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

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

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

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.

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.

CaseChat Overview and Summary

Switzerland General Insurance Co. Ltd and Forsikringsselskabet Top International, both applicants, sought leave to serve cross-claims on QBE Insurance Ltd outside the Commonwealth and in the United Kingdom. The applicants argued that the leave should be granted despite not fully complying with paragraph (c) of sub-rule (2) of rule 2 of the Federal Court Rules, which requires all relevant facts to be brought before the Court. The dispute centred around the interpretation and application of this rule in the context of the applicants' inability to present all facts due to the nature of the proceedings.

The court had to determine whether the applicants could be granted leave to serve cross-claims under the Federal Court Rules, even if they could not fully comply with the requirement to bring all relevant facts before the Court. The key legal issue was whether the spirit of the rule could be satisfied if the applicants had already made their allegations in other proceedings and the cross-claims were not brought lightly. The court also needed to consider whether the applicants had shown that it was appropriate to grant leave to serve the cross-claims outside the Commonwealth and in the United Kingdom.

The court found that the purpose of the rule was to ensure that leave was not given lightly, but in this case, the applicants' allegations had already been made in other proceedings, which appeared to have been brought seriously. The court was persuaded by the approach in the Vitkovic case, which suggested a similar interpretation of the rule. Consequently, the court decided to dispense with literal compliance with paragraph (c) of the sub-rule and granted the first order sought by the applicants. The court further found that the applicants had satisfied the other requirements of sub-rule (2) and granted the second order sought. The court reserved the costs in respect of each notice of motion.

In conclusion, the court granted the applicants leave to serve the cross-claims outside the Commonwealth and in the United Kingdom, despite not fully complying with paragraph (c) of sub-rule (2) of rule 2. The court determined that the spirit of the rule was satisfied given the circumstances of the case.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established