FRANK MARKS AND AUDREY BALLA
GUIDEBOOK TO INSURANCE LAW IN AUSTRALIA
Foreword to the Third Edition
The Hon Justice Michael Kirby AC CMG
Justice of the High Court of Australia
More than a decade has passed since I wrote a foreword to the second edition of this work. Since that time, Frank Marks has been elevated to the office of a Judge of the Industrial Relations Commission of New South Wales. I have been appointed to the High Court of Australia. Many decisions have been written in the field of insurance law1. Some new legislation has been enacted.
It is a long journey from my first day in the law when my companion was Frank Marks. We were articled clerks together. He taught me many practical things. Insurance law is an intensely practical subject. It is greatly to the credit of Frank Marks, and his wife Audrey Balla, that they have assumed the responsibility of updating and rewriting their work. It does not surprise me to see much evidence in this revised edition of the same practical attitude to the law and legal problems that I encountered in the small solicitor's office in Sydney that we shared forty years ago.
In the decade since the second edition, the Insurance Contracts Act 1984 (Cth) has come profoundly to affect the Australian law of insurance. Inevitably, there have been difficulties as that major reforming statute has been applied to the millions of insurance transactions that have taken place since its passage through the Australian Parliament. Even in the time that I have been sitting on the High Court, a number of important cases have been decided which illustrate the scope for judicial differences about the meaning and application of the Act. We should not be too surprised about this. By any account, the Insurance Contracts Act was a most significant reforming measure. Doubtless, after a decade's experience, improvements could be made to ensure that the original objectives of the legislation are better achieved. But there will be no going back to the fragmentation and uncertainty of the old law. In the High Court's most recent decision on insurance law, I called attention to the global character of many insurance contracts today2. The way ahead for Australian insurance law will not involve a dismantling of the achievement of a single national statute to govern insurance contracts. It may involve adjustment of our national standard in the light of international developments affecting a global industry.
It is timely to collect in this new edition the principles that have been stated by the courts in the first decade of the operation of the Insurance Contracts Act and in relation to other laws affecting insurance in Australia. This is a practitioner's book. Wherever we work in the law, we do well to keep our eyes on its practical operation. This is what the authors have set out to do. I congratulate them. In the experience of the past lie the seeds of the reforms of the future. In this sense, this is not only a work which contributes to a statement of the current law of insurance in Australia. It assists in the renewal and refurbishment of that law - the never ending process in which lawyers are, and should be, engaged in their quest for justice under law.
High Court of Australia
Canberra
1 April 1998
FRANK MARKS AND AUDREY BALLA
GUIDEBOOK TO INSURANCE LAW IN AUSTRALIA
Foreword to the Third Edition
The Hon Justice Michael Kirby AC CMG
Justice of the High Court of Australia
1 See for example the decisions of the High Court in Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Ltd (1993) 176 CLR 332; Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1989) 166 CLR 606; CIC Insurance Ltd v Bankstown Football Club Ltd (1996) 187 CLR 384; Akai Pty Ltd v People's Insurance Co Ltd (1997) 71 ALJR 156; Antico v Heath Fielding Aust Pty Ltd (1997) 71 ALJR 1210.
2 Johnson v American Home Assurance Company. [1998] HCA 14 at par 19.2.
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