Law Reform – Will it finally catch up with Section 6?

Date: July 19, 2016 Author: Sebastian Brodowski

For some, law reform can't come fast enough; for others, a more gradual process is preferred.  Either way, it appears that reform will finally catch up with section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

The convoluted drafting of section 6 has proven to be a headache for insurers, practitioners and the judiciary.  The section has been described as "somewhat enigmatic", undoubtedly opaque and ambiguous" with its ambiguity being its "only clear feature".  In light, or because of some of these criticisms, the NSW Law Reform Commission has been tasked with considering whether, amongst other things, the section should be repealed or amended.¹

The consultation paper suggests five different options for reform ranging from a complete repeal of the section, partial redrafting in order to address some of the section's shortcomings, through to a contemporary redrafting of the section.² Submissions have already been provided by a number parties and the suggested recommendations vary from complete repeal to redrafting of the section.³

In light of the varying views expressed in the submissions already provided, it appears that at the very least, some form of redrafting of the section will likely be recommended and it is unlikely that the section will remain in its current form.  The biggest question will be whether the Law Reform Commission recommends that the section ought to be repealed in its entirety.

In any event, insurers and their legal representatives will no doubt be watching to see what eventuates and whether it removes, at the very least, one headache that they can do without.