FEDERAL COURT OF AUSTRALIA

Reinsurance Australia Corporation Limited v HIH Casualty and General Insurance Ltd (in liquidation) [2002] FCA 1550

Reinsurance Australia Corporation Limited (ACN 061 215 601) & Monegasque De Reassurances S.A.M. v HIH Casualty and General Insurance (In Liquidation) (ACN 47 008 482 291), AIG Europe (UK) Ltd and New Hampshire INSURANCE Company, Heath Group Limited (formerly CE Health plc), Heath Insurance Broking Ltd formerly CE Heath (Insurance Broking) Ltd and Heath North America and Special Risks Ltd, Ice Media Limited and Premier Media Limited & J P Morgan Chase Bank (formerly known as The Chase Manhattan Bank, formerly known as Chemical Securities Inc)

N827 of 2002

JACOBSON J

SYDNEY

22 November 2002

THE COURT ORDERS THAT:

1.      Vacate Orders 2 and 3 made by Jacobson J on 21 November 2002.

2.      The second respondent pay the costs of the notice of motion of yesterday and today.

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

REASONS FOR JUDGMENT

1                     Yesterday I made an order on the application of the second respondent that the evidence of Mr Pring be taken by video link from London.  The examination and cross-examination was due to commence at 9.00 am Monday, 25 November 2002.  However, that order was made upon an assumption that the arrangements for the video link would be able to be made readily.  The arrangements were not in place when I heard the notice of motion on Thursday morning but assurances were given that cooperation would take place.  I do not of course suggest that there has been any failure to cooperate and I do not in any way criticise the solicitors or other representatives of the second respondent.

2                     Nevertheless, it is plain at nearly four o'clock on Friday afternoon that arrangements are not in place and that there will be considerable uncertainty over the weekend as to whether or not appropriate arrangements can be made for Mr Pring to be cross-examined commencing at nine o'clock on 25 November 2002.  The notice of motion which I heard yesterday and which I decided was dealt with upon the express premise that Mr Pring would be the first witness.  I have been asked to take into account the possibility that Mr Pring be interposed somewhere during the week of 25 November in the event that the arrangements cannot be affected for his cross-examination on video link at 9.00 am on Monday.

3                     I do not see that it is appropriate to put the applicants in a position of uncertainty over the weekend as to who should be the first witness for cross-examination and also to be in a position where their preparation is going to be distracted by the necessity to make arrangements for people to be available somewhere in London on Sunday night without knowing at this moment with any certainty where their agents are going to have to go for the video link to be carried out.  In summary, it seems to me that the smooth conduct of the trial cannot take place.  No guarantee can be offered that Mr Pring will be available for examination on video link at the time at which I had previously indicated.

4                     It seems to me that in those circumstances there have been sufficient changed circumstances to warrant the revocation of the order which I made yesterday.  I note that there was evidence that it would be possible for Mr Pring to be able to fly to Australia business class on British Airways and be back in London in time to deal with his other commitments.  In those circumstances I am of the view that the order that I made yesterday ought to be revoked and I do so.

5                     It seems to me that the difficulties which have been envisaged have come about because of the fact that arrangements were not in place on Thursday when I heard the motion.  As I have said I am not being critical of the solicitors.  Nonetheless, it does seem to me that circumstances warrant the revocation of the costs order that I made yesterday and in its place I order the second respondent to pay the costs of the motion of yesterday and today.

Associate:

Dated:              11 December 2002