Australian Automotive Repairers' Association (Political Action Committee) Inc v Insurance Australia Limited

[2005] FCA 1021

FEDERAL COURT OF AUSTRALIA

Australian Automotive Repairers’ Association (Political Action Committee) Inc v Insurance Australia Limited [2005] FCA 1021

AUSTRALIAN AUTOMOTIVE REPAIRERS’ ASSOCIATION (POLITICAL ACTION COMMITTEE) INC v INSURANCE AUSTRALIA LIMITED
NSD 964 of 2004

ALLSOP J
22 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 964 of 2004

BETWEEN:	AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPELLANT
AND:	INSURANCE AUSTRALIA LIMITED RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	22 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Subject to and conditional upon the payment to the respondent, through its solicitors Blake Dawson Waldron, on or before 5.00 pm, 5 August 2005 of the sum of $22,300, being the taxed costs ordered by the Full Court to be paid by order 3 made on 8 December 2004 (that is, being the one half of the costs being referred to in that order), Panel Beaters Australia Inc (PBA) be joined as an appellant to the appeal.

2. That joinder is without prejudice to any argument of the respondent as to the inutility of the joinder or of the effect or lack thereof of any purported assignment under an undated agreement between the appellant (in liquidation) and PBA, such agreement being annexure “RM2” to the affidavit of Robert Montagnino sworn 21 June 2005.

3. Should PBA become a party to this appeal pursuant to orders 1 and 2, PBA provide security for the costs of the respondent in the sum of $50,000 by bank cheque payable to the respondent to be held in trust by the respondent’s solicitor, Blake Dawson Waldron, pending further order or agreement for its release by 5.00 pm, Friday, 19 August 2005.

4. Until such security be paid the appeal be and remain stayed.

5. If PBA does not pay the sum referred to in order 1 in accordance with order 1 or does not provide security as provided for by order 3, the respondent have leave to relist the matter on 3 days’ notice to the other party or parties to the appeal for the purpose of  moving the Court that the appeal be dismissed.

6. Costs of the two motions before the Court today, that is, the notice of motion filed by the respondent on 6 July 2005 and by PBA on 24 June 2005, be costs in the appeal.

7. The notice of motion filed on behalf of PBA on 24 June 2005 be otherwise dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 964 of 2004

BETWEEN:	AUSTRALIAN AUTOMOTIVE REPAIRERS' ASSOCIATION (POLITICAL ACTION COMMITTEE) INC APPELLANT
AND:	INSURANCE AUSTRALIA LIMITED RESPONDENT

JUDGE:	ALLSOP J
DATE:	22 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this appeal, two notices of motion are before the Court today: the first filed on behalf of a third party, Panel Beaters of Australia Incorporated (PBA), the second filed on behalf of the respondent. Affidavit material has been filed in support of each motion.

2. For simplicity, the issues boil down to the following.  The appellant is in liquidation.  It has purported to assign to PBA its rights of prosecution of the appeal in this matter.  There will be a substantive issue about that, I am told, and so it should be understood, as the orders which I will pronounce in due course make clear, that the steps I take today are in no way ones which would affect one way or the other the resolution of that issue.

3. The matter is an appeal from orders made by Lindgren J.  The members of the PBA, I am told from the bar table, are not identical to the members of the appellant.  However, it is clear that they have a financial interest in the outcome of the proceedings.  The PBA is an association of panel beaters, as by and large was the appellant, as I understand it.

4. Reduced after discussion, the issues are short.  The first main issue is whether I should make an order in effect relieving the lifting of the stay of the appeal without the payment of the costs contemplated by orders 3 and 5 made by the Full Court, of which I was a member, on 8 December 2004.  I do not propose to do that.  I think it would be unjust.

5. The appellant apparently cannot meet those orders.  Those orders were made by the Full Court because of the way this appeal had been conducted.  It would be most unjust, in my view, if the respondent were left with a new appellant and an empty hand in relation to orders that were made in December 2004.  A condition of the joinder, in my view, should be that those costs are paid within a reasonable time and 14 days appears to be a reasonable time. 

6. The question of security for costs will arise if that sum of $22,300, which is the taxed costs pursuant to the Full Court's order, is paid.  The parties are agreed on a sum for security for costs of $50,000.

7. In those circumstances, I propose to make the following orders:

   1. Subject to and conditional upon the payment to the respondent, through its solicitors Blake Dawson Waldron, on or before 5.00 pm, 5 August 2005 of the sum of $22,300, being the taxed costs  ordered by the Full Court to be paid by order 3 made on 8 December 2004 (that is, being the one half of the costs being referred to in that order), Panel Beaters Australia Inc (PBA) be joined as an appellant to the appeal.
   2. That joinder is without prejudice to any argument of the respondent as to the inutility of the joinder or of the effect or lack thereof of any purported assignment under an undated agreement between the appellant (in liquidation) and PBA, such agreement being annexure “RM2” to the affidavit of Robert Montagnino sworn 21 June 2005.
   3. Should PBA become a party to this appeal pursuant to orders 1 and 2, PBA provide security for the costs of the respondent in the sum of $50,000 by bank cheque payable to the respondent to be held in trust by the respondent’s solicitor, Blake Dawson Waldron, pending further order or agreement for its release by 5.00 pm, Friday, 19 August 2005.
   4. Until such security be paid the appeal be and remain stayed.
   5. If PBA does not pay the sum referred to in order 1 in accordance with order 1 or does not provide security as provided for by order 3, the respondent have leave to relist the matter on 3 days’ notice to the other party or parties to the appeal for the purpose of  moving the Court that the appeal be dismissed.
   6. Costs of the two motions before the Court today, that is, the notice of motion filed by the respondent on 6 July 2005 and by PBA on 24 June 2005, be costs in the appeal.
   7. The notice of motion filed on behalf of PBA on 24 June 2005 be otherwise dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            1 August 2005

Counsel for the Appellant:	B Levet and J Mendel
Solicitor for the Appellant:	Peter R Glover
Counsel for the Respondent:	S T White SC
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 July 2005
Date of Judgment:	22 July 2005