Commens t/as Subsonic Music v Certain Lloyd's Underwriters subscribing to Policy No Altcnx1900332

[2023] FCA 1434

FEDERAL COURT OF AUSTRALIA

Commens t/as Subsonic Music v Certain Lloyd’s Underwriters subscribing to Policy No ALTCNX1900332 [2023] FCA 1434   

File number(s):

NSD 719 of 2022

Judgment of:

JACKMAN J

Date of judgment:

16 November 2023

Date of publication of reasons:

20 November 2023

Catchwords:

PRACTICE AND PROCEDURE – interlocutory application for the hearing of separate questions pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) – insurance list – whether there is a risk of conflicting findings on credit – the overarching purpose of the civil practice and procedure provisions favours the making of an order for separate questions

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37M, 54A

Federal Court Rules 2011 (Cth) r 30.01

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:

16 November 2023

Counsel for the Applicant:

Mr J Walsh

Solicitor for the Applicant:

Maurice Blackburn

Counsel for the Respondent:

Mr M Newton

Solicitor for the Respondent:

Clyde & Co

ORDERS

NSD 719 of 2022

BETWEEN:

SCOTT COMMENS T/AS SUBSONIC MUSIC

Applicant

AND:

CERTAIN LLOYD'S UNDERWRITERS SUBSCRIBING TO POLICY NO ALTCNX1900332

Respondent

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	16 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth), the questions set out in Annexure A to the interlocutory application be heard separately from and prior to all other questions in the proceedings.

2.The costs of the interlocutory application as to whether there should be separate questions be costs in the hearing of those questions.

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

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

JACKMAN J:

1. The applicant seeks an order that certain questions be determined separately from other questions in the proceedings, namely those set out in Annexure A to the interlocutory application. The effect of such an order would be that all questions other than the quantification of “net loss” and interest would be determined at an initial hearing.

2. The applicant estimates a two day hearing will be required for the initial hearing, although the respondents suggest that that may be an overestimate and it is possible that only one day would be required. The applicant estimates that a further two day hearing would be required for quantification issues unless quantification could be settled by agreement between the parties, and the respondents have indicated that it is premature for the respondents to estimate the length of time required for those quantification issues to be tried. 

3. The application is opposed by the respondents, who point out that the initial hearing will involve factual issues and not merely questions of construction of the policy, and the applicant himself will be a witness in both proposed stages of the hearing and there is a material risk that issues of credit will arise. The applicant responds that the owner of the land, Mr Hall, will be the primary and critical witness on the initial questions which are propounded, although it is unclear at this stage, in my view, as to whether that will turn out, ultimately, to be the case. 

4. I take into account the matters raised by the respondents, however there is potentially a very substantial saving in time and costs by separating the issues in the manner proposed by the applicant. Further, the risk of credit findings preventing me from hearing the quantification of net loss question is greatly diminished by the real prospect that quantification issues may be suitable for referral pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth). I also take into account the overarching purpose in s 37M of the Federal Court of Australia Act as to facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible which, in my view, favours the making of such an order for separate questions.

5. I also bear in mind the strong inclination in case management of the Insurance List for the identification and determination of separate questions as provided for in r 30.01(1) of the Federal Court Rules 2011 (Cth), in the expectation that that will be the most efficient way of dealing with the proceedings and will also increase the prospect of compromise of the other issues which may be time consuming and expensive to litigate. Accordingly, in my view, the orders sought by the applicant for the hearing of separate questions should be made and I order:

   (1)Pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth), the questions set out in Annexure A to the interlocutory application be heard separately from and prior to all other questions in the proceedings.

   (2)The costs of the interlocutory application as to whether there should be separate questions be costs in the hearing of those questions.

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

Associate:

Dated:       20 November 2023