Zurich Australian Insurance Ltd v Atradius Credito Y Caucion S.A. De Seguros Y Reaseguros

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FEDERAL COURT OF AUSTRALIA

Zurich Australian Insurance Ltd v Atradius Credito Y Caucion S.A. De Seguros Y Reaseguros [2022] FCA 709

File number(s): WAD 93 of 2022
Judgment of: ALLSOP CJ
Date of judgment: 17 June 2022
Catchwords: HIGH COURT AND FEDERAL COURT – federal jurisdiction – dispute as to jurisdiction of Federal Circuit and Family Court of Australia (Div 2) and Federal Court of Australia in relation to claim for co-insurance – consideration of transfer powers in s 32AC of the Federal Court of Australia Act 1976 (Cth) and s 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – unfortunate dispute about costs
Legislation:

Constitution s 76(ii)

Australian Securities and Investments Commission Act 2001 (Cth) s 12DA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 153

Federal Court of Australia Act 1976 (Cth) ss 32AC, 32AD

Insurance Contracts Act 1984 (Cth) ss 45, 54

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5

Cases cited:

Amalia Investments Ltd v Cirgtel Global Network NV (No 2) [2011] FCA 1270; 198 FCR 248

BHP Billiton Ltd v Schultz [2004] HCA 61; 221 CLR 400

Mulley v Hayes [2021] FCA 1111; 286 FCR 360

National Australia Bank Ltd v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627

Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511

Tucker v McKee [2022] FCAFC 98

Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs: 17
Date of last submissions: 17 June 2022
Date of hearing: 15 June 2022
Solicitor for the Applicant:  Wotton + Kearney
Solicitor for the Respondent: Turks Legal

 

ORDERS

WAD 93 of 2022
BETWEEN:

ZURICH AUSTRALIAN INSURANCE LIMITED (ACN 000 296 640)

Applicant

AND:

ATRADIUS CREDITO Y CAUCION S.A DE SEGUROS Y REASEGUROS (ARBN 610 834 556)

Respondent

ORDER MADE BY:

ALLSOP CJ

DATE OF ORDER:

17 JUNE 2022

THE COURT ORDERS THAT:

1.By 24 June 2022, the applicant file and serve:

(a)an amended originating application pursuant to r 8.21 of the Federal Court Rules 2011 (Cth); and

(b)a statement of claim.

2.By 8 July 2022, the respondent file and serve its defence.

3.Subject to Order 4, costs in proceeding number PEG 281 of 2021 before the Federal Circuit and Family Court (Div 2) (FCFCoA) be costs in this Court in proceeding number WAD 93 of 2022 and be costs in the cause. 

4.Order 3 is not to cover such costs as relate solely to the jurisdiction of the FCFCoA (as distinct from federal jurisdiction and the jurisdiction of this Court), which costs may be dealt with by the FCFCoA.

5.The costs of and incidental to the amendment of the originating application filed on 13 May 2022 be costs in the cause.

6.The matter be referred to Jagot J as Senior Insurance List Judge.

7.The parties jointly communicate with the Chambers of…

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Details
Case
[2022] FCA 709
Decision Date

CaseChat Overview and Summary

Zurich Australian Insurance Ltd brought a claim against Atradius Credito Y Caucion S.A. De Seguros Y Reaseguros in the Federal Circuit and Family Court of Australia (Div 2). The dispute involved an issue about the jurisdiction of both the Federal Circuit and Family Court and the Federal Court of Australia in relation to a claim for co-insurance. The matter was brought before the High Court to determine the appropriate jurisdiction for the case.

The central legal issue before the Court was whether the Federal Circuit and Family Court or the Federal Court had the proper jurisdiction to hear the case. The Court considered the transfer powers in sections 32AC of the Federal Court of Australia Act 1976 (Cth) and section 153 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Additionally, the Court had to address the issue of costs associated with the jurisdictional dispute.

In its decision, the Court held that the Federal Court had the appropriate jurisdiction to hear the case. The Court also determined that certain costs associated with the jurisdictional dispute should be borne by the parties as costs in the cause. The Court ordered that the applicant file and serve an amended originating application and a statement of claim by specified dates, and that the respondent file and serve its defence by a later date. The Court further directed that the costs in the earlier proceeding before the Federal Circuit and Family Court be treated as costs in the current proceeding before the Federal Court, except for costs relating specifically to the jurisdiction of the Federal Circuit and Family Court, which could be dealt with by that Court. The Court also ordered that the costs of amending the originating application be costs in the cause, and referred the matter to a specific judge for case management and listing.

The final orders of the Court included directives for the filing and serving of documents, the treatment of costs, the referral of the matter to a specific judge, and a requirement for the parties to jointly communicate with the judge's chambers to arrange for a case management hearing.

Orders

Orders of the court

1. By 24 June 2022, the applicant file and serve:

(a) an amended originating application pursuant to r 8.21 of the Federal Court Rules 2011 (Cth); and

(b) a statement of claim.

2. By 8 July 2022, the respondent file and serve its defence.

3. Subject to Order 4, costs in proceeding number PEG 281 of 2021 before the Federal Circuit and Family Court (Div 2) (FCFCoA) be costs in this Court in proceeding number WAD 93 of 2022 and be costs in the cause.

4. Order 3 is not to cover such costs as relate solely to the jurisdiction of the FCFCoA (as distinct from federal jurisdiction and the jurisdiction of this Court), which costs may be dealt with by the FCFCoA.

5. The costs of and incidental to the amendment of the originating application filed on 13 May 2022 be costs in the cause.

6. The matter be referred to Jagot J as Senior Insurance List Judge.

7. The parties jointly communicate with the Chambers of Jagot J for the listing of the matter for a case management hearing not before 15 July 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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