CGU Insurance Ltd v AMP Financial Planning Pty Ltd

[2006] HCATrans 263

[2006] HCATrans 263

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M127 of 2005

B e t w e e n -

CGU INSURANCE LIMITED

Applicant

and

AMP FINANCIAL PLANNING PTY LTD

Respondent

Application for adjournment

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 25 MAY 2006, AT 9.32 AM

Copyright in the High Court of Australia

MR C.M. CALEO:   If your Honour pleases, I appear for the applicant.  (instructed by Deacons)

MR P.D. CRUTCHFIELD:   If your Honour pleases, I appear for the respondent.   (instructed by Minter Ellison)

HER HONOUR:   Yes, Mr Caleo.

MR CALEO:   Your Honour, the matter before you today is a summons issued by my client dated 19 May 2006 and there is filed in support of that summons an affidavit of Marita Ann Hogan ‑ ‑ ‑

HER HONOUR:   Yes, I have read that.

MR CALEO:   ‑ ‑ ‑ sworn the same day and I rely upon the affidavit and the exhibits thereto.

HER HONOUR:   Yes.

MR CALEO:   The application is made in a special leave application that was commenced on 29 September last year.  In this case it is particularly important to identify those formal aspects of the application before your Honour today because a consideration of the respondent’s written outline of submissions might cause one to think that the special leave application itself is before your Honour and what the Court is being requested to determine is whether that application should be summarily dismissed.

HER HONOUR:   I will not be doing that.

MR CALEO:   If your Honour pleases.

HER HONOUR:   You can proceed on that basis.  Why would not the proper course be to stand this matter out of the list generally to be reinstituted on three days notice to the opposite party so that either party can bring it back into the list and you ought, ought you not, be paying the respondent’s costs on the summons?  You are seeking the indulgence.

MR CALEO:   Your Honour, in relation to the first aspect, the substantive order, I would not oppose an order in those terms.  In relation to the question of costs, your Honour, the only reason why it has been necessary for this application to be made today has been because the respondent has refused to consent to an order that the matter not be heard on 2 June.  In my submission, the respondent’s refusal to consent to that course, that is, whether the orders made were simply that it be taken out of the list and a mechanism such as that proposed by your Honour be ordered, or some other mechanism be proposed which would see us not come back into the list until there had been a determination of the matters still before the Full Court, was plainly the only appropriate course to be adopted to ensure that the time of the Court and of the parties was not wasted.

HER HONOUR:   Well, I suppose one of the problems is that, as I understand it, the applicant first moved to reopen the appeal and cross‑appeal in September 2005, is that correct?

MR CALEO:   Yes, your Honour.

HER HONOUR:   It is now, of course, so many months later.

MR CALEO:   It is, your Honour.

HER HONOUR:   One can understand the respondent in those circumstances perhaps not just acceding to the matter being stood out of the list generally, having regard to the general approach to expedition in respect of special leave matters.  That is to say that it is not usual to stand the matter out of the list generally for any long period of time.

MR CALEO:   Might I say two things in response to that, your Honour?

HER HONOUR:   Yes.

MR CALEO:   First, insofar as your Honour’s observations might be interpreted as conveying the impression that the matter has taken an excessively long period of time, that that was somehow brought about by my client.

HER HONOUR:   I have read the material and I understand that there were some delays referable to the availability of all three Full Court members for the purposes of hearing the application to reopen the appeal and cross‑appeal.

MR CALEO:   That is correct, your Honour.

HER HONOUR:   That seems to have accounted for some period of time, although it was not my impression that accounted for the whole of the time between September of last year and now.

MR CALEO:   No, and the material before your Honour does not go any further in explaining why it has taken that long.  But, equally, there is no material that suggests in any way to your Honour that the time that has been taken could in any part be laid at the feet of my client.  The second matter,

your Honour, is that the respondent’s response to the correspondence emanating from my instructing solicitors was not, as it could have been, “Well, it should not stand out generally; there should be a mechanism for either party to bring it back into the list”, a proposition which, if it had been thought of on our side or proposed on the other side, would not have required the making of this application.

HER HONOUR:   Yes.

MR CALEO:   Rather, the response was, “Well, let’s not even wait until 2 June.  Let’s dismiss the special leave application now.”  That is the gravamen of both the correspondence and, indeed, of the submissions made today.

HER HONOUR:   I do understand, yes.

MR CALEO:   In my submission, that is entirely baseless and opportunistic and it is that attitude alone that has required the institution of this application.

HER HONOUR:   Perhaps I should call on Mr Crutchfield.

MR CALEO:   If your Honour pleases.

HER HONOUR:   Thank you.

MR CRUTCHFIELD:   If your Honour pleases, there is one matter I ought draw to your Honour’s attention on the question of costs.  If I could hand up an affidavit which exhibits a letter that we sent to my learned friend’s instructing solicitors on the 23rd, that is on Tuesday, your Honour.

HER HONOUR:   Yes.  That is a different order from the one that I was proposing, which was simply the costs of today’s summons.

MR CRUTCHFIELD:   It most certainly is, but I put that before your Honour just to make it clear.

HER HONOUR:   Make a complete picture.

MR CRUTCHFIELD:   Yes, your Honour.

HER HONOUR:   Thank you.

MR CRUTCHFIELD:   Can I just say a couple of things.  We do not oppose what your Honour has in mind in terms of the principal order.

HER HONOUR:   It is the practical solution.  Either side can bring the matter back into the list on three days notice to the other side and, of course, to the Registry.

MR CRUTCHFIELD:   Yes.  Can I say in support of the order that we should obtain our costs of this application, with respect, your Honour is right, it is an indulgence that has been granted to CGU.  Your Honour no doubt has read my written submissions in relation to why we say this whole special leave application is completely misconceived in a nutshell.

HER HONOUR:   Yes.  That is a matter for another day though, Mr Crutchfield.

MR CRUTCHFIELD:   It is a matter for another day, but it is relevant to note that when this special leave application was filed last year and what – CGU said they had to do that because they have to file an appeal within 28 days of the order being pronounced.  There has been a lot of work done in the meantime.  The application book has all been done and it is freely accepted on the other side that more work may need to be done.  Your Honour may have seen that from the reply submissions in the application book.

HER HONOUR:   Yes.

MR CRUTCHFIELD:   Just take one simple example.  They have applied to reopen the appeal.  If they lose on the cross‑appeal, they will undoubtedly be wanting to amend their notice of appeal and their special leave application to pick that up.  None of this had to happen in the way in which it did because the cake is not cooked and no one is stealing the ingredients.  The trial is still going.  So we are content with your Honour’s order, but we do press our costs.  If your Honour pleases.

HER HONOUR:   Yes.  Yes, Mr Caleo.

MR CALEO:   Your Honour, the substantive matters that my learned friend refers to about the content of the special leave application is, with respect, entirely beside the point today.  The only issue is whether the listing of this matter on 2 June was a matter which it was appropriate for both parties to agree should not occur.  The applicant’s position was it should not occur on that day.  The respondent’s position, which has been put in written submissions before this Court, is it need not even occur that day, we should get rid of it now.  The respondent’s position is the only factor – the only factor, with respect – that necessitated the institution of this application. 

In my submission, not only would it not be appropriate as an exercise of discretion to order that my client pay the costs of the respondent of this application, but in fact because it was only the respondent’s conduct that necessitated the application, the respondent should pay my client’s costs.

HER HONOUR:   Yes, thank you.

MR CALEO:   If your Honour pleases.

HER HONOUR:   It appears to me that the applicant is seeking an indulgence in relation to a fixture for the hearing of special leave by requesting that the matter be stood out of the list.  In all the circumstances, I order:

1.The applicant’s application for special leave to appeal be stood out of the list generally and to be reinstituted on three days written notice to the opposite party and to the Deputy Registrar; and

2.The applicant to pay the respondent’s costs of the summons dated 19 May 2006.

Nothing further?

MR CALEO:   No, your Honour.

MR CRUTCHFIELD:   If your Honour pleases.

AT 9.42 AM THE MATTER WAS CONCLUDED