Mark Silbermann v CGU Insurance Limited; John Huyshe Greaves v CGU Insurance Limited; John David Rich v CGU Insurance Limited [2003] NSWSC 795

Mark Silbermann v CGU Insurance Limited; John Huyshe Greaves v CGU Insurance Limited; John David Rich v CGU Insurance Limited [2003] NSWSC 795

Although there were some common questions and some common transactions between the ASIC proceedings and the Insurance proceedings, the Insurance proceedings contained many additional issues, especially wide-ranging avoidance allegations and allegations of criminal intent and s 184 offences not present in the ASIC civil penalty proceedings. Hearing the matters concurrently would be inappropriate and may compromise procedural fairness in the ASIC proceedings, so it was not desirable to exercise the discretion under Part 31 Rule 7.

Jurisdiction
Australia
Judgment Date
03 September 2003
Procedural Posture
Applications Pursuant to Part 31 Rule 7 for the Insurance Proceedings to Be Heard Concurrently With ASIC Proceedings / Motions Heard Together and Determined
Outcome
Motions for concurrent hearings dismissed.
Legal Topics
['concurrent Hearings' 'civil Penalty Proceedings' 'directors and Officers Liability Insurance' "directors' Duties" 'dishonesty and Fraud Exclusion' 'criminal Intent Under S 184']
['civil Procedure' 'corporations Law' 'insurance Law'] ['concurrent Hearings' 'civil Penalty Proceedings' 'directors and Officers Liability Insurance' "directors' Duties" 'dishonesty and Fraud Exclusion' 'criminal Intent Under S 184']

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Procedural Posture

Applications Pursuant to Part 31 Rule 7 for the Insurance Proceedings to Be Heard Concurrently With ASIC Proceedings / Motions Heard Together and Determined

Legal Issues

  1. 1 ['Whether the Insurance proceedings should be heard concurrently with the ASIC proceedings under Part 31 Rule 7.' 'Whether common questions of law or fact and common transactions made concurrent hearings desirable.' 'Whether the criminal intent and s 184 offence allegations in the Insurance proceedings made concurrent hearing with civil penalty proceedings inappropriate.' 'Whether concurrent hearings may compromise procedural fairness in the ASIC proceedings.']

Ratio Decidendi

Although there were some common questions and some common transactions between the ASIC proceedings and the Insurance proceedings, the Insurance proceedings contained many additional issues, especially wide-ranging avoidance allegations and allegations of criminal intent and s 184 offences not present in the ASIC civil penalty proceedings. Hearing the matters concurrently would be inappropriate and may compromise procedural fairness in the ASIC proceedings, so it was not desirable to exercise the discretion under Part 31 Rule 7.

Court Disposition

Motions for concurrent hearings dismissed.

Orders

  • ["The defendant's Motions are dismissed." 'If the parties are unable to agree on a costs order, submissions in respect of costs will be heard on 5 September 2003 when the matters are listed for directions.']