Muc v Aon Risk Services Australia

[2007] FCA 1915

FEDERAL COURT OF AUSTRALIA

Muc v AON Risk Services Australia [2007] FCA 1915

KATARINA MUC, DAVID WARD SOMERFIELD, GREGORY HARRISON HEALY and JOANNA BROUWER, PEMPRO PTY LTD, TILTDALE PTY LIMITED, STANDCORP PTY LIMITED, DIAMOND PROPERTY PTY LIMITED, BULWICK PTY LIMITED v AON RISK SERVICES AUSTRALIA LIMITED, CGU INSURANCE LIMITED, VERO INSURANCE LIMITED (formerly Royal and Sun Alliance), GERLINE AUSTRALIAN INSURANCE CO PTY LIMITED, ALLIANZ AUSTRALIA INSURANCE LIMITED
NSD 2555 OF 2006

ALLSOP J
30 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2555 OF 2006

BETWEEN:

KATARINA MUC
First Applicant

DAVID WARD SOMERFIELD
Second Applicant

GREGORY HARRISON HEALY AND JOANNE BROUWER
Third Applicant

PEMPRO PTY LIMITED
Fourth Applicant

TILTDALE PTY LIMITED
Fifth Applicant

STANDCORP PTY LIMITED
Sixth Applicant

DIAMOND PROPERTY PTY LIMITED
Seventh Applicant

BULWICK PTY LIMITED
Eighth Applicant

AND:

AON RISK SERVICES AUSTRALIA LIMITED
First Respondent

CGU INSURANCE LIMITED
Second Respondent

VERO INSURANCE LIMITED (formerly Royal and Sun Alliance)
Third Respondent

GERLING AUSTRALIAN INSURANCE CO PTY LIMITED
Fourth Respondent

ALLIANZ AUSTRALIA INSURANCE LIMITED
Fifth Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	30 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to ss 20(5)(c) and 20(5)(d)(i) of the Federal Court of Australia Act 1976 (Cth), the application be dismissed.

2.The applicants to the proceeding pay the costs of the respondents to the proceeding (being the applicants on the notices of motion) of the motions on an indemnity basis.

3.To the extent that the respondents have incurred costs not otherwise covered by orders, the applicants pay the respondents’ costs of the proceeding.

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	NSD 2555 OF 2006

BETWEEN:

KATARINA MUC
First Applicant

DAVID WARD SOMERFIELD
Second Applicant

GREGORY HARRISON HEALY and JOANNE BROUWER
Third Applicant

PEMPRO PTY LIMITED
Fourth Applicant

TILTDALE PTY LIMITED
Fifth Applicant

STANDCORP PTY LIMITED
Sixth Applicant

DIAMOND PROPERTY PTY LIMITED
Seventh Applicant

BULWICK PTY LIMITED
Eighth Applicant

AND:

AON RISK SERVICES AUSTRALIA LIMITED
First Respondent

CGU INSURANCE LIMITED
Second Respondent

VERO INSURANCE LIMITED (formerly Royal and Sun Alliance)
Third Respondent

GERLING AUSTRALIAN INSURANCE CO PTY LIMITED
Fourth Respondent

ALLIANZ AUSTRALIA INSURANCE LIMITED
Fifth Respondent

JUDGE:	ALLSOP J
DATE:	30 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 21 September 2007, I made orders granting leave to file an amended statement of claim on the condition that all of the evidence of the applicants was filed by a particular date.  That did not occur.  On 16 November 2007, I revoked the leave to amend, and gave the parties leave to bring applications to dismiss the proceedings or to seek further leave to amend the statement of claim.  The respondents have availed themselves of that leave in order (3)(a) of the orders of 16 November 2007; the first respondent by filing a notice of motion on 21 November 2007; the second to fifth respondents by filing a motion in court today.

2. No motion has been filed to further amend the statement of claim.  However, Mr Shevlin attended today to ask for a two week adjournment of the respondent’s notices of motion, and to give him further time to get evidence from his clients and from a claims manager or loss adjuster who is putting on evidence in support of the claim.  Mr McQuillen, counsel for the applicants, is apparently in the District Court in a two week matter.  I made some comments during the course of the hearing today, which I do not withdraw, to the effect that the handling of the case is beginning to resemble a chapter from a Dickens novel.  There has been a complete failure of the applicants to attend to their own interests.  An application to dismiss the proceedings has been made.  I think it is a legitimate application. 

3. The only consideration that constrains me to dismiss the matter without qualification is the fact that the claim, such as it may be, will almost certainly now be statute-barred if fresh proceedings had to be brought. To that end, I was contemplating a guillotine order. Notwithstanding the disadvantages of such orders, this seemed to me an appropriate case for a guillotine order. Mr Jones, however, on behalf of the first respondent, made another suggestion, which I think is preferable. Ms Kennedy, for the second to fifth respondents, adopted the suggestion. That is, given the history of the matter, which can be recounted from the judgments and transcripts in the proceeding, that I should make an order under s 20(5)(c), or in the alternative, s 20 (5)(d)(i) of the Federal Court of Australia Act 1976 (Cth).

4. There may be some doubt as to whether there has been a failure to comply with the direction of the Court, being the order by way of condition made on 21 September 2007. In any event, if that point were good, I would also make the order under s 20(5)(c). That will bring some finality to the proceeding. If there be an order sought by way of future application in the proceeding under s 20(5)(da), that can be brought.

5. I will not be here in two weeks. I will then be on leave and then will return at the beginning of March 2008, save for some time in January when we are in Court vacation. All respondents, through Mr Jones and Ms Kennedy, have given an undertaking to the Court that they will not, and each will not, seek to rely upon any argument that, by reason of the making and operation and effect of the order under section 20(5)(c), the applicants are statute-barred if an application under s 20(5)(da) is otherwise successful or might otherwise be successful.

6. That undertaking does not affect their entitlement, if it exists, otherwise to object to the claim on the basis that it is statute-barred, but merely on the basis of the making, operation and effect of an order under s 20(5)(c). I think that is the appropriate course that will then enable the applicants, if they can get their house in order, to bring an application and persuade the Court as to why the order under s 20(5)(c) or (5)(d)(i) should be set aside. The sooner and more complete that application is made, the better. If an application is filed, it should be given a return date before me on Friday, 7 March, 2008 at 2.15 pm.

7. That leaves the question of costs.  I see no reason why the costs of the parties today should not be paid, and on an indemnity basis.

8. Therefore the orders of the Court are:

   1.Pursuant to ss 20(5)(c) and 20(5)(d)(i) of the Federal Court of Australia Act 1976 (Cth), the application be dismissed.

   2.The applicants to the proceeding pay the costs of the respondents to the proceeding (being the applicants on the notices of motion) of the motions on an indemnity basis.

   3.To the extent that the respondents have incurred costs not otherwise covered by orders, the applicants pay the respondents’ costs of the proceeding.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:        18 January 2008

Solicitor for the Applicant:	GH Healey & Co
Counsel for the First Respondent:	Mr M Jones
Solicitor for the First Respondent:	Deacons
Counsel for the Second to Fifth Respondents:	Ms E Kennedy
Solicitors for the Second to Fifth Respondents:	Holman Webb
Date of Hearing:	30 November 2007
Date of Judgment:	30 November 2007