Casey v AIG Australia Limited (No 2)

[2022] FCA 908

FEDERAL COURT OF AUSTRALIA

Casey v AIG Australia Limited (No 2) [2022] FCA 908

File number(s):	NSD 277 of 2021
Judgment of:	ALLSOP CJ
Date of judgment:	4 August 2022
Catchwords:	PRACTICE AND PROCEDURE  – where underlying proceedings dismissed – dismissal of Federal Court proceedings
Legislation:	Federal Court Rules 2011 (Cth) r 1.32
Cases cited:	Casey v AIG Australia Limited [2021] FCA 553
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	5
Date of hearing:	21 May 2021
Counsel for the Applicants:	Mr P Mann
Solicitor for the Applicants:	Pure Legal
Counsel for the Respondent:	Mr J Gooley
Solicitor for the Respondent:	HWL Ebsworth Lawyers

ORDERS

NSD 277 of 2021

BETWEEN:

KEVIN JAMES CASEY

First Applicant

PAUL DOUGLAS CLARKE

Second Applicant

AND:

AIG AUSTRALIA LIMITED (ABN 93 004 727 753)

Respondent

ORDER MADE BY:	ALLSOP CJ
DATE OF ORDER:	4 AUGUST 2022

THE COURT ORDERS THAT:

1.The proceedings be dismissed.

2.There be no order as to costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1. The applicants, Mr Casey and Mr Clarke, were the sixth and seventh defendants in proceedings brought in the Commercial List of the Supreme Court of New South Wales by Community Work Pty Ltd (in liquidation) and its liquidators.

2. In the proceedings brought in this Court, Mr Casey and Mr Clarke claimed indemnity from the respondent, AIG Australia Limited (AIG), under a policy of insurance. AIG took the position that the relevant policy responds, but not to the whole of the claims made with the result that a question arose as to responsibility for defence costs. I heard submissions from the parties on that question on 21 May 2021 and delivered my reasons as to why there should be an order requiring AIG to pay the reasonable defence costs of the applicants on 24 May 2021: Casey v AIG Australia Limited [2021] FCA 553.

3. On 24 May 2021, I made the following Orders:

   1.Until further order, the respondent advance to the applicants all defence costs in Supreme Court proceedings number 2019/00287075 brought by Community Work Pty Ltd (in liquidation) and its liquidators (within the meaning of the phrase Defence Costs in clause 8 of the definitions of the General Terms and Conditions of the PrivateEdge for Not-for-Profits Management Liability Insurance policy number 9609122PVE) of the applicants under clause 8 of the Claims Conditions of the General Terms and Conditions of the said Policy and in so doing reimburse them for the 30% of their defence costs hitherto withheld, together with interest under s 57 of the Insurance Contracts Act 1984 (Cth).

   2.The balance of the proceedings be otherwise adjourned pending the resolution of the Supreme Court proceedings.

   3.The respondent pay the applicants’ costs of the proceedings to date.

   4. The parties have seven days to put submissions on the form of any variation to these orders.

4. By way of email to my Associate, the parties advised on 2 July 2022 that the underlying Supreme Court proceedings settled and were subsequently dismissed and, as such, all aspects of these proceedings and the subject matter of them are at an end. The parties were given an opportunity to provide consent orders to formally resolve the proceedings in this Court, however no consent orders were proposed.

5. Rule 1.32 of the Federal Court Rules 2011 (Cth) empowers the Court to make any order that the Court considers appropriate in the interests of justice. In the circumstances, I am of the view that it is appropriate to make orders dismissing the proceedings with no order as to costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop.

Associate:

Dated:       4 August 2022