Muc v Aon Risk Services Australia Ltd

[2007] FCA 1494

FEDERAL COURT OF AUSTRALIA

Muc v AON Risk Services Australia Ltd [2007] FCA 1494

KATARINA MUC, DAVID WARD SOMERFIELD, GREGORY HARRISON HEALEY AND JOANNA BROUWER AND PEMPRO PTY LIMITED, TILTDALE PTY LIMITED, STANDCORP PTY LIMITED, DIAMOND PROPERTY PTY LIMITED AND BULWICK PTY LIMITED  v AON RISK SERVICES AUSTRALIA LIMITED, CGU INSURANCE LIMITED, VERO INSURANCE LIMITED, GERLING AUSTRALIA INSURANCE CO PTY LIMITED AND ALLIANZ AUSTRALIA INSURANCE LIMITED
NSD 2555 OF 2006

ALLSOP J
21 SEPTEMBER 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 HEALEY AND JOANNA BROUWER
Third Applicants

PEMPRO PTY LIMITED, TILTDALE PTY LIMITED, STANDCORP PTY LIMITED, DIAMOND PROPERTY PTY LIMITED AND BULWICK PTY LIMITED
Fourth Applicants

AND:

AON RISK SERVICES AUSTRALIA LIMITED
First Respondent

CGU INSURANCE LIMITED
Second Respondent

VERO INSURANCE LIMITED
Third Respondent

GERLING AUSTRALIA INSURANCE CO PTY LIMITED
Fourth Respondent

ALLIANZ AUSTRALIA INSURANCE LIMITED
Fifth Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	21 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicants to amend the existing pleadings by filing a statement of claim in accordance with Annexure “A” to the notice of motion dated 24 August 2007.

2.Leave be granted to the applicants to amend the originating application to reflect the amended statement of claim referred to in 1 above.

3.As a condition of the leave granted in 1 and 2 above, the applicants serve on or before 26 October 2007 statements reflecting all evidence upon which it will rely against the first respondent, including an indexed and paginated bundle of documents.

4.The applicant pay the costs of the first respondent of the proceedings up to 28 August 2007 on a party/party basis, such costs to be payable in any event.

5.Pursuant to Order 62 rule 3(2) and (3), in the absence of agreement such costs be taxed forthwith and be payable upon taxation.

6.The respondents file and serve their defences on or before 12 October 2007.

7.The matter be stood over for directions to 2:30 pm on 16 November 2007.

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 HEALEY AND JOANNA BROUWER
Third Applicants

PEMPRO PTY LIMITED, TILTDALE PTY LIMITED, STANDCORP PTY LIMITED, DIAMOND PROPERTY PTY LIMITED AND BULWICK PTY LIMITED
Fourth Applicants

AND:

AON RISK SERVICES AUSTRALIA LIMITED
First Respondent

CGU INSURANCE LIMITED
Second Respondent

VERO INSURANCE LIMITED
Third Respondent

GERLING AUSTRALIA INSURANCE CO PTY LIMITED
Fourth Respondent

ALLIANZ AUSTRALIA INSURANCE LIMITED
Fifth Respondent

JUDGE:	ALLSOP J
DATE:	21 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 24 August 2007 the second to fifth respondents, having had served upon them a further draft of the amended statement of claim drafted by counsel, agreed to the matter proceeding upon the basis of that amendment.  The first respondent, the brokers Aon, resisted leave to file the amended statement of claim being granted against it.  Aon’s complaints are set out with admirable clarity by Mr Menzies in his submissions dated 24 August 2007 and 19 September 2007. 

2. There are significant deficiencies remaining, in my view, in the amended statement of claim; in particular, a lack of particularity in respect of some of the paragraphs.  However, in my view, what should occur is that the leave should be granted upon certain conditions which I will identify in due course.

3. The matter has now been put into a form which is understandable as a body of legal allegations giving rise to claims in the exercise of federal jurisdiction. 

4. The second matter to which Mr Menzies directed his attention was the proposition that the claim was plainly statute-barred.  It may well be that all the claims made against the broker are statute-barred.  I think, on balance, the best course is for leave to be granted and the issue of the statute bar be pleaded in a defence and any relevant issue in reply.  I should add the comment I made earlier is not a concluded view by any means, but one can see from the facts a powerful basis for the contention that the claims against the broker may be statute-barred.

5. There are, however, complications.  It may be conceivable that the pleading of the s 52 claim marks a form of resuscitation in that, because of the asserted misleading or deceptive conduct, steps were not taken which may have been taken, as is illustrated by cases such as Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 and the recent High Court decision of Commonwealth v Cornwell (2007) 234 ALR 148 as to the time for running of the relevant limitation period. The proper application in circumstances of asserted economic loss of the time bar is not always straightforward.

6. That said, I think the applicants need to consider with some care further expenditure of costs in relation to this matter, because I do not think the issue of statute-barring will disappear.  The orders that I propose to make and which I direct the applicant bring in short minutes in respect of are to the following effect:

   1.Leave be granted to the applicants to amend the existing pleadings by filing a statement of claim in accordance with Annexure “A” to the notice of motion dated 24 August 2007.

   2.Leave be granted to the applicants to amend the originating application to reflect the amended statement of claim referred to in 1 above.

   3.As a condition of the leave granted in 1 and 2 above, the applicants serve on or before 26 October 2007 statements reflecting all evidence upon which it will rely against the first respondent, including an indexed and paginated bundle of documents.

   4.The applicant pay the costs of the first respondent of the proceedings up to 28 August 2007 on a party/party basis, such costs to be payable in any event.

   5.Pursuant to Order 62 rule 3(2) and (3), in the absence of agreement such costs be taxed forthwith and be payable upon taxation.

   6.The respondents file and serve their defences on or before 12 October 2007.

   7.The matter be stood over for directions to 2:30 pm on 16 November 2007.

7. Although the second to fifth respondents did not ask for an order that costs be taxed and payable forthwith, in my view the first respondent, who does ask for the order, is entitled to it.  Mr McQuillen has asked for reasons in relation to that, perfectly properly.  In the light of that request it is necessary, therefore, for me to say the following. 

8. May I begin with what I say in relation to the following that nothing that I am saying reflects on Mr McQuillen or those dealing with the matter since 19 July 2007.  Mr McQuillen has now put the matter in some coherent form.  Prior to that the conduct of the matter was quite extraordinary, given that the documents were not prepared by litigants in person without legal training, but rather by persons who were solicitors admitted to practice in the Supreme Court of New South Wales and with a right of practice in this Court.  As can be seen from my earlier reasons, the material put forward to the Court was nigh on incoherent in relation to legal claims, and notwithstanding numerous encouragements to remedy the matters, if necessary by seeking counsel’s advice, it was not until Mr McQuillen came into the matter and put the pleading in some form of coherent shape that the respondents were faced with anything other than an illogical and incoherent body of assertions.  In those circumstances, the first respondent is entitled, in my view, to be put in the position of not having had to deal with those kinds of allegations in a superior Court, an occurrence which, in my respectful view, should never have happened in the way it did.  As I said, I would like to emphasise those matters are not said in relation to counsel or solicitors who have put the matter into shape since July 2007.  Those are the matters which in my view take the matter quite outside the ordinary and justify an order of the kind requested by the first respondent.

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:        11 October 2007

Counsel for the Applicants:	Mr A McQuillen
Solicitor for the Applicants:	G Healey & Co
Counsel for the First Respondent:	Mr L Menzies
Solicitor for the First Respondent:	Ebsworth & Ebsworth Lawyers
Date of Hearing:	21 September 2007
Date of Judgment:	21 September 2007