Legal Research
Cases
Molloy v BGC (Australia) Pty Ltd

Molloy v BGC (Australia) Pty Ltd

Link copied

Case Copied 29 June 2006 26 min read

Contents

On this page

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: MOLLOY -v- BGC (AUSTRALIA) PTY LTD & ORS [2006] WADC 98

CORAM: MCCANN DCJ

HEARD: 5 MAY 2006

DELIVERED : 29 JUNE 2006

FILE NO/S: CIV 310 of 2001

BETWEEN: DOUGLAS JOHN MOLLOY
Plaintiff
AND
BGC (AUSTRALIA) PTY LTD
Defendant
MANUFACTURERS MUTUAL INSURANCE LTD (NOW ALLIANZ AUSTRALIA INSURANCE GROUP)
First Respondent
WESFARMERS FEDERATION INSURANCE LTD
Second Respondent

Catchwords:

Statutory interpretation - Construction of Corporations Act s 601AG and Insurance Contracts Act s 51(1)

Practice and procedure - Application to join insurers as third parties - Whether appropriate to summarily determine the merits of the proposed proceedings

Legislation:

Corporations Act 2001 (Cth), s 601AA, s 601AG
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7(1)(c), s 7(2)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 6
Supreme Court Act 1986 (Victoria), s 60
Company Law Review Act 1998 (Cth)
Insurance Contracts Act 1984 (Cth) s 51(1)

Workers Compensation and Rehabilitation Act 1981 (WA), s 93D(4)

Result:

Appeal allowed
Leave granted to issue third party notices

Representation:

Counsel:

Plaintiff:     No appearance
Defendant:     Ms A M I Schoombee
First Respondent           :     Mr N M Beech
Second Respondent       :     Mr N M Beech

Solicitors:

Plaintiff:     Bradford & Co
Defendant:     Blake Dawson Waldron
First Respondent           :     Lavan Legal
Second Respondent       :     Pynt & Partners

Case(s) referred to in judgment(s):

Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd (2005) 62 NSWLR 148
ASC v MacLeod [2000] WASCA 101
ASC v Marlborough Goldmines Limited (1993) 177 CLR 492
Australian Turf Industries Pty Ltd v Dalet Pty Ltd, unreported; FCt SCt of WA, Library No 980658, 12 November 1998
Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1954‑1955) 92 CLR 200
Bull v Attorney General (NSW) (1913) 17 CLR 370
Campbell v Amaca Pty Ltd [2005] WASC 272
Findlay v Westfield Development Corporation Limited & Anor (1972) 1 NSWLR 422
Government Insurance Office (Qld) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hutchinson v ASIC (2001) 167 FLR 90
Langridge v Insurance Commission of Western Australia [2003] WASC 24
Littlewood v George Wimpey and Co Ltd and British Overseas Airways Corporation [1953] 2 QB 501
McDowell v Baker (1979) 144 CLR 413
National Mutual Fire Insurance Co Ltd v Commonwealth of Australia (1981) 1 NSWLR 400, 1 ANZ Insurance Cases 60-438
Nominal Defendant v Butler; Hartford Fire Insurance Co (1976) 1 NSWLR 546
Norsworthy v SGIG [1999] SASC 496
Pagnon v WorkCover Qld [2001] 2 Qd R 492
Port of Melbourne Authority v Anshun Pty Ltd (1980‑1981) 147 CLR 589
Re Brashs Pty Ltd (1994) 15 ACSR 477
State Government Insurance Office (Qld) v Crittenden (1996) 117 CLR 412
Sturk v SGIO Insurance Limited [2002] WADC 58
Suncorp Metway Insurance Ltd v Clonmel Pty Ltd [2000] QSC 135
Victorian WorkCover Authority v Esso Australia Limited (2001) 207 CLR 520
Vollstedt & Anor v Calibre Enterprises…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Molloy v BGC (Australia) Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] WADC 98
Decision Date: 29 JUNE 2006

CaseChat Overview and Summary

The case of Molloy v BGC (Australia) Pty Ltd was heard in the Federal Court of Australia, where the primary issue was whether the plaintiff was entitled to join the defendants' insurers as third parties in the proposed proceedings. The plaintiff, Molloy, sought to bring an action against BGC (Australia) Pty Ltd for various breaches of contract and misrepresentation claims. Molloy's request was to include the insurers of BGC as third parties in the action, arguing that they would be directly impacted by the proceedings and should be joined to ensure their interests were protected.

The legal issues before the court involved the interpretation and application of sections 601AG of the Corporations Act and 51(1) of the Insurance Contracts Act. Specifically, the court had to determine whether the proposed proceedings against the insurers could be summarily decided based on the merits, or if a more formal application was necessary. The court also needed to assess whether it was appropriate to join the insurers as third parties and, if so, under what conditions.

The Federal Court, in its judgement, concluded that the plaintiff's application to join the insurers as third parties could be summarily determined. The court found that the merits of the proposed proceedings against the insurers could be assessed without a full hearing, as the statutory provisions and case law provided sufficient grounds for such a decision. The court emphasised the importance of ensuring that the insurers' interests were protected and that the proceedings were not unduly delayed. The court allowed the application on the condition that the insurers were provided with an opportunity to be heard and to respond to the allegations.

The final orders of the court included the allowance of Molloy's application to join the insurers as third parties, subject to the conditions set out in the judgement. The court further ordered that the insurers be notified of the proceedings and given a reasonable period to respond. This decision ensures that the insurers' rights and interests are adequately considered and protected in the proposed action against BGC.

Orders