Mastermyne Group Limited v Brit Engineering on behalf of Lloyds Consortium 9424
[2020] FCA 1288
•4 September 2020
FEDERAL COURT OF AUSTRALIA
Mastermyne Group Limited v Brit Engineering on behalf of Lloyds Consortium 9424 [2020] FCA 1288
File number: QUD 138 of 2020 Judgment of: ALLSOP CJ Date of judgment: 4 September 2020 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance – Insurance List Number of paragraphs: 8 Date of hearing: 4 September 2020 Counsel for the Applicant: Mr M Trim Solicitor for the Applicant: McCullough Robertson Lawyers Counsel for the Respondent: Mr M Jones SC with Mr S Fitzpatrick Solicitor for the Respondent: Wotton & Kearney Lawyers ORDERS
QUD 138 of 2020 BETWEEN: MASTERMYNE GROUP LIMITED
Applicant
AND: BRIT ENGINEERING ON BEHALF OF LLOYDS CONSORTIUM 9424
Respondent
ORDER MADE BY:
ALLSOP CJ
DATE OF ORDER:
4 SEPTEMBER 2020
THE COURT ORDERS THAT:
1.The matter be transferred to the docket of Justice Colvin for hearing at a time and date convenient to his Honour and the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This matter was filed on 13 May 2020. The applicant, Mastermyne Group Limited (Mastermyne) was insured under a Contractors Plant & Equipment Policy that covered the period from 30 September 2017 to 30 September 2018 (the Policy). By its originating application, Mastermyne sought, amongst other things, declaratory relief to the effect that, upon a proper construction of the Policy, the respondent insurer, Brit Engineering on behalf of Lloyds Consortium 9424 (Brit Engineering), was required to indemnify Mastermyne in respect of the destruction of, or damage to, its equipment located underground at the North Goonyella Mine, and that Brit Engineering ought to have reasonably indemnified Mastermyne between January 2020 and April 2020.
The Court determined that this matter was appropriate for inclusion in the Insurance List and it was listed before me for first case management hearing on 24 June 2020. At that first case management hearing, and at a subsequent case management hearing in August 2020, I made orders with a view to the parties cooperating to narrow and clearly enunciate the scope of the case by way of a proposed statement of agreed facts and a proposed statement of agreed issues to be determined separately, and to prepare the matter for a cost-effective and expeditious hearing.
It was clear at the third case management hearing this morning that the parties have fundamentally been unable to reach agreement over the past few months on any issue concerning how best to resolve this matter. That inability to agree is also apparent upon a review of the documents that have been filed to date in the matter.
The Insurance List was introduced as part of the Court’s commitment to the provision of commercial dispute resolution mechanisms that emphasise flexibility, efficiency and cost-effectiveness. The aim was to provide insurers and insureds with a list which caters for the prompt and efficient resolution of legal issues to enable the parties otherwise to resolve their disputes without the need for full-blown hearings where a crucial issue could be decided discretely and swiftly.
However, based on the conduct of the matter to date, I am now of the view that the best course is for the matter simply to be heard, without particular refinement of issues other than those found in the application and concise statement. Most of the necessary material, including affidavit evidence and expert reports, has already been filed.
I note that, in its written submissions filed on 28 August 2020, the respondent made reference to a second policy of insurance which expired on 30 September 2019 (the Second Policy). The applicant does not rely upon the Second Policy in its originating application. When asked at the case management hearing this morning, counsel for the applicant said that he did not have any instructions about this issue. The applicant needs to assess whether it is suing only on the Policy, or on both the Policy and the Second Policy. If the applicant intends to rely on both policies to recover the damages that it seeks, the applicant may need to amend its originating application. If the applicant intends to rely only on the Policy, there would be no need to amend.
Given the inability of the parties to agree on anything with respect to the disposition of this matter, I am persuaded that the most expeditious way to proceed and resolve the dispute between the parties is to list the matter for a hearing on the question of indemnity, and the extent of indemnity short of a precise calculation of quantum, if that be practicable and convenient. I do not have the capacity to hear this matter in the near future given what I apprehend to be the nature of the dispute. It will not be one which is either confined or limited.
On that basis, I propose to keep the matter in the Insurance List but transfer it to the docket of Justice Colvin for the purpose, subject to any further case management or other orders made by his Honour, of the matter being heard, as soon as reasonably practicable, at a time and date convenient to his Honour and the parties. This is not a transfer of the matter from the Queensland Registry. The matter appears amenable to being heard via video link technology such as Microsoft Teams.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Allsop. Associate:
Dated: 8 September 2020
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