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
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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- Case
- [2022] FCA 709
- Decision Date
CaseChat Overview and Summary
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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