King v AG Australia Holdings Limited (formerly GIO Australia Holdings Limited)

[2002] FCAFC 317

FEDERAL COURT OF AUSTRALIA

King v AG Australia Holdings Limited (formerly GIO Australia Holdings Limited) [2002] FCAFC 317

SHANE ROBERT KING v AG AUSTRALIA HOLDINGS LIMITED (FORMERLY GIO AUSTRALIA HOLDINGS LTD) (ACN 054 573 401), GRANT SAMUEL & ASSOCIATES PTY LTD (ACN 050 036 372), DAVID MORTIMER, BRUCE HOGAN, STEWART STEFFEY, RONALD ASHTON, MARINA DARLING, ANDREW KALDOR, LLOYD LANCE, DAVID O’HALLORAN AND IAN POLLARD

N 955 OF 1999

TAMBERLIN, SACKVILLE AND GYLES JJ
9 OCTOBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N955 OF 1999

BETWEEN:

SHANE ROBERT KING
APPLICANT

AND:

AG AUSTRALIA HOLDINGS LIMITED (formerly GIO AUSTRALIA HOLDINGS LIMITED)
FIRST RESPONDENT

GRANT SAMUEL & ASSOCIATES PTY LTD
SECOND RESPONDENT

DAVID MORTIMER
THIRD RESPONDENT

BRUCE HOGAN
FOURTH RESPONDENT

STEWART STEFFEY
FIFTH RESPONDENT

RONALD ASHTON
SIXTH RESPONDENT

MARINA DARLING
SEVENTH RESPONDENT

ANDREW KALDOR
EIGHTH RESPONDENT

LLOYD LANGE
NINTH RESPONDENT

DAVID O’HALLORAN
TENTH RESPONDENT

IAN POLLARD
ELEVENTH RESPONDENT

PRICEWATERHOUSECOOPERS SECURITIES LIMITED
CROSS-RESPONDENT TO CROSS-CLAIMS 1A AND 2C

MACQUARIE BANK LIMITED
CROSS-RESPONDENT TO CROSS-CLAIM 1C

GIO INSURANCE LTD
CROSS-RESPONDENT TO CROSS-CLAIM 2A

TRELSS RICHARD ADAM AND ORS [PRICEWATERHOUSECOOPERS]
CROSS-RESPONDENTS TO CROSS-CLAIMS 1A AND 2C

PRICEWATERHOUSECOOPERS ACTUARIAL PTY LIMITED
CROSS-RESPONDENT TO CROSS-CLAIM 2C

JUDGES:

TAMBERLIN, SACKVILLE AND GYLES JJ

DATE OF ORDER:

9 OCTOBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant for leave to appeal pay the costs of the respondent for leave to appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N955 OF 1999

BETWEEN:

SHANE ROBERT KING
APPLICANT

AND:

AG AUSTRALIA HOLDINGS LIMITED (formerly GIO AUSTRALIA HOLDINGS LIMITED)
RESPONDENT

GRANT SAMUEL & ASSOCIATES PTY LTD
SECOND RESPONDENT

DAVID MORTIMER
THIRD RESPONDENT

BRUCE HOGAN
FOURTH RESPONDENT

STEWART STEFFEY
FIFTH RESPONDENT

RONALD ASHTON
SIXTH RESPONDENT

MARINA DARLING
SEVENTH RESPONDENT

ANDREW KALDOR
EIGHTH RESPONDENT

LLOYD LANGE
NINTH RESPONDENT

DAVID O’HALLORAN
TENTH RESPONDENT

IAN POLLARD
ELEVENTH RESPONDENT

PRICEWATERHOUSECOOPERS SECURITIES LIMITED
CROSS-RESPONDENT TO CROSS-CLAIMS 1A AND 2C

MACQUARIE BANK LIMITED
CROSS-RESPONDENT TO CROSS-CLAIM 1C

GIO INSURANCE LTD
CROSS-RESPONDENT TO CROSS-CLAIM 2A

TRELSS RICHARD ADAM AND ORS [PRICEWATERHOUSECOOPERS]
CROSS-RESPONDENTS TO CROSS-CLAIMS 1A AND 2C

PRICEWATERHOUSECOOPERS ACTUARIAL PTY LIMITED
CROSS-RESPONDENT TO CROSS-CLAIM 2C

JUDGES:	TAMBERLIN, SACKVILLE AND GYLES JJ
DATE:	9 OCTOBER 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT REVISED FROM TRANSCRIPT

TAMBERLIN J:

1. I will ask Sackville J to give the first judgment.

   SACKVILLE J: 

2. This is an application for leave to appeal from a judgment of the primary Judge.  His Honour dismissed an application by the present applicant (“Macquarie”) to strike out a cross-claim against it filed by the present respondent (“GIO”).  GIO is the respondent to proceedings brought by a representative of a large number of GIO shareholders who did not sell their shares during a hostile takeover.  The substance of the principal claim against GIO is set out in the reasons of the primary Judge and there is no need to repeat it here. 

3. It is important to bear in mind that this is an application for leave to appeal from an interlocutory judgment involving matters of practice and procedure.  It is well established that the Court should be reluctant to grant leave to appeal in relation to such matters especially in a case as complex as this which requires detailed management on the part of the docket Judge.  The main criticism of the cross-claim was directed to pars 14 and 15. 

4. Paragraph 14 pleads that if certain risk factors particularised in a schedule to the current statement of claim were in existence by 9 December 1998 and were material matters in relation to the Part B statement issued by GIO in the course of the takeover, then in planning, preparing and conducting the work pursuant to a retainer, Macquarie ought to have become aware of these risk factors.

5. Paragraph 15 pleads that Macquarie, in planning, preparing and conducting the work pursuant to its retainer and in breach of the terms of the retainer, failed to obtain certain information that it should have obtained. 

6. In my view, the earlier parts of the cross-claim, notably pars 8 to 10, provide a firm foundation for Macquarie to be joined to the proceedings.

7. Although there may be particular deficiencies in pars 14 and 15 of the cross-claim, the nature of the case pleaded against Macquarie is in substance clear enough.  In saying that, I do not intend to suggest that none of the criticisms made by Mr Sullivan QC, who appears for Macquarie, is well founded.  On the contrary, some of the criticisms that Mr Sullivan has put forward of the pleadings may well have some substance.  But that does not detract from the proposition that the cross-claim establishes a basis for Macquarie to be joined to the proceedings as a cross-respondent.

8. In my view, Macquarie has not established that it would sustain substantial prejudice if leave to appeal were refused.  It is a matter for the primary Judge, as the docket Judge responsible for the management of this case, to ensure that Macquarie's entitlement to know the case against it is protected.  Nothing has been said that persuades me that Macquarie will ultimately face a trial without having a full and fair opportunity to understand the case against it.  Accordingly, the application for leave to appeal should be dismissed with costs.

   TAMBERLIN J: 

9. I agree with the reasons of Sackville J and the conclusions which his Honour has reached.

   GYLES J: 

10. I also agree.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices TAMBERLIN, SACKVILLE AND GYLES.

Associate:

Dated:            23 October 2002

Counsel for the Cross Claimant to Cross Claim 1C:	Mr I M Jackman SC and Mr M R Tyson
Solicitor for the Cross Claimant to Cross Claim 1C:	Ebsworth & Ebsworth
Counsel for the Cross-Respondent to Cross Claim 1C:	Mr A Sullivan QC
Solicitor for the Cross-Respondent to Cross Claim 1C:	Clayton Utz
Date of Hearing:	9 October 2002
Date of Judgment:	9 October 2002