Professional Liability Guide

CHAPTER 7 – CAUSAL PHRASES

‘In relation to’ The words ‘ in relation to ’ import the existence of a connection or association between the two objects being linked. 473 The High Court (in a contractual, but non-insurance context) has further said that the connection or association requires an element of relevance or appropriateness. 474 The phrase is wide in its ambit and has been compared to similarly broad causal phrases such as ‘ relating to ’, ‘ in connection with ’ and ‘ in respect of ’. 475 There is, however, English authority 476 indicating that of these phrases, ‘ in connection with ’ remains the broadest in scope. Accordingly, it would appear that ‘ in relation to ’ will be similar in scope to a phrase such as ‘ in respect of ’. ‘Given the width of the expression “in relation to” in s 13, there is, I think, merit in Speno’s submission that Zurich’s claim for contribution from MMI was “in relation to” the Speno Policy. It is true that the claim for contribution does not arise under the policy. However, the contribution claim only arises because Zurich indemnified Hamersley under the policy made with Speno.’ 477 ‘In connection with’ Of all the causal phrases considered, the words ‘ in connection with ’ are of the widest import, and courts in Australia have made this determination with regard to insurance policies 478 and elsewhere, such as when interpreting contractual indemnities. 479 The width of the phrase ‘ in connection with ’ was considered in the New South Wales Court of Appeal decision of Horsell International Pty Ltd v Divetwo Pty Ltd . 480 In Divetwo , the Court had to consider whether a claim for indemnity under a policy made after a recreational boating accident was ‘in connection with’ the insured’s scuba diving business. ƒ the words ‘ in connection with ’ ought to be read as extending the scope of the noun that they precede; ƒ the words ‘ in connection with ’ ought not be read narrowly; and ƒ the words ‘ in connection with ’ merely require a relationship between one thing and another that is real and not merely tenuous. The final dictum above, that there simply be a relationship between one thing and another (for the two to be ‘ in connection with ’ each other) is longstanding and oft repeated in Australia 481 in relation to both insurance policies and statutory and contractual provisions generally. 473 Perlman v Perlman (1984) 155 CLR 474, in which the issue was whether two separate proceedings were ‘ in relation to ’ each other. 474 PMT Partners Pty Ltd v Australian National Parks & Wildlife Service (1995) 184 CLR 301. 475 Hatfield v Health Insurance Commission (1987) 15 FCR 487. 476 Rexodan International Limited v Commercial Union Assurance Co plc [1999] Lloyd’s Rep IR 495. 477 (2009) 253 ALR 364, 389. 478 French v Sestili (2007) 98 SASR 28. 479 State of New South Wales v Tempo Services Ltd [2004] NSWCA 4. 480 [2013] NSWCA 368. 481 Selected Seeds Pty Ltd v QBEMM Pty Ltd and Anor [2009] QCA 286; Drayton v Martin (1996) 67 FCR 1; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465. In Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pte Ltd, Beech AJA noted the width of the expression ‘ in relation to ’ when he said: Having regard to the phrase ‘ in connection with ,’ McColl JA endorsed the following observations (further to the judgment at first instance):

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