FEDERAL COURT OF AUSTRALIA
Kaboko Mining Limited v Van Heerden (No 2) [2018] FCA 706
File number: WAD 403 of 2016 Judge: MCKERRACHER J Date of judgment: 18 May 2018 Catchwords: PRACTICE AND PROCEDURE – interlocutory application – whether the Court should order the joinder of a person to the proceeding – where the joinder of the defendant’s insurer would avoid multiplicity of proceedings and give effect to the overarching purpose of the Court’s civil practice and procedure provisions – insurer joined as defendant Legislation: Bankruptcy Act 1966 (Cth) s 117
Corporations Act 2001 (Cth) s 562
Federal Court of Australia Act 1976 (Cth) ss 21, 22
Federal Court Rules 2011 (Cth) rr 9.05(1)(b)
Cases cited: Anjin No 13 Pty Ltd v Allianz Australia Insurance Ltd (2009) 26 VR 148
Ashmere Cove Pty Limited v Beekink (No 2) [2007] FCA 1421
CGU Insurance v Blakeley [2015] VSCA 153
CGU Insurance Limited v Blakeley (2016) 259 CLR 339
Employers Reinsurance Corporation v Ashmere Cove Pty Ltd (2008) 166 FCR 398
Interchase Corporation (in liq) v FAI General Insurance Co Ltd [2000] 2 Qd R 301
JN Taylor Holdings Ltd (In liq) v Bond (1993) 59 SASR 432
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
The Owners-Strata Plan 62658 v Mestrez Pty Ltd [2012] NSWSC 1259
Date of hearing: 4 April 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 35 Counsel for the Plaintiff: Mr N Kirby Solicitor for the Plaintiff: Clayton Utz Lawyers Counsel for the First to Fourth Defendants: The First to Fourth Defendants did not appear Counsel for the Prospective Fifth Defendant: Mr T Searle Solicitor for the Prospective Fifth Defendant: Clyde & Co ORDERS
WAD 403 of 2016 BETWEEN: KABOKO MINING LIMITED ACN 107 316 683 (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)
Plaintiff
AND: ANDRIES TOBIAS VAN HEERDEN
First Defendant
JANE ROSEMARY FLEGG
Second Defendant
SHANNON JAYNE ROBINSON (and another named in the Schedule)
Third Defendant
JUDGE:
MCKERRACHER J
DATE OF ORDER:
4 APRIL 2018
THE COURT ORDERS THAT:
1.AIG Australia Limited ABN 93 004 727 753 be joined as a Fifth Defendant to the proceeding pursuant to Rule 9.05(1)(b)(i) and (ii) of the Federal Court Rules 2011 (Cth).
2.The issue of AIG’s liability to indemnify each of the defendants, or any of them, on account of the alleged breaches of their statutory, fiduciary and common law duties, be listed for hearing on Friday, 27 July 2018 at 10:15am (the preliminary hearing).
3.The Plaintiff and Fifth Defendant are to provide proposed orders programming the matter forward to the preliminary hearing as soon as practicable, including the filing of an amended Statement of Claim by the Plaintiff.
4.Costs be in the cause.
Note: Entry of orders is dealt with…
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- Case
- [2018] FCA 706
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the insurer, AIG Australia Limited, should be joined as a party to the proceedings. The court considered that joining the insurer would prevent the multiplicity of proceedings, which would be inconsistent with the overarching purpose of the civil practice and procedure provisions. The court also considered the potential for the insurer to be liable for indemnifying the defendants, or any of them, for the alleged breaches.
The court held that the insurer should be joined as a party to the proceedings to avoid the potential for multiple proceedings and to give effect to the overarching purpose of the civil practice and procedure provisions. The court found that the insurer's joinder would not only avoid multiplicity of proceedings but also provide a more efficient and cost-effective resolution of the dispute. The court also noted that the insurer's potential liability for indemnifying the defendants was a significant factor in favour of its joinder.
In light of the above, the court granted leave to file an amended pleading joining AIG as a defendant. The court ordered that the issue of the insurer's liability to indemnify each of the defendants be listed for a preliminary hearing. The court also ordered that the plaintiff and the insurer provide proposed orders programming the matter forward to the preliminary hearing as soon as practicable, including the filing of an amended Statement of Claim by the plaintiff. The court further ordered that costs be in the cause.
Orders
Orders of the court
1. AIG Australia Limited ABN 93 004 727 753 be joined as a Fifth Defendant to the proceeding pursuant to Rule 9.05(1)(b)(i) and (ii) of the Federal Court Rules 2011 (Cth).
2. The issue of AIG’s liability to indemnify each of the defendants, or any of them, on account of the alleged breaches of their statutory, fiduciary and common law duties, be listed for hearing on Friday, 27 July 2018 at 10:15am (the preliminary hearing).
3. The Plaintiff and Fifth Defendant are to provide proposed orders programming the matter forward to the preliminary hearing as soon as practicable, including the filing of an amended Statement of Claim by the Plaintiff.
4. Costs be in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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