Guy Carpenter & Company Pty Limited v Grove

[2012] FCA 946

FEDERAL COURT OF AUSTRALIA

Guy Carpenter & Company Pty Limited v Grove [2012] FCA 946

Citation:		Guy Carpenter & Company Pty Limited v Grove [2012] FCA 946
Parties:		GUY CARPENTER & COMPANY PTY LIMITED ACN 000 351 299 v SCOTT GROVE, AON BENFIELD AUSTRALIA LIMITED ACN 003 026 668, AON BENFIELD, INC. and AON CORPORATION
File number:		NSD 261 of 2012
Judge:		JAGOT J
Date of judgment:		30 August 2012
Legislation:		Federal Court Rules 2011 (Cth)
Date of hearing:	30 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr A Moses SC and Mr J McLeod
Solicitor for the Applicant:	Allens
Counsel for the Respondents:	Mr A McGrath
Solicitor for the Respondents:	Henry Davis York

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 261 of 2012

BETWEEN:

GUY CARPENTER & COMPANY PTY LIMITED ACN 000 351 299
Applicant

AND:

SCOTT GROVE
First Respondent

AON BENFIELD AUSTRALIA LIMITED ACN 003 026 668
Second Respondent

AON BENFIELD, INC.
Third Respondent

AON CORPORATION
Fourth Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	30 AUGUST 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The interlocutory application filed by the applicant on 19 July 2012 be dismissed.

2.The applicant pay the respondent’s costs of the interlocutory application as agreed or taxed.

3.The proceeding be listed for further directions at 9.30 am on 6 September 2012.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 261 of 2012

BETWEEN:

GUY CARPENTER & COMPANY PTY LIMITED ACN 000 351 299
Applicant

AND:

SCOTT GROVE
First Respondent

AON BENFIELD AUSTRALIA LIMITED ACN 003 026 668
Second Respondent

AON BENFIELD, INC.
Third Respondent

AON CORPORATION
Fourth Respondent

JUDGE:	JAGOT J
DATE:	30 AUGUST 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an interlocutory application filed 19 July 2012 by which the applicant seeks an order pursuant to rule 30.01 of the Federal Court Rules 2011 (Cth) that there be a separate hearing in respect of liability prior to a hearing in respect of remedies. Liability is defined to mean all of the issues set out in paragraphs 1 to 74 of the amended statement of claim filed on 13 April 2012, and remedies is defined as the matters set out in paragraphs 75 to 84 of the amended statement of claim.

2. In the present matter there is disputed evidence from the parties’ instructing solicitors in relation to many of the discretionary issues which are relevant to the question of whether the hearing should be separated in any way.  The disputes between the instructing solicitors relate to such matters as the potential for overlapping witnesses, the potential for reducing hearing time and the potential for saving costs, as well as the potential for promotion of settlement of the case.

3. In some cases it is obvious that the question of remedies, particularly if the remedy is limited to quantification of loss, might appropriately be deferred until after the determination of liability.  In many such cases, it is not uncommon for the parties to agree on the hearing being separated into a hearing on liability and a hearing on quantum.   But each case turns on its own facts and it is apparent from the hearing today that there is no agreement between these parties that the hearing should be separated as the applicant seeks.

4. It may be the case that the applicant’s solicitor is correct and there is potential for the saving of hearing time and the saving of costs as well as the promotion of a settlement earlier than might otherwise be the case.  But the potential advantages that he has identified in this case are by no means so clear as to be beyond argument.  Indeed, the respondents’ solicitor disagrees with the course proposed.  Although his evidence is by no means determinative, the evidence of the respondents’ solicitor does at least disclose that the wisdom of the course presently proposed is not overwhelmingly clear.  This is not irrelevant as in the present area of discourse (that is, in relation to separate hearings) it has often been said that caution is required and the courts have routinely referred to the potential advantages of a hearing on separate issues ultimately being proved to be illusory rather than real.  It is for this reason that the competing evidence of the respondents’ solicitor cannot simply be dismissed.  Be that as it may, I recognise that both solicitors genuinely hold their opinions and that their opinions are based upon their extensive litigation experience in areas such as the present dispute. 

5. Despite this, there are six issues which remain on my mind and weigh against the making of the order that the applicant seeks:

   (1)At least the tortious causes of action depend upon proof of damage, and while it is true that the cause of action can be completed by the proof of any damage, experience shows that issues of formulation of duty and breach in this area are not as readily separable from the issues of causation, remoteness and loss as might otherwise appear to be the case.

   (2)Even in respect of other causes of action such as breach of contract, experience has also shown that issues of construction and breach are often informed and shaped by the alleged damage which is said to have been suffered. 

   (3)At least as far as Mr Grove is concerned, Mr Grove being the first respondent and correctly described as a key player in the events which have led to this dispute, there does seem to me to be a real prospect of his being required to give evidence at both proposed stages of the hearing and there seems to be little doubt that his conduct and accordingly his credit will be in issue.  This too seems to me to weigh against the order the applicant presently seeks.

   (4)In a case such as the present there must be a real prospect of an appeal by any party which perceives itself to be unsuccessful.  Splitting the hearing as proposed invites the spectre of and the potential for substantial delay between the first and second hearings because the second hearing would not be able to proceed if there was an appeal, as there may well be against the outcomes in relation to the first hearing.

   (5)Early settlement can be encouraged by other means.  Subject to hearing from the parties, it is not unheard of in this Court for mediation to be ordered before evidence is filed and indeed in some cases before pleadings have been filed.  Be that as it may, it is certainly common for mediation to be ordered after evidence has been filed.  I have not heard from the parties about mediation in this case but it is a matter which is on my mind as potentially appropriate to encourage any potential settlement of this matter, having regard to the nature of the dispute between the parties and the ultimately commercial context in which the proceeding arises.

   (6)If, as seems to be the case from the applicant’s evidence and submissions, the applicant has difficulty quantifying its loss prior to 2013 when certain insurance contracts are up for renewal that might be a reason for appropriate case management, but its not necessarily a persuasive reason for the splitting of the hearing. 

6. The bottom line in a matter such as this is that the applicant has the persuasive burden in respect of proceeding other than by way of a hearing on all issues.  In short, I am not persuaded – certainly not at this time – that an order for the separate hearing should be made.  In terms of the overriding purpose of the rules for civil litigation it does not seem to me on the material currently that the making of an order for separate hearing would necessarily facilitate the just resolution of the present dispute as quickly, inexpensively and efficiently as possible.  As I have said, caution is required in relation to split hearings in that what might appear to be potential benefits may ultimately be proved not to be the case and indeed might prove to be more of a hindrance than a help to the quick, inexpensive and efficient resolution of the dispute. 

7. Accordingly, I am not minded to make the orders sought with the consequence that the order I make is that the interlocutory application filed 19 July 2012 be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        31 August 2012