September 2017


Read a roundup of activities around the AILA-NZILA branches

Western Australia

By AILA board member Justine Siavelis, Principal, Gilchrist Connell

The fifth annual Sir Ninian Stephen Insurance Law Masterclass returned to its spiritual home in Perth for the third time in its short, but very successful history.

Perth's best and brightest turned out at the Parmelia Hilton on Friday 19 May 2017 to join distinguished WA, interstate and international speakers to ponder all things insurance; and the curious relationship between the conference, its organiser, and a South Korean one-hit wonder.

Upholding Gangnam tradition, Justice Kenneth Martin opened the Masterclass, the brainchild of well-known WA barrister, author and academic Greg Pynt. The title of the Perth conference, Insurance Law Gangnam Style (Redux), is light hearted, but one should not be deceived into thinking the Masterclass is shallow in its content.

The impressive array of presenters and chairs did justice to the Masterclass label and its patron, Sir Ninian Stephen, delivering presentations on complex and intriguing topics in a way that made them appear deceptively simple.

The first session took in three perspectives on the operation of warranties and conditions within and outside of Australia. Dr Andrew Hutchison, of the University of Cape Town, brought the audience a perspective from South Africa, discussing the common law consequences for an insured that breaches or does not comply with a promissory warranty. Of particular interest was the influence of the South African Constitution on insurance and contract law. To quote from Andrew's paper: "There is no area of law too private or too commercial for an infusion of human rights and constitutional values."

Dr Ozlem Gurses, of Kings College in London, returned to Perth to present on the common law concerning breach of policy conditions and the changing face of insurance law in the United Kingdom, in the first of his two stand-out presentations.

Qld barrister Roger Traves QC followed with his contemplation of reasonable precautions conditions and how likely it was for an insurer to be able to rely on such clauses (short answer: not very). Not content with the easy answer, Roger analysed issues like upon whom the condition is imposed, the insured's relevant acts and omissions, and the attribution of knowledge in a corporate insured.

The second session was a s54 triple take with John-Paul Wilson, Samantha Traves, and Joel Sheldrick making sense of the constituent parts of perhaps the most enigmatic and most loved (in John-Paul's case at least) section of the Insurance Contracts Act 1984. Samantha's s54 table will be one of the most used takeaways from the day, despite her misgivings, and it can be only a matter of time before the term "kernel" finds its way into s54 case law.

The third session shifted focus and delved into the intricacies of life insurance and TPD claims. Ian Enright's excellent TPD 101 set the scene for a superb session in which a panel analysed an all-too-real case scenario. The plaintiff lawyer's perspective was from Phil Gleeson, of Maurice Blackburn, who talked us through assessing a client's TPD claim and relevant matters emerging from policies and case law. Robin Bowley, of the University of Technology Sydney, followed with a concise analysis of key cases, including NSW Supreme Court decisions.

Justice Martin returned to the podium after lunch to challenge the next panel on its knowledge of limitation periods for actions against insurers. Jenny Thorton, Dr Gurses and Geoff Hancy discussed the start of limitation periods for liability, property and contingency insurance respectively. There was much discussion of interesting case law in the area, including conflicting lines of authority in Penrith City Council v Government Insurance Office of NSW (1991) 24 NSWLR 564 and Cigna Insurance Asia Pacific Ltd v Packer (2000) 23 WAR 159.

While most conferences wind down as the day edges towards 4pm, the best was yet to come with an afternoon session on ethics chaired by Judge John Staude. In the most entertaining slot of the day, Greg Pynt and Ian Enright paid homage to the late John Clarke, with their Clarke and Dawe interview/commentary on the thorny issues of reservation of insurers' rights and waiver of legal professional privilege. Is it a breach of an insurer's duty of good faith to ask an insured to waive legal professional privilege in its communications with panel solicitors? A must see presentation and debate for all insurance lawyers.

Dr Hutchison followed with an insight into the views of South African practitioners and his own musings. Not to be outdone, Brenda McGivern, of the University of WA, closed the conference by examining the "imperfect grant of indemnity" as it relates to subrogation claims and the critical issue of who has control of the action.

Instead of restless attendees heading for drinks and canapes, Brenda held us to the last, with the final session on ethics generating discussion well into the drinks afterwards.

AILA is proud to continue its association with the Masterclass and thanks Greg for his tireless efforts in bringing together an outstanding program with inspiring and captivating speakers. Gangnam continues to promote education and collegiality in the insurance industry and reminds us that, while we practice in serious and important professions each day, we don't need to take ourselves too seriously.

While Psy, the South Korean demi-god of pop, announces a return to his rap roots, we in Perth hope Gangnam returns for an encore in 2019.

New South Wales

By Clare Branch

NSW is well into its social and educational offering for the year. 

The Twilight seminar committee has completed its successful series. This year’s seminars comprised:

• Managing risks in M&A deals: Current issues in the W&I insurance market
• Duel or dual? When too much insurance isn’t enough
• Quantum leap in class actions
• The knockout blow: Insurance aspects of career-ending sports injuries
• Smart technologies and emerging product liability risks
• Insurance in the infrastructure boom

Thanks to the Twilight committee members for their hard work in producing such high-quality, informative seminars. 

The Young Professionals committee has been hard at work on the educational and social front, with its successful Casino Royale night at the Ivy on 20 July. It was a great night, enjoyed by more than 300 guests.

On 31 August, it presented How to present #likeaboss at Lander & Rogers. It is also hosting the annual Luminaries dinner on 14 September at the Star. 

The Education committee opened its year with a seminar on 7 June at Curwoods with a panel discussion: CTP reform: What's coming next?

The committee presented its inaugural, sold-out series Utmost good faith, unconscionable conduct and other notions of fairness on 17 August at HWL Ebsworth. On 3 August, the committee presented its sold-out seminar Bikies, brothels and the duty of disclosure at Holman Webb Lawyers.

The committee looks forward to presenting a seminar on advocates' immunity on 20 September at Sparke Helmore and will offer the inaugural Annual Life Insurance Law Review on 14 November at Ashurst's offices. 

Thanks and congratulations to the liaison committee at CBP for hosting this NSW's Ron Shorter Award finals on 25 July, judged by Chief Justice of the NSW Supreme Court's equity division Julie Ward; John French, CEO, Chubb; and Dallas Booth, CEO, NIBA. Congratulations to Jackson McDonald for his winning speech and to the other finalists, Jane-Elise Harabopoulos and Elise Holmes, for their outstanding speeches.

The liaison committee, in conjunction with the Financial Planning Association of Australia, presented The changing landscape of professional indemnity insurance for financial planners at Wotton + Kearney Lawyers on 17 August. 


By Melanie Quixley

Queensland wrapped up its four-part season of the Suits Series ­– a new initiative aimed at providing soft skills and networking opportunities for Young Professionals. 

Qld will host a throwback to the long lunch social event in October at the Breakfast Creek Hotel, which is another new initiative in the state.

The usual seminar program continues with seminars on climate change, natural disasters and their interaction with insurance, and fire claims in the context of defective building materials and faulty workmanship exclusions.


By Raff Pisano

Victorian events have included:

5 June: Who's driving the injured worker? An update on challenges and issues facing TAC and WorkSafe
Speakers: Daniel Clair (TAC) and Colin Bellis (WorkSafe)

Operational and logistical issues facing TAC and WorkSafe were covered and an introductory overview of both schemes. It was a great opportunity to learn the latest from two important players in the Victorian legal market as they discussed key strategies and recent trends.

18 July: Ron Shorter Award – Victorian and Tasmanian final
Finalists were:
Winnie Chen (HWL Ebsworth): Judgement day: Will robots terminate humans in the insurance industry?
Riley Gay (Norton Rose Fulbright): Weird and wonderful claims
Rumesh Gnanaseelan (Minter Ellison): No fault compensation for medical injury: Exploring the patient safety potential

Rumesh Gnanaseelan was the winner.

All three finalists' presentations were exceptionally high quality and it was wonderful to have friends from Tasmania join the coaching workshop session in the competition's third year in Victoria. 

19 July: Can you clean up?
Speakers: Johanna Kennerley (Carter Newell Lawyers); Alan Thorn (Liberty International Underwriters); and James Alexander (Willis Towers Watson, London)

Through an interactive discussion, the panel of experts provided real examples that covered the limitation of traditional insurance covers, valuable background on key environmental laws, and risks associated with departmental investigations and prosecutions.

17 August: Annual joint AILA/NPLA seminar - Aviation law & crash investigations
Speakers: John Langmead QC; Geoff Hirst (McLarens Aviation); Doug Williamson (Marsh); and Brendan Warner (Catalyst Aviation Insurance)

24 August: 2017 GML: The fundamentals of insurance law: Enduring constants in the wind of change?
Speaker: Justice Margaret Beazley AO, President, NSW Court of Appeal


By Steven Smith

AILA Tasmania had three events on 1 September ­– the Redhealth General Insurance Masterclass; the Redhealth Workers' Compensation Masterclass; and Tasmania's first insurance ball.

The general insurance masterclass addressed the impact of driverless cars on insurance; brokers' duties; ethics for "reservation of rights" letters; implementing the Civil Liability Act; and the High Court's changing approach to negligence.

In the afternoon, the workers' compensation masterclass covered recoveries; how to get the best out of GPs; employers' defences to claims; and the perception of stress and defences available.

That was followed by the opportunity to hear from and question the new Chief Commissioner of the Workers' Rehabilitation and Compensation Tribunal, Robert Webster.

The insurance ball raised money for Stay Chatty and was a great opportunity to network with industry peers. 

In July, there was a presentation about significant changes created by the Building Act 2016. 

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