FEDERAL COURT OF AUSTRALIA
MLC Limited v Crickitt [2017] FCA 898
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The sum of $568,230 (the death benefit) when paid into Court represents the amount payable by the applicant under the policy number 8207410U issued by the applicant to the trustees of the Heart and Soul Superannuation Fund on or about 22 March 2005 naming Christine Crickitt, the deceased, and the respondent, Brian Crickitt (in their capacity as trustees of the Heart and Soul Superannuation Fund) as policy owners, and the deceased as the life insured.
2. The death benefit, when paid into Court, has been paid by the applicant pursuant to the provisions of s 215(1) of the Life Insurance Act 1995 (Cth).
3. Upon payment into court by the applicant of the whole of the death benefit, the applicant be discharged from any further liability in relation to that death benefit.
4. The question of the applicant’s costs of and incidental to this application be reserved to be dealt with on the papers.
5. The respondent and the children of the late Christine Crickitt have liberty to apply to the Court in relation to the further conduct of these proceedings upon the resolution of any appeal from the conviction of Mr Crickitt in relation to the death of Mrs Crickitt and to vary the date in order 6 below.
6. The matter be listed for further case management at 9:30am on Wednesday 4 April 2018.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
ALLSOP CJ:
1 This is an application brought by MLC Limited, being the insurer of life policy number 8207410U, for payment of a death benefit into Court pursuant to s 215 of the Life Insurance Act 1995 (Cth) (the Act). The circumstances which give rise to the application for payment of a death benefit into Court pursuant to s 215 of the Act are that the life policy was taken out for the benefit of, if I may use that expression, Brian Crickitt and his then wife. Mrs Crickitt is now deceased. Mr Crickitt has been convicted after a judge alone trial of her murder.
2 That raises, of course, the question of forfeiture. Mr Crickitt has appealed or is to appeal his conviction. MLC wishes to, in effect, free itself from any doubt about who should receive the funds and wishes to avail itself of s 215 of the Act. Section 215 of the Act is in the following terms:
215 Power to pay money into Court
(1) A life company may pay into the Court any money payable by the company in respect of a policy for which, in the company’s opinion, no sufficient discharge can otherwise be obtained.
(2) Payment of the money into the Court discharges the company from any liability under the policy in relation to the money.
(3) Any money paid into the Court under this section is to be dealt with according to the order of the Court.
(4) This section has effect subject to the Rules of the Court.
3 Before me today are representatives for the insurer, MLC, Mr Crickitt, and I have heard Ms Pringle who represents the children of Mrs Crickitt’s first marriage and who are the parties to be substituted as executors of the estate of Mrs Crickitt.
4 To keep costs to a minimum, although it is the first return date and the case management hearing, my view is to make orders that the parties have provided me with which will finally resolve the matter for the insurer. I have suggested to Ms Pringle, and she agrees, that no particular application should be made by the children yet. The proceedings will remain on foot. And after the result of the conviction appeal by Mr Crickitt, the proceedings can take their course by application by the children to become parties and to seek distribution of the funds if the conviction appeal be refused and by Mr Crickitt for payment if the conviction appeal is allowed, depending upon any substituted verdict.
5 I will not make today final orders dealing finally with the costs of the insurer. Evidence has been filed, being affidavits of Sarah Louise Metcalfe of 29 June and 1 August 2017 which are taken as read. Ms Metcalfe is a solicitor at Norton Rose Fulbright and, amongst other matters in those affidavits, she deposes to the costs of the proceedings to date in the amount of over $18,000. It should be understood that I make no criticism whatsoever in today’s judgment of those costs. However, I wish to examine them and consider the appropriateness of the costs that have been charged to the client being charged against the proceeds of insurance, against the death benefit.
6 In matters of this kind, as I have said on a previous occasion, it is important to recognise that very often the amount of proceeds of life insurance policies are not nominally very large but, in terms of importance to the insured, are significant: see Westpac Life Insurance Services Limited v Mahony [2016] FCA 1071. There is reason why the insurer should have all proper costs from the proceeds of the insurance. However, I may wish to say something as to how these matters should be looked at and handled generally; as well as there may be issues about the practice of charging by time for certain matters. As I said, I do not make any criticism of the solicitors or counsel, but I wish to have a look at the matter.
7 What I propose in relation to costs is that I will deal with the matter on the papers to a point where I will give published reasons or deliver an associate’s letter to the parties as to the course that I propose to take about costs. If any party wishes to put on brief written submissions about my proposed approach, I will give that leave and I will then make orders as to the costs of the insurer at that point.
8 Thus, the orders that I make today are as follows:
1. The sum of $568,230 (the death benefit) when paid into Court represents the amount payable by the applicant under the policy number 8207410U issued by the applicant to the trustees of the Heart and Soul Superannuation Fund on or about 22 March 2005 naming Christine Crickitt, the deceased, and the respondent, Brian Crickitt (in their capacity as trustees of the Heart and Soul Superannuation Fund) as policy owners, and the deceased as the life insured.
2. The death benefit, when paid into Court, has been paid by the applicant pursuant to the provisions of s 215(1) of the Life Insurance Act 1995 (Cth).
3. Upon payment into court by the applicant of the whole of the death benefit, the applicant be discharged from any further liability in relation to that death benefit.
4. The question of the applicant’s costs of and incidental to this application be reserved to be dealt with on the papers.
5. The respondent and the children of the late Christine Crickitt have liberty to apply to the Court in relation to the further conduct of these proceedings upon the resolution of any appeal from the conviction of Mr Crickitt in relation to the death of Mrs Crickitt and to vary the date in order 6 below.
6. The matter be listed for further case management at 9:30am on Wednesday 4 April 2018.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. |
