FEDERAL COURT OF AUSTRALIA
DATE OF ORDER:
THE COURT ORDERS THAT:
1. By 19 September 2016, the respondent file and serve a statement of position, whether by way of submissions or detailed exposition, which sets out her position in relation to paragraphs , , and  of the applicant’s statement of claim and whether or not the insurance policy was in existence for her benefit after 1 July 2014. Such document should identify, as far as possible, the legal and factual contentions in relation to this issue. The document is to be entitled, “The Respondent’s Position on the Existence of Cover after 1 July 2014”.
2. The matter be transferred to the docket of Justice Beach.
3. The costs of today’s proceedings be costs in the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
(Revised from the transcript)
1 This matter was placed in the Insurance List. The applicant sought declarations as to the lack of cover and as to the recovery of moneys from the respondent by way of previous payments said to have been made under a mistake of fact.
2 Dr Pham, the respondent, is unrepresented.
3 I made orders on the last occasion for a document to be filed which made clear Dr Pham’s position in relation to the existence of cover after 1 July 2014, which was a central issue in the statement of claim. If there was no cover, the question of recovery of previous payments would arise.
4 The document that Dr Pham has filed is of no real assistance in having me understand her position in relation to coverage. It is a draft defence, which does not plead to the statement of claim, but to the originating application, and so I do not even have a document dealing with the factual allegations in the statement of claim. Dr Pham explains this by saying that it is the fault of those who assisted her with filing in the Registry. But the order I made was clear:
4. On or before 2 September 2016, the respondent file and serve a document entitled “The Respondent’s Position on the Existence of Cover after 1 July 2014” which sets out the Respondent’s position on paragraphs 6, 7 and 8 of the statement of claim and whether or not the insurance policy was in existence for the Respondent’s benefit after 1 July 2014. Such document should identify as far as possible the legal and factual contentions in relation to this issue.
5 In any event, another matter which needs to be taken into consideration is that Dr Pham wishes to cross-claim against her former lawyers because of alleged failure to follow instructions. The sums to be claimed by Dr Pham in any cross-claim against the former lawyers may well coincide significantly with the amounts paid by the insurer, which it seeks to recover under its restitutionary claim, should there be found to be no cover.
6 As one can see from this scheme of the facts, there is a crucial hinge about which the various claims of Dr Pham against her former lawyers and the claims of Guild Insurance against Dr Pham turn. That is whether there was or was not insurance cover after 1 July 2014.
7 In discussion today, but not in any document filed pursuant to my orders of 29 July 2016, it appears that Dr Pham is relying upon the retroactive cover clause of the policy. It is not entirely clear to me how that would necessarily trump the ending of the policy, but I have heard no submissions on it.
8 This Insurance List is for the expeditious dealing with discrete insurance issues for the benefit of insureds and insurers. I made directions in this matter in July of this year. Broadly speaking, they have not been complied with because there has been a failure to elucidate or identify with any clarity by the respondent the insurance issues in dispute. Mr Richardson, counsel for the applicant, urges that I retain the matter in this List to deal with the policy issue, that is, the coverage issue.
9 It seems to me that it is unlikely that, as the matter is currently structured and as currently being handled by Dr Pham, that there will be any agreement as to any neat or clean identification of coverage issues for the assistance of the parties. I think that the likelihood of costs being saved by the operation of this List as opposed to the matter being transferred to, if I may respectfully say so, an efficient commercial judge, is likely to be small.
10 Therefore, what I propose to do now is to order Dr Pham, the respondent, to file and serve within 14 days, a statement of position, whether by way of submissions or detailed exposition, which sets out her position in relation to paragraphs 6, 7, and 8 of the statement of claim and whether or not the insurance policy was in existence for her benefit after 1 July 2014. Such document should identify, as far as possible, the legal and factual contentions in relation to this issue. The document is to be entitled, “The Respondent’s Position on the Existence of Cover After 1 July 2014”.
11 That is the direction I made over a month ago. On this occasion, I expect it to be complied with.
12 The second order is that I transfer the matter to the docket of Justice Beach. His staff will be in touch with the parties for a case management hearing after the filing of the document that I have ordered to be filed
13 I would add that there is no reason why Beach J should not hear a separate issue as to the existence of cover if he thought that that was an appropriate course to take.
14 Costs of today will be costs in the application.