve and protect the rights of Participants to make claims under the Policy; iv. an obligation not to engage in any conduct which would destroy, limit or remove the rights of Participants to make claims under the Policy." 129 Subject to a qualification that their obligations related only to the making of claims in accordance with the terms of the Policy, the Trustees accept that they had such obligations. The Trustees are right in imposing this qualification upon their admission. 130 It is common ground that the Policy was vested in the Trustees on trust for the Participants, including the plaintiff. 131 The conduct relied upon as a breach of these obligations is the failure of the Trustees to even reply to correspondence from the plaintiff's solicitor in February 2004 and April 2004, which sought their assistance in pursuing a claim by the plaintiff against AMP under the Policy. As well, the plaintiff alleges as breaches that the Trustees, in this litigation, have opposed the plaintiff's relief, filed a cross-claim, and generally supported AMP. 132 It is a sufficient reason to reject this claim that, when the plaintiff had no rights under the Policy against AMP, the conduct of the Trustees about which the plaintiff complains has not caused the plaintiff any loss. Damages - Generally 133 It is appropriate to make some findings relevant to damages in case the Court of Appeal decides I am wrong in holding that the plaintiff fails in his case on liability. 134 Against AMP, the plaintiff claims damages consisting of two components. The first component, relating to past loss, is the monthly amount of Disability Payment to which he was entitled under the Policy, multiplied by the number of months from 11 November 2003 to the date of judgment. If I am wrong in my findings of liability, that amount will be readily calculable by the Court of Appeal, without the need for any findings of a kind which a trial judge is uniquely well placed to make. 135 The second component, relating to the future, is the present value of the Disability Payments payable under the Policy from the date of judgment until the date the plaintiff turns sixty-five, namely 24 March 2013. Interest is also sought. 136 Alternatively, the plaintiff seeks against AMP an order for the payment of damages equal to the first component of damages which I have just mentioned, and an order in the nature of specific performance or a mandatory injunction requiring AMP to pay benefits to the plaintiff in accordance with the Policy terms until such time as the plaintiff ceases to be entitled to benefits under the Policy. If I am wrong in my findings on liability, the Court of Appeal will be fully equipped to grant this alternate remedy if they find it appropriate, without the need for findings by me. 137 I should, however, give some consideration to matters relevant to whether, if the plaintiff had made out his case on liability, he would be entitled to damages like the second component he claims. Availability of Lump Sum Damages for Future Loss 138 At common law, if a party to a contract repudiates it, the other party can accept the repudiation and terminate future performance of the contract. That party is then entitled to damages. Those damages are assessed on the basis that they are the sum of money which will, so far as money can, put the innocent party in the same position as he would have been in if the contract had been performed (subject to any questions of remoteness of damage). This is assessed as the present value of the net benefits which would have accrued under the contract to that party, if the contract had been performed, and which are not too remote. 139 Damages assessed in this way can sometimes be recovered by an insured from an insurer, if the insurer repudiates the contract of insurance, and the insured accepts that repudiation. The operation of the principles in the context of an insurance policy was explained as follows by Underwood J in Russell Young Abalone Pty Ltd v Traders Prudent Insurance Co Ltd (1993) 7 ANZ Ins Cas 61-182 at 78,039-78,040: "If one party acts in such a way as to leave the other to reasonably conclude that he/she does not intend to fulfil his/her obligations under the contract, the former is said to repudiate the contract. Such acts alone have no effect. "I have never been able to understand what effect the repudiation of one party has unless the other party accepts the repudiation." Per Scrutton LJ in Golding v London and Edinburgh Insurance Co Ld (1932) 43 Ll L Rep 487, 488, cited by Viscount Simon LC in Heyman v Darwins Ltd [1942] AC 356 at 361. The innocent party may elect to do nothing and the contract remains on foot even though breach of a term might become the subject matter of proceedings for damages or other relief. Alternatively, the innocent party may elect, by clear notice, to accept the repudiation and rescind the contract, thereby immediately giving rise to a right to sue for damages for the repudiation. See Federal Commerce and Navigation Co v Molena Alpha Inc [1979] AC 757; Photo Production Ltd v Securicor Transport Ltd [1980] AC 827.

If an innocent party elects to accept the repudiation and rescind the contract, he or she must do so in clear unequivocal terms. See Howard v Pickford Tool Co Ltd [1951] 1 KB 417. In Taylor v J Thomas and Son; VACC Insurance Co Ltd (3rd Party) (1983) 2 ANZ Ins Cas 77,991 McPherson J said at 77,997: "... where a party relies only on his pleadings to demonstrate his election to accept the repudiation, it is his duty to make it clear by appropriate pleading in accordance with the rules of court that such an election has been made, and that the claim under the policy is to be pursued only as an alternative to the allegation of repudiation in the event that the latter is unsuccessful. The reason for this is that the election to accept the repudiation terminates the contract and so affects the rights of the parties, and if a party intends for the first time to make that election by his pleading, then he should do so unambiguously."

If an insured elects to accept the insurer's wrongful repudiation, the damages are measured in accordance with the principles laid down in Hadley v Baxendale (supra). If an insured does not accept the repudiation the contract remains on foot entitling him or her to recover only in accordance with its terms. See Taylor v J Thomas and Son; VACC Insurance Co Ltd (3rd Party) (supra); Shelbourne and Co v Law Investment and Insurance Corp Ltd [1898] 2 QB 626; Maurice v Goldsbrough Mort and Co Ltd [1939] AC 452." 140 Any contractual obligation which AMP has in the present case either to, or concerning, the plaintiff is to make periodical payments while he remains Totally Disabled. For so long as the contract remains on foot, that will continue to be AMP's obligation. The only way in which the plaintiff would be entitled to a lump sum for the present value of net future benefits under the contract is if the plaintiff has, and has exercised, a right to terminate the contract for repudiation. 141 In the present case, AMP disputes that the plaintiff has any entitlement to terminate for repudiation any contract of insurance, under which it is obliged to pay benefits to the plaintiff. 142 Insofar as the plaintiff's claim against AMP is as the beneficiary of a trust of the benefit of the Policy, he has no contractual relationship with AMP as a party to the Policy. As a mere beneficiary of the benefit of a trust of the Policy, he has no standing recognised by the common law to terminate the contract, even if there had been a repudiation. 143 Insofar as the plaintiff bases his right to sue AMP upon Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 closer analysis is required. Trident involved a policy of insurance taken out by the proprietor of a building site, under which the insurer promised to indemnify "the Assured" against sums which "the Assured" was legally liable to pay in respect of certain categories of legal liability. The policy defined the "Assured" to be not only the company which had taken out the policy, but also "all its subsidiary, associated and related Companies, all Contractors and Sub-Contractors and/or Suppliers". A Contractor was found to have a legal liability, of the type which the policy described. A sufficient reason why that contractor was not a party to the contract of insurance was described by Mason CJ and Wilson J at 112-113 as being that: "… it was not ascertainable as a principal when the policy issued. To make a contract on behalf of a principal an agent must contract on behalf of a principal who is then ascertainable."

As well, that Contractor had provided no consideration. The High Court held that, nonetheless, the Contractor had a right at common law to sue the insurer for the benefits promised by the policy. 144 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 is authority only for the proposition that such a non-party beneficiary of a policy can sue on it. Trident establishes nothing about whether such a third party beneficiary has a right to terminate the policy if the insurer repudiates it. When such policy is intended to provide cover to many different people, it would be strange indeed if someone who was not a party to the contract, and had not provided consideration for it, could bring the entire contract to an end. 145 The structure of the facts in the present case differs in some respects from those in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. The plaintiff was, at the time the Policy was taken out, already an Advisor, and a member of the Association. In that sense, he was someone who was ascertainable as at least potentially someone who might become covered by the Policy, if he were to make application to be covered and be accepted. As well, he provided consideration to the insurer, when AMP regularly retained amounts from his commissions. 146 I can see a possible argument that in this situation there is a contract between AMP and each individual Member of the Plan, that it will provide to that Member benefits of the kind and on the terms set out in the Policy. Such a contract with an individual Member arises when an Advisor is accepted as a Member. 147 It is relevant to this analysis that the terms of the Policy state that what AMP promises the Trustees it will provide is insurance "in respect of" a particular Advisor or Member (Clause 2.1, 2.4). The Policy refers to a member as being "accepted" (Clause 3.1) and involves a promise by AMP that it will pay the Member direct (Clause 4.1) not that it will pay the Trustees. It provides that a payment to the Member discharges AMP's liability (Clause 17). Further, under Clause 16 it is the Member, not the Trustees, to whom AMP gives notice of intention to terminate certain of its obligations. 148 Under that analysis, the Policy would involve AMP in having a contractual obligation to the Trustees to create these individual policies of insurance with Members who qualified. The policies of insurance so created, however, are all on standard terms, namely those agreed between AMP and Trustees as applying from time to time. In that way, the terms of the Policy between AMP and the Trustees act as a die or template from which multiple individual contracts of insurance, each between AMP and an individual Member, are produced. The Trustees have fiduciary obligations to the Members from time to time, concerning those rights which are vested in the Trustees by the Policy, including the right to have AMP pay to a Member the appropriate benefits. On this analysis, AMP has promised both the Trustee (under the Policy) and the individual Member (under the contract between AMP and the individual Member) that it will pay those benefits to the Member. If this analysis is right, the legal relations which arise pursuant to the Policy are appropriately called a "group insurance" because it provides a means whereby a group of insurance policies on the same terms can be entered. 149 If that analysis were right, it may provide a ground for distinguishing Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, and holding that there were direct contractual relations between the plaintiff and AMP, which could give rise to a right in the plaintiff to receive a lump sum of damages to compensate for future loss if there were to be an accepted repudiation of that contract. But, because it is only the individual contract between the Member and AMP that the Member is a party to, it is only that individual contract that the Member has any capacity to terminate following a repudiation. Thus, an accepted repudiation would terminate only the contract between AMP and the individual Member - it would not destroy the entire group insurance scheme. This analysis would also have the advantage that someone insured under a group policy has the same type of rights to recover lump sum damages following a repudiation as has someone insured under an individually negotiated contract of insurance. 150 I am not satisfied, however, that the question of whether such an analysis is right has been squarely argued. No consideration has been given to whether there is any provision in the Life Insurance Act 1995 (Cth) which creates difficulties for it. In these circumstances, I decline to decide whether, as a matter of law, it is possible for the plaintiff to receive from AMP the kind of lump sum damages for future loss which he seeks. 151 There is a separate basis on which I decide that the plaintiff would have no entitlement to lump sum damages for future loss. An allegation that AMP had repudiated any contract - whether with the plaintiff, or the Trustees - was not raised by the pleadings. The mere fact that an insurer denies a claim for indemnity under a policy is not in itself enough to amount to a repudiation of a contract of insurance: Judd v Suncorp Insurance & Finance (1987) 5 ANZ Ins Cas 60-832 at 75,191; DTR Nominees Proprietary Limited v Mona Homes Proprietary Limited & Anor (1978) 138 CLR 423 at 432; Broadlands Properties Ltd v Guardian Assurance Co Ltd (1984) 3 ANZ Ins Cas 60-552 at 78,319-78,322. The plaintiff has not engaged in any act which is clearly intended to be an acceptance of a repudiation. All he has done is make a claim for damages for the future assessed on a lump sum basis. 152 It is because I am not satisfied that the essential basis for an award of lump sum damages to compensate for future losses - namely, an accepted repudiation - has been alleged and made out that I hold that, even if the plaintiff has an ongoing entitlement to receive benefits from AMP, his entitlement to receive damages in the form of a lump sum to compensate for loss of such benefits in the future has not been made out. Quantum of Lump Sum Damages for Future Loss 153 The defendants accept that the plaintiff is, at present, Totally Disabled, within the meaning of the Policy. However, they contest that he will remain so until his sixty-fifth birthday. 154 The plaintiff was born on 26 March 1948, and so is presently aged fifty-seven. Although he was sent to see a psychiatrist, and a physician, for the purpose of assessing his insurance claim, his only treating doctor has been his general practitioner, Dr McKay. The physician could not find any physical cause for his disability. 155 For the purpose of this case, his solicitor caused him to be examined by a psychiatrist, Dr Lee, in December 2004. Dr Lee has reported that the plaintiff continues to suffer from major depression, with some secondary somatic symptoms. Dr Lee says: "His prognosis is guarded. It appears likely that this will continue until his 65th birthday unless there is some major reversal in his external circumstances, given the lack of improvement so far. He is incapable of undertaking remunerative employment and this is likely to continue into the foreseeable future."

In cross-examination, Dr Lee agreed that he had not been asked to express any view upon the adequacy of the treatment that the plaintiff had been receiving from Dr McKay, and had not done so. 156 A factor which is relevant to the plaintiff's prognosis is that he is currently party to complex litigation with AMP. He, his company, and AMP (or one of its related companies) have been sued by two clients who had lost money in consequence of investments in AMP technology stocks which the plaintiff had recommended. The AMP defendant in those proceedings settled them against the clients, but the proceedings remained on foot between the plaintiff (in these proceedings) and his company for the purpose of a cross-claim which the AMP company had brought against them seeking contribution or indemnity towards the settlement sums. One of the bases on which indemnity was claimed was a contractual provision. The plaintiff in turn sued AMP and one of AMP's related companies, under section 106 Industrial Relations Act 1996, seeking, amongst other things, modification of the contract to remove the contractual indemnity, and compensation. He has other proceedings on foot against an AMP company concerning redemption of units. Through an application in this Court under section 8(1) Jurisdiction of Courts (Cross-vesting) Act 1987 (AMP Financial Planning v Green [2004] NSWSC 1099; (2004) 51 ACSR 693), and a subsequent application in the Supreme Court of Queensland, all those proceedings are now pending in this Court. The plaintiff's advice from his solicitor is that finalisation of the proceedings (including appeals) could take two to three years from now, and that the trial of the proceedings will take not less than six weeks. 157 Dr Leong is a psychiatrist who examined the plaintiff for the defendant. He agrees that the plaintiff currently suffers a psychiatric condition. He says: "The prognosis in both the short-and long-term is guarded in view of chronicity of the disorder greater than two years, limited treatment response, no access to specialist psychiatric opinion and management, and litigation consciousness."

He is of the view, however, that the possible treatment options for the plaintiff have not been exhausted. The plaintiff has been treated with just one type of anti-depressant medication, and some type of counselling, and has not been treated by a psychiatric specialist. 158 Dr Leong gave evidence that there are four lines of treatment involved in the treatment of depressive illnesses: "The first line of treatment involves, in the moderate to severe group of depression, involves one type of antidepressant medication, these days most commonly it is a high group class of antidepressant, 30 to 40 percent may not respond to that initial treatment. In going to the second line treatment where it is recommended to either switch to a different antidepressant class or different antidepressants … and/or … increasing the dose and so on, which gives a further response rate. For the third line treatment it involves adding some - what we call augmentation therapy, usually in the form of a mood stabiliser like Lithium Carbonate. Fourth line treatment for the very resistant cases, that treatment could include electroconvulsive therapy." 159 Dr Leong says that: "The studies have shown that with second or third line treatment you expect a variable greater response of anything between 40 to 70 percent of those who didn't respond initially."

Something like ten to fifteen percent of the total population of patients with a depressive illness may not respond to any of these lines of treatment. 160 In the plaintiff's case, the second, third and fourth lines of treatment have simply not been tried. Dr Leong accepts that for so long as external stressors exist, such as litigation, they would exacerbate or delay any recovery. 161 I accept that it is not inevitable that the plaintiff will remain Totally Disabled, within the meaning of the Policy, until he reaches sixty-five. Whether he will cease to become Totally Disabled before that date is a future hypothetical event. Assessment of damages relating to future hypothetical events is carried out taking into account the degree of probability of those events occurring: Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638. 162 The plaintiff has already shown he is in the thirty to forty percent of the population of people with a depressive illness who do not respond to initial treatment. One question to be decided, for the purpose of assessing damages, is whether, before he reaches sixty five, he will have shown that he is not one of the ten or fifteen percent who do not respond to treatment at all. 163 While his complex litigation against AMP and its related companies remains on foot, his prospects of recovery are worse than they will be once that litigation is in some way concluded. As with all litigation, there is some chance that that litigation will settle or in some other way come to an end short of a full final hearing followed by an appeal (which is the scenario likely to take two or three years). Further, if he were to recover once the litigation was disposed of, it would not necessarily be immediately after the litigation was disposed of - it could be at any time after the litigation was disposed of, though his chances of recovery would become less as time went on. 164 The damages should be assessed on the basis that the plaintiff takes reasonable steps to minimise his loss by promoting his own recovery: AFG Insurances Ltd v City of Brighton (1972) 126 CLR 655 at 661-2. 165 The evidence does not permit any fine calculation of the plaintiff's chances of recovery. If one looks at the prospect of his not having recovered at all by sixty-five, it is the chance of his not having moved from the thirty to forty percent that do not respond to initial treatment, and remaining in the ten to fifteen percent that respond to no treatment. If one takes the ratios of the figures at the bottom of these ranges, and the ratio of the figures at the top of these ranges, this suggests that there is a 33.3% to 37.5% chance that he will not have recovered at all by age sixty-five. I adopt 35% for ease of calculation. 166 I would not adopt that method of proceedings, however. The percentages which Dr Leong gave are percentages of the entire population of people with a depressive illness who respond after one or other of the four lines of treatment has been given to them. They do not take into account factors which exist in the case of the plaintiff, that his illness is of around three and one half years standing, that a significant stressor in the form of his litigation is likely to continue for at least some time into the future, and that the longer someone has suffered a depressive illness the less chance they have of recovering. The only use I make of the 35% figure is in concluding that any lump sum assessment of damages of less than 35% of the net present value of the total benefits which the plaintiff would receive if he were to receive benefits under the Policy until age sixty-five, would be too small. 167 As well, though, in assessing damages on a lump sum basis, one would need to take into account the chance of his recovering at some time before he reaches sixty-five, but not forthwith. If that chance were to eventuate, he would have received payments under the Policy until the time of his recovery, but not afterwards. A way of assessing that figure, and giving weight to the time at which, before he reaches sixty-five, he might recover, is to treat it as a percentage of the total amount of money which would have been payable under the Policy if he did not recover at all before reaching sixty five. In the absence of any other method having been suggested to me, I shall adopt that method. 168 If damages for the future were to be assessed on the basis of a loss of a chance, I would assess them by treating the plaintiff as though, if he lives to sixty-five, the gross amount of money he has lost is 75% of the total amount which would have been paid under the Policy had benefits been payable under it to the plaintiff until he reached sixty-five. 169 In quantifying that figure the escalation of benefits, under Clause 4.4 of the Policy, would need to be taken into account. As well, the prospect of the plaintiff receiving a death benefit, under Clause 10.8, if he were to die before reaching sixty-five, would need to be taken into account in an overall assessment of damages. There is no evidence to suggest that the plaintiff has anything other than the statistically normal chance of a man of his age dying before sixty-five. 170 The defendant submits that the damages would also need to have other discounts applied to them to take account of the income tax which would have been payable if the plaintiff had received periodical payments under the Policy (Cullen v Trappel (1980) 146 CLR 1), a discount factor to ascertain its net present value (Todorovic v Waller (1981) 150 CLR 402), and a discount to reflect the possibility that the plaintiff may die before reaching sixty-five (Todorovic v Waller (1981) 150 CLR 402). There are no factual issues dependent upon weighing of evidence or assessment of witnesses involved in deciding the validity of these arguments, and making such application of them as is appropriate. The factual findings I have made so far concerning damages should put the Court of Appeal into an appropriate position to carry out the remaining steps in assessment of damages, if it were to decide I was wrong both on liability, and on damages assessed on this basis being available in principle at all. Rectification 171 In case I am wrong in the conclusion I have come to concerning liability, I make findings relevant to AMP's claim to have the policy document rectified. Rectification is an equitable remedy which enables a document which sets out legal rights in a way different to the way the parties intended, to be corrected so as to give effect to their intention. Insofar as rectification is granted of contracts, it is only of those contracts which were intended by the parties to be wholly expressed in writing, or of those parts of the partly written contract which were intended to be expressed in writing. 172 The type of intention which is relevant to the equity of rectification, is the subjective intention of the parties. Thus evidence is admissible in a rectification case of what a party intended to agree to when he entered a particular contract: NSW Medical Defence Union Ltd v Transport Industries Insurance Co Ltd (1986) 6 NSWLR 740 at 751, 752; Farrow Mortgage Services Pty Ltd (in liquidation) v Slade and Nelson (1996) 38 NSWLR 636 at 642; Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 at 332; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 164, [27]. Usually, the parties to the contract must have a common subjective intention before rectification can be granted. There are also certain limited categories of case, not relevant to the present, where rectification can also be obtained in a case of unilateral mistake: Meagher, Gummow & Lehane, Equity Doctrines and Remedies, 4th ed, para [26-075]. 173 Mr Campbell's subjective state of mind is manifest from his actions, in treating the amendments as having been effectively made from 1 January 2000. As well, though, his express evidence, about his understanding prior to 1 January 2000 was "I expected that the terms were in place and it was a matter of process to document it in the policy document". 174 Mr McLean agreed that he understood that in the normal course proposed amendments to a policy document would be sent to a lawyer for drafting, that he would expect to see any proposed draft amendments, and: "Q. In your capacity as a trustee in the normal process of the matter you would have expected to have seen circulated to you draft amendments to the policy? A. That's correct.

Q. And unless you were satisfied with those draft amendments, you weren't going to agree to it, were you? A. No." 175 He denied, however, that the purpose of the Memorandum of Alteration was to limit the plaintiff's claim, "because we believed that had been put in place prior. I know you keep talking about Mr Green, but that wasn't of importance to us. The importance was that we were facilitating what was put in place back in October 1999." 176 Mr McLean said that, so far as the plaintiff was concerned, "I don't believe that he had an entitlement beyond two years." Mr McLean's understanding was that changes to the policy would take effect on 1 January 2000, and that once the CIB had been issued, "the policy document would follow in that format". 177 Mr Patterson also understood that there would have to be some consequential amendments to the policy document, and that he would be shown proposed amendments to the policy document. His evidence was: "Q. Unless that happened, there was no agreement from the trustees, was there? A. I don't agree with that."

He said "I did expect that the policy document would be amended to reflect the agreement that we'd reached" . His understanding of the purpose of the Memorandum of Alteration was that it was "to confirm what we'd agreed over that period during 1999" . He said: "A … My understanding was that Mr Green's situation highlighted the fact that the agreed changes to the policy had not been formally implemented in the policy wording.

Q. And the problem with that, as you understood it, was that any formal changes that were supposed to have been made may not have taken effect? A. No, I don't believe that's right."

And "… I believed that the alteration would bring the policy wording into line with the agreed changes to the policy, yes, with an effect from 1 January 2000." 178 Mr Kelly agreed that a policy document was the critical document between a consumer and an insurance company. He said the understanding of the Trustees was that: "… the memorandum of the policy document had been prepared, but in accordance with what we'd agreed at the end of '99."

He said: "Q. You didn't have the wording in the proposed policy document? A. Well I believe we did in as much as the wording in the CIB is the wording." 179 He agreed that in the normal course he would have expected the policy document changes to be made in tandem with the CIB changes, and would have expected to see drafts of a policy document. He said that: "… The trustees agreed the clause that was put to them at the end of 1999 but reserve the right to continue to negotiate the terms beyond that because the facts were the plan would not be continued after the end of 1999 unless that clause was included. We agreed to include that clause but reserved the right to continue to debate the issue in the interest of the members."

He said, "My understanding was the terms of the plan had been changed [with] effect 1 January 2000." Concerning the execution of the Memorandum of Alteration, he said: "I didn't think we were making a change. I believe we were simply confirming a change that was already made effective July and which members of the plan had been operating under since January 2000." (The word "July" refers, in the context, to July 2004.) 180 I conclude that the Trustees, and AMP, each had a subjective intention that the amendment to the Plan concerning the limitation on mental illness benefits would take effect from 1 January 2000. They also had a subjective intention that that amendment would be given effect to by an appropriate written amendment to the policy document being made. It was not the subjective intention of any of them, however, that no such amendment to the terms on which insurance was offered under the Plan would be effective until such a document had been executed. These conclusions do not lead, however, to a conclusion that the Policy document should be rectified. This is because, following the making of the agreement to vary the Policy, it was not the intention of the parties that their contract was one which was one expressed in writing, so far as that variation is concerned. They intended that their contract would become one expressed in writing, but that is not the same thing. Orders

2. Declare that the insurance policy known as the "AMP Agents' Association Income and Agency Protection Plan" between AMP Life Limited and Roger Patterson, John Kelly and Kevin McLean as trustees of the AMP Agents' Association Income and Agency Protection Plan was amended with effect from 1 January 2000 by:

(a) inserting into clause 1.1 following the definition of "Member" the following words:

"Mental Disorder" means any disorder classified in the Diagnostic and Statistical Manual of Mental Disorders current as at the date of disability.

(b) substituting "$250,000" for $1,000,000" and "5 years" for "8 years" where they appear in clause 5.2B.

(c) deleting the existing clause 6.2 and inserting the text:

"Monthly benefits payable in accordance with this Plan shall accrue on a daily basis and shall be paid at monthly intervals in arrears. Benefits shall cease to be payable on the earlier of: (a) the date the Member ceases to be Partially or Totally Disabled or dies; or (b) the Member's Benefit Ceasing Date; or (c) where the Member is Partially Disabled, one (1) year from the end of the Waiting Period; or (d) where the Member's disablement arises out of or in connection with any Mental Disorder, chronic fatigue syndrome or fibromyalgia (and notwithstanding anything in this policy to the contrary), the date the Member ceases to be hospitalised or the date monthly benefits have been paid for two (2) years (whichever is the later)."

4. Plaintiff to pay costs of defendants. **********

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