Bupa Australia Pty Ltd v iSelect (No 2) - [2012] FCA 1277

FEDERAL COURT OF AUSTRALIA
Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277

Citation: Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277

Parties: BUPA AUSTRALIA PTY LTD (ACN 000 057 590) v ISELECT LIMITED (ACN 124 302 932) and ISELECT HEALTH PTY LTD (ACN 088 749 955); ISELECT LIMITED (ACN 124 302 932) and ISELECT HEALTH PTY LTD (ACN 088 749 955); BUPA AUSTRALIA PTY LTD (ACN 000 057 590) and RICHARD BOWDEN

File number: VID 221 of 2012

Judges: DODDS-STREETON J

Date of judgment: 25 October 2012

Catchwords: PRACTICE AND PROCEDURE - Application for joinder of parties and amendment of pleadings – whether arguable or affirmative case of accessorial liability against proposed parties – relevance of lack of particulars

Legislation: Federal Court Rules 2011 (Cth), r 9.05
Federal Court Rules 1979 (Cth), O 6 r 8

Cases cited: Brisbane Slipways Operations Pty Ltd v Pantaloni (2010) 270 ALR 13 considered
Bupa Australia Pty Ltd v iSelect Limited (No 1) [2012] FCA 587 cited
Comcare v John Holland Rail Pty Ltd [2009] FCA 660 considered
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited
Review Australia Pty Ltd v Redberry Enterprise Pty Ltd (2003) 58 IPR 366 considered
Tytel Pty Ltd v Australian Telecommunications Commission (1988) 11 IPR 223 cited
Warner Music Australia Ltd v Swiftel Communications Pty Ltd (2005) 67 IPR 27 cited
Yorke v Lucas (1985) 158 CLR 661 cited

Date of hearing: 25 October 2012

Date of publication of reasons: 15 November 2012

Date of last submissions: 25 October 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 37

Counsel for the Applicant/Cross Respondents: Mr CM Scerri QC with Mr A Dinelli

Solicitor for the Applicant/Cross Respondents: King & Wood Mallesons

Counsel for the Respondents/Cross Claimants: Mr C Golvan SC with Mr D Star

Solicitor for the Respondents/Cross Claimants: Middletons

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 221 of 2012

BETWEEN:
BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
Applicant

ISELECT LIMITED (ACN 124 302 932)
First Cross-Claimant

ISELECT HEALTH PTY LTD (ACN 088 749 955)
Second Cross-Claimant

AND:
ISELECT LIMITED (ACN 124 302 932)
First Respondent

ISELECT HEALTH PTY LTD (ACN 088 749 955)
Second Respondent

BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
First Cross-Respondent

RICHARD BOWDEN
Second Cross-Respondent

JUDGE:

DODDS-STREETON J

DATE OF ORDER:

25 OCTOBER 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Messrs Damien Michael Trevor Waller and Matthew Ross McCann (Messrs Waller & McCann) be joined as, respectively, the Third and Fourth Respondents to the proceeding.
2.On or before 4pm on 1 November 2012, Bupa has leave to file and serve:
(a)an Amended Fast Track Application in the same form as that which forms part of Confidential Exhibit DMG-8 to the Second Affidavit of Domenic Mathew Gatto affirmed on 2 October 2012; and
(b)Further Amended Fast Track…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FCA 1277
Decision Date: 25 October 2012

CaseChat Overview and Summary

Bupa Australia Pty Ltd was the plaintiff in a dispute against iSelect, with two additional respondents, Mr Waller and Mr McCann, proposed to be joined in the litigation. The plaintiff sought to amend the pleadings to include claims against these additional parties, alleging that they were liable for breaches of the Australian Consumer Law. The Federal Court heard an application for leave to join the parties and amend the pleadings. The primary legal issue was whether the plaintiff had an arguable case of accessorial liability against the proposed parties and if the lack of particulars was a valid reason to deny the application. The Court found that the plaintiff had sufficiently outlined an arguable case against the proposed parties based on the information available at that stage. The lack of particulars was not a valid reason to deny the application, given that Mr McCann's role in the relevant positions was within the knowledge of the iSelect parties. The Court concluded that the plaintiff should have leave to join the additional parties and amend the pleadings, with the documents on which the proposed amendments were based remaining confidential until a final determination of their status.

The Court ordered that Messrs Waller and McCann be joined as the Third and Fourth Respondents to the proceeding. Bupa was granted leave to file and serve an Amended Fast Track Application and a Further Amended Fast Track Statement by a specified deadline. The orders were to be entered in accordance with Rule 39.32 of the Federal Court Rules 2011. This decision allowed the plaintiff to pursue its claims against the additional parties while maintaining the confidentiality of certain documents until their status was finally determined.

Orders

Orders of the court

1. Messrs Damien Michael Trevor Waller and Matthew Ross McCann (Messrs Waller & McCann) be joined as, respectively, the Third and Fourth Respondents to the proceeding.

2. On or before 4pm on 1 November 2012, Bupa has leave to file and serve:

(a) an Amended Fast Track Application in the same form as that which forms part of Confidential Exhibit DMG-8 to the Second Affidavit of Domenic Mathew Gatto affirmed on 2 October 2012; and

(b) Further Amended Fast Track Statement in the same form as Confidential Annexure DMG-16 to the Third Affidavit of Domenic Mathew Gatto affirmed on 15 October 2012.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the present case, as Mr McCann’s role in the relevant positions was, at this stage, within the knowledge of the iSelect parties, the want of particulars was not a basis to refuse joinder.CONCLUSION At the hearing on 25 October 2012, I indicated that the documents on which the proposed amendments were based should, at this stage, remain confidential. Subject to a final determination of their status, the relevant amendments would be contained in a confidential annexure. I concluded that Bupa should have leave to join Messrs Waller and McCann and to file and serve the Further Amended Fast Track Statement.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277
Parties:		BUPA AUSTRALIA PTY LTD (ACN 000 057 590) v ISELECT LIMITED (ACN 124 302 932) and ISELECT HEALTH PTY LTD (ACN 088 749 955); ISELECT LIMITED (ACN 124 302 932) and ISELECT HEALTH PTY LTD (ACN 088 749 955); BUPA AUSTRALIA PTY LTD (ACN 000 057 590) and RICHARD BOWDEN
File number:		VID 221 of 2012
Judges:		DODDS-STREETON J
Date of judgment:		25 October 2012
Catchwords:		PRACTICE AND PROCEDURE - Application for joinder of parties and amendment of pleadings – whether arguable or affirmative case of accessorial liability against proposed parties – relevance of lack of particulars
Legislation:		Federal Court Rules 2011 (Cth), r 9.05 Federal Court Rules 1979 (Cth), O 6 r 8
Cases cited:		Brisbane Slipways Operations Pty Ltd v Pantaloni (2010) 270 ALR 13 considered Bupa Australia Pty Ltd v iSelect Limited (No 1) [2012] FCA 587 cited Comcare v John Holland Rail Pty Ltd [2009] FCA 660 considered General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636 cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited Review Australia Pty Ltd v Redberry Enterprise Pty Ltd (2003) 58 IPR 366 considered Tytel Pty Ltd v Australian Telecommunications Commission (1988) 11 IPR 223 cited Warner Music Australia Ltd v Swiftel Communications Pty Ltd (2005) 67 IPR 27 cited Yorke v Lucas (1985) 158 CLR 661 cited
Date of hearing:	25 October 2012
Date of publication of reasons:	15 November 2012
Date of last submissions:	25 October 2012
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Applicant/Cross Respondents:	Mr CM Scerri QC with Mr A Dinelli
Solicitor for the Applicant/Cross Respondents:	King & Wood Mallesons
Counsel for the Respondents/Cross Claimants:	Mr C Golvan SC with Mr D Star
Solicitor for the Respondents/Cross Claimants:	Middletons

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 221 of 2012

JUDGE:	DODDS-STREETON J
DATE OF ORDER:	25 OCTOBER 2012
WHERE MADE:	MELBOURNE