Switzerland General Insurance Co. Ltd v Q.B.E Insurance Ltd

[1986] FCA 552

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G.232 of 1986

1 NO. G.233 Of 1986

DIVISION	GENERAL	1
BETWEEN :

SWITZERLAND GENERhL

INSURANCE COMPANY

T.TMTTEl7

Applicant

- AND :

Q.B.E. INSURANCE

LIMITED

Respondent

AND BETWEEN:

FORSIKRINGSSELSKABET

TOP INTERNATIONAL

Applicant

- AND :

Q.B.E. INSURANCE

LIMITED

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J .

As I rather suggested during argument, it does seem to

me that the true point of paragraph (c) of sub-rule (2) of rule 2

Order 8 is to ensure that leave is not given

2 .

brought. I think what was said by Lord Simonds in the Vitkovlc

case C19511 A.C. 869 at p.878, though formulated in accordance

with the somewhat differently worded English rule, evinces a

similar approach. In my view, if one takes that approach, in a

case such as this, where clearly the applicant for leave 1s not

in a position to bring all of the relevant facts before the

Court, but where it does appear that the allegations have already

been made in the Court in what appear to be proceedings not

brought lightly, there is a sufficient basis for holding that the

purpose of paragraph (c) of the sub-rule has been fulfilled.

Accordingly, I think it is an appropriate case to

dispense with literal compliance with the terms of the paragraph,

so I am prepared to make the first	order sought in the notice	of
motion.

Is there a second notice of motion in the other matter?

m . CAMPBELL: There is. in the same terms.

HIS HONOUR:	I do that in respect of each notice of motion.
Then the second order sought is that the
cross-claimant have leave to serve the
cross-claim on the first cross-respondent
outside the Commonwealth and i'n the United Kingdom. That is identical in each notice of motion?
MR. CAMPBELL:	It is, your Honour.
HIS HONOUR:	I think in each case it has been shown that it is appropriate that the cross-claimant should have that leave. I am satisfied as to each of
the matters in sub-rule ( 2 ) of rule 2 other than paragraph (c), and I do not find it
necessary to reach a conclusion about

3 .

paragraph (c) because of the order I have lust

made.

I reserve the costs in respect of each notice

of motion. I thank you, Mr. Camphell, fo r the

interesting presentation of the problem. I do not really think it is approprlate in an ex parte matter to go into a detailed judgment.

I certify that this and the

preceding two ( 2 ) pages are a

true copy of the Reasons for Judgment herein of his Honour

Mr. Justice Burchett.

(&$4 Associate

Dated: 18 November, 1986. v