Case: Commercial Union Assurance Co of Australia Ltd v Beard [1999] NSWCA 422 , 47 NSWLR 735
Outcome: cited
present purposes it may be accepted that each of these issues may well be raised during the course of the proceeding. None of the " complicated points ", however, are such that they cannot be resolved by a Federal Magistrate. As was properly recognised by Counsel for the Applicant, assistance has been provided by other courts as to the manner in which at least some of the statutory provisions in question are to be applied: e.g. Commercial Union Assurance Co of Australia Ltd v Beard [1999] NSWCA 422 , 47 NSWLR 735. But there remain difficult issues of statutory construction which are yet to be resolved &#8212; or so it was contended by the Applicant. There was said to be " contrary views " expressed by different superior courts. But the Federal Magistrates Court, it should be recognised, routinely confronts and has to interpret a myriad of complex statutory provisions and routinely has to resolve difficult questions of evidence and law. That quite frequently is the nature of the jurisdiction entrusted to that Court. Not surprisingly, Counsel for the Applicant did not refer in his outline of written submissions to the Defence pleading such further facts as: the non-disclosure of convictions for offences other than for " not wearing a seatbelt "; the non-disclosure of convictions for driving with more than the prescribed concentration of alcohol; and the driving of the vehicle the subject of the claim by a driver " under the influence of intoxicating liquor ". It is envisaged by the insurer at least that it will be necessary to issue subpoenas and to obtain discovery. The insurer further contends that a significant aspect of its case will be the question as to whether liability can be denied simply upon the basis that the driver of the vehicle was intoxicated at the time of the accident. The insurer envisages that relevant to that part of its case there will be the need to call evidence from police officers, ambulance officers and possibly evidence from those in the emergency department of the hospital to which the driver was taken after the accident. If this be the manner in which the claim is ultimately resolved, the only " complicated point " that may have to be resolved may be confined to s 37 of the New South Wales Act. Even though it may be accepted that points of general importance may emerge from the most mundane or apparently simple of cases, it is considered that the present proceeding remains a claim made upon an insurance policy in respect to a motor vehicle accident. Even if the jurisdiction of this Court has been properly invoked, such claims only invite inquiry as to whether they should be transferred to the Federal Magistrates Court. The potential importance to the present parties of such provisions as ss 13 , 21 and 28 of the Insurance Contracts Act 1984 (Cth) may also be accepted. The application of such provisions, however, will in all likelihood largely depend upon the facts and circumstances to which they are to be applied. As was recognised by both the Applicant and the Respondent, and depending upon how the facts are ultimately to be resolved, one or other of the " complicated points " may not finally emerge for resolution. And such importance as may emerge from the application of those statutory provisions as may extend beyond the interests of the present parties (if any), it is considered, is no reason why it is not appropriate to transfer the proceeding to the Federal Magistrates Court.