mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 38 ; (2001) 204 CLR 641 
Outcome: discussed
The decision of the High Court in FAI General Insurance Co Limited v Australian Hospital Care Pty Limited [2001] HCA 38 ; (2001) 204 CLR 641 at [40] [46] (per McHugh, Gummow and Hayne JJ) demonstrates that QBE is not entitled to avoid payment pursuant to the policy upon the basis of MDRN's failure to notify this claim during the period of cover, save to the extent permitted by s 54. Although MDRN's pleading does not say so, the relevant "act" for the purposes of s 54 is that failure. It may be that the decision in FAI v Australian Hospital Care can be distinguished for present purposes. I say that in view of the language of "election" contained in cl 5.2 of the present policy. The language of the policy in that case seems not to have contained that concept. It may be arguable that the High Court was not addressing a situation in which the parties had stipulated for an election, and that an election may not accurately be described as an "omission". However the contrary is also arguable. In any event, I proceed upon the basis that the decision is relevant to MDRN's claim to indemnity under the 1998 policy. 642. The cross-claim was amended to add the claim under the 1998 policy and reliance on s 54. The amendment was provoked by QBE's plea of non-disclosure and misrepresentation in connection with the 1999 policy. Paragraph 18 of the cross-claim asserts: 'If the matters alleged by QBE in its amended defence do constitute non-disclosure or misrepresentation in respect of the 1999 policy, then those matters, or certain of them, would constitute a fact or circumstance that might give rise to a claim for the purpose of cl 5.2 of the previous year policy.' 643. This method of pleading is unsatisfactory. The matters so alleged by QBE are numerous. They relate to MDRN's system for loan approval and particular aspects of its conduct concerning the Yandina project, in particular, compilation of the investment summary. It would have been helpful had MDRN specified the precise matters which it claims to have omitted to notify. In any event, QBE denies that such matters could have given rise to a claim under the 1998 policy. It also denies that during the term of that policy, MDRN became aware of such matters. It is said to follow that MDRN 'are not, and were not during the term of the (1998) policy, entitled to give notice' of such matters, and that cl 5.2 of the 1998 policy therefore does not apply so as to deem there to be a claim under that policy, regardless of any question of late notification. As it is MDRN's primary position that it is entitled to indemnity pursuant to the 1999 policy, it will be best to leave consideration of the argument concerning the 1998 policy and the application of s 54 until the issue of liability under the 1999 policy has been determined.
Case: Permanent Trustee Australia &amp; Anor v FAI General Insurance Co Ltd (1998) 44 NSWLR 186
Outcome: considered
The question, then, is whether any of the three matters mentioned above was known to MDRN, and if so, whether it knew that any such matter was relevant to QBE's decision to accept the proposal, or whether a reasonable person, in the circumstances, could have been expected to know that such matter was relevant. It is appropriate to consider the meaning of each of the words "known", "knows" and "know" in s 21. Two questions arise for consideration. The first is whether the required knowledge must be actual, or whether it is sufficient that it can be inferred from other matters known to the insured. The second is the extent to which the knowledge of some person other than the insured is to be imputed to him or her. The Insurance Contracts Act seems not to deal with either question other than in the bald terms of s 21. However the cases establish, with respect to the first question, that it is actual knowledge which must be disclosed. Thus in Permanent Trustee Australia &amp; Anor v FAI General Insurance Co Ltd (1998) 44 NSWLR 186 at 247, Hodgson CJ in Equity (as his Honour then was) said: 'In my opinion, "known" in s 21(1) means more than "suspected" or "believed". What is required is that the matter should be the subject of a true belief, held with sufficient assurance to justify the term "known". However, it must be remembered that a belief may sometimes itself be a matter relevant to the decision of an insurer. An insured may know that it has a particular belief, and know that its having that belief is relevant to the decision of an insurer, in which case that belief itself is a matter which must be disclosed.'
Case: Permanent Trustee Australia Co Ltd &amp; Anor v FAI General Insurance Co Ltd [2001] NSWCA 20 ; (2001) 50 NSWLR 679 
Outcome: considered
On appeal (at [2001] NSWCA 20 ; (2001) 50 NSWLR 679) Handley JA said at [45] et seq (Meagher and Powell JJA concurring): '45. The problem of defining, for legal purposes, the boundary between belief and knowledge did not arise for the first time in this case. The problem has been considered in a number of legal contexts, and in general it may be said that, for legal purposes, our knowledge includes the facts, apart from matters of religious faith, that we believe to be true. 46. Thus out of court admissions are receivable in evidence against a party if they disclose an intention to affirm or acknowledge the existence of a fact whatever the party's source of information or belief; see Lustre Hosiery Ltd v York [1935] HCA 71 ; (1935) 54 CLR 134 at 143. However, as the Court said (at 144): "If it appears that [the party] had no knowledge, or that, although he had some means of knowledge, he had formed no certain or considered belief and indicated nothing amounting to a personal judgment or conclusion of his own, the probative force of the admission may be so small that a jury ought not to be allowed to act upon it alone, or in preference to opposing evidence." ... 54. ... When a person, on the basis of some information, holds a belief on which that person is prepared to act in the world of practical affairs, he or she knows that fact for most legal purposes, and certainly for the purposes of s 21. '
Case: Midaz Pty Ltd v Peter McCarthy Insurance Brokers Pty Ltd (1999) 1 Qd R 279 
Outcome: considered
In Midaz Pty Ltd v Peter McCarthy Insurance Brokers Pty Ltd [1999] 1 Qd R 279, the Court of Appeal of Queensland addressed the question of whether a person who was aware of certain facts should be taken to have knowledge of a reasonably available inference from those facts. Of that proposition Pincus JA said at 283-4 (Moynihan SPJ and Byrne J concurring): 'Acceptance of that argument must depend on adoption of a construction of section 21(1) which is rather generous to insurers: that the section means that if an insured knows matter A which is not in itself relevant to insurance, but the insured should reasonably infer from matter A a further matter B which is so relevant, then the duty to disclose matters A and B arises. This construction is in practical terms little different from reading the introductory part of section 21(1) as if it included the expression "... every matter that is known to or should be inferred by the insured". I have found no authority which supports such a reading, nor does it appear to be one which must be adopted to give section 21(1) a sensible operation.'
Case: Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1987) 4 ANZ Ins Cas 60-813 
Outcome: considered
As to imputed knowledge, in Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1987) 4 ANZ Ins Cas 60-813, Young J said at 74,998: 'Although the language of section 21 is awkward, in my view it means that if a reasonable person in the circumstances could be expected to know that a matter is relevant it must be disclosed and whether that be the case or not, if the insured actually knows the relevant thing, that is enough. However, the insured must have actual knowledge of the thing, the mere fact that he ought in the ordinary course of business to have known is insufficient.' 726. Nonetheless, in some cases, knowledge of an agent will be imputed to the principal. In Peter MacDonald Eggers, Simon Picken and Patrick Foss, Good Faith and Insurance Contracts (2 nd ed), Insurance Law Library, London, 2004, the authors assert at par 13.49: 'The agents whose knowledge principally is imputed to the assured are those agents who are concerned with the custody, care or status of the subject matter insured, general agents who are so placed with respect to the assured that they may be said to make decisions for the assured generally and agents who are charged with arranging the insurance.'
Case: Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673 
Outcome: cited
The authors of MacGillivray on Insurance Law (10 th ed) say at par 1812: 'It is not all agents whose knowledge is imputed in that way for purposes of non-disclosure but only those agents who are "agents to know" that is to say, are responsible for keeping the assured informed about the subject matter of the insurance, either because they are responsible for placing the insurance or because they have the management of it for the assured. If such an agent owes a duty to communicate information which is relevant to the insurance, but fails to do so, the assured is deemed to know what in the ordinary routine of his business he should have been told if the agent had performed his duty, but he will not be deemed to know facts which, whether or not owing to the deficient organization of the business, no agent was responsible for communicating to him.' See also Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673 and Ayoub v Lombard Insurance Co (Aust) Pty Ltd (1989) 5 ANZ Ins Cas 60-933.
Case: Ayoub v Lombard Insurance Co (Aust) Pty Ltd (1989) 5 ANZ Ins Cas 60-933 
Outcome: cited
The authors of MacGillivray on Insurance Law (10 th ed) say at par 1812: 'It is not all agents whose knowledge is imputed in that way for purposes of non-disclosure but only those agents who are "agents to know" that is to say, are responsible for keeping the assured informed about the subject matter of the insurance, either because they are responsible for placing the insurance or because they have the management of it for the assured. If such an agent owes a duty to communicate information which is relevant to the insurance, but fails to do so, the assured is deemed to know what in the ordinary routine of his business he should have been told if the agent had performed his duty, but he will not be deemed to know facts which, whether or not owing to the deficient organization of the business, no agent was responsible for communicating to him.' See also Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673 and Ayoub v Lombard Insurance Co (Aust) Pty Ltd (1989) 5 ANZ Ins Cas 60-933.
Case: Australia and New Zealand Bank Limited v Colonial and Eagles Wharves Limited (1960) 2 Lloyd's Rep. 241 
Outcome: considered
McNair J discussed the matter at length in Australia and New Zealand Bank Limited v Colonial and Eagles Wharves Limited (1960) 2 Lloyd's Rep. 241. In that case his Lordship assumed that at common law, rules derived from the Marine Insurance Act 1906 (Imp) applied to non-marine insurance. After reference to the authorities, his Lordship observed at 254: 'These judgments make it clear to my mind that it is not the knowledge of all agents or servants that is imputed to the proposer of any marine insurance, but only the knowledge of quite a limited class, namely, the broker who actually places the insurance, the master or the ship agent, or, to use Lord Halsbury's phrase, "his general agent for the management of his shipping business." On the facts of the present case, Henderson was not within that limited class. Though, in a sense, the key man in the sense that a mistake by him would mean the failure of the system his duties were almost entirely clerical; it was not established that he had any discretion or executive authority; he was not superior to the head clerks in the warehouses but co-ordinate with them. He was not, in my judgment, a person within the class of those who were under a duty to report to the company.' See also Sutton's Insurance Law in Australia (3 rd ed) at pars 3.183 and 3.184, and Tarr's Australian Insurance Law at 104-105. It seems to be generally accepted that the position under the Insurance Contracts Act reflects the common law position. 731. The general principles to which I have referred are subject to a critical qualification. In ANZ Bank v Colonial Wharves (supra) McNair J said at 254: 'There is, however, another answer in law to the third party's contention on this point, namely, that assuming that he was within the class of persons who were under a duty to report so that his knowledge was to be imputed to his principal, he, on the principle stated in Bell &amp; Anor v Lever Bros Ltd &amp; Ors [1931] UKHL 2 ; [1932] A.C. 161, and J C Houghton &amp; Co v Nothard, Lowe &amp; Wills Ltd [1928] A.C. 1 ... was under no duty to report his own dereliction of duty, and his knowledge of that dereliction is not to be imputed to his principals.' Lord Atkin ([1932] A.C. 6, at p 228) puts the matter succinctly in the following passage: "... The servant owes a duty not to steal, but, having stolen, is there super-added a duty to confess that he has stolen? I am satisfied that to imply such a duty would be a departure from the well established usage of mankind and would be to create obligations entirely outside the contemplation of the parties concerned ...".' 732. Sutton observes, concerning that decision, at 339: 'What had to be considered was what an honest and competent agent would have communicated to the assured in the ordinary course of business, and such an agent would not have had any dishonesty to reveal.'
Case: Australian Insurance Law Commercial Union Assurance Co of Australia Ltd v Beard (2000) 11 ANZ Ins Cas 61-458 
Outcome: considered
McNair J discussed the matter at length in Australia and New Zealand Bank Limited v Colonial and Eagles Wharves Limited (1960) 2 Lloyd's Rep. 241. In that case his Lordship assumed that at common law, rules derived from the Marine Insurance Act 1906 (Imp) applied to non-marine insurance. After reference to the authorities, his Lordship observed at 254: 'These judgments make it clear to my mind that it is not the knowledge of all agents or servants that is imputed to the proposer of any marine insurance, but only the knowledge of quite a limited class, namely, the broker who actually places the insurance, the master or the ship agent, or, to use Lord Halsbury's phrase, "his general agent for the management of his shipping business." On the facts of the present case, Henderson was not within that limited class. Though, in a sense, the key man in the sense that a mistake by him would mean the failure of the system his duties were almost entirely clerical; it was not established that he had any discretion or executive authority; he was not superior to the head clerks in the warehouses but co-ordinate with them. He was not, in my judgment, a person within the class of those who were under a duty to report to the company.' See also Sutton's Insurance Law in Australia (3 rd ed) at pars 3.183 and 3.184, and Tarr's Australian Insurance Law at 104-105. It seems to be generally accepted that the position under the Insurance Contracts Act reflects the common law position. 734. As the duty to disclose extends only to matters which the insured knows, only matters actually known to a relevant agent will be imputed to him or her. In Commercial Union Assurance Co of Australia Ltd v Beard (2000) 11 ANZ Ins Cas 61-458, Davies AJA (Meagher JA and Foster AJA concurring) said at 75-259: 'The terms "known" and "knows" are used in their common law sense. Their primary denotation refers to that which is actually known; but it would be wrong to import the word "actually" into a provision such as section 21. The section does not use it. The terms "known" and "knows" are used in their ordinary sense. Whether a matter is known is a question of fact for the judge or jury.'
Case: Hammer Waste Pty Ltd v QBE Mutual Ltd [2002] NSWSC 1006
Outcome: considered
In Hammer Waste Pty Ltd v QBE Mutual Ltd [2002] NSWSC 1006 , Palmer J referred to that decision and said: '... (I)n s 21(1) ... the word "know" is used in its ordinary sense; it implies actual, not constructive, knowledge both on the part of the insured and on the part of any agent or employee of the insured whose "knowledge" is to be imputed to the insured. The obligation to disclose something "known" can attach only to something which, at the time for disclosure, a person actually has in his or her consciousness or else something which exists in some record or other source of information which the person actually knows about and to which the person has access. So, for example, I "know" my driving licence number for the purposes of s 21(1) ... even though I cannot recite it off hand because I actually know that it is to be found in the plastic card in my wallet.' 736. I return to the three matters which may have required disclosure. I am satisfied that a reasonable person, in the circumstances, could be expected to know that each of those matters would be relevant to QBE's decision. I have indicated with respect to the third of those matters, divergence between contents of the newsletters and actual practice, that I am not satisfied that there was any significant divergence. However, for reasons which appear below, it is not necessary finally to decide that question. 737. QBE asserts that Mr Ryan was familiar with the content of the investment summary and knew that Mr Blackadder did not carry out detailed checks of the asset positions of applicants for loans as allegedly asserted in the newsletters, or credit checks against guarantors as asserted in the winter 1999 newsletter. It is said to follow that he had knowledge which should have been disclosed. In my view unless asked, Mr Ryan had no duty to disclose either the content of the newsletters or the actual practice which was adopted. At least for present purposes, neither matter, by itself, exposed either MDRN or QBE to risk. The relevant matter was the alleged divergence between the two. As I have said, I do not necessarily accept that there was a significant divergence. It is at least arguable that the practice as described by Mr Blackadder and Mr Ryan was a form of checking in the sense in which the term was used in the newsletters. Potential investors may have understood the newsletters to imply something more, but for present purposes we are looking at the subjective states of mind of Mr Blackadder and Mr Ryan.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
On 30 June 2006, this application for leave to appeal was filed. Leave is required because the judgment of Smith FM is an interlocutory decision. The test as to whether leave to appeal from an interlocutory decision should be granted is that enumerated in the Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397: first, whether in all the circumstances the decision is attended with sufficient doubt to warrant it being reconsidered by an appeal court; and secondly whether substantial injustice would result if leave were refused, supposing the decision were to be wrong. In this particular case, neither test is satisfied. 3 The Draft Notice of Appeal which the applicant wishes to argue alleges two grounds: '1. The appellant contended in the FMC that the Tribunal fell into jurisdictional error in relying upon historical country information, rather than up to date information, in relation to the discrimination against and persecution of Chinese in Malaysia. The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter. The FMC erred in making this finding. 2. The appellant contended in the FMC that the Tribunal based its decision on country information which it did not put to the appellant. The FMC held that the Tribunal did not fall into jurisdictional error in relation to this matter. The FMC erred in making this finding.' 4 Both grounds allege misuse of independent country information. The fact is the Tribunal did not refer to, let alone rely upon, any country information in its decision to affirm the decision of the delegate. The grounds in the Draft Notice of Appeal were not pleaded in the application by the applicant to the Federal Magistrates Court, nor raised in the hearing before Smith FM.
Case: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
Outcome: referred to
The reasoning of the Tribunal was of the kind referred to by Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195. Allsop J at par 11 said that the Tribunal's reasons in that case ' were related to the insufficiency of the material placed before it by the appellant and its express state of lack of satisfaction '. That case involved the same factual circumstances as apply here. 7 The Federal Magistrate was right to conclude that there was no arguable case for the relief which the applicant claimed. 8 The application for leave is refused with costs.
Case: Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20 ; (1981) 147 CLR 246
Outcome: cited
4 of the notice of appeal focused on the way in which the Federal Magistrates Court had dealt with the appellant's attempt to make further submissions after the hearing of the appeal by that court. The federal magistrate dealt with this attempt in an addendum to her Honour's reasons for judgment. At [94]-[95], her Honour said: After the conclusion of the hearing, the applicant sent to my associate two emails which purported to be post hearing submissions. It did not come to my attention for some weeks that the applicant had purported to file post hearing submissions. When I learned of them, I asked my associate to email the applicant, advising him that post hearing submissions could not be received by the court without leave. I did not at that stage read the purported post hearing submissions. The applicant eventually decided to file an application seeking leave to rely on the purported post hearing submissions. The respondent filed material in response to that application, which was heard on 12 August 2008. The applicant explained to the court in an affidavit that he had not put forward at the hearing the matters contained in his purported post hearing submissions because it was a long day and he was tired, particularly because of his age and a hearing problem. He also said that the submissions merely highlighted aspects of the evidence, which the court should have been aware of in any event. At [96]-[97], her Honour cited Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20 ; (1981) 147 CLR 246 at 257-258 per Mason J and Stockdale v Alesios [1999] VSCA 128 ; [1999] 3 VR 169. Both these cases are authority for the proposition that a court cannot receive further submissions after a hearing without granting leave for such submissions. In the latter case at 179, Phillips JA spoke of certain exceptions to that general principle, "such as an unexpected change in the position of the parties which bears upon the disposition of the appeal or the discovery after argument concludes of relevant legislation or some further decision of authority to which the court should be referred."