QBE Insurance Ltd v Moltoni Corporation Pty Ltd

[1999] WASCA 92

QBE INSURANCE LTD -v- MOLTONI CORPORATION PTY LTD [1999] WASCA 92

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 92
Case No:	FUL:65/1999	Heard:	12 JULY 1999
Coram:	MASTER BREDMEYER	Delivered:	15/07/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
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Parties:	QBE INSURANCE LTD MOLTONI CORPORATION PTY LTD
Catchwords:	Appeal Respondent's notice of cross-appeal must be against orders obtained by the appellant
Legislation:	Rules of the Supreme Court (WA) O63 r 9(1)
Case References:	Tillotson v ANZ Life Assurance Co Ltd, unreported; FCt SCt of WA; Library No 970081, 18 February 1997 In re Cavander's Trusts (1881) 16 Ch D 270

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : QBE INSURANCE LTD -v- MOLTONI CORPORATION PTY LTD [1999] WASCA 92 CORAM : MASTER BREDMEYER HEARD : 12 JULY 1999 DELIVERED : 15 JULY 1999 FILE NO/S : FUL 65 of 1999 BETWEEN : QBE INSURANCE LTD

Appellant

AND

MOLTONI CORPORATION PTY LTD
Respondent

Catchwords:

Appeal - Respondent's notice of cross-appeal must be against orders obtained by the appellant

Legislation:

Rules of the Supreme Court (WA) O63 r 9(1)

Result:

Application allowed

(Page 2)

Representation:

Counsel:

Appellant : No appearance
Respondent : Mr N M Beech
Plaintiff : Mr A J Klein

Solicitors:

Appellant : No appearance
Respondent : Blake Dawson Waldron
Plaintiff : Friedman Lurie Singh

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

Tillotson v ANZ Life Assurance Co Ltd, unreported; FCt SCt of WA; Library No 970081, 18 February 1997

Case(s) also cited:

In re Cavander's Trusts (1881) 16 Ch D 270

(Page 3)

1 MASTER BREDMEYER: This is an application by the plaintiff to strike out the respondent's notice of cross-appeal dated 11 June 1999. It will help my consideration of this application if I refer to the parties by their designations in the action. There were two actions. The main one was between the plaintiff (employee) and the defendant (employer) and the third party action was between the defendant and the third party (insurer). The judgment of the trial judge of 7 May 1999 was for the plaintiff against the defendant for damages of $349,837 and for the defendant against the third party ordering the third party to indemnify the defendant against the payment of damages. I will omit reciting the costs orders.

2 The appeal notice filed 21 May 1999 relates to the third party action. It is by the third party (the insurer) against the defendant asking that the order for indemnity be dismissed. The plaintiff was not named in that notice of appeal.

3 The defendant (the respondent to that appeal) filed a notice of cross-appeal on 11 June 1999, that is 21 days after filing, and I suppose service, of the notice of appeal on the defendant. The notice seeks an order (1) that the plaintiff's action against the defendant be dismissed and (2) that the third party pay the defendant's costs of the action and third party action on an indemnity basis. The notice is purportedly filed under O 63 r 9(1).

4 I consider that the notice of cross-appeal is not in order. It is not a cross-appeal. It does not "cross" (ie, does not relate to) the appeal by the third party. The fact that in order to file it the defendant had to alter the Full Court file heading by introducing the plaintiff into the heading, indicates that it is not a cross-appeal. In the "cross-appeal" the defendant contends that the decision for the plaintiff was wrong and that the plaintiff's action for damages against the defendant should be dismissed. That being so, the defendant should have filed its own notice of appeal against the orders in favour of the plaintiff within 21 days of 7 May.

5 I propose to strike out that part of the notice of cross-appeal which relates to the plaintiff, namely par 1 where first appearing on page 1, and grounds 1, 1.1, 1.2, 1.3 and 1.4 on pages 3 and 4 of the notice.

6 Tillotson v ANZ Life Assurance Co Ltd, unreported; FCt SCt of WA; Library No 970081, 18 February 1997was cited to me, but it does not apply to this situation. It says that a respondent to an appeal who desires to cross-appeal may do so by a respondent's notice or respondent's

(Page 4)

notice of cross-appeal under O 63 r 9(1). That is correct, but such a notice can only be against the appellant. Where it is desired to appeal against orders made in favour of another party, such notice or cross-appeal cannot be used.

7 The defendant's counsel has asked orally for an extension of time to appeal if I be against him on this application. I will grant an extension. I consider the defendant had reasonable grounds for not lodging an appeal within the 21-day period. The defendant may have thought the verdict for the plaintiff wrong, but was not concerned to appeal within 21 days as the third party insurer was going to pay the damages anyway. But when the insurer lodged an appeal against the indemnity order on the last day of the appeal period, it became necessary for the defendant to appeal. The defendant got its "appeal" filed within 21 days thereafter. I have ruled that the form it used was wrong, but taking that wrong step explains part of the delay. I will extend the time for the defendant to file a separate notice of appeal to seven days from the date hereof.

8 Costs of this application are awarded to the plaintiff against the defendant in any event.