CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2006] HCATrans 659 (4 December 2006)

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CGU Insurance Ltd v AMP Financial Planning Pty Ltd [2006] HCATrans 659 (4 December 2006)

Last Updated: 12 December 2006

[2006] HCATrans 659

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne Nos M127 of 2006 and M128 of 2006

B e t w e e n -

CGU INSURANCE LIMITED

Appellant

and

AMP FINANCIAL PLANNING PTY LTD

Respondent

For directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON MONDAY, 4 DECEMBER 2006, AT 9.33 AM

Copyright in the High Court of Australia

MR C.M. CALEO, SC: If your Honour pleases, I appear for the appellant in both matters. (instructed by Deacons)

MR N.J. O’BRYAN, SC: If your Honour pleases, I appear with MR P.D. CRUTCHFIELD for the respondent in both matters. (instructed by Minter Ellison)

HIS HONOUR: Yes. Now, Mr Caleo, what does the appellant propose?

MR CALEO: Your Honour, the first matter this morning relates to the appellants’ application for leave to amend its notices of appeal in both matters. Your Honour should have with you in fact two affidavits filed in each matter. The second one corrected an error in the first affidavit. I understand from my learned friends that the application is consented to.

HIS HONOUR: Yes.

MR CALEO: The amended notices of appeal seek to bring forward the substantive issue to do with construction of the policy. The notices of appeal in their original form, as filed, merely sought to bring before the Court the question of error on the part of the Full Court in failing to deal with those matters.

HIS HONOUR: You say that the proposed amendment would bring forward a question about policy. What question, precisely?

MR CALEO: Your Honour, in the original reasons of the trial judge his Honour dealt with three particular questions of construction: first, whether the nature of the claims in respect of which indemnity was sought were claims that fell within the insuring clause of the policy; secondly, whether they fell within a particular extension to the policy; and third, assuming they did fall within the policy otherwise, whether a relevant exclusion clause operated to exclude those claims from the policy. Those questions were answered in favour of the respondent in this Court.

In the Full Court my client sought to rely upon its arguments in respect of the construction issues in the grounds set out in its notice of cross-appeal. As your Honour would be aware, the question of whether that should have been done by way of a notice of contention was what was dealt with in the Full Court. The issues themselves were not addressed by the Full Court.

HIS HONOUR: But the Full Court has not passed on those questions. That is one of your sources of complaint.

MR CALEO: It is, your Honour. What was sought to be achieved - - -

HIS HONOUR: Why should this Court for the first time embark on appellate review of that decision rather than remit those issues to the Full Court?

MR CALEO: Your Honour, the original notices were in fact drafted on the basis that it would be difficult for my client to bring before the Court those substantive questions.

HIS HONOUR: Leave was granted on that basis?

MR CALEO: It was indeed, your Honour. What has occurred since is that the respondent has filed not only notices of cross-appeal but also in each matter - - -

HIS HONOUR: Applications for special leave, I would have thought, yes.

MR CALEO: Yes, your Honour. In each case the respondent has also filed a notice of contention. That notice of contention relies upon one ground only and it states:

The Full Court erred in failing to determine and uphold the primary judge’s determination in favour of the respondent of issues 7, 8 and 9 ... relating to the construction of the insurance policies.

That notice of contention, if, of course, it needs to be addressed by the Court, itself seeks to bring forward the question of the resolution of those issues of construction. It was in response to the notice of contention that my client then circulated the proposed amended notice of appeal, but I would concede, your Honour, that, of course, the Full Court has not yet passed upon those substantive questions.

HIS HONOUR: Subject to what may be said on the other side, I am, myself, not minded to grant any leave. These are matters that are, I think, better dealt with by the Full Court. If there is no opposition by the parties, so be it. What proposal does the appellant make about managing the extraordinary volume of paper this case has generated? How much is at stake, again?

MR CALEO: Your Honour, it would be in the region, I think, now of about 5 million.

HIS HONOUR: Principal?

MR CALEO: A bit over 3 million, your Honour.

HIS HONOUR: Three million being fought over by two large commercial insurance companies?

MR CALEO: That is correct, your Honour.

HIS HONOUR: How much paper?

MR CALEO: Your Honour, the steps taken in the Full Court significantly reduced that and, if pursued here, can significantly reduce it for this Court. Might I explain how that occurred?

HIS HONOUR: No. What proposal do you make about the management of the matter in this Court?

MR CALEO: Your Honour, what is proposed is that for the purpose of the content of the appeal book the parties would seek to take as the basis for that the index of the Full Court appeal book, which ran to just over 2,000 pages. Even some of the items included in that appeal book would not be necessary in this Court, for example, statements going to the question of legal investigation costs and legal costs allegedly incurred by the respondent. Those matters are not pressed in any form. We would then need to add, of course, to that body of material the Full Court’s reasons and the documents in that court and, of course, the order of this Court granting special leave.

HIS HONOUR: But that turns it into about a five-volume appeal book.

MR CALEO: Indeed, your Honour, that is correct.

HIS HONOUR: Well, that is too large. Do the parties really expect that 2,500 pages of documents are going to be pored over by the Full Court of this Court? Why are the arguments of the parties such as would require close attention to that volume of paper?

MR CALEO: Your Honour, upon the grant of special leave the appellant considered the material that was placed before the Full Court and formed the view that it would be possible to exclude large amounts of the transcript and, indeed, all evidence, the witness statements included. What has occurred though is that the respondent has filed its notice of cross-appeal, subject to the grant of special leave, and that document seeks to raise certain issues which would require, were special leave granted, an analysis of the evidence. In particular, that notice seeks to attack the original findings of the trial judge, some of which were not disturbed by the Full Court, about issues of reliance.

HIS HONOUR: Were there concurrent findings by the trial judge and the Full Court on those issues?

MR CALEO: Your Honour, one of the matters sent back by the Full Court to the trial judge was the question of reliance. So they simply, in respect of the trial judge’s decision, concluded that his Honour had not looked at a particular aspect of the respondent’s case and sought to remit that to the trial judge, but in the context of that aspect reliance would need to be looked at. So it is the notice of cross-appeal, subject to special leave, which would appear to require the inclusion in the appeal book of the mountain of evidence. The appellant’s grounds of appeal would not require the inclusion of that material.

It was upon receipt of the notice of cross-appeal that we formed the view that there may be great difficulties, indeed, there would be great difficulties, if the respondent were granted special leave and were able to pursue the grounds in its notice of cross-appeal, in, in effect, withholding from the Court that which was before the Full Court and which the respondent contends justified before the Full Court particular findings. It is on that basis that, as I have indicated, it seemed that the only possible approach was to commence with the index of the appeal book in the Full Court and, while making whatever deletions could be made from that index, then to supplement it with the Full Court’s reasons and associated documents.

HIS HONOUR: The alternative approach would be this. As things presently stand, the case is proposed for hearing, is it not, on 7 and 8 February?

MR CALEO: It is, your Honour, yes.

HIS HONOUR: That would give you a timetable for submissions that would run, I believe, as follows: appellant by 23 January, respondent by 29 January, reply by 2 February, and presumably on 2 February also the answer to the proposed cross-appeal. What I am presently minded to consider is altering that timetable, getting the parties to put on their submissions during January and then settle the appeal book. The appeal book could be settled on the basis that unless the document is referred to expressly and with evident utility in the submissions it would not find its way into the appeal book.

This case has generated a vast amount of paper. I am presently not yet in a position where I could say I understand that the parties have formulated with precision exactly what the issues of principle are between them. No doubt that is my fault, not the parties, but it has not emerged with
any perspicuous clarity yet in the processes in this Court. It will, it seems to me, be better if the parties put on their submissions first and we frame the appeal book having regard to those.

Now, that would mean the submission timetable would have to go something like 8 January for the appellant, 15 January for the respondent, 19 January for answer and reply, because we would need the week commencing 22 January to settle the appeal book.

MR CALEO: Your Honour, a timetable to that effect would mean that the Court would not have the benefit of submissions that are directed towards pages of the appeal book, but presumably your Honour’s intention would be that the submissions could then be, in effect, updated with the references.

HIS HONOUR: Simply amended and updated. That is a mechanical task then.

MR CALEO: Your Honour, the appellant is conscious of the matters that your Honour has referred to. The appellant would be in a position to act in accordance with that timetable were your Honour minded to order it. The only matter that would remain for the moment is the question of the proposed amendment to the notices of appeal.

HIS HONOUR: As I say, my present inclination is to say that you may renew the application at the hearing before the Full Court. If it is not opposed, so be it.

MR CALEO: Perhaps I will let my learned friend address that issue, if your Honour pleases.

HIS HONOUR: Yes. Yes, Mr O’Bryan.

MR O’BRYAN: Your Honour, we do not disagree with the course that your Honour suggests and can manage it. Could I just point out to your Honour that it is not correct to suggest that it is the notice of cross-appeal only which gives rise to the bulk of the paper.

HIS HONOUR: Well, it is precisely this sort of spat, Mr O’Bryan, with which I will not put up. I do not care whose fault it is. I am not interested in that and I am not going to have point scoring of that kind. It wastes time.

MR O’BRYAN: If your Honour pleases.

HIS HONOUR: The parties are big experienced insurers. The litigation will be conducted accordingly.

MR O’BRYAN: Yes, if your Honour pleases.

HIS HONOUR: Yes, go on.

MR O’BRYAN: Your Honour, there is nothing more that needs to be said. On the proposal that your Honour makes, if the document is not expressly referred to, it will not be in the appeal book.

HIS HONOUR: May I make one thing quite plain about that. A reference of the kind “These matters were dealt with in tender bundle XYZ, pages 1 to 1,000” will attract a very dusty response. General attribution of reference will not suffice. The parties are going to have to get their arguments to the point where they know what they want to take the Court to in argument, then let us see where we go. Yes.

MR O’BRYAN: I do not think there is anything else that arises, your Honour. We can manage that timetable and we understand the principles upon which your Honour suggests it and we will live with it.

HIS HONOUR: In place of the timetable fixed by the Rules and Practice Directions I will direct:

1. The appellant to file and serve its written submissions in support of the appeal on or before 4.00 pm, 8 January 2007;

2. The respondent to file and serve its written submissions in answer to the appeal and in support of its proposed cross-appeal on or before 4.00 pm, 15 January 2007;

3. The appellant to file and serve its reply and submissions in answer to proposed cross-appeal on or before 4.00 pm, 19 January 2007;

4. Costs of today will be costs in the appeal.

I will make no direction but the parties should order their affairs on the assumption that the Deputy Registrar will be looking to meet with the solicitors for the parties early in the week of 22 January with a view to the settling of an index of the appeal book then so that the appeal book may be prepared and printed and filed as close to Thursday, 25 January as is possible.

Now, that will be possible if, but only if, a deal of preparatory work has been done by the solicitors for both parties in consultation one with the other to ensure, for example, that the bare bones of the appeal book – by which I mean pleadings, notices of appeal, decisions below, orders below, the bare bones of an appeal book – are agreed upon, identified, put into order so that when the time comes to press the button to copy it can be done rapidly. As I say, any question of amendment of the notice of appeal is a question that may be agitated before the Full Court. Is there any other matter that counsel desire to raise?

MR CALEO: No, your Honour.

MR O’BRYAN: No, your Honour.

HIS HONOUR: Very well.

AT 9.52 AM THE MATTERS WERE CONCLUDED