FEDERAL COURT OF AUSTRALIA

Vasram v AMP Life Limited [2001] FCA 602

CHIMAN LAL VASRAM V AMP LIFE LIMITED

NG 667 OF 1998

STONE J

23 MAY2001

SYDNEY

THE COURT ORDERS THAT:

1.the applicant pay the respondent’s costs in relation to the hearing on 11 December 2000;

2.the applicant pay 75 per cent of the respondent’s costs of the notice of motion filed on 4 October 2000.

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

REASONS FOR JUDGMENT

1                     These proceedings were commenced as representative proceedings under Pt IVA of the Federal Court of Australia Act 1976 (“Act”). On 4 October 2000, the respondent filed a notice of motion seeking an order under s 33N of the Act that the proceedings no longer continue as representative proceedings, or in the alternative, orders and directions which, if made, would limit the proceedings in the first instance to the determination of specified common issues.  That motion was heard on 20 October 2000.  At that hearing, the respondent (the applicant on the notice of motion) informed the Court that it did not propose to press for an order under s 33N.  At the time, I expressed some reservations about this approach.  Subsequently, after considering the pleadings and arguments of the parties, I still had reservations and, by letter dated 2 November 2000, my associate invited the parties to make further submissions, including as to whether the proceeding should continue as a representative proceeding.  On 21 November 2000, I ordered that the hearing listed for 11 and 12 December 2000 be confined to:

(a)        the determination of whether the express terms of the policies issued to the applicant and to the representative group members contained a term or gave rise to:

(i)                  a representation that the policyholder would remain entitled to deal either with Chiman Vasram Pty Ltd or with an agent of the policyholders’ choice; and/or

(ii)                a right to have lapsed policies re-instated or considered for re-instatement; and

(b)        submissions as to the appropriateness of an order under s 33N of the Act.

2                     I also ordered that the costs of the notice of motion be reserved pending further argument on the question of costs. On 22 December 2000, I determined both of the common issue questions in favour of the respondent and ordered that the proceeding no longer continue under Part IVA of the Act.

3                     The respondent succeeded on all issues at the hearing of the matter on 11 December 2000. In those circumstances, there is no reason why the normal rule that costs follow the event should not apply.  Accordingly, I order that the applicant pay the costs of the respondent in relation to the hearing on 11 December 2000.

4                     In relation to the costs of the respondent’s notice of motion filed on 4 October 2000, and the hearing of that motion on 20 October 2000, the position is not quite so clear.  The respondent was only partially successful in that matter.  Although, as the respondent submitted, it acted reasonably and properly in making an application to limit the common issues or (in the alternative) for an order under s 33N, its basic position was that there were no common issues.  In my opinion, the respondent should be entitled to 75 per cent of its costs in relation of the notice of motion and I order accordingly.

Associate:

Dated:              23 May 2001