INSURANCE ACT 1902 - As at 17 July 2009 - Act 49 of 1902 TABLE OF PROVISIONS TABLE OF PROVISIONS PART 1 - PRELIMINARY 1. Name of Act 2. Repeals PARTS 2, 3 - (Repealed) None PART 4 - FIRE INSURANCE POLICIES ASSIGNMENT 14. Assignment of fire policy 15. Assignee may sue in his or her own name 16. Definition PART 5 - RE-INSURANCE—MARINE RISKS 17. Re-insurance of marine risks may be made PART 5A - PROCEDURAL AND EVIDENTIARY PROVISIONS 17A. Rights of insurer to challenge evidence where false claim alleged PART 6 - MISCELLANEOUS 18. Powers of court in relation to insurance contracts 18A. Misrepresentation and non-disclosure 18B. Limitation on exclusion clauses 19. Insured not bound to arbitrate 20. Repairs to motor vehicle carried out by insurer 21. Exemption 22. Savings and transitional provisions SCHEDULE 1 SCHEDULE 2 INSURANCE ACT 1902 - LONG TITLE An Act to consolidate the enactments relating to Life, Fire, and Marine insurance. INSURANCE ACT 1902 - SECT 1 Name of Act 1 Name of Act This Act may be cited as the Insurance Act 1902. INSURANCE ACT 1902 - SECT 2 Repeals 2 Repeals The Acts mentioned in Schedule 1 are, to the extent therein expressed, hereby repealed. INSURANCE ACT 1902 - SECT 14 Assignment of fire policy 14 Assignment of fire policy (1) It shall be lawful to make an assignment of a fire policy by endorsement on such policy with the consent in writing of the company or person issuing the same endorsed on such policy. (2) Such assignment shall be in the words or to the effect following, namely, “I, AB, of, etc, do hereby assign unto CD the within policy of insurance on [here describe property insured, etc] In witness whereof, etc”. INSURANCE ACT 1902 - SECT 15 Assignee may sue in his or her own name 15 Assignee may sue in his or her own name Whenever a fire policy has been assigned in such manner and with such consent as aforesaid so as to pass the beneficial interest in such policy to any person entitled to the property thereby insured the assignee of such policy shall be entitled to sue thereon in the assignee’s own name. The defendant in any action shall be entitled to make any defence which the defendant would have been entitled to make if the said action had been brought before such assignment in the name of the person by whom or on whose account the policy sued upon was effected. INSURANCE ACT 1902 - SECT 16 Definition 16 Definition For the purposes and in the construction of sections 14 and 15, the expression "fire policy" means any instrument by which the payment of money is assured or secured on the happening of any of the contingencies in the nature of loss or damage to property by fire named in such instrument. INSURANCE ACT 1902 - SECT 17 Re-insurance of marine risks may be made 17 Re-insurance of marine risks may be made Notwithstanding anything contained in the Imperial Act passed in the nineteenth year of the reign of King George the Second, chapter thirty-seven, it shall be lawful to make re-insurance upon any ship or vessel, or upon any goods, merchandise, or other property on board any ship or vessel, or upon the freight of any ship or vessel, or upon any other interest in or relating to any ship or vessel which may lawfully be insured. Note: See Marine Insurance Act 1909 (Commonwealth). INSURANCE ACT 1902 - SECT 17A Rights of insurer to challenge evidence where false claim alleged 17A Rights of insurer to challenge evidence where false claim alleged (1) If: (a) civil proceedings have been commenced against a person in respect of a claim (being a claim in respect of which the person is or may be indemnified under a contract of insurance), and (b) the person’s insurer has given the plaintiff particulars alleging that the claim has not been made in good faith, the insurer may apply to the court to be joined as a party to the proceedings. (2) If the court gives the insurer leave to be joined as a party, the insurer may call as a witness any person (including a defendant) able to give evidence relating to the occurrence out of which the claim arose or evidence of other matters relating to the claim. (3) The insurer may examine the witness as to the occurrence out of which the claim arose and may also, with the leave of the court, examine the witness as to: (a) any other claim in which the witness was involved, and (b) the credibility of the witness. (4) If the court gives leave to do so, the insurer may: (a) cross-examine the witness, and (b) lead other evidence to refute the evidence given by the witness, as to any or all of the matters as to which the insurer might have examined the witness under subsection (3). (5) Any right to examine or cross-examine a witness arising under this section is additional to and not in diminution of any right to examine or cross-examine the person arising under any other law. (6) This section applies despite section 53 of the Evidence Act 1898. (7) This section applies to an insurer as a defendant in relation to a claim (being a claim referred to in subsection (1)) in the same way as this section applies to an insurer who is granted leave to be joined as a party. (8) This section does not apply to proceedings in respect of a claim under the Motor Accidents Act 1988 or under the Motor Accidents Compensation Act 1999. (9) This section applies to civil proceedings commenced before or after the commencement of this section. INSURANCE ACT 1902 - SECT 18 Powers of court in relation to insurance contracts 18 Powers of court in relation to insurance contracts (1) In any proceedings taken in a court in respect of a difference or dispute arising out of a contract of insurance, if it appears to the court that a failure by the insured to observe or perform a term or condition of the contract of insurance may reasonably be excused on the ground that the insurer was not prejudiced by the failure, the court may order that the failure be excused. (2) Where an order of the nature referred to in subsection (1) has been made, the rights and liabilities of all persons in respect of the contract of insurance concerned shall be determined as if the failure the subject of the order had not occurred. INSURANCE ACT 1902 - SECT 18A Misrepresentation and non-disclosure 18A Misrepresentation and non-disclosure A contract of insurance that is entered into, reinstated or renewed after the commencement of this section is not void, voidable or otherwise rendered unenforceable: (a) by reason only of a false or misleading statement made in or in connection with the contract or a proposal, offer or document that led to the entering into, reinstating or renewing of the contract unless the statement was material to the insurer in relation to the contract of insurance and: (i) the statement was fraudulent, or (ii) the insured knew or a reasonable person in the insured’s circumstances ought to have known that the statement was material to the insurer in relation to the contract of insurance, or (b) by reason only of an omission of matter from the contract or a proposal, offer or document that led to the entering into, reinstating or renewing of the contract unless the matter omitted was material to the insurer in relation to the contract of insurance and: (i) the omission was deliberate, or (ii) the insured knew or a reasonable person in the insured’s circumstances ought to have known that matter material to the insurer in relation to the contract of insurance had been omitted. INSURANCE ACT 1902 - SECT 18B Limitation on exclusion clauses 18B Limitation on exclusion clauses (1) Where by or under the provisions of a contract of insurance entered into, reinstated or renewed after the commencement of this section: (a) the circumstances in which the insurer is bound to indemnify the insured are so defined as to exclude or limit the liability of the insurer to indemnify the insured on the happening of particular events or on the existence of particular circumstances, and (b) the liability of the insurer has been so defined because the happening of those events or the existence of those circumstances was in the view of the insurer likely to increase the risk of loss occurring, the insured shall not be disentitled to be indemnified by the insurer by reason only of those provisions of the contract of insurance if, on the balance of probability, the loss in respect of which the insured seeks to be indemnified was not caused or contributed to by the happening of those events or the existence of those circumstances, unless in all the circumstances it is not reasonable for the insurer to be bound to indemnify the insured. (2) The onus of proving for the purposes of subsection (1) that, on the balance of probability, loss in respect of which an insured seeks to be indemnified was not caused or contributed to by the happening of particular events or the existence of particular circumstances is on the insured. INSURANCE ACT 1902 - SECT 19 Insured not bound to arbitrate 19 Insured not bound to arbitrate A provision in a contract of insurance or other contract or agreement, being a provision with respect to the submission to arbitration of any matter arising out of the contract of insurance, does not bind the insured except where the provision is contained in a contract or agreement, entered into after a difference or dispute has arisen between the insurer and the insured, providing for the submission to arbitration of that difference or dispute. INSURANCE ACT 1902 - SECT 20 Repairs to motor vehicle carried out by insurer 20 Repairs to motor vehicle carried out by insurer In any proceedings arising out of a difference or dispute with respect to: (a) the materials used in carrying out repairs, or (b) the manner of carrying out repairs, to a motor vehicle, which repairs were carried out by the insurer under a policy of insurance relating to that motor vehicle or by a company that is a subsidiary or by a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth of the insurer, the onus lies upon the insurer of proving that the materials used were proper materials or that the repairs were properly carried out, as the case may be, notwithstanding any acknowledgment as to the materials or the manner of carrying out the repairs given by the insured. INSURANCE ACT 1902 - SECT 21 Exemption 21 Exemption (1) The Governor may make regulations not inconsistent with this Act exempting, subject to such terms and conditions as are specified in the regulations: (a) persons belonging to any class of persons, or (b) contracts of insurance included in any class of contracts of insurance, specified in the regulations from all or any of the provisions of this Part as may be so specified in respect of that class of persons or that class of contracts of insurance. (2) Without limiting subsection (1), sections 18A and 18B do not apply to or in respect of: (a) contracts of marine insurance, (b) contracts of life insurance, or (c) those provisions of contracts of insurance to or in respect of which the Motor Vehicles (Third Party Insurance) Act 1942, the Workers Compensation Act 1987 or section 406 of the Legal Profession Act 2004, applies. INSURANCE ACT 1902 - SECT 22 Savings and transitional provisions 22 Savings and transitional provisions Schedule 2 has effect. INSURANCE ACT 1902 - SCHEDULE 1 SCHEDULE 1 – Repeals _____________________________________________________________________________ |_____________________________________________________________________________| |26 Vic No 13 |Life Assurance Encouragement |The whole Act | |_____________________________________________________________________________| | |An Act to repeal the | | |29 Vic No 19 |prohibition on reinsurance of|The whole Act | |_____________________________________________________________________________| |51 Vic No 13 |Assignees of Fire Insurance |The whole Act | |_____________________________________________________________________________| |56 Vic No 11 |Married Women’s Property |The unrepealed portion of s 13| |_____________________________________________________________________________| |_____________________________________________________________________________| INSURANCE ACT 1902 - SCHEDULE 2 SCHEDULE 2 – Savings and transitional provisions (Section 22) Part 1 - Provisions consequent on enactment of Insurance (Amendment) Act 1983 1 Definition In this Part, amending Act means the Insurance (Amendment) Act 1983. 2 Misrepresentation, non-disclosure and limitation on exclusion clauses (1) Sections 18A and 18B of this Act, as amended by the amending Act, in their application to contracts of insurance entered into, reinstated or renewed after the commencement of those sections, have effect with respect to statements, omissions, events or circumstances referred to in those sections and made, occurring, happening or existing before that commencement (as well as with respect to those so referred to and made, occurring, happening or existing after that commencement). (2) This clause is taken to have commenced on 1 April 1984 (the date of commencement of the amending Act). (3) Subclause (1) re-enacts (with minor modification) section 4 of the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies. Part 2 - Provisions consequent on enactment of Property (Relationships) Legislation Amendment Act 1999 3 Life policies The amendments made to this Act by the Property (Relationships) Legislation Amendment Act 1999 have no effect in relation to the estate of any person who died before those amendments took effect. INSURANCE ACT 1902 - NOTES Life, Fire, and Marine Insurance Act 1902 INSURANCE ACT 1902 - NOTES Reprint history (since 1972): Reprint No 1 13 February 1974 Reprint No 2 13 February 1979 Reprint No 3 2 August 1984 Reprint No 4 10 February 1992 Reprint No 5 1 April 2003 INSURANCE ACT 1902 - NOTES Historical notes The following abbreviations are used in the Historical notes: ______________________________________________________________________ |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| |______________________________________________________________________| See also Imperial Acts Application Act 1969, secs 22–28; and Insurance Act 1973 (Commonwealth). Table of amending instrumentsInsurance Act 1902 No 49 (formerly Life, Fire, and Marine Insurance Act 1902). Assented to 25.8.1902. This Act has been amended as follows: _____________________________________________________________________________ |1917|No 23 |Life, Fire, and Marine Insurance | |_____________________________________________________________________________| |1937|No 35 |Statute Law Revision Act | |_____________________________________________________________________________| |1938|No 21 |Life, Fire, and Marine Insurance | |_____________________________________________________________________________| | | |Decimal Currency Act | | | |1965. Assented to 20.12.1965. | |1965|No 33 | | | | |Date of commencement of sec 4, 14.2.1966, secs 1 (3), 2 (1) and | | | |the Currency Act | |_____________________________________________________________________________| | | |Commercial Transactions (Miscellaneous Provisions) Act | | | |1974. Assented to 13.12.1974. | |1974|No 105| | | | |Date of commencement of sec 6, 1.1.1975, sec 2 (3) and GG No 154 | |_____________________________________________________________________________| | | |Insurance (Amendment) Act 1983. Assented to 9.11.1983. | |1983|No 97 | | | | |Date of commencement of Sch 1, 1.4.1984, sec 2 (2) and GG No 42 | |_____________________________________________________________________________| |1986|No 16 |Statute Law (Miscellaneous | |_____________________________________________________________________________| | | |Miscellaneous Acts (Workers Compensation) Amendment Act | | | |1987. Assented to 10.6.1987. | |1987|No 79 | | | | |Date of commencement of Sch 1, 30.6.1987, sec 2 (2) and GG No 102| |_____________________________________________________________________________| | | |Miscellaneous Acts (Legal Profession) Amendment Act | | | |1987. Assented to 12.6.1987. | | |No 111| | | | |Date of commencement of Sch 1, 1.1.1988, sec 2 (2) and GG No 199 | |_____________________________________________________________________________| | | |Insurance (Amendment) Act 1991. Assented to 11.12.1991. | |1991|No 46 | | | | |Date of commencement, 24.1.1992, sec 2 and GG No 12 of 24.1.1992,| |_____________________________________________________________________________| | | |Statute Law (Miscellaneous Provisions) Act (No 2) | |1994|No 95 |1994. Assented to 12.12.1994. | | | | | |_____________________________________________________________________________| | | |Statute Law (Miscellaneous Provisions) Act (No 2) | |1995|No 99 |1995. Assented to 21.12.1995. | | | | | |_____________________________________________________________________________| | | |Property (Relationships) Legislation | | | |Amendment Act 1999. Assented to 7.6.1999. | |1999|No 4 | | | | |Date of commencement of Sch 2.14, 28.6.1999, sec 2 and GG No 72 | |_____________________________________________________________________________| | | |Statute Law (Miscellaneous Provisions) | | |No 31 |Act 1999. Assented to 7.7.1999. | | | | | |_____________________________________________________________________________| | | |Motor Accidents Compensation Act | | | |1999. Assented to 8.7.1999. | | |No 41 | | | | |Date of commencement of Sch 4.6, 5.10.1999, sec 2 and GG No 104 | |_____________________________________________________________________________| | | |Corporations (Consequential | | | |Amendments) Act 2001. Assented to 28.6.2001. | |2001|No 34 | | | | |Date of commencement of Sch 2.27, 15.7.2001, sec 2 (1) and | |_____________________________________________________________________________| | | |Statute Law (Miscellaneous Provisions) | |2005|No 98 |Act (No 2) 2005. Assented to 24.11.2005. | | | | | |_____________________________________________________________________________| | | |Statute Law (Miscellaneous Provisions) | |2009|No 56 |Act 2009. Assented to 1.7.2009. | | | | | |_____________________________________________________________________________| This Act has also been amended pursuant to an order under secs 8 (2) and 9 (3) of the Reprints Act 1972 No 48 (formerly Acts Reprinting Act 1972). Order dated 1.2.1979, and published in Gazette No 21 of 9.2.1979, p 640, declaring that the Insurance Act 1902 is an enactment to which sec 8 (2) and sec 9 (3) of the Acts Reprinting Act 1972 apply. Table of amendmentsNo reference is made to certain amendments made by the Decimal Currency Act 1965, the Reprints Act 1972, and Schedule 3 (amendments replacing gender-specific language) to the Statute Law (Miscellaneous Provisions) Act (No 2) 1994. _____________________________________________________________________________ |Sec 1 |Am 1938 No 21, sec 2 (b); 1974 No 105, sec 6 (a); 1999 | |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |Sec 20 |Ins 1974 No 105, sec 6 (b). Am 1986 No 16, Sch 23; 2001| |_____________________________________________________________________________| | |Ins 1974 No 105, sec 6 (b). Am 1983 No 97, Sch 1 (2); | |Sec 21 |1987 No 79, Sch 1; 1987 No 111, Sch 1; 2005 No 98, Sch | |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________| |_____________________________________________________________________________|