Hyder Consulting (Victoria) Pty Ltd v CGU Insurance Ltd

[2002] VSC 54

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

BUILDING CASES LIST

No. 5651 of 2001

HYDER CONSULTING (VICTORIA) PTY LTD (ACN 006 149 506) and ORS	Plaintiffs
v
CGU INSURANCE LTD (ACN 004 478 371) and ORS	Defendants

(By original proceeding)

HLG AUSTRALASIA PTY LTD (ACN 000 951 146)	Plaintiff
v
HYDER CONSULTING (VICTORIA) PTY LTD (ACN 006 149 506) and ORS	Defendants

(By counterclaim)

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2002
DATE OF JUDGMENT:	15 March 2002
CASE MAY BE CITED AS:	Hyder Consulting (Victoria) Pty Ltd v CGU Insurance Ltd
MEDIUM NEUTRAL CITATION:	[2002] VSC 54

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Practice and Procedure – pleadings – strike out application refused – application to stay or for summary judgment on essentially same bases – abuse of process – costs – indemnity costs.
RSC RR 23.01(1), 23.02, 23.03.

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APPEARANCES:	Counsel	Solicitors
For Heath	Mr M. Garner	Eakin McCaffery Cox by their agents, Oakley Thompson
For QBE	Mr M. Thompson	Connery & Partners

HIS HONOUR:

1. In this proceeding the thirdnamed defendant, HLG Australasia Pty Ltd (“Heath”), has on 26 October 2001 filed an amended counterclaim against the plaintiffs, against its two co-defendants, CGU Insurance Ltd and QBE Insurance Ltd, and against a number of other parties. 

1. By summons filed on 25 October 2001, QBE sought pursuant to Rule 23.02 orders that paragraphs 87-111, 113-138, 150 and 155 of the amended counterclaim, insofar as they refer to QBE, be struck out on the ground that they disclose no cause of action, alternatively that they are embarrassing or are otherwise an abuse of process.  The gist of the attack was that the allegations of fact, if true, do not disclose an arguable cause of action against QBE.  On 7 December 2001 I published my reasons for dismissing this application[1].  The order for dismissal with costs was made on 21 December 2001 and on that day I refused leave to appeal.

   [1][2001] VSC 449.

1. On 11 January 2002 QBE filed a summons returnable in the Court of Appeal on 15 March 2002 seeking leave to appeal against this order.

1. By summons filed on 6 February 2002, QBE sought pursuant to Rule 23.01 that Heath’s claims against it contained in Part IV of the counterclaim and the corresponding prayer for relief be stayed, again on the ground that this portion of the counterclaim did not disclose a cause of action, was scandalous, frivolous and vexatious, and an abuse of process or, alternatively, that QBE have judgment in respect of these claims pursuant to Rule 23.03.  These claims are those made in paragraphs 150 and 155 of the counterclaim.  This summons which was returnable on 15 February 2002 was adjourned by consent to 1 March 2002. 

1. Heath responded by summons filed on 22 February 2002 seeking orders that the QBE application of February be struck out or dismissed or stayed as an abuse of process and that QBE pay its costs on an indemnity basis.  This counter-summons was also returnable on 1 March.

1. By 1 March 2002 the cross-summonses were resolved and on that day I was told that the parties were agreed that each be struck out, reserving the question of costs for decision by me on a consideration of written submissions.

1. I have carefully examined the submissions filed on behalf of each of the contending parties.  On behalf of QBE it is put that the October application was essentially a pleading summons brought pursuant to Rule 23.02.  It was submitted that the February application was brought pursuant to Rules 23.01 and 23.03 and that accordingly, there is no duplication and no abuse of process.

1. I reject this submission.  The October application was presented and determined as a summons brought pursuant to Rule 23.02.  As the rules are framed, such an application is the modern equivalent of a demurrer;  no evidence may be led in support of it.  The power conferred on the court pursuant to Rule 23.01 is of more general application.  Commonly a pleading may be the subject of attack on a formal or substantive basis under either or both of these rules.  It does not appear on the papers before me how it might be argued that a stay application brought pursuant to Rule 23.01(1) might be made otherwise than by a repetition of the arguments presented or which might have been presented in support of the October application.  Indeed, all of the indications in the submissions incline me to conclude that the October arguments were to be presented again in March 2002. 

1. Insofar as the summary judgment application pursuant to Rule 23.03 is concerned, no affidavit was filed in support.  Nothing was put in the submissions to suggest that QBE would or could put forward evidence of sufficient cogency on any matter as would warrant this summary relief.

1. I conclude, therefore, that the bringing of the summons on 6 February 2002 was an abuse of process and that an order for indemnity costs should be made.

1. I will, therefore, order that Heath’s costs of the QBE application brought by summons filed on 6 February 2002 and the costs of its own application brought by summons filed on 22 February 2002 be taxed on an indemnity basis and paid by QBE.

HYDER CONSULTING (VICTORIA) PTY LTD (ACN 006 149 506) and ORS	Plaintiffs
v
CGU INSURANCE LTD (ACN 004 478 371) and ORS	Defendants

(By original proceeding)

HLG AUSTRALASIA PTY LTD (ACN 000 951 146)	Plaintiff
v
HYDER CONSULTING (VICTORIA) PTY LTD (ACN 006 149 506) and ORS	Defendants

(By counterclaim)

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