AMP Financial Planning Pty Ltd v CGU Insurance Ltd

MOORE J 1 This is an application to reopen an appeal. Judgment was given on 2 September 2005: see AMP Financial Planning Pty Ltd v CGU Insurance Ltd [2005] 55 ACSR 305. Those orders were not to be entered until further order, pursuant to an order made on 16 September 2005, the day after the present application was filed. The successful appellant was AMP Financial Planning Pty Ltd. The application to reopen is made by CGU Insurance Ltd, the unsuccessful respondent in the appeal. The reopening is sought for two reasons. The first is to have this Full Court determine issues which CGU submitted would result in the appeal being dismissed. Those issues are issues 7, 8 and 9 in the reasons for judgment of the trial judge of 18 October 2004: see AMP Financial Planning Pty Ltd v CGU Insurance Limited [2004] 139 FCR 223. The second is to correct an error said to arise from a misapprehension on the part of at least the majority of the Full Court about the basis upon which certain material was tendered by AMP before the trial judge and how it might be used on remitter. 2 Issues 7, 8 and 9 were not raised directly by CGU in AMP's appeal against the order dismissing AMP's application. CGU did not file a notice of contention raising them under Order 52 Rule 22(3) of the Federal Court Rules in that appeal. In any event, the issues were not clearly and directly raised by CGU in argument in AMP's appeal against the trial judge's order of 29 October 2004 dismissing AMP's application. Those issues did however arise in a cross appeal of CGU against the costs order of the same date made by the trial judge. However, in light of the orders made in the appeal (including an order setting aside the costs order of the trial judge), the cross appeal is now academic. 3 In this application to reopen AMP's appeal, CGU has declined to seek leave to file a notice of contention in the appeal seeking to uphold the trial judge's order dismissing AMP's application on the basis that issues 7, 8 and 9 should be resolved in its favour. The principles concerning the reopening of an appeal are well settled. In the absence of an intimation that a notice of contention would be filed, the reopening would, as to issues 7, 8 and 9, be futile. This is certainly not one of the rare cases where, in the interests of justice, the appeal should be reopened. CGU submitted that a notice of contention is unnecessary as the issues it would address are already raised in its cross appeal. I do not agree. AMP's appeal was against both the order of the trial judge dismissing its application and the order that it pay ninety percent of CGU's costs. CGU's cross appeal relates only to the order for costs. What CGU seeks to do, if AMP's appeal was reopened, is to support the order of the trial judge dismissing the AMP's application on different grounds. That can only be done, in my opinion, by the filing of a notice of contention. While it is true that the issues that CGU now seeks us to address, were raised in its cross appeal against the costs order, that would not raise them in AMP's appeal in which judgment has been given in the absence of a notice of contention. 4 One further matter should be noted in this respect. AMP did not resist, in substance, the grant of leave to reopen its appeal, subject to an order for costs (but only to enable consideration of issues 7, 8 and 9) if a notice of contention raising issues 7, 8 and 9 was to be filed. It would have resulted in a prompt determination of those issues. That may have been a sensible course. It is not necessary to express a view as to whether CGU could raise these issues in any appeal from a judgment on remitter. 5 As to the second ground in support of reopening AMP's appeal, it now appears not to be controversial (if it ever was) that the material (reports and the like) about which CGU is concerned was admitted before the trial judge on a limited basis. That is, it was not admitted as proof of the truth of the underlying facts contained in, for example, a report but rather as evidence of the circumstances in which AMP decided to settle various claims. There was no misapprehension on the part of the majority of this Full Court that this material was admitted on a limited basis and will be before the trial judge on remitter on the same basis. 6 I would order that the application to reopen be dismissed with costs. 7 Two outstanding issues remain in AMP's appeal and CGU's cross appeal. No costs order has yet been made in the appeal. CGU should pay AMP's costs of the appeal. CGU's cross appeal should be dismissed with no order as to costs.