In an earlier
eAlert, we reported on the Western Australian Court of
Appeal's decision in Speno Rail Maintenance Australia Pty
Limited v Metals & Minerals Insurance Pte Limited 
That case involved a number of issues relevant to insurers
including the proper construction of section 45 of the
Insurance Contracts Act1984 which relates to
"other insurance" provisions and provides:
"(1) Where a provision
included in a contract of general insurance has the effect of
limiting or excluding the liability of the insurer under the
contract by reason that the insured has entered into some other
contract of insurance, not being a contract required to be effected
by or under a law, including a law of a State or Territory, the
provision is void.
(2) Subsection (1) does not apply
in relation to a contract that provides insurance cover in respect
of some or all of so much of a loss as is not covered by a contract
of insurance that is specified in the first-mentioned
On 31 July 2009, the High Court (French CJ and Crennan J)
granted special leave to appeal from the Court of Appeal's
According to the transcript of the application for special
leave, the appeal to the High Court will include the following
whether section 45 will apply when an insured has not itself
effected a policy of insurance but is the beneficiary of a policy
whether a provision in a policy is within the scope of section
45(1) should be assessed by reference to the terms of the provision
or its actual effect
the principles of policy construction
whether section 45 permits part of a provision within section
45(1) to be severed so as to preserve the balance of the
The matter has been set down for two days in the High
Court's Perth sittings in October 2009.
We will report further on this case following delivery of the
High Court's judgement.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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