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

[2004] FCAFC 325

FEDERAL COURT OF AUSTRALIA

Australian Automotive Repairers Association (Political Action Committee) Inc v Insurance Australia Ltd [2004] FCAFC 325

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

NICHOLSON, NORTH & ALLSOP JJ
8 DECEMBER 2004
PERTH (BY VIDEOLINK TO MELBOURNE AND 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 LTD RESPONDENT
JUDGES:	NICHOLSON, NORTH & ALLSOP JJ
DATE OF ORDER:	8 DECEMBER 2004
WHERE MADE:	PERTH (BY VIDEOLINK TO MELBOURNE AND SYDNEY)

THE COURT ORDERS THAT:

1.Subject to the balance of these orders, grant leave to the appellant to file an amended notice of appeal in a form substantially as annexed to the notice of motion filed on 2 December 2004.

2.The leave in order 1 is expressly without prejudice to the respondent arguing in due course that leave to appeal in whole or in part is required by the appellant.

3.Order that the appellant pay one half of the costs of the appeal to date to the extent that there are not orders for costs already outstanding, in any event.

4.Grant leave for the respondent to tax the order for costs in order 3 and any other existing orders for costs forthwith.

5.Conditional upon the respondent proceeding with the taxation for the order for costs in order 3 above with expedition the appeal be stayed pending the payment of any such costs of the appeal pursuant to order 3.

6.The application for the order for costs made by the primary judge to be stayed be dismissed.

7.The balance of the costs of the appeal to date including the question as to the level of any such costs, including the level of costs the subject of order 3 be reserved.

8.The respondent’s motion filed 15 November otherwise be dismissed.

9.Grant leave for the respondent to proceed with taxation in January 2005.

10.Stand the matter over for directions to 10.00 am on 8 February 2005 in Sydney before Allsop J.

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 LTD RESPONDENT

JUDGES:	NICHOLSON, NORTH & ALLSOP JJ
DATE:	8 DECEMBER 2004
PLACE:	PERTH (BY VIDEOLINK TO MELBOURNE AND SYDNEY)

REASONS FOR JUDGMENT

NICHOLSON J

1. I agree with the reasons that have been expressed by Allsop J and I concur in the formulation of orders which he has stated.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:       

Dated:            15 December 2004

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 LTD RESPONDENT

JUDGES:	NICHOLSON, NORTH & ALLSOP JJ
DATE:	8 DECEMBER 2004
PLACE:	MELBOUNRE (BY VIDEOLINK TO PERTH AND SYDNEY)

REASONS FOR JUDGMENT

NORTH J

1. I also agree with the reasons expressed by Allsop J and the orders which he proposes.

I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:            15 December 2004

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 LTD RESPONDENT

JUDGES:	NICHOLSON, NORTH & ALLSOP JJ
DATE:	8 DECEMBER 2004
PLACE:	SYDNEY (BY VIDEOLINK TO PERTH AND MELBOURNE)

REASONS FOR JUDGMENT

ALLSOP J

1. There are a number of notices of motion before the Court.  The respondent to the appeal has filed a notice of motion on 15 November seeking various orders, including dismissal of the proceedings and also, importantly for today, seeking an order that the appeal be dismissed if the appellant does not pay the respondent the first instance costs as taxed at $259,000 within seven days.

2. The appellant has filed two notices of motion, both on 2 December 2004.  The first seeks an order for a stay of the costs order of the primary judge.  The second seeks leave to file an amended notice of appeal in terms of a draft notice of appeal attached to that notice of motion.

3. The latest proposed amendment is filed out of time and no leave for the notice of motion was previously sought.  The two earlier versions, if I may use that expression, of the notice of appeal were, first, the original notice of appeal filed, and secondly, a purported amended notice of appeal filed, without leave, on 15 November.  Some explanation was sought to be given to the second of those documents in an affidavit proposed to be filed in court today by the appellant, which affidavit was out of time, previous directions having been given for the filing of the submissions or evidence for today's hearing by close of business on Monday of this week.  That was necessary because, as the parties were told, the Court was sitting by video‑link in three cities.  However, it has been said from the bar table that there was some explanation in the affidavit of some error in respect of the filing of the amended notice of appeal on 15 November in the form it was filed.

4. Whatever the explanation for that filing, the fact is that the notice of appeal as first drafted and the amended notice of appeal filed without leave on 15 November were both confused, discursive and ill-structured documents, generally unfit for the disposition of an appeal on the assumption that what is sought to be done is for the efficient and coherent disposition of issues.

5. The Court's difficulty with the original notice of appeal was raised in October 2004.  The amended notice of appeal proposed to be filed, a draft of which is annexed to the notice of motion of 2 December, is to a significant extent an improvement on the previous documents.  It is far from a model of a notice of appeal in a superior court.  However, by and large it will suffice for a coherent structure for an appeal to take place.  For that reason, no doubt, senior counsel for the respondent did not put any particular submission as to the form of the notice of appeal, though he reserved his position on the form of it in a manner conformable with submissions which would reflect my latter comments on this most recent version. As to the current proposal for amendment, the respondent has indicated in submissions that in some respects leave to appeal may be required. 

6. The evidence makes it tolerably clear that this appeal has been conducted in a fashion which is not a model of efficiency.  Indeed, it would not be unfair to describe the documentation and the preparation of this appeal by the appellant as sloppy and slapdash.  A tolerably accurate summary of the affidavit of Mr Zaurrini dealing with the conduct of the appeal is set out in the chronology to the submissions filed by the respondent.  Mr Levet on behalf of the appellant has taken issue with some factual matters.  However, the fact remains that a significant waste of time of the Court and of the respondent and consequently a significant waste of money for the respondent has been caused in the way this appeal has been prepared.

7. Doing the best one can looking at the material presented by Mr Zaurrini, it would be a conservative estimate to conclude that at least half the costs of the conduct of the appeal to date of the appellant have been wasted.  To reach this stage with a barely adequate notice of appeal with the procedural history revealed by the evidence is most unsatisfactory.

8. In my view the appropriate way to deal with the application to amend the notice of appeal is to grant leave to the appellant to file an amended notice of appeal in a form substantially as annexed to the notice of motion filed on 2 December 2004 but subject to conditions which I will identify.

9. I would grant that leave expressly without prejudice to the respondent arguing in due course that leave to appeal in whole or in part is required.  I would order that the appellant pay one half of the costs of the appeal to date to the extent that there are not orders for costs outstanding in any event.  I would grant leave for the respondent to tax the above order for costs forthwith and any other existing order for costs forthwith.  I would make an order that, conditional on the respondent proceeding with such taxation with expedition, the appeal be stayed pending the payment of any such costs ordered pursuant to the third order I propose, that is, half the costs of the appeal to date otherwise than costs already ordered. 

10. Those are the orders which I would make in disposing of the question of the notice of appeal.  I would reserve the balance of the costs of the appeal to date including in that reservation the question of the appropriate measure or level of costs, whether indemnity or other, not only in relation to the half of the costs of the appeal to date but in relation to all of the costs to date.

11. Turning to the request for an order that the appeal be dismissed unless the costs below are paid within 7 day, there is an outstanding order for costs.  In my view this Court should not superimpose upon the existing order of the Court another order linking that order with the disposition of the appeal.  Therefore I would not make any order for costs of the kind sought by the respondent in its notice of motion.

12. As to the application to stay the order for costs below it should be noted that this application was foreshadowed by the appellant as early as 18 November 2004.  No evidence has been placed before the Court upon which one could infer or even suspect that the payment of the costs would in any way stultify the appeal. 

13. It was submitted by Mr Levet, counsel for the appellant, that the respondent had not led any evidence that it would be prejudiced by not having the order for costs stayed.  That, with respect, is not the approach to such an application as his client is making.  There is no evidence upon which it could be said or inferred, as I indicated, that the appeal would be stultified.  There is no ground or warrant to deny, at this stage, the respondent the fruits of its victory at first instance.

14. I have read the judgment of the learned primary judge and I have read the various forms of the notice of appeal.  In my view without forming any final view whatsoever of any of the issues on the appeal I do not think it appropriate to deprive the respondent of the order for costs based on any manifest or patent error in the approach of the primary judge.  That is not to say that after argument it may not be demonstrated that the learned primary judge erred in some respect.

15. The costs of these motions before the Court today should not be dealt with individually. I would have them form part of the costs order to which I have earlier referred. 

16. Thus the orders that I would make are as follows:

    1.Subject to the balance of these orders grant leave to the appellant to file an amended notice of appeal in a form substantially as annexed to the notice of motion filed on 2 December 2004.

    2.The leave in order 1 is expressly without prejudice to the respondent arguing in due course that leave to appeal in whole or in part is required by the appellant.

    3.Order that the appellant pay one half of the costs of the appeal to date to the extent that there are not orders for costs already outstanding in any event.

    4.Grant leave for the respondent to tax the order for costs in order 3 and any other existing orders for costs forthwith.

    5.Conditional upon the respondent proceeding with the taxation for the order for costs in order 3 above with expedition the appeal be stayed pending the payment of any such costs of the appeal pursuant to order 3. 

    6.The application for the stay of the order for costs made by the primary judge be dismissed.

    7.The balance of the costs of the appeal including the question as to the level of any such costs, including the level of costs the subject of order 3 be reserved.

    8.I would otherwise dismiss the respondent's motion.

    9.I would grant leave for the respondent to proceed with taxation in January 2005.

    10.I would stand the matter over for directions to 10 am on 8 February 2005 in Sydney before me if that is convenient and appropriate in the view of the learned presiding judge.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            15 December 2004

Counsel for the Appellant:	Mr B Levet
Solicitor for the Appellant:	Peter R Glover
Counsel for the Respondent:	Mr F M Douglas QC with Mr S T White SC
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 December 2004
Date of Judgment:	8 December 2004