Case Report AON Risk - AON Risk v ANU PDF

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AON Risk v ANU...

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CITATION

AON Risk Services Australia Limited v Australian National University [2009] HCA 27

Parties

AON Risk Services Australia Limited Appellant Australia National University Respondent High Court of Australia; 7 Judges sitting 05 August 2009 French CJ; Gummow, Hayne, Heydon, Crennan, Keifel and Bell JJ On appeal from the Supreme Court of the ACT

Court Date Judges

A. Issue: Case management principle – whether leave to amend to add to the claim may be refused on case management grounds. B. Facts:  AON Risk Services Australia Ltd (‘AON’) – Insurance broker  Australian National University (‘ANU’) – Insured member  In December 2004; ANU commenced proceedings in the ACT Supreme Court against three insurers.  Two insurers alleged in their defences that the property listed under “property not insured” (PNI) schedule was not covered by ANU’s insurance policies and that pursuant to the Insurance Contracts Act 1984, they were entitled to reduce their liability to indemnify ANY for the property that was insured.  ANU claimed that as an alternate defence, if the PNI property was not covered by its insurance policies, then AON had breaded its contract and duty of care to ANU (failure to arrange insurance for ANU).  ANU applied for adjournment of the 4 week trial to make substantial amendments to the statement of claim against AON. The adjournment was granted.  ANU’s new case was not totally inconsistent with the case that was pleaded originally. However, the original pleading was wide and not confined to the actual cause of action. C. Claim: AON had failed to act in accordance with its instructions. D. Summary: The High Court declared that parties do not have an absolute right to amend pleadings at any stage of litigation, subject to costs. Regarding amendments which are not ‘necessary’ to determine the ‘real issues’ in the proceedings, correct defects in pleadings or avoid multiple proceedings, leave to amend is dependant on the discretion of the trial judge, who must take all relevant matters into account, especially “the concerns of case management”. E. Decision: The High Court dismissed ANU’s application for leave to amend and ordered it to pay AON’s costs.

The court held that ANU’s proposed amendments were not ‘necessary’ under the Court Procedure Rules 2006 (ACT) because they raised substantial new claims not previously in dispute between the parties. The substantial claims that ANU sought to introduce would require AON to create their defence from the beginning. The application was made during the time set for trial and adjournment would vacate the remaining scheduled weeks of trial. The decision will, consequently, require parties to be much more conscientious in identifying the “real issues” at the outset and adhering to court ordered timetables. If they do not adhere then they run the risk of being barred from raising that issue later in the same and subsequent proceedings....