Gaffney v RSM Bird Cameron Partners (A Firm)

[2011] FCA 1453

FEDERAL COURT OF AUSTRALIA

Gaffney v RSM Bird Cameron Partners (A Firm) [2011] FCA 1453

Citation:		Gaffney v RSM Bird Cameron Partners (A Firm) [2011] FCA 1453
Parties:		ANGELA GAFFNEY v RSM BIRD CAMERON PARTNERS (A FIRM) and BIRDANCO NOMINEES PTY LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) (ACN 009 321 377)
File number:		WAD 281 of 2010
Judge:		GILMOUR J
Date of judgment:		6 December 2011
Date of hearing:	6 December 2011
Place:	Perth
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Ms F O'Brien (SC) with Ms L Kirwen
Solicitor for the Applicant:	Ilberys
Counsel for the Respondents:	Mr M Goldblatt
Solicitor for the Respondents:	Hammond King Touyz

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 281 of 2010

BETWEEN:

ANGELA GAFFNEY
Applicant

AND:

RSM BIRD CAMERON PARTNERS (A FIRM)
First Respondent

BIRDANCO NOMINEES PTY LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) (ACN 009 321 377)
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	6 DECEMBER 2011
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The first and second respondents have leave to file a notice of cross-claim in respect only of claim B in the statement of claim annexed to the affidavit of Mr Colin Touyz, sworn 25 August 2011.

2.The costs of that be in the cause.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 281 of 2010

BETWEEN:

ANGELA GAFFNEY
Applicant

AND:

RSM BIRD CAMERON PARTNERS (A FIRM)
First Respondent

BIRDANCO NOMINEES PTY LTD (AS TRUSTEE FOR THE BIRDANCO PRACTICE TRUST) (ACN 009 321 377)
Second Respondent

JUDGE:	GILMOUR J
DATE:	6 DECEMBER 2011
PLACE:	PERTH

REASONS FOR JUDGMENT

1. I have before me an interlocutory application filed by the respondents by which they seek leave to file a notice of cross-claim with some consequential orders.  The affidavit is supported by an affidavit of Mr Colin Touyz sworn 25 August 2011 which is responded to by an affidavit of the applicant sworn on 23 September 2011.  The respondents have informed me that they no longer press claim A which is contained in the draft statement of cross-claim which is annexed to the affidavit of Mr Touyz.  Accordingly, paras 1 to 6 inclusive of that draft are no longer pressed.  There then remains only the question whether leave should be granted to the respondents to file a notice of cross-claim in terms of Claim B at paras 7 to 13, which is the balance of the proposed pleading.

2. There was an issue of substance raised by the applicant in relation to the subject matter of that claim which is a claim under an insurance policy.  That opposition, whilst it may well have been well made at the time, has now been overtaken by the fact that the policy was the subject of an amendment to the employer named in the original policy.  Accordingly, the only matter left for my consideration is whether I am satisfied as to the explanation for the delay by the respondents in bringing the cross-claim.  The proceedings were instituted, I am informed, on 25 August 2011.  Plainly, as the respondents accept, the rules were not complied with in relation to filing a cross-claim within the prescribed time period.

3. The affidavit of Mr Touyz at para 12 states:

   Although the availability of this claim was known by the second respondent before these proceedings were commenced by the applicant, this cross-claim was not brought until now because:

   (a)there was a possibility that the applicant would provide the co-operation that had been requested of her and which the second respondent continued to request even after these proceedings were commenced and thus it was hoped that it would be unnecessary to raise this matter before the Court; and

   (b)until 20 July 2011, when an offer of settlement made by the first and second respondents was rejected by the applicant, the first and second respondents were hopeful that the matter could be settled and they did not want to disturb the delicacy required in those negotiations.

4. In short, the explanation is that the matter which is the subject of the cross-claim and still pressed is and was readily capable of resolution at the instance of the applicant.  The respondents had hoped that she would cooperate in that respect and thus avoid the need for the cross-claim.  I, of course, do not propose to come to any concluded view as to whether or not the respondent does have some responsibility for this or not but what is plain is that in her answering affidavit, to which I referred, she does not dispute the matters which are set out in para 12 of the affidavit of Mr Touyz.

5. That being so I am satisfied that, a satisfactory explanation has been provided for the delay.

6. There will be orders that:

   1.The first and second respondents have leave to file a notice of cross-claim in respect only of claim B in the statement of claim annexed to the affidavit of Mr Colin Touyz, sworn 25 August 2011.

   2.The costs of that be in the cause.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:       6 December 2011