Lumley General Insurance Limited (ABN 24 000 036 279) v AON Risk Services Australia Limited (ACN 000 434 720) [2005] FCA 631

FEDERAL COURT OF AUSTRALIA

Lumley General Insurance Limited (ABN 24 000 036 279) v AON Risk Services Australia Limited (ACN 000 434 720) [2005] FCA 631 PRACTICE AND PROCEDURE – application for extension of time for an application for leave to appeal and for leave to appeal from separate questions – application granted

Federal Court Rules, O 29, O 52 r 10(2), O 52 r 15(1) AON Risk Services Australia Limited v Lumley General Insurance Limited [2005] FCA 133, related

LUMLEY GENERAL INSURANCE LIMITED (ABN 24 000 036 279) v AON RISK SERVICES AUSTRALIA LIMITED (ACN 000 434 720), RIFON PTY LIMITED (AS TRUSTEE FOR THE ROXY TRUST) (ACN 006 002 562) AND ARDILO PTY LIMITED (AS TRUSTEE FOR THE ROXY OPERATIONS TRUST) (ACN 079 154 715)

NSD 437 OF 2005

GYLES J

3 MAY 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 437 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LUMLEY GENERAL INSURANCE LIMITED (ABN 24 000 036 279)

APPLICANT

AND: AON RISK SERVICES AUSTRALIA LIMITED (ACN 000 434 720)

FIRST RESPONDENT

RIFON PTY LIMITED (AS TRUSTEE FOR THE ROXY TRUST) (ACN 006 002 562)

SECOND RESPONDENT

ARDILO PTY LIMITED (AS TRUSTEE FOR THE ROXY OPERATIONS TRUST) (ACN 079 154 715)

THIRD RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 3 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Pursuant to O 52 r 10(2) of the Federal Court Rules, to the extent that leave is necessary:

(1) The applicant have leave to appeal from the decision of Conti J dated 25 February 2005 (corrigendum issued 9 March 2005) at Sydney;

(2) The applicant be granted an extension of time to seek leave to appeal.

2. To the extent that leave is necessary, pursuant to O 52 r 15(1) of the Federal Court Rules, the applicant has leave to file and serve any notice of appeal from the decision of Conti J dated 25 February 2005 (corrigendum issued 9 March 2005) at Sydney within seven days of these orders being made.

3. Costs of the application are costs in the appeal.

4. Further proceedings before Conti J are stayed until further order.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 437 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LUMLEY GENERAL INSURANCE LIMITED (ABN 24 000 036 279)

APPLICANT

AND: AON RISK SERVICES AUSTRALIA LIMITED (ACN 000 434 720)

FIRST RESPONDENT

RIFON PTY LIMITED (AS TRUSTEE FOR THE ROXY TRUST) (ACN 006 002 562)

SECOND RESPONDENT

ARDILO PTY LIMITED (AS TRUSTEE FOR THE ROXY OPERATIONS TRUST) (ACN 079 154 715)

THIRD RESPONDENT

JUDGE: GYLES J

DATE: 3 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time for an application for leave to appeal and for leave to appeal from a declaration made by Conti J on 25 February 2005 (AON Risk Services Australia Limited v Lumley General Insurance Limited [2005] FCA 133). On 21 November 2003 an order was made pursuant to O 29 r 2, that the determination of certain questions be deferred until after the determination of all other issues in the proceedings, namely the issues of quantum and contribution alleged in paragraphs 19, 41 and 44 of the amended statement of claim. The declaration which resulted from the delivery of reasons was, I am informed, agreed between the parties as being the appropriate result, bearing in mind the reasons which were given. 2 The respondent to the motion, whilst submitting that the proposed appeal is unmeritorious, indicates that it would prefer that any appeal on questions of liability be heard and determined as soon as possible without having to await the determination of the remaining issues concerning quantum. That being so, having in mind that the original decision to split the trial was made, I am informed, initially on the initiative of the applicant in the proceedings who would be the respondent to the proposed appeal, and having in mind the effective joint position of the parties as to the procedural issue at stake, I am satisfied that it is an appropriate case in which to both grant an extension of time and to grant leave to appeal. I have read the submissions for the applicant for leave, the draft notice of appeal and portions of the judgment. I need not say more than that if the unsuccessful party wishes to appeal in a matter of this nature it obviously can, it is just a question of timing. There are often countervailing considerations involving the Court itself but I can see none here that would outweigh the position to which I have referred. 3 I am satisfied that the orders that were made pursuant to O 29 r 2, are apt to leave the matter in a position where an appeal can properly take place. In split trials involving the application of O 29 there can often be difficult questions as to what is and what is not deferred. It seems to me that the position is relevantly clear in the present case. 4 Orders 1 and 2 as sought are made. Costs of this application are costs in the appeal. Further proceedings before Conti J are stayed until further order. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 23 May 2005 Counsel for the Applicant: MLD Einfeld QC, D Knoll

Solicitor for the Applicant: Piper Alderman

Solicitor for the Respondents: MJ Cameron of Sparke Helmore

Date of Hearing: 3 May 2005

Date of Judgment: 3 May 2005