Crest Real Estate Pty Ltd Trading as Barry Plant Epping v Realcover Insurances Pty Limited
[2019] FCA 837
•4 June 2019
FEDERAL COURT OF AUSTRALIA
Crest Real Estate Pty Ltd Trading as Barry Plant Epping v Realcover Insurances Pty Limited [2019] FCA 837
File number: VID 64 of 2019 Judge: ALLSOP CJ Date of judgment: 4 June 2019 Date of hearing: 4 June 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicant: Mr A Strahan QC with Ms C Mintz Solicitor for the Applicant: Coterminous Legal Counsel for the Respondent: Mr D A Klempfner Solicitor for the Respondent: Mills Oakley ORDERS
VID 64 of 2019 BETWEEN: CREST REAL ESTATE PTY LTD TRADING AS BARRY PLANT EPPING (ACN 139 990 855)
Applicant
AND: REALCOVER INSURANCES PTY LIMITED
Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
4 JUNE 2019
THE COURT ORDERS THAT:
1.The hearing of this matter on 11 and 12 June 2019 be vacated.
2.The matter be transferred to the docket of Justice Anderson.
3.The parties jointly approach the chambers of Justice Anderson by email seeking a date for case management.
4.The settled reasons of today, once provided to the legal representatives, be provided forthwith to the two clients.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This matter was filed on 1 February 2019. By originating application, Crest Real Estate Pty Ltd trading as Barry Plant Epping sought, amongst other things, a declaration that Realcover Insurances Pty Limited is liable to indemnify the applicant under a professional indemnity policy in respect of its claim for payments made to owners of rental properties that were used for marijuana cultivation by tenants managed by Crest.
The Court determined that this matter was appropriate for the Insurance List and it was listed before me for first case management hearing on 5 March 2019.
As is the usual procedure, on 4 February 2019, my Associate contacted the applicant’s solicitors to clarify a number of matters, including the contact details of the respondent and the date on which the originating documents were served. After receiving no reply, my Associate again sought to bring these matters to the attention of the applicant’s solicitors. No substantive response was received until 13 February 2019.
On 5 March 2019, I made timetabling orders by consent for the preparation of this matter for hearing in Melbourne on 11 and 12 June 2019, that is, next Tuesday and Wednesday. The parties have failed to comply with most of those orders, whether by filing documents significantly out of time or not at all. I will not go through the litany of various minor and not-minor breaches save to say that both sides have participated.
On 27 May 2019, my Associate contacted the parties regarding the delay in filing submissions. My Associate asked the respondent to file its submissions by the end of the day and for the applicant to advise of any expected further delay. No response was received from the parties.
On 30 May 2019, my Associate again brought this email to the attention of the parties seeking an explanation. Some explanation was received from the applicant on 30 May 2019 and from the respondent on 31 May 2019.
The Insurance List was set up to assist insurance brokers and insureds to deal with insurance issues as effectively and quickly as possible. Whilst the parties appear to be cooperating to confine the matter to discrete legal issues so as, as far as possible, to avoid costly and protracted litigation, they have so far done so with significant disregard for their obligation to comply with court orders and their responsibility promptly and efficiently to communicate with chambers. The Court should be kept abreast of significant changes in the conduct of the proceedings, and parties should contact chambers in a timely manner if they are or will be unable to comply with orders, so that the matter can be put on a regular basis.
There has been regular failure to prepare this matter in a timely way. This was either due to a failure to attend to the matter appropriately or to the fact that the timetable was unrealistic to begin with. Looking at the issues as they currently stand on the concise statement and concise statement in response in their current amended forms, I doubt very much whether this matter will be easily dealt with in two days, there being allegations of impropriety alleged.
Both sides have some responsibility for this situation. I am not going to come down to Melbourne to hear a case that has been thrown together at the last minute.
For these reasons, I propose to vacate the hearing dates on 11 and 12 June 2019. Given the apparent attitude of the parties, I do not propose to keep this matter in the Insurance List. The matter will be transferred to the docket of Justice Anderson. The parties have produced their latest version of competing short minutes. The parties are to confer before any case management hearing before Justice Anderson for the making of appropriate orders to get the matter ready for trial.
Given the matters I have indicated, there appears no purpose in allocating responsibility through any particular order for costs other than that the costs to date be reserved. That is not an indication that they should not otherwise be such as to follow the event. But I leave the matter open for consideration to Justice Anderson.
The orders I make today are:
(1)The hearing of this matter on 11 and 12 June 2019 be vacated.
(2)The matter be transferred to the docket of Justice Anderson.
(3)The parties jointly approach the chambers of Justice Anderson by email seeking a date for case management.
(4)The settled reasons of today, once provided to the legal representatives, be provided forthwith to the two clients.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 4 June 2019
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