FEDERAL COURT OF AUSTRALIA

Chubb Insurance Company of Australia Limited v Robinson [2016] FCAFC 17

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    From 25 July 2011 to 25 July 2012, Chubb Insurance Company of Australia Limited (Chubb) insured Reed Building Group Pty Limited (RBG) and its associates and agreed to pay, on behalf of the directors of RBG and its subsidiaries and on behalf of certain other officers of RBG and its subsidiaries, losses occasioned by any act or omission on the part of any such person occurring before or during the policy period for which that person was not indemnified by RBG or by any of its subsidiaries. The cover provided by Chubb under the relevant section of its policy was subject to an exclusion in respect of loss which was occasioned by an act or omission in the rendering of, or actual or alleged failure to render, any professional services to a third party.

2    In October 2010, Reed Constructions Australia Pty Limited (Reed), a wholly-owned subsidiary of RBG, entered into a design and construct contract with 470 St Kilda Road Pty Limited (St Kilda) for the redevelopment of an office building then constructed on land at 470 St Kilda Road, Melbourne and the construction on that site of a 14 storey residential apartment building comprising 173 one and two bedroom apartments and three small office suites. This project was known as the “Leopold Project”. At the time, Reed was the main operating company within the Reed group of companies.

3    Under that contract, Reed was required to verify all of its progress claims made during and after December 2010 by procuring one of its officers or employees to swear a statutory declaration in support of each of those claims.

4    Progress Claim No 15 was made by Reed on 12 December 2011. That claim was supported by a statutory declaration made by Glenn Roy Robinson on the same day. At the time when he made that statutory declaration, Mr Robinson was the Chief Operating Officer (COO) of Reed. Mr Robinson never became a director of RBG, Reed or any other company in the Reed group of companies.

5    Reed was subsequently placed into liquidation. St Kilda took the view, in due course, that, by Progress Claim No 15, Reed had sought payments of amounts to which it was not lawfully entitled. As a result, on 3 April 2012, St Kilda commenced the principal proceeding below against Mr Robinson. In that proceeding, St Kilda claimed damages for misleading and deceptive conduct on the part of Mr Robinson and for negligence.

6    In the principal proceeding, St Kilda alleged that, at the time when he made his statutory declaration on 12 December 2011, Mr Robinson had not made all reasonable enquiries in order to verify the truth of the matters contained in Progress Claim No 15 nor did he have reasonable grounds for asserting that all of the charges, costs and expenses claimed by Reed in Progress Claim No 15 were properly due and payable by St Kilda to Reed. In particular, St Kilda alleged that, contrary to the representations made in Progress Claim No 15, some of Reed’s subcontractors and materials suppliers had not been paid in full as at the date when the statutory declaration was made.

7    Mr Robinson denied St Kilda’s allegations and denied that he had any liability to St Kilda.

8    By a Cross-Claim filed on 3 September 2012 in the principal proceeding, Mr Robinson claimed indemnity from Chubb in respect of any liability which he might ultimately be found to have to St Kilda.

9    The only point of substance raised by Chubb in answer to Mr Robinson’s Cross-Claim for indemnity was that any liability which he might ultimately be found to have to St Kilda would inevitably be excluded from cover under the relevant policy because his conduct which is the subject of St Kilda’s claims against him would fall within the professional services exclusion clause in the relevant policy.

10    On 8 February 2013, a judge of this Court ordered that one question be tried separately from and before all other issues arising in the proceeding below. The point to be decided in this way was whether or not, in the circumstances of the present case, the professional services exclusion applied.

11    The precise question ordered to be determined separately was in the following terms:

[W]hether the cross-claimant’s statutory declaration made on 12 December 2011 was an actual or alleged act or omission “in the rendering of, or actual or alleged failure to render any professional services to a third party”, within the meaning of exclusion IV(A)(v) of the Directors’ and Officers’ Liability Coverage Section of the Policy of Insurance referred to in the statement of cross-claim as policy of insurance number 93301062.

The words in italics are extracted from the last part of the relevant exclusion clause.

12    As the primary judge correctly said, the answer to the separate question would determine the entire Cross-Claim made by Mr Robinson against Chubb because the subject matter of that question was the only issue arising in that Cross-Claim.

13    On 20 December 2013, the primary judge answered the question which we have set out at [11] above in the negative (470 St Kilda Road Pty Ltd v Robinson (2013) 308 ALR 411; [2013] FCA 1420).

14    In light of that answer, on 24 January 2014, her Honour made the following declaration and orders:

THE COURT DECLARES THAT:

1.    The cross-respondent stands liable to indemnify the cross-claimant under the policy of insurance number 93301062 dated 27 July 2011 (Policy) and issued by the cross-respondent to Reed Building Group Pty Limited (RBG), in respect of all Loss (as defined in the Policy) incurred, or yet to be incurred, by the cross-claimant on account of the claims made against him by the applicant in this proceeding.

THE COURT ORDERS THAT:

2.    The cross-respondent forthwith pay to the cross-claimant all sums for which it is liable to indemnify the cross-claimant pursuant to order 1 above.

3.    The cross-respondent pay the cross-claimant’s costs of the cross-claim, as agreed or taxed.

15    By Application for Leave to Appeal filed on 24 January 2014, Chubb sought the leave of the Full Court to appeal from the order which her Honour made answering the separate question. Chubb’s Application for Leave to Appeal did not refer to the consequential orders made by her Honour on that day. Nonetheless, the appeal hearing before this Court was conducted upon the basis that the orders made by her Honour on 24 January 2014 were also being challenged by Chubb and should be set aside if its appeal is successful.

16    There is a question as to whether or not leave to appeal is required. We shall return to this aspect later in these Reasons.

17    At the commencement of the hearing of Chubb’s Application for Leave to Appeal, the Court ordered that, to the extent that leave to appeal might be required, such leave be granted to Chubb. The hearing then proceeded upon the basis of the grounds of appeal set out in the Draft Notice of Appeal attached to Chubb’s Application for Leave to Appeal.

18    Mr Robinson filed a Notice of Contention on 14 February 2014 upon which he intended to rely in the event that leave to appeal was granted by the Court. That Notice of Contention contained four grounds. By grounds 1 and 2 of his Notice of Contention, Mr Robinson claimed that the primary judge had erred in admitting into evidence the affidavit of Mr Bell, an engineer, and in allowing Mr Bell to give oral evidence at the hearing before her Honour. Both of those grounds were abandoned before the appeal hearing. Thereafter, no issue concerning the admissibility of Mr Bell’s evidence remained. The weight to be given to that evidence continued to be a matter of contest. By grounds 3 and 4 of his Notice of Contention, Mr Robinson sought to argue that the primary judge erred at 427–428 [74] of her Reasons for Judgment (judgment) when she held that the making of the relevant statutory declaration by Mr Robinson was an act that occurred “in the rendering of services” to St Kilda and should have held that it was not such an act at all. This contention raises the true construction of the professional services exclusion clause and can be conveniently addressed when we deal with Chubb’s grounds of appeal.

19    The critical question on appeal, therefore, is whether the professional services exclusion applies to Mr Robinson’s claim for indemnity.

The Facts

The Design & Construct Contract

20    The Design & Construct Contract (the D&C Contract) is dated 25 October 2010. The contracting parties were St Kilda, as principal, and Reed, as contractor. The Contract Sum provided for in that contract was $39,210,587 (excluding GST). The contract comprised:

(a)    Formal Instrument of Agreement;

(b)    General Conditions of Contract and Annexures Part A, B, C, D, E and H;

(c)    Schedule 1 – Principal’s Project Requirements;

(d)    Annexures Part F-1 and F-2; and

(e)    Annexure Part G.

21    The Recitals contained in the Formal Instrument of Agreement provided:

A.    The Principal is seeking a builder to undertake the redevelopment of the existing 7 storey office building on the Site into a 14 storey residential apartment building, consisting of 173 one and two bedroom apartments and 3 small office suites. The proposed redevelopment fully utilises the existing structure and façade of the building at 470 St. Kilda Road, Melbourne with the additional floors added proposed as steel construction (“the Project”), such work being domestic building work for the purposes of the DBC Act.

B.    The Contractor has agreed to enter into this Contract with the Principal whereby the Contractor is agreeing to accept full responsibility for the design documents and undertake the performance of WUC in accordance with the Contract.

C.    The Contractor represents to the Principal that it is experienced in the performance of works similar to the WUC and that it will provide the necessary resources, personnel, skill and expertise required in order to comply with all its obligations in accordance with the Contract.

D.    The Contractor acknowledges that the Principal has relied upon the representation in Recital C in entering into the Contract and agrees to its engagement on the terms of the Contract.

E.    The Contractor acknowledges that the provisions to be incorporated in this Contract as a requirement of the DBC Act are so incorporated and the Contractor acknowledges and warrants to the Principal that the Contractor has carefully examined the provisions of that Act.

The acronym DBC Act which appeared in Recitals A and E and elsewhere in the D&C Contract was a reference to the Domestic Building Contracts Act 1995 (Vic). The acronym “WUC” which appeared in Recitals B and C is a reference to the work which Reed was obliged to carry out under the D&C Contract.

22    Clauses 1, 2 and 3 of the Operative Provisions of the Formal Instrument of Agreement were in the following terms:

OPERATIVE PROVISIONS

Whereas:

Performance

1.    The Contractor shall assume full responsibility for the design documents and perform the WUC in accordance with the terms and conditions of this Contract.

2.    The date that the work is to be completed is defined as the Date for Practical Completion and is 9 December 2011.

3.    In consideration for the Contractor performing the WUC by the Date for Practical Completion, the Principal shall pay the Contractor the Contract Sum at the times and in the manner set out in the Contract.

23    The General Conditions of Contract referred to in the Formal Instrument of Agreement were the conditions contained in AS4902-2000 (As Amended) (GCC) being the general conditions of contract for design and construct contracts commonly in use in Victoria in October 2010.

24    The GCC contemplated that, under the D&C Contract, a Principal’s Representative would be appointed. Reshape Development Pty Ltd (Reshape) was appointed as St Kilda’s representative for the purposes of the D&C Contract.

25    Both parties to the D&C Contract were prohibited from assigning that contract or any payments or any other right, benefit or interest thereunder without the other party’s prior written approval.

26    Clause 2.1 of the GCC provided:

2.1    PERFORMANCE AND PAYMENT

The Contractor shall carry out and complete WUC in accordance with the Contract and directions authorised by the Contract.

The Principal shall pay the Contractor the Contract Sum adjusted by any additions or deductions made pursuant to the Contract.

The Contract Sum will be fixed and not subject to any rise and fall or to any other adjustment whatsoever (whether in respect of site allowances, superannuation, fluctuations in exchange rates or the costs of labour or materials, sales tax, taxes, fees, rates or charges or otherwise) unless expressly provided for in the Contract.

The parties acknowledge that the Contract is a 'major domestic building contract' as defined in section 3 of the DBC Act.

The Contractor’s obligations under this Contract include, without limitation obtaining, at its cost, all statutory approvals required to commence, perform and complete the WUC, save for the town planning permit.

27    Clause 2.2(a), (b) and (c) of the GCC provided:

2.2    CONTRACTOR’S WARRANTIES

Without limiting the generality of clause 2.1, the Contractor acknowledges and warrants to the Principal that:

(a)    the Contractor:

(i)    at all times shall be suitably qualified and experienced in the design and construction of the type and scale of the Works contemplated by this Contract, and shall exercise due skill, care and diligence in the carrying out and completion of WUC;

(ii)    accepts full responsibility for the design documents and that, as at the date of the Contract, such design documents are fully developed and suitable, appropriate and adequate:

(i)    for the purpose stated in the Principal's Project Requirements;

(ii)    to form the basis of the design of the Works to be completed under the Contract;

(iii)    to comply with all legislative requirements (including pursuant to the Building Act 1993 (Vic)) and all relevant Australian Standards applicable to the Works;

(iii)    shall carry out and complete WUC in accordance with the design documents so that the Works, when completed, shall:

(A)    be fit for their stated purpose and will be suitable for occupation; and

(B)    comply with all of the requirements of the Contract, all legislative requirements (including pursuant to the Building Act 1993 (Vic)) and all relevant Australian Standards applicable to the Works;

(iv)    Not used;

(v)    is fully aware that there are items not specifically referred to or described herein which nonetheless are required to complete the Works and to achieve the effective and efficient use and operation of the Works;

(vi)    has carefully examined all relevant legislative requirements, the scope and extent of the WUC, any work done, materials supplied and any design services provided prior to the date of this Contract;

(vii)    has made full allowance for any problems or difficulties at the interface between nearby buildings, structures, services and other improvements and new parts and where the existing parts are not able to be properly used or incorporated into the Works then such parts will be replaced by the Contractor at its sole expense;

(viii)    has made full allowance for this clause 2.2 in the Contract Sum;

(ix)    Not used;

(x)    will act honestly and with the utmost good faith;

(xi)    will co-ordinate the WUC with the work and activities of the Principal and others (including the Principal’s other contractors);

(xii)    will at all times be responsible for the correction of any errors or omissions in the Works either caused by the Contractor or its subcontractors;

(xiii)    will assist the Principal respond to and otherwise deal with any claims made by any party in connection with the WUC against the Principal;

(xiv)    will act within the times prescribed under this Contract, or where no times are prescribed, within a reasonable time;

(b)    all designs, materials and methods of construction proposed or specified either before or after the date of this Contract to complete the Works are suitable in all respects for their intended purpose and will not cause any adverse structural impact on any nearby building; and

(c)    any design, materials, documents and methods proposed or specified by the Contractor will not infringe any patent, registered design, copyright or any other protected right.

28    The remaining subclauses in cl 2.2 spelt out the warranties implied into the D&C Contract by s 8 of the Domestic Building Contracts Act 1995 (Vic). It is not necessary to set out those subclauses in full. It is sufficient for present purposes to note that:

(a)    By subcl (i), Reed warranted that it would carry out the contract works in a proper and workmanlike manner and in accordance with the plans and specifications set out in the D&C Contract; and

(b)    By subcl (iv), Reed warranted that the contract works would be carried out with reasonable care and skill.

29    Under cl 9.2 of the GCC, Reed was obliged to retain and enter into a subcontract with all subcontractors nominated by St Kilda or Reshape in accordance with cl 9.3. In addition, Reed had a closely regulated entitlement to enter into other subcontracts.

30    Clause 23 of the GCC provided that Reshape might direct Reed to have removed, within a stated time, from the site or from any activity under the contract, any person employed in executing the work who, in the opinion of Reshape, was incompetent, negligent or guilty of misconduct. Clause 23A governed the deployment of key personnel. Under that clause, Reed was obliged to ensure that each of the persons named as key personnel at Item 25A in the Annexure to the GCC performed the duties specified in Item 25A in respect of each of them for the duration of the contract.

31    The key personnel identified at Item 25A and the duties specified in respect of those persons were:

32    Under cl 32 of the GCC, Reshape was empowered to direct in what order and at what time the various stages or portions of the work under the D&C Contract should be carried out. In the same clause, reference was also made to a program of works, although such program was not a contractual document.

33    Clause 37 of the GCC regulated the procedure for payment of progress claims including Reed’s final claim.

34    Clauses 37.1 and 37.2 were in the following terms:

37.1     PAYMENT CLAIMS

(a)    Subject to clause 37.10, the Contractor shall claim payment progressively in accordance with Item 33 and the Agreed Payment Instalments pursuant to clause 37.8 and in any event, no later than 3 months after the relevant ‘reference date’ as that term is defined in the SOP Act.

(b)     An early payment claim shall be deemed to have been made on the first date that payment claim could have been made in accordance with clause 37.1(a).

(c)     Each payment claim shall be given in writing to the Principal’s Representative and shall include details of the value of WUC done and may include details of other moneys then due to the Contractor pursuant to provisions of the Contract.

37.2     PAYMENT SCHEDULE

The Principal’s Representative will (on behalf of the Principal for the purposes of the SOP Act), use reasonable endeavours to within 5 business days but no later than 10 business days after the payment claim is served, issue to the Contractor and the Principal a 'payment schedule'. The payment schedule must:

(a)     identify the payment claim to which the payment schedule relates;

(b)     indicate the amount of the payment (if any) that, in the Principal’s Representative’s opinion, is due from the Principal to the Contractor or due from the Contractor to the Principal (as the case may be) in respect of the payment claim;

(c)     identify any amount of the payment claim that the Principal’s Representative or the Principal alleges is an ‘excluded amount’ as that term is defined in the SOP Act;

(d)     should any form of payment schedule or any information to be contained in a payment schedule be prescribed under or pursuant to the SOP Act or its Regulations, be in the form prescribed and contain the information prescribed;

(e)     take into account the Principal’s Representative’s assessment of any retention monies and other moneys due from the Contractor and pursuant to clause 46; and

(f)     set out the reasons for any difference from the amount claimed in the payment claim and amount the Principal’s Representative assesses is due from the Principal to the Contractor or due from the Contractor to the Principal (as the case may be) in respect of the payment claim (including, if the amount assessed payable in the payment schedule is less than the amount claimed in the payment claim because the Principal is withholding payment for any reason, the Principal’s reasons for withholding payment).

If the Contractor does not make a payment claim in accordance with Item 33, the Principal’s Representative may issue the payment schedule with details of the calculations.

If the Principal’s Representative does not issue the payment schedule within 10 business days after the payment claim is served, that payment claim shall be deemed to be the relevant payment schedule.

The Principal must within the earlier of 21 days of the Contractor receiving the payment schedule, or 35 days after the Principal’s Representative receives the payment claim, pay to the Contractor the amount shown in the payment schedule.

Neither a payment schedule nor a payment of moneys shall be evidence that the subject WUC has been carried out satisfactorily. Payment other than payment in respect of a final payment claim and final payment schedule shall be payment on account only.

The reference in these clauses to the SOP Act was a reference to the Building and Construction Industry Security of Payment Act 2002 (Vic). We shall adopt the same acronym for that Act.

35    Clause 37.3 dealt with unfixed plant and materials, cl 37.4 governed the way in which Reed’s final payment claim was to be made and processed, cl 37.4A addressed the agreed payment for the extended defects liability period, cl 37.5 dealt with interest and cll 37.6, 37.7, 37.8 and 37.9 addressed certain machinery matters in connection with payments. None of those clauses is presently relevant.

36    Clause 38 of the GCC was in the following terms:

38    PAYMENT OF WORKERS AND SUBCONTRACTORS

38.1    WORKERS AND SUBCONTRACTORS

If requested by the Principal or the Principal's Representative, the Contractor shall give in respect of a payment claim, documentary evidence of the payment of moneys due and payable to:

(a)    workers of the Contractor and of the subcontractors; and

(b)    subcontractors,

in respect of WUC the subject of that payment claim.

If the Contractor is unable to give such documentary evidence, the Contractor shall give other documentary evidence of the moneys so due and payable to workers and subcontractors.

Documentary evidence, except where the Contract otherwise provides, shall be to the Principal's Representative’s satisfaction.

The Contractor will indemnify and keep the Principal indemnified in relation to any claim made by workers of the Contractor or workers employed by subcontractors of the Contractor engaged on the WUC for any amounts due and payable to them in respect of their employment.

38.2    WITHHOLDING PAYMENT

Subject to the next paragraph and to law, the Principal's Representative may reject in a payment schedule so much of a Payment Claim that equates to the potential claims of workers of the Contractor and of the subcontractors and their respective workers the subject of clause 38.1 until the Contractor complies with clause 38.1.

The Principal shall not reject in a payment schedule such moneys in excess of the moneys evidenced pursuant to clause 38.1 as due and payable to workers and subcontractors.

38.3    DIRECT PAYMENT

Before making any payment certified as due in the final payment schedule, the Principal, if not aware of a relevant relation-back day (as defined in the Corporations Act 2001 (Cth)) may pay unpaid moneys the subject of clause 38.1 directly to a worker or subcontractor where:

(a)    permitted by law;

(b)    given a court order in favour of the worker or subcontractor; or

(c)    requested in writing by the Contractor.

Such payment and a payment made to a worker or subcontractor in compliance with a legislative requirement shall be deemed to be part-satisfaction of the Principal's obligation to pay pursuant to clause 37.2 or 37.4, as the case may be.

37    The Principal’s Project Requirements were contained in Sch 1 to the GCC. That schedule contained a list of all tender documents which were part of the D&C Contract and which described in detail the work which was to be carried out under that contract. That schedule also contains a detailed list of the architectural plans, schedules and drawings in which the layout and finishes for the project were specified. Similar documentation for other important project activities (hydraulic, electrical, structural, fire, mechanical, landscape and miscellaneous) was also identified in that schedule.

38    It is clear from a consideration of the D&C Contract as a whole that the core obligations of Reed thereunder were to:

(a)    Construct the new apartment building in accordance with the D&C Contract (including, in particular, in accordance with the Principal’s Project Requirements); and

(b)    Create such additional drawings, specifications and the like as may be required in order to give effect to the Principal’s Project Requirements.

As at the date of the D&C Contract, most of the design work for the project had already been completed and documented. Reed’s fundamental obligation was to ensure that it constructed a building which conformed to the design requirements under the D&C Contract and that it organised or carried out such additional design work which may be required. These are the responsibilities encompassed by its agreement “to take full responsibility for the design documents”.

39    The initial responsibility for creating the design documents for the purposes of the project largely rested with St Kilda and its architects, engineers and other advisors. As we have noted already, most of the necessary design documents had been created before the D&C Contract was entered into and were listed in Sch 1 to the GCC. Nonetheless, it can be seen from the definition of “design documents” in cl 1 of the GCC that the parties envisaged that it might be necessary for Reed to create design documents after the date of the D&C Contract in order to supplement or modify those design documents in existence as at the date of the contract.

40    The architectural services performed for St Kilda in relation to the Leopold Project were undertaken by SJB & Fender Katsalidis (Aust) Pty Ltd.

Mr Robinson’s Conduct

41    Mr Robinson gave his evidence by affidavit. He was not cross-examined.

42    Mr Robinson obtained his Higher School Certificate in New South Wales in 1981. He then became an apprentice carpenter. In the period from 1982 to 1987, he worked for the NSW Department of Public Works. After he completed his apprenticeship, he became a Clerk of Works.

43    Mr Robinson joined the Reed group of companies in 1987 as a Site Foreman.

44    Mr Robinson left the Reed group of companies in 1990 and worked for Baulderstone Hornibrook for three years as a Site Manager. He rejoined the Reed group of companies in 1993 as a Project Supervisor.

45    Mr Robinson became Reed’s COO in about April 2011. He continued to occupy that position throughout December 2011.

46    Prior to his appointment as COO of Reed in about April 2011, Mr Robinson had been the National Operations Director of Reed. In that role, he had been required to have a more active role in relation to certain large projects being undertaken by Reed. As COO, Mr Robinson was expected to perform a more strategic role in order to assist the Reed group of companies to expand its business both in relation to its core construction business and also in relation to new areas of interest.

47    In 2010 and 2011, Reed’s business was the construction of medium to large buildings and other construction projects.

48    As COO of Reed in 2011, Mr Robinson supervised a number of reporting lines which were the subject of specific evidence before the primary judge. It is not necessary to discuss those reporting lines in any detail.

49    Under the reporting structure which was in place in respect of the Leopold Project, Mr Robinson did not have day-to-day control of or direct responsibility for that project. He did receive regular reports from those who had key responsibilities in respect of that project.

50    In December 2010, Reshape instructed Reed that all progress claims to be made under the D&C Contract by Reed should be accompanied by a statutory declaration in a form specified by Reshape and that all future progress claims should be accompanied by statements of compliance by consultants. Mr Robinson executed three statutory declarations in all. These were provided in support of the last three progress claims made by Reed in respect of the project. Aaron Tranter, another employee of Reed, executed such statutory declarations in respect of earlier progress claims.

51    On or about 12 December 2011, Mr Tranter, who was at that time employed by Reed as the Contracts Manager for the Leopold Project and who was named as one of Reed’s key personnel for the purposes of the D&C Contract, requested Mr Robinson to execute a statutory declaration in support of Progress Claim No 15. Mr Robinson made a statutory declaration on 12 December 2011 in support of that claim. As we have already noted, this is the statutory declaration which is the foundation of St Kilda’s claim against Mr Robinson. Reed submitted the statutory declaration to Reshape on 12 December 2011. On 21 December 2011, Reshape issued a Certificate of Payment for Progress Claim No 15 in the amount of $1,426,641.70 (inclusive of GST) to St Kilda.

52    As the primary judge found, before making a statutory declaration of the kind which he made, Mr Robinson’s practice was to speak with the Project Manager for the particular job and possibly others in order to satisfy himself that he should sign the statutory declaration. In the present case, Mr Robinson spoke with Reed’s Victorian State Manager, Nick Bufé, as well as Reed’s CEO, Garth Graydon. He also reviewed certain accounting information. As to this, he said in his affidavit:

Approximately once a week the accounting staff at [Reed’s] head office in Sydney provided me with a standard form of print out available from [Reed’s] accounting system known as a “Cheques Drawn” list (CDL). Each CDL dealt with every project then being undertaken by [Reed], divided by project but often running to up to 150 pages and sometimes 1500 plus entries.

A CDL provided me with the following information:

a.    a list of cheques physically drawn by [Reed’s] accounting staff in respect of every project but not yet signed and provided to each subcontractor or supplier for payment;

b.    the name of the payee, the cheque number, the date it was drawn and the value for each such cheque;

c.    a column containing information about the age of the invoices (by month);

d.    a comments column which occasionally had a comment from a member of staff about a particular invoice or supplier such as “insurances expired”.

53    The statutory declaration made by Mr Robinson on 12 December 2011 was in the following terms:

PROGRESS PAYMENT No:    15, 12 December 2011

CONTRACTOR:     Reed Constructions Australia Pty Ltd

PROJECT:     Leopold, 470 St Kilda Road, Melbourne, Vic 3000

PRINCIPAL:     470 St Kilda Road Pty Ltd

STATUTORY DECLARATION

I Glenn Robinson, Chief Operating Officer, of Reed Constructions Australia Pty/Ltd do solemnly and sincerely declare as follows:

I am the contractor or authorized employee of the contractor entitled to make the claim for progress payment as detailed above. That to the best of my knowledge and belief having made all reasonable enquiries, at this date -

all workmen who are or at any time have been engaged on the work under the Contract have paid in full amounts which have become due to them by virtue of their employment on the work under the Contract as wages and allowances of every kind required to be paid by or under any statute, ordinance of subordinate legislation, or by any relevant award, determination, judgment or order of any competent court, board, commission or other industrial tribunal or by any relevant industrial agreement that is enforced in the State in which the work under the Contract has been carried out and to the latest date at which such wages and allowances are payable.

all sub-contractors or suppliers of materials who are or at any time have been engaged on the work under the Contract have been paid in full all monies which have become payable to the sub-contractor under terms of the sub-contract or to the supplier of materials under the terms of agreement for supply.

no disputes exist with workmen, sub-contractors or suppliers

all insurances required under the Contract are current and all premiums have been paid

I ACKNOWLEDGE that this declaration is true and correct and I make if in the belief that a person making a false declaration is liable to the penalties of perjury.

54    We have not corrected or drawn attention to typographical, grammatical or stylistic errors contained in the statutory declaration.

55    The declaration was made at North Sydney on 12 December 2011.

56    Mr Robinson’s statutory declaration was sent to Reshape under cover of an email which was in the following terms (omitting formal parts):

Matthew,

Please find attached our Payment Claim No. 15 for WUC complete to 22 December 2011 for your assessment and certification. Can you please advise if you wish to visit site to review the completed WUC in order to finalise our claim.

We have attached the following to help with your assessment;

1.    A breakdown of all approved variations (39 No.),

2.    A breakdown of Provisional Sum items claimed to date,

3.    Monthly consultant reports received from SJB and Simpson Kotzman (Winward Structures will be forwarded in the near future), and

4.    Reed Statutory Declaration for payment claim No. 15.

We trust the attached is satisfactory and look forward to receiving your payment schedule in due course.

Regards,

57    At the time when the primary judge answered the separate question, there had been no adjudication by the Court on the principal claim brought by St Kilda against Mr Robinson. It was not known at that time whether Mr Robinson would be held liable to St Kilda.

The Evidence of Mr Bell

58    At the hearing before the primary judge, Chubb called expert evidence from Geoffrey Bell who is an engineer and a director of a construction and engineering consulting firm. Her Honour considered that most of Mr Bell’s report was inadmissible. Her Honour also held that so much of Mr Bell’s report as might be admissible was the subject of oral evidence-in-chief from him.

59    At 424–425 [60]–[61] of the judgment, her Honour said:

60    In his evidence in chief, Mr Bell, who was subject to some cross-examination, gave evidence that project management involved organising a project so that it was delivered “on time, on budget and in accordance with the specification”. I accept that he was qualified to give expert evidence on this and associated matters. Mr Bell gave evidence that the Project Management Institute, which was based in the United States, had chapters all over the world. His evidence was to the effect that project management related to matters such as time, costs, safety, quality and personnel. His evidence was that a project manager “bring[s] together a range of other people who have responsibility for particular elements of the job [and has] ultimate responsibility for delivery of a project”. It is usual, he said, for project managers to be technically qualified and common for them to seek post-graduate project management qualifications through institutions of higher learning. In re-examination, Mr Bell said that a project manager had usually worked up from “a task like a project engineer” and might have spent “time working in programming or contract administration”.

61    I generally accept the evidence of Mr Bell as set out above.

60    These findings were ultimately not challenged on appeal. However, they are expressed in very general terms and are not related to any particular period of time. They are of only marginal assistance in the resolution of the issue to be determined by this Court.

Another Evidentiary Issue

61    At the hearing before the primary judge, Chubb endeavoured to tender a bundle of documents in order to demonstrate that project management is a recognised discipline that should properly be characterised as professional. Chubb placed reliance upon s 144 of the Evidence Act 1995 (Cth).

62    Ultimately, her Honour accepted that particular proof is not required in order to establish knowledge that, in 2013 [our emphasis], the relevant institutions of higher learning offered courses of the kind described in the documents sought to be tendered by Chubb and that the Project Management Institute maintained requirements about the professional competency of its members and advertised through their website a certification program.

63    We consider this material to be of no assistance in resolving the issues raised in this appeal. The evidence was confined to 2013 and did not speak at all to the position in 2010 or 2011.

The Chubb Policy

64    The relevant policy issued by Chubb to RBG (Policy No 93301062) (the composite policy) was a ForeFront Portfolio Policy. It was issued on 27 July 2011 and covered the period from 4.00 pm on 25 July 2011 to 4.00 pm on 25 July 2012.

65    Under the standard form ForeFront Portfolio Policy in use in mid-2011, Chubb offered eight particular types of cover. Those eight types of cover were listed at Item 4 on p 3 of the Policy in the following manner:

66    The following types of coverage were sought by RBG and provided by Chubb under the composite policy, namely:

    Directors & Officers Liability

    Employment Practices Liability

    Internet Liability

    Statutory Liability

    Crime

67    The following covers were not taken out, namely:

    Miscellaneous Professional Liability

    Trustees Liability

    Kidnap, Ransom & Extortion

68    The primary judge referred to the Directors’ and Officers’ Liability Coverage Section within the composite policy as “the D&O Policy”. We shall adopt the same abbreviation in these Reasons.

69    The evidence before the primary judge established that companies in the Reed group of companies, including Reed itself, had taken out professional indemnity cover with Liberty International Underwriters. The period during which that cover was in place was from 25 July 2011 to 25 July 2012. Under the Liberty policy, cover was provided “in respect of a Claim arising from the performance of Professional Services”. No doubt the fact that the Reed group of companies had secured professional indemnity cover from Liberty was the reason that RBG did not also take out professional liability cover with Chubb under the relevant policy.

70    In the case before the Court, the composite policy comprised six coverage sections. The first such section was the General Terms and Conditions (GTC) section. The other five sections comprised the coverage sections which were actually taken out by RBG (as to which, see [66] above).

71    Clause I of the GTC section provided that, except for the general terms and conditions set out in that section or where stated to the contrary in any specific Coverage Section, the terms and conditions of each Coverage Section applied only to that Coverage Section. The General Definitions set out in the GTC section applied to all Coverage Sections in addition to any specific definitions that might apply in each Coverage Section. Clause I of the GTC section also provided that, if any provision in the GTC section were inconsistent or in conflict with the terms and conditions of any particular Coverage Section, the terms and conditions in such Coverage Section should control for the purposes of that Coverage Section.

72    Clause XXII of the GTC was in the following terms:

XXII.    POLICY CONSTRUCTION

In this policy:

(A)    the title and any headings or sub-headings are solely for convenience and form no part of the terms and conditions of coverage;

(B)    the Declarations to these General Terms and Conditions and the Schedule to each Coverage Section are part of and form an integral part of this policy;

(C)    references to a section refers to a section in the General Terms and Conditions or the relevant Coverage Section, and references to a Schedule refers to the Schedule to the relevant Coverage Section;

(D)    the singular includes the plural and the plural includes the singular, unless otherwise indicated;

(E)    a reference to this policy includes these General Terms and Conditions and each Coverage Section unless otherwise indicated; and

(F)    a reference to one gender includes the other gender.

73    Broadly speaking, cl I(A) of the D&O policy (the insuring clause in respect of Executive Liability Coverage) indemnified directors and officers of companies in the Reed group of companies for loss for which such persons were not indemnified by one of the companies in that group in respect of claims first made during the policy period for acts and omissions (actual or alleged) which occurred while those persons were acting in their capacity as directors and officers of a company in the Reed group of companies.

74    The D&O policy comprised the Insuring Clauses, Extensions to Coverage, Definitions, Exclusions, Severability – Imputation of Knowledge, Presumptive Indemnification, Priority of Payments and Co-ordination of Coverage. There were also four endorsements made to that coverage section. Those endorsements are not presently relevant.

75    The persons covered under the D&O policy were the “Executives” of RBG and any of the companies in the Reed group of companies. “Executive” was a defined term and meant:

any natural person who was, now is or shall be a company director, including for the avoidance of doubt, a de facto director or shadow director, officer or the holder of an equivalent position in any jurisdiction.

76    Officer, when used in the definition of Executive in both the GTC section and the D&O policy is not defined in the policy. However, in the Corporations Act 2001 (Cth), the term is defined in s 9 as:

officer of a corporation means:

(a)    a director or secretary of the corporation; or

(b)    a person:

(i)    who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or

(ii)    who has the capacity to affect significantly the corporation’s financial standing; or

(iii)    in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their business relationship with the directors or the corporation); or

(c)    a receiver, or receiver and manager, of the property of the corporation; or

(d)    an administrator of the corporation; or

(e)    an administrator of a deed of company arrangement executed by the corporation; or

(f)    a liquidator of the corporation; or

(g)    a trustee or other person administering a compromise or arrangement made between the corporation and someone else.

Note:    Section 201B contains rules about who is a director of a corporation.

77    It was not contended by Chubb in the proceeding below nor before this Court that Mr Robinson was not an officer of Reed for the purposes of the D&O policy. If the Corporations Act definition is the appropriate definition, presumably the view was taken that Mr Robinson fell within subpar (b) of that definition. Chubb accepted that Mr Robinson was an Insured Person and thus an Insured under the D&O policy.

78    As we have already mentioned, Chubb conceded that, if its construction of the professional services exclusion clause was incorrect, Mr Robinson would be covered under cl I(A) of the D&O policy. For this reason, it is not necessary to explain in detail by reference to the insuring clauses and definitions precisely how the policy would be engaged if Chubb is wrong in its construction of the professional services exclusion clause.

79    The exclusions from cover under the D&O policy are set out in cl IV of that section. The relevant exclusion is in the following terms:

IV.    EXCLUSIONS

(A)    Exclusions Applicable to All Insurance Clauses

The Company shall not be liable for Loss in respect of any Claim:

…

80    Clause VIII (Co-Ordination of Coverage) of the D&O policy recognised that there might be some overlap between the cover provided under the D&O policy and the cover provided under the Employment Practices Liability Coverage Section of the composite policy. The solution which Chubb adopted in order to deal with this potential difficulty was to require that indemnity in respect of overlapping losses first be provided under the Employment Practices Liability Coverage Section until the limit of that indemnity was exhausted and thereafter to provide the balance of indemnity under the D&O policy.

81    The possibility that there might be an overlap between the cover provided under the D&O policy and the cover provided under the Miscellaneous Professional Liability Coverage Section was addressed in a different manner. In effect, professional indemnity cover was excluded from the cover provided under the D&O policy and was left to be dealt with under the Miscellaneous Professional Liability Coverage Section in the composite policy or under an entirely separate policy of insurance.

82    Addressing overlapping coverage between a D&O policy and a professional indemnity policy by way of exclusion is common.

The Judgment of the Primary Judge

83    At 425–427 [65]–[72] of her judgment, the primary judge set out the principles to be applied by the Court when construing insurance contracts. In those paragraphs, her Honour said:

(a)    At 425–426 [65], the overarching principle relevant to the interpretation of commercial contracts, including insurance contracts, is that such contracts should be given a businesslike interpretation. Interpreting a commercial document requires attention to be given to the language used by the parties, the commercial circumstances which the document addresses and the objects which it is intended to secure (per Gleeson CJ in McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 (McCann) at 589 [22]);

(b)    At 426 [66]–[68]:

66    The correct approach to construing an exclusion clause, such as exclusion clause IV(A)(v), was outlined in Darlington Futures Limited v Delco Australia Pty Ltd (1986) 161 CLR 500, in which the High Court said (at 510-511):

[T]he interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate, construing the clause contra proferentem in case of ambiguity. … [T]he principle, in the form in which we have expressed it, does no more than express the general approach to the interpretation of contracts and it is of sufficient generality to accommodate the different considerations that may arise in the interpretation of a wide variety of exclusion and limitation clauses in formal commercial contracts between business people where no question of the reasonableness or fairness of the clause arises.

67    In keeping with this approach, in Selected Seeds Pty Ltd v QBEMM Pty Ltd (2010) 242 CLR 336 at 344 [29], the High Court stated:

According to the general rules of construction, whilst regard must be had to the language used in an exclusion clause, such a clause must be read in light of the contract of insurance as a whole, “thereby giving due weight to the context in which the clause appears”.

(Citation omitted)

Plainly enough, in applying these principles, one must “identify the risks covered by the policy and therefore the purpose of the policy”: see Major Engineering at 373 [45] (Bongiorno JA, Hansen JA and Kyrou AJA agreeing).

68    In the interpretation of an exclusion clause in an insurance contract, the contra proferentem rule operates only where the words in the clause are ambiguous. According to many authorities, the rule is one “of last resort”, in the sense that there remains ambiguity after the application of the other relevant principles of construction.

(c)    If an exclusion clause in an insurance policy is open to two interpretations, one of which would inappropriately circumscribe the cover provided by the insuring clause, and one which would not, the latter is to be preferred (citing Fitzpatrick v Job (2007) 14 ANZ Insurance Cases ¶61-731 (Fitzpatrick v Job)).

(d)    The onus of proof in relation to the applicability of an exclusion clause in any given circumstances rests upon the insurer.

84    At 427–434 [73]–[106], her Honour reviewed a number of authorities which she considered relevant to the interpretation of the critical terms in the professional services exclusion clause here, being: Services, professional (or profession), professional services and project management.

85    In the course of this discursus, her Honour held that:

(a)    The act by Mr Robinson in making the December statutory declaration was an act which was carried out “in the rendering of services” within the meaning of the professional services exclusion clause. Her Honour reasoned that the December statutory declaration was given by Mr Robinson, not only in order to procure payment of Progress Claim No 15 for the benefit of Reed, but was also provided in order to minimise the risk that St Kilda would be required to pay twice for the same labour and that the project would be adversely affected by Reed’s failure to pay its workers and subcontractors;

(b)    At most, the evidence showed that, in some circumstances, project management might be seen as a profession. However, it cannot be presently generally accepted that project management services fall within an established professional discipline. Rather, in the context of an insurance contract, whether or not project management falls within the term “profession” or “professional” depends upon the terms of the particular contract of insurance, its objects and commercial context;

(c)    The expression “professional services” in the relevant exclusion clause is not defined in the D&O policy. For this reason, the natural and ordinary meaning must be considered in light of the specific facts of the case, the language used in the policy and the particular purpose considered in its commercial context;

(d)    The authorities which are of most assistance in interpreting the expression are Chemetics International Ltd v Commercial Union Assurance Company of Canada (1984) 55 BCLR 60 (Chemetics) and Fitzpatrick v Job. In Chemetics, Esson JA held (at 63–64) that the expression “… in the rendering of professional services …” when deployed in an exclusion clause in a policy of insurance was intended to refer to “… the kind of services, such as design of the plant, which could normally be expected to be provided only by a professional engineer”. In determining whether or not the conduct in question in Chemetics fell within the particular exclusion clause in that case, as constituting an act in the rendering of professional services, the Court of Appeal of British Columbia also focussed on the nature of the specific conduct that was said to attract the exclusion clause; and

(e)    In Vero Insurance Ltd v Power Technologies Pty Ltd (2007) 14 ANZ Insurance Cases ¶61-745 (Vero) the NSW Court of Appeal approved and followed Chemetics and Fitzpatrick v Job.

86    At 434–437 [107]–[116], her Honour applied the reasoning in Chemetics, Fitzpatrick v Job and Vero as providing a principled framework for answering the separate question. At 435–437 [108]–[116], her Honour said:

108    When the policy was issued, Reed was, to the knowledge of Chubb, engaged in the business of building and construction. This business was carried on by the directors, officers and employees of Reed. When the insuring clause of the D&O Policy insured “Insured Persons” acting in their capacity as directors, officers or employees of Reed, the D&O Policy was necessarily referring to directors, officers or employees engaged in activities comprising or supporting the delivery of building and construction services by Reed. The D&O Policy was therefore intended to insure against the risks associated with the performance of those activities.

109    It is important to bear in mind that the court is concerned with an exclusion clause. Unless the exclusions in the D&O Policy, including exclusion IV(A)(v), are inappropriately to deprive the insured of the insurance sought, they must relate to a narrower band of activity than the work that generally comprises or supports the delivery of building and construction activities. Further, in considering the authorities, the court takes into account that the term “professional” in an insuring clause does not necessarily have the same meaning in an exclusion clause; and much depends on the nature of the liability assumed under the particular policy of insurance.

110    Furthermore, although the court must consider all the relevant circumstances in determining whether the provision of the statutory declaration by Mr Robinson to 470 St Kilda Road Pty Ltd was an act or omission in the rendering of professional services, the central focus is his actual conduct, or the act or omission of the individual that is said to give rise to liability. This is the approach taken in such cases as Toomey, Fitzpatrick, Vero Insurances and Chemetics, which involved exclusion clauses in similar, if not relevantly identical, terms.

111    With this in mind, I accept that, as Chubb argued, Reed had obligations under the D&C Contract that might be described as project management obligations. Further, I accept that project management was highly significant for the successful completion of the Leopold project, as reflected in the identification of the project manager as one of the key personal under the D&C Contract. Perhaps an act or omission of the project manager in project management might fall within exclusion clause IV(A)(v). That is not this case; and it is unnecessary to determine this question: see [89] above.

112    In this case, the provision of the statutory declaration pursuant to cl 38.1 was not an act or omission in the rendering of professional services within the meaning of exclusion clause IV(A)(v). Considered in the broader scope of the D&C Contract, the statutory declaration was the means by which Reed met its obligation to provide documentary evidence of the payment of moneys due and payable to subcontractors, its own workers and the workers of subcontractors. The statutory declaration given by Mr Robinson provided evidence and information as to these matters and as to relevant insurances. On the one hand, Reed, through Mr Robinson, supplied the statutory declaration in order that it might be paid. On the other, 470 St Kilda Road Pty Ltd was given some assurance that it would not be called upon to pay twice for the same labour; that the project would not be delayed on account of a non-payment on Reed’s part; and that insurances were in place. The provision of evidence of this kind tends to confirm that cl 38.2 was primarily a means of holding Reed accountable for the fact that these things had been done before it was paid. At most the provision of this evidence was some ancillary confirmation that the project was being appropriately managed; but this confirmation was not “project management” itself. This is consistent with Mr Bell’s oral evidence-in-chief: see [60] above. Mr Robinson’s act in providing a statutory declaration to 470 St Kilda Road Pty Ltd did not involve him in the rendering of project management services and, even if project management comprised professional services, his act was not of this kind.

113    In any event, whether or not this analysis is accepted, the insurer, Chubb, has not shown that the conduct of Mr Robinson in providing the statutory declaration amounts to an act in the rendering of professional services. Rather, it is established that his conduct was an act in the provision of information as a prerequisite to payment of Reed under cl 37 of the D&C contract. The requirement in cl 38.1 of the D&C contract was only for evidence or information if requested. There was no requirement that such evidence be the outcome of a professional assessment or prepared by a professional person. Rather, the statutory declaration provided information of a quintessentially factual kind derived from speaking with Reed’s responsible officers and from reviewing accounting records kept by Reed’s staff at the head office of the company. These accounting records were of a kind that would have been maintained by Reed in administering its own payroll and paying trade creditors. The compilation of these records was essentially a routine task necessary for the conduct of Reed’s own business. The act of providing this factual information was not an act in the rendering of professional services; instead it was an act that supported the delivery of building and construction services at the Leopold project by Reed.

114    Although each case must be considered by reference to its own facts, including the particular terms of the relevant insurance policy, I am fortified in this conclusion by the fact that, generally speaking, courts have regarded the mere provision of information as an administrative activity rather than a professional one, even in the context of insuring clauses: see, for example, FAI General (discussed above) and Penrith at [9] per Mason P and at [19] per Powell JA.

115    Naturally, as Chubb submitted, in construing an exclusion clause, it must also be borne in mind that such a clause will, of its nature, circumscribe the cover to some extent. Whether or not a particular construction can be said to circumscribe the cover under an insurance policy unduly or inappropriately will depend on the ordinary meaning of the exclusion clause, read in the light of the whole policy, including its nature and purpose. The construction that Chubb would place upon “professional services” in the exclusion clause in this case would have the practical effect of making the exclusion apply whenever officers or employees undertake a great many acts in aid or support of Reed’s business activities, including services in connection with the routine administration of a building contract such as the D&C contract. As a result, on Chubb’s construction, a great many activities undertaken by employees, officers and directors would necessarily be excluded from cover. Given the nature and purpose of the D&O Policy, such an interpretation would have the effect of circumscribing inappropriately the cover provided by the policy. The obvious purpose of the professional services exclusion in exclusion clause IV(A)(v) is to exclude activities that are truly professional in nature, such as architectural design, engineering, surveying and quantity surveying. The clause was not intended to apply to the routine activities of Reed or its officers or employees, including in the provision of information in support of its payment claims under the D&C contract.

116    I do not consider that the construction of exclusion cl IV(A)(v) admits of ambiguity. Instead, for the reasons stated, the exclusion clause does not apply to the statutory declaration. If, however, I am wrong about this, then I would regard the expression “in the rendering of profession services” as exhibiting ambiguity of the second kind identified by Isaacs J in Phillips in the passage set out at [70] above. This would be sufficient ambiguity to attract the contra proferentum principle, with the result that the insurer’s construction would fail on this basis too.

Leave to Appeal

87    In Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238 at 248–251 [25]–[37], the Full Court explained the principles to be applied when leave to appeal is sought from an interlocutory decision of a single judge of this Court to the Full Court.

88    At 248 [26], the Full Court said:

In this Court, it is well established that the relevant test (or “litmus test”) for whether leave to appeal from an interlocutory judgment will be granted, comprises the following two integers:

(1)    Whether, in all the circumstances of the case, the decision is attended by sufficient doubt to warrant its being reconsidered by the Full Court; and

(2)    Whether substantial injustice would result if leave were refused supposing the decision to be wrong.

(Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 [Decor] at 398–400).

89    At 248 [29], the Court said that the Decor test was appropriate for the general run of cases but should not be applied as if it were some hard and fast rule. Each case must be considered on its merits. In particular, as the High Court held in Ex parte Bucknell (1936) 56 CLR 221 at 225, if, while interlocutory in legal effect, the order in question has the practical operation of finally determining the rights of the parties, a prima facie case exists for granting leave to appeal. The High Court went on to observe, by way of example, that, although a judgment on a demurrer might be interlocutory in form, it might nonetheless be decisive of the whole litigation. In such a case, leave would be granted almost as of course.

90    In the present case, the primary judge made an order pursuant to r 15.13(a) of the Federal Court Rules 2011 (FCR). That rule provides that a party to a Cross-Claim may apply to the Court for an order that any claim, question or issue arising in the Cross-Claim be tried in accordance with an order of the Court. Reliance may also have been placed upon r 30.01 and r 30.02 FCR. The order which her Honour made is plainly interlocutory. The order which her Honour made answering the separate question isolated in this fashion is also probably interlocutory. For this reason, leave to appeal was probably required to appeal from the order made by the primary judge on 20 December 2013.

91    However, the primary judge went further than merely answering the separate question. As we have already noted, on 24 January 2014, her Honour made final orders disposing of Mr Robinson’s Cross-Claim against Chubb.

92    The substance of the matter is this: Chubb almost certainly had a right to appeal from the final orders which her Honour made on 24 January 2014. The appeal was conducted upon the basis that those orders were under challenge. In any event, for the reasons already explained, the answer to the separate question (whether in the affirmative or the negative) would always have effectively determined the entire Cross-Claim as between Mr Robinson and Chubb. This is the type of case which the High Court had in mind when it observed in Ex parte Bucknell that, if the interlocutory order has the practical effect of finally determining the issues between the parties, leave to appeal would be granted as of course.

93    The Court granted leave to appeal at the commencement of the hearing for the reasons which we have now explained.

The Grounds of Appeal

94    By ground 3 of its grounds of appeal, Chubb contended that the learned primary judge erred by focussing on the specific conduct of Mr Robinson when considering the interpretation of the professional services exclusion clause rather than on the overall activity of Reed in the context in which Mr Robinson’s conduct occurred.

95    By ground 2, Chubb contended that her Honour erred by failing to conclude that the provision of project management services by Reed under the D&C Contract was the provision of “professional services” within the professional services exclusion clause in the D&O policy.

96    It is implicit in ground 2 that:

(a)    The acts or omissions on the part of Mr Robinson which are the subject of the claim by St Kilda against him and thus the subject of his claim against Chubb under the D&O policy took place in the course of the rendering of professional services (viz project management services) by Reed to St Kilda, St Kilda being the relevant “third party” within the professional services exclusion in that policy; and

(b)    Those services were rendered to St Kilda under the D&C Contract.

97    Grounds 1 and 4 to 8 are subsidiary to grounds 2 and 3. They constitute specific challenges to a number of steps in her Honour’s reasoning. Those grounds are more appropriately viewed as arguments rather than as grounds of appeal. Those grounds are in the following terms:

1.    The primary judge erred in concluding that project management was not an established and well recognised profession.

…

4.    The judge erred in concluding that the compilation of the accounting records relied upon in making the Statutory Declaration was essentially a routine task necessary for the conduct of Reed’s own business.

5.    The judge erred in characterising the making of the Statutory Declaration as the mere provision of factual information.

6.    The judge erred in concluding that the construction of the Exclusion advanced by Chubb would inappropriately circumscribe the cover provided by the D&O Policy.

7.    The judge erred in concluding that the making of the Statutory Declaration was not in the rendering of professional services within the meaning of the Exclusion.

8.    The judge erred in concluding that application of the contra proferentem principle would result in the Exclusion’s being inapplicable.

Consideration and Decision

Construction of Insurance Contracts and Exclusion Clauses (General Principles)

98    In McCann at 589 [22], Gleeson CJ said:

A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure.

99    In the same case, at 600–603 [74], Kirby J reiterated some of the principles which govern the resolution of ambiguities in phrases in commercial contracts, including insurance policies. Of present relevance are the following propositions extracted from [74] in his Honour’s judgment:

(a)    As a species of commercial contract, an insurance policy must be interpreted to give to the words used their ordinary and fair meaning (Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 (Federico) at 520–521 and at 525);

(b)    The meaning to be given to an insurance policy must take into account the commercial and social purposes for which it was written (Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 at 394 and at 405). The Court is not entitled to make a new contract for the parties which is at odds with the contract upon which they have actually agreed (Johnson v American Home Assurance Co (1998) 192 CLR 266 (Johnson v AHA) at 272 [19]). Maxims and rules of construction, developed as tools to aid the task of interpretation, are subordinate to the primary duty which is to uphold the contract between the parties as properly construed;

(c)    Notwithstanding the primary duty of courts to give meaning to the words in an insurance policy, it has been recognised that, in cases of ambiguity, a “liberal approach” will generally be adopted in the construction of insurance contracts (Johnson v AHA at 274 [19] and Federico at 520); and

(d)    In relation to principle 4 articulated by Kirby J, his Honour said:

Courts now generally regard the contra proferentem rule (as it is called) as one of last resort because it is widely accepted that it is preferable that judges should struggle with the words actually used as applied to the unique circumstances of the case and reach their own conclusions by reference to the logic of the matter, rather than by using mechanical formulae. Nevertheless, dictionaries, facts and logic alone will sometimes not provide an answer to the contest before the court. In those cases:

“it is not unreasonable for an insured to contend that, if the insurer proffers a document which is ambiguous, it and not the insured should bear the consequences of the ambiguity because the insurer is usually in the superior position to add a word or a clause clarifying the promise of insurance which it is offering”.

100    The passage from the judgment of Gleeson CJ in McCann to which we have referred at [98] above was specifically approved by the High Court in CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 (Porthouse) at 116 [43]. Also, in the same case (at 116 [43]), the High Court cited with apparent approval 600–603 [74] in the judgment of Kirby J in McCann.

101    Very recently, the Full Court addressed the fundamental characteristics of a policy of insurance and explained the distinction between such a contract and contracts of guarantee and indemnity in Todd v Alterra at Lloyds Ltd (on behalf of the underwriting members of Syndicate 1400) [2016] FCAFC 15 (Todd). At [35]–[44], Allsop CJ and Gleeson J said:

35    The nature or character of a contract of insurance is “elusive” to define: Parkington M et al, MacGillivray and Parkington on Insurance Law (8th ed, Sweet & Maxwell, 1988) [1] at 1. The working definition given over 100 years ago by Channell J in Prudential Insurance Company v Commissioners of Inland Revenue [1904] 2 KB 658 at 663-664 remains the foundation of analysis: for a monetary consideration (the premium) the person (the underwriter) agrees to pay to the other (the insured) a sum of money or some benefit upon the occurrence of one or more specified events. Other relationships could well fit such a simple mould. One needs, however, before identifying or characterising the contract as one of insurance, to elaborate upon each element – premium, promise to pay, sum of money or other benefit, upon a specified event – not by way of further definition, but by reference to the purpose and character of the arrangement to share the risk of, or spread the loss from, unhoped-for, but possible, contingencies that may or may not happen (in life insurance, as to timing of an ultimately certain contingency).

36    The categorisation or characterisation of contracts of guarantee, of indemnity and of insurance, requires, above all, an understanding of their purpose and nature. All, at one level, contain an element of indemnity; all can be said at one level of abstraction to be contracts of indemnity (subject to the qualification expressed earlier as to different types of insurance). But each has a relevant difference from the other; and contracts of guarantee and indemnity, for the operation of the principle in Ankar, are to be categorised and characterised as quite different from contracts of insurance.

37    Each of a guarantee and an indemnity has the object or purpose of making good the financial position of a creditor of someone other than the guarantor or indemnifier. The two categories do this by different means: the guarantor as surety assumes a secondary obligation to the primary obligation of the principal debtor. In a contract of indemnity the indemnifier is primarily liable to the creditor, not collaterally. This difference in character, ascertained by construction, is important in the identification of the parties’ mutual rights and obligations. But both are a species of financial accommodation to support the credit risk of the principal debtor and to hold the creditor harmless.

38    A contract of insurance has the object or purpose of sharing the risk of, or spreading loss from, a contingency. Relevant to its character as insurance will be how the contract came to be effected, its nature and purpose and how it is to be performed: see generally Seaton v Heath; Seaton v Burnand [1899] 1 QB 782 at 792-793 (Romer LJ).

39    The protection of the guarantor or indemnifier by the principle of construction referred to in Ankar had its origin in the nature and common circumstances of the formation of contracts of guarantee: Tricontinental at 693-694. The importance of how the contract of guarantee commonly comes about can be seen in the judgment of Bayley B in Nicholson v Paget (1832) 1 C & M 48 at 52; 149 ER 309 at 311, cited in Andar 217 CLR at 433 [18].

40    Ultimately, of course, such tasks of categorisation or characterisation depend on the context, in particular, the purpose of the enquiry. From the nature, character and purpose of insurance there is no reason, and no precedent, for according an insurer the tenderness accorded to guarantors and indemnifiers as reflected in the general principle recently restated in Bofinger 239 CLR at 292 [53].

41    With respect, the proposition in Miskovic [Miskovic v Stryke Corporation t/as KSS Security (No 2) (2011) 16 ANZ Ins Cas ¶61-873] [that, in case of any doubt as to the proper construction of an insuring clause in a policy of indemnity insurance, the doubt should be resolved in favour of the insurer] is wrong.

42    The principles, otherwise, to apply in relation to the interpretation and construction of insurance policies as commercial contracts were not in dispute. Such principles can be found in authorities dealing with the construction of commercial contracts, to some of which reference was made in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at 618-619 [19]-[23]; and also in authorities dealing specifically with contracts of insurance: McCann v Switzerland Insurance Australia Limited [2000] HCA 65; 203 CLR 579 at 589 [22] (Gleeson CJ), 600-603 [73]-[74] (Kirby J); Wilkie v Gordian Runoff Limited [2005] HCA 17; 221 CLR 522 at 528-529 [15] and [16] (Gleeson CJ, McHugh, Gummow and Kirby JJ); Australian Casualty Co Limited v Federico [1986] HCA 32; 160 CLR 513 at 520-521 (Gibbs CJ), and see also the valuable discussion of principle by Kirby J (though in dissent) in Johnson v American Home Assurance Company [1998] HCA 14; 192 CLR 266 at 272-276 [19]. The principles need not be restated here beyond some essential considerations, which for present purposes can be taken to be that the policy is to be given a businesslike interpretation, paying attention to the language used by the parties in its ordinary meaning, and to the commercial, and where relevant, the social purpose and object of the contract, in the context of the surrounding circumstances, including the market or commercial context in which the parties are operating, by assessing how a reasonable person in the position of the parties would have understood the language. Preference is to be given to a construction supplying a congruent operation to the various components of the whole.

43    The importance of the commercial purpose in the interpretation and construction of a policy can be seen in the cases referred to by McHugh JA (as his Honour then was) in Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 at 405.

44    To refer to “social” purpose (where relevant) is not to detach the process of interpretation and construction from the objective enquiry as to the meaning of a document regulating the private rights of the parties. It is to identify the reality that in some circumstances a policy of insurance as a commercial document will find its place in some aspect of the organisation of society through the rights and obligations thereby created by it. That place or purpose will have its weight in the description of meaning to the words in question.

102    Of particular significance for the present case are the observations made by their Honours at [42]–[44] where their Honours restated succinctly the principles governing the construction of contracts of insurance.

103    Justice Beach delivered a separate judgment in Todd. At [71]–[77], his Honour stated several construction principles in respect of policies of insurance as follows:

(a)    The policy must be read and construed as a whole (at [71]);

(b)    Textual analysis is to be given primacy and words and their use must be construed in context and not in a vacuum. Uncertainty and ambiguity in the words used may only be ascertainable once context is first appreciated (at [72]); and

(c)    In construing the policy, the commercial purpose or object to be secured by the policy must be considered (at [76]).

104    We agree with his Honour’s remarks.

105    At 425–426 [65] of her judgment, the primary judge specifically adverted to the extract from the judgment of Gleeson CJ in McCann to which we have referred at [98] above and to the High Court’s subsequent approval of that extract in Porthouse and expressly stated that she would bear in mind his Honour’s statement of principle as constituting a succinct exposition of the fundamental principle governing the construction of insurance contracts generally. Her Honour did not have the benefit of the Full Court’s judgment in Todd when she wrote her judgment.

106    Chubb did not cavil with her Honour’s approach to construction generally.

107    At 426–427 [66]–[72] of her judgment, the primary judge then addressed the principles which govern the construction of exclusion clauses in insurance policies.

108    At 426 [66], her Honour cited a passage from Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 (Delco) at 510–511 (as to which see [83] above).

109    The passage in Delco which her Honour cited at 426 [66] of her judgment followed the High Court’s analysis of a number of English decisions dealing with exclusion clauses.

110    At 426 [67]–[68] of her judgment, which we have extracted in full at [83] above, the primary judge noted the High Court’s observation in Selected Seeds Pty Ltd v QBEMM Pty Ltd (2010) 242 CLR 336 (Selected Seeds) at 344 [29] to the effect that an exclusion clause in a policy of insurance must be read in light of the contract of insurance as a whole thereby giving due weight to the context in which the clause appears.

111    Again, Chubb did not challenge her Honour’s explanation of the principles which generally govern the construction of exclusion clauses in policies of insurance.

112    In the present case, Chubb submitted that the primary judge erred by applying the contra proferentem rule to the professional services exclusion clause in the present case even though no ambiguity in the wording of that exclusion had been demonstrated by Mr Robinson. It was said that her Honour used that rule as a first point of reference rather than as a last resort. Mr Robinson, on the other hand, submitted that there was an ambiguity in the interpretation of the relevant terms. Chubb’s complaint, therefore, concerned her Honour’s application of the relevant principle rather than her exposition of it.

113    At 427 [71] of her judgment, the primary judge held that, if, as a consequence of reading an exclusion clause in the context of the relevant insurance policy as a whole and in light of the object of the policy, the clause is open to two constructions, one of which would inappropriately circumscribe the cover provided by the insuring clause and one of which would not, the latter is to be preferred. In support of this proposition, her Honour relied upon Fitzpatrick v Job at 76,076–76,077 [268]–[270]; Vero at 76,366–76,367 [147]–[148] and Major Engineering Pty Ltd v CGU Insurance Ltd (2011) 282 ALR 363 at 375–376 [58].

114    Finally, her Honour held that the onus of proving that the claimed exclusion clause has application in any particular case rests on the insurer.

115    As we have already noted, Chubb submitted that her Honour applied the contra proferentem rule in circumstances where it was not appropriate to do so. Chubb also contended that her Honour gave too much weight to the inappropriate circumscription principle in the circumstances of the present case. It was also submitted on behalf of Chubb that the primary judge took an unduly narrow view of the meaning of the professional services exclusion clause in the present case in comparison with the more liberal approach adopted when courts construe similar wording in insuring clauses in professional indemnity insurance policies. In this regard, Chubb cited by way of example Suncorp Metway Insurance Ltd v Landridge Pty Ltd (2005) 12 VR 290 (Landridge) at 294 [16] and at 296 [26]. At 294 [16] in Landridge, Buchanan JA said:

… The question whether a breach of duty answers the description of a breach of a professional duty depends upon characterisation of the overall activity in the context of which the breach occurs, and is not answered by concentrating on the specific task which has not been performed or badly performed so as to give rise to liability…

116    Thus, Chubb’s attack on the primary judge’s judgment was directed to her Honour’s application of the relevant principles and not to her articulation of those principles which Chubb accepted was substantially correct.

The True Construction of the Professional Services Exclusion Clause

117    Clause I(A) of the D&O policy (the insuring clause in respect of executive liability) provides broad cover for executives of RBG and its subsidiaries for wrongful acts or omissions committed by such persons while acting in the capacity of an executive of RBG or one or more of its subsidiaries.

118    That broad cover is, of course, limited by a number of express exclusions (including the professional services exclusion with which we are presently concerned).

119    In 2010 and 2011, RBG and, in particular, Reed, were construction companies involved in large construction projects as the principal contractor. The sums to be paid to RBG and Reed in respect of those projects were substantial and the risk that their executives might incur substantial liabilities to other persons and entities in the course of carrying out their duties for the Reed group of companies was very real. The D&O policy was intended to protect those executives from the consequences of incurring such liabilities.

120    The D&C Contract pre-dated the D&O policy. It should be inferred that, when they procured the D&O policy, RBG and Reed had in mind the potential for their executives to incur liabilities to others as a result of carrying out their duties as executives of those companies in respect of the Leopold Project and generally.

121    Chubb submitted that a professional services exclusion clause in a D&O policy should be construed by paying regard to the commonly understood scope of cover usually provided under professional indemnity policies in the insurance marketplace. There was no basis, so Chubb submitted, for construing an exclusion clause of this type more narrowly than an insuring clause providing such cover. Chubb went on to submit that the primary judge erred in the present case by construing the professional services exclusion clause too narrowly. Chubb then sought to illustrate the point by referring to the insuring clause in the professional indemnity policy which RBG and Reed had taken out with Liberty International Underwriters.

122    The terms of the Liberty policy are of no assistance or relevance to the interpretation of the professional services exclusion clause in the D&O policy. The primary judge took the same view. Had RBG taken out professional indemnity cover with Chubb, the terms of that particular cover may have been of some assistance in the construction of the professional services exclusion clause in the D&O policy. However, no such cover was taken out by RBG or by Reed.

123    Whether the primary judge interpreted the professional services exclusion clause too narrowly is a matter which must be considered as part of the present construction task.

124    We do not agree that, in every case, the scope of an exclusion in respect of professional services in a D&O policy must correspond with the scope of cover provided by the commonly used insuring clause in policies which provide professional indemnity cover. That is far too general a statement and ignores the importance of the principles explained by the High Court in Delco and in Selected Seeds.

125    Here, the loss which an Insured under the D&O policy might become legally obliged to pay which is excluded by the professional services exclusion clause in the D&O policy is loss in respect of any claim for an act or omission on the part of an executive of RBG or of one or more of its subsidiaries done (in the case of an act) or not done (in the case of an omission) “… in the rendering of, or actual or alleged failure to render, any professional services to a third party.” Both parties agreed that the critical words for present purposes are those which we have highlighted in italics. Here, of course, we are not concerned with an actual or alleged failure to render professional services to a third party. Rather, Chubb relies upon the positive acts of Mr Robinson as constituting the requisite “rendering” of professional services to a third party within the meaning of the clause.

126    In order for the exclusion to be engaged, the relevant act or omission must be done or not done (as the case may be):

(a)    in;

(b)    the rendering of;

(c)    a professional service or professional services;

(d)    to a third party.

Under cl XXII(D) of the GTC in the D&O policy, the singular includes the plural and the plural includes the singular, unless otherwise indicated. Thus, the expression “professional services” in the professional services exclusion clause includes a professional service (singular).

127    Chubb submitted that the word “in” should be interpreted as “in the course of”. Read in this way, the exclusion would apply not only to loss in respect of a claim for an act or omission that constituted or comprised the actual rendering of a professional service or professional services to a third party but also an act or omission which was merely a step which formed part of the rendering of such a service or such services.

128    This submission is correct and we accept it.

129    The word “in” operates as the linguistic expression of the necessary connection between the relevant act or omission and the rendering of a professional service or professional services to a third party.

130    “Third party” when used in the professional services exclusion clause is not defined in the GTC or in the D&O policy. We think that that expression, when used in the professional services exclusion clause, means a person or entity which is not a party to the D&O policy and which is not insured under that policy. The persons and entities insured under that policy were RBG itself (as the “Principal Organisation”), RBG’s subsidiaries and executives employed by RBG and/or one or more of its subsidiaries. It follows that, if professional services are rendered to RBG or one of its subsidiaries (such as Reed), those services would not be rendered to a “third party” within the meaning of that expression in the exclusion clause. The services must be rendered by [our emphasis] a person or entity which is insured under the D&O policy to a person or entity which is outside the Reed group of companies.

131    The critical interpretation question in the present case is: What is the meaning to be attributed to the expression “professional services” in the professional services exclusion clause?

132    On this point, Chubb submitted that:

(a)    Professional services can be defined satisfactorily as “services of a skilful character according to an established discipline” (see the definition attributed to the expression by Kirby P in GIO General Ltd (t/a GIO Australia) v Newcastle City Council (1996) 38 NSWLR 558 at 568). If an occupation falls within the ordinary meaning of the word “profession”, then that is the end of the enquiry unless something in the context of the relevant contract suggests a narrower meaning should be attributed to the expression. Whether an occupation is a profession is a question of fact;

(b)    Therefore, the correct starting point here is whether the ordinary reasonable person would now say, in the time in which we live, that a particular occupation is properly described as a profession (see Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 166; and Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7); and

(c)    Project management satisfies that description now and also satisfied that description in 2010 and 2011.

133    Chubb went on to submit that Chemetics involved a vigorous application of the contra proferentem rule against the insurer in that case from the outset. Chubb also submitted that the Court of Appeal of British Columbia approached the application of that rule in a way which did not conform with the law in Australia which is to the effect that that rule is one of last resort. Chubb submitted that Chemetics was an unsound foundation for the line of authority which has been built upon it.

134    In Chemetics, the relevant exclusion applied to “errors or omissions in the rendering of professional services”. In Chemetics, the plaintiff engineered and supplied the equipment and materials for the erection of a pulp bleach plant in the state of Virginia, USA. After that plant had been constructed, it was damaged and the purchaser of the plant successfully sued the plaintiff for damages in the State of Virginia, alleging that the plaintiff had failed to give adequate operating instructions either orally to the purchaser’s personnel or in writing in the operating manual which was supplied by the plaintiff to the purchaser. In particular, the plaintiff had failed to give any warning that overfilling a tower in the plant could cause damage to or a rupture of the plant’s conical roof. The plaintiff claimed indemnity from its insurer which was the defendant in the action in the Supreme Court of British Columbia. The defendant denied liability on the basis of an exclusion clause in the relevant policy.

135    Justice of Appeal Esson gave the judgment of the Court.

136    At 62, Esson JA said:

The Chief Justice decided the case on the assumption that liability was imposed on that basis [ie the failure to give adequate operating instructions] and I will assume that he was right in doing so. The gist of his decision on this aspect of the case was that the function of giving a warning of the particular risk would not necessarily be a professional service and that the exclusion therefore does not apply. His view was that, even if one accepts that the giving of instructions involved the rendering of professional services, the particular instruction which would have avoided the risk would not have been a professional service. While I do not disagree with his conclusion on that question, I prefer to rest my decision on a somewhat broader ground. That is that, while Chemetics was obliged in fulfilment of its contractual duty to [the purchaser] to provide operating instructions, both orally and in the manual, the provision of those instructions was not the rendering of professional services as those words are used in the exclusion.

137    His Honour placed significance on the fact that the words under consideration appeared in an exclusion clause and not in the insuring clause. He then noted that, in such a case, there was a general rule that language should be construed in a manner favourable to the insured. We pause to note that this last remark does not reflect the law in Australia.

138    Justice of Appeal Esson then observed that the contract which had been the subject of litigation in Virginia was one which the parties to the relevant policy specifically intended would be covered by the policy. Cover for liability arising out of Chemetic’s performance of the relevant contract was specifically covered under the policy by means of an endorsement issued by the insurer. That contract was one which was known to both the insured and the insurer to include the provision of some matters, such as engineering and design, which would fall within the description of “professional services” and some which would not.

139    At 63–64, his Honour said:

In my view, the insurer has not shown that the training of operators called for by cl. 1.3 was the provision of professional services. In the words of the contract, it was the provision of services of a competent supervisory operating engineer. That requirement could have been satisfied by providing a person experienced in the operation of plants and knowledgeable as to the operating characteristics of this particular plant. That person would more appropriately be described as a technician. No doubt he would have to be a professional as distinguished from an amateur. But that is not the meaning of “professional” as used in the exclusion. In that context, it is intended to refer to the kind of services, such as design of the plant, which could normally be expected to be provided only by a professional engineer.

140    His Honour then said that the reasons which he gave at 63–64 were sufficient to dispose of the appeal.

141    Chemetics stands as authority for the proposition that the fulfilment of a contractual obligation by one party to a contract to its counter-party where performance of that obligation involves the use of technical skills on the part of the party performing the relevant obligation, does not necessarily constitute the rendering of professional services to the counter-party or to anyone else.

142    In Fitzpatrick v Job, Buss JA held (at 76,076 [264]) that the term “professional” in the insuring clause of a professional indemnity policy does not necessarily bear an identical meaning in an exclusion clause of a public liability or products liability policy. The same may be said of an exclusion clause in a D&O policy. His Honour went on to observe that the context in which the term “professional” is used in an insurance policy may be significant in determining its meaning.

143    We agree with Buss JA.

144    At 76,076 [267] and 76,076–76,077 [268], his Honour said:

267    At all material times, the core activities of Jobs Engineering’s business comprised the design, manufacture and supply of machinery and equipment, including the machine in question with and without a cabin.

268    By the indemnity clause in the products liability cover, GIO agreed to indemnify Jobs Engineering, relevantly, in respect of sums which Jobs Engineering “shall become legally liable to pay for compensation in respect of bodily injury or damage to property as a result of an occurrence” and caused by “the nature, condition or quality” of any goods or products sold or supplied by it. If the nature, condition or quality of any machinery or equipment designed, manufactured and supplied by Jobs Engineering were to cause personal injury or property damage to any person, and the relevant nature, condition or quality was attributable to the negligent act or omission of Jobs Engineering, there is a significant likelihood that the person suffering the injury or damage would have a cause of action against Jobs Engineering. If any and all negligent acts and omissions of Jobs Engineering, of the kind I have just mentioned, were to be characterised as breaches of duty owed by it in a professional capacity, within exclusion 10(a), the cover under the indemnity clause of the products liability insurance would be severely circumscribed. The indemnity clause would not respond unless Jobs Engineering’s legal liability to pay was not attributable to its negligence or other breach of duty owed by it in a professional capacity, but arose on some other legal basis. The parties cannot have intended such an uncommercial and unreasonable result, and it is not a construction which the language of the policy unequivocally requires.

145    His Honour ultimately held that the relevant professional liability exclusion in the case before the Court was limited to claims arising out of breaches of duty owed by the insured to persons who had retained it to perform work or services in the ordinary course of its business. At 76,077 [270], his Honour said:

I consider that exclusion 10(a) is limited, in the context of the products liability cover, to claims arising out of breaches of duty owed by Jobs Engineering to persons who have retained it to perform work or services in the course of its business. The exclusion does not extend to breaches of duty owed to third parties who may suffer foreseeable loss or damage as a result of negligent acts or omissions by Jobs Engineering in designing, manufacturing or supplying machinery and equipment, including the negligent failure to give advice of the kind which it should have given to V & D Ridolfo. My construction of exclusion 10(a) is consistent with the evident object of the products liability cover, namely, to provide indemnity, of real and not negligible value, in respect of claims for personal injury and property damage caused by defective goods and property designed and manufactured by Jobs Engineering, and put into circulation within Australia.

146    In Vero, at 76,335–76,337 [138]–[150], Beazley JA (with whom Campbell JA and Harrison J agreed) considered the interpretation of an exclusion clause in a public liability policy which excluded liability for a breach of duty by the insured owed in a professional capacity.

147    At 76,336–76,337 [148]–[150], her Honour said:

148    In my opinion, the approach taken by Buss JA in Fitzpatrick should be applied here. The exclusion clause considered here is sufficiently identical to that in Fitzpatrick and the type of policy involved was relevantly similar, in the sense that it was to provide specific cover to the respondent for claims for sums which it became legally liable to pay for bodily injury. The construction given to the exclusion clause by the Western Australian Court of Appeal enables the policy to provide the indemnity which the parties undoubtedly intended the policy to have. To adopt a different construction would have significantly undermined the commercial purpose of the policy. Insurance policies are rarely confined in their terms by state boundaries and it is important that the clauses which are relevantly the same should be given the same construction. Finally, this Court should apply the decisions of a court of equal status unless the Court considers that the decision is wrong and should not be followed: see Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492; [1993] HCA 15; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 81 ALJR 1107; [2007] HCA 22 at [135].

149    The policy was a public liability policy. It excluded claims arising out of a breach of duty owed in a professional capacity by the respondent. The respondent did not owe a professional duty to Mr Barlow. Rather, it owed him a duty of care as a third party in respect of whom it was reasonably foreseeable might suffer damage as a result of its negligence in designing and supplying plant and equipment to Delta and its predecessors and in the manner in which it carried out maintenance on that plant and equipment.

150    Accordingly, I am of the opinion that the exclusion does not operate in this case so as to disentitle the respondent to indemnity under the policy.

148    In the present case, at 427 [71] and at 431–434 [90]–[106], the primary judge explained why she considered some authorities relied upon by Chubb as being of little or no assistance to the resolution of the question of construction with which we are confronted. The cases which her Honour found to be most helpful were Chemetics, Fitzgerald v Job and Vero and, to a lesser extent, FAI General Insurance Co Ltd v Gold Coast City Council [1995] 2 Qd R 341. In that case, the Queensland Court of Appeal held, at 344, that, while the meaning of “professional” varied according to the context in which it was used, generally the word “professional” connoted “pertaining or appropriate to a profession” and “engaged in one of the learned professions”.

149    As submitted by Mr Robinson, the professional services exclusion in the present case must relate to a narrower band of activity than the work that generally comprises or supports the delivery of building and construction activities by the Reed group of companies. If this were not so, the cover provided by the D&O policy would be inappropriately circumscribed. This is what the primary judge held at 435 [109].

150    It seems to us that the expression “professional services” in the relevant exclusion clause in the present case means services of a professional nature furnished by RBG or one of its subsidiaries involving the application of skill and judgment by the person or persons who carried out the relevant activities on behalf of RBG or one of its subsidiaries being services which fall within the scope of a vocational discipline which is generally regarded as a profession.

151    Thus, in our view, the professional services exclusion in the D&O policy in the present case operates to exclude from the cover provided under that policy, cover in respect of liability incurred by an insured under the policy (viz the relevant companies and/or their executives) for loss suffered by others as a result of acts or omissions on the part of such executives which acts took place in the course of the rendering of services (which services have the requisite professional character as explained at [150] above) by one or more of the companies in the Reed group of companies or their executives to a third party.

152    This interpretation is consistent with her Honour’s interpretation of the clause. At 436–437 [115], her Honour held that the obvious purpose of the exclusion was to exclude activities that are truly professional in nature, such as architectural design, engineering, surveying and quantity surveying. The clause was not intended to apply to the routine activities of Reed or of its executives. The provision of progress claims under the D&C Contract were routine activities and did not constitute the rendering of a professional service to St Kilda or to anyone else.

Does the Exclusion Apply in the Present Case?

153    Chubb submitted that, in 2010 and 2011, the discipline of “project management” was a profession. It relied upon the evidence of Mr Bell and the institution documents to which we have referred at [61]–[63] above.

154    The primary judge summarised Mr Bell’s evidence at 424 [60] of her judgment. We have extracted that paragraph at [59] above.

155    At 428–429 [79]–[80] in her judgment, her Honour said:

79    At most, considered in its entirety, the evidence showed that, in some circumstances, project management might be seen as a profession. So far as an insurance contract is concerned, however, whether or not project management falls within the meaning of “profession” or involves “professional services” would depend on the commercial context in which the policy is made, its objects and its terms.

80    Also, as already noted, Chubb relied on a number of authorities, which, so it said, recognised project management as a profession. None of these authorities in fact went so far.

156    Her Honour then explained (at 429–430 [81]–[89]) her reasons for the conclusion which she expressed at 429 [80].

157    On appeal, Chubb attacked these findings. But the attack fell short. First, as we have observed at [62]–[63] above, the institution documents proved nothing about the position in 2010 or 2011. Second, having considered Chubb’s submissions and reviewed Mr Bell’s evidence, we agree with the primary judge that Mr Bell’s evidence did not establish that project management was generally regarded as a profession in 2010 or in 2011.

158    We think that her Honour was correct when she held that project management was not generally regarded as a profession in 2010 or in 2011.

159    Chubb next submitted that, under the D&C Contract, Reed provided services to St Kilda including project management services. It then submitted that, by submitting Progress Claim No 15 and the accompanying statutory declaration, Reed did an act which was undertaken in the rendering of services to St Kilda. Her Honour accepted these latter propositions at 427–428 [73]–[75] of her judgment. Her Honour’s acceptance of these propositions is challenged by Mr Robinson in his Notice of Contention.

160    Chubb then focussed its submissions upon the payments process set out in the D&C Contract in order to support the proposition that the making of statutory declarations in support of progress claims from time to time (including the statutory declaration made by Mr Robinson on 12 December 2011) was a step in the rendering of project management services by Reed to St Kilda and thus a step in the rendering of professional services by Reed to St Kilda.

161    This analysis is flawed for a number of reasons.

162    First, as we have already held, Chubb did not establish that project management was a profession in 2010 or in 2011. For that reason, it also failed to establish that the provision of project management services constituted the rendering of professional services within the relevant exclusion in the D&O policy.

163    Second, we do not consider that the making of the statutory declaration by Mr Robinson and his authorising it to be submitted to St Kilda constituted the rendering of any service to St Kilda either by Reed or by Mr Robinson. Rather, those acts on Mr Robinson’s part were acts done on behalf of Reed in the proper discharge of the contractual obligations owed by it to St Kilda in respect of claims for payment made under the D&C Contract. We respectfully disagree with the learned primary judge’s conclusion that those acts constituted the rendering of a service to St Kilda because they were done for the benefit of St Kilda in order to minimise the risk that it would pay twice for the same labour or materials. Those acts amounted to nothing more than the routine compilation of factual material in order to secure a contractual payment.

164    At 435–436 [112]–[114] of her judgment (which we have extracted in full at [86] above), her Honour explained why the exclusion did not apply in the present case.

165    At 435–436 [112], the primary judge held that the making of Progress Claim No 15 and the provision of supporting evidence for that claim (including the statutory declaration) did not constitute project management at all. Her Honour then held that Mr Robinson’s conduct did not involve him in the rendering of project management services with the consequence that, even if project management was a profession, his conduct did not constitute the rendering of professional services. We agree with this last proposition.

166    At 436 [113]–[114], the primary judge held that the mere routine provision of factual information gathered for the purpose of making a progress claim for payment under the D&C Contract and the SOP Act was not an act constituting the rendering of professional services by Reed or by Mr Robinson to anyone nor was it an act carried out in the course of rendering such services. We agree with these conclusions for the reasons which her Honour gave.

167    We do not think that her Honour impermissibly applied the contra proferentem rule or the circumscription of cover principle. As to the former, on a fair reading of her Honour’s judgment, she resorted to the rule only as an alternative basis for the construction of the exclusion clause (as to which see 437 [116]) and thus did so as a last resort. As to the latter, she did no more than make legitimate use of the principle (see esp the latter part of 436–437 [115]).

Conclusion

168    For all of the above reasons, the appeal must be dismissed with costs. There will be orders accordingly.

Associate:

Dated:    26 February 2016