Fox v Combined Insurance Company of America

REASONS FOR JUDGMENT 1 The applicant, a Ms Marion Fox, applies for leave to serve an originating application on a person in a foreign country, namely, the Combined Insurance Company of America ('CICA'). Ms Fox seeks to proceed under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 ('the Hague Convention'). 2 CICA is incorporated in Illinois in the United States. Until 1 October 2010, CICA conducted an insurance business in Australia under the name 'Combined Insurance Company of Australia'. Shortly before then, this Court approved a scheme for the transfer of its insurance business to ACE Insurance Limited ('ACE') under the provisions of Division 3A of the Insurance Act 1973 (Cth): see In the matter of Combined Insurance Company of America [2010] FCA 962 per Stone J. That scheme took effect on 1 October 2010. It provided, inter alia, for the transfer to ACE of the liabilities of CICA arising under the insurance contracts which had been issued by it: cl 4. It did not provide for a general transfer of CICA's non-insurance Australian liabilities to ACE. On 15 May 2012 CICA was struck off the register of foreign companies after filing a notice with the Australian Securities and Investments Commission that it had ceased conducting business in Australia. 3 Between 31 March 2000 and 21 September 2007 Ms Fox was engaged by CICA in Australia as a sales representative selling insurance door-to-door. The contractual documentation executed by her with CICA suggested that she was engaged as an independent contractor. She wishes now to contend against CICA that, in fact, the relationship between her and CICA was one of employment and that she is entitled to employment benefits such as annual leave which have never been paid. That allegation has been made against CICA by its Australian sales force before. In ACE Insurance Limited v Trifunovski (2011) 200 FCR 532; [2011] FCA 1204 I determined that the relationship between CICA and five of its former sales agents was one of employment notwithstanding the terms of the written contract and awarded them employment entitlements. This conclusion was upheld by the Full Federal Court: see ACE Insurance Limited v Trifunovski (2013) 209 FCR 146; [2013] FCAFC 3. An application for special leave to appeal to the High Court was refused: see: ACE Insurance Limited v Trifunovski [2013] HCATrans 190. 4 The fact that that earlier litigation was conducted against ACE and not CICA initially caused me some concern that CICA might no longer be the proper respondent. However, the solicitor for Ms Fox, Mr O'Donnell, put before me the explanation that ACE's solicitors had informed him that that the Trifunovski litigation was conducted against ACE pursuant to a private transfer agreement between ACE and CICA, a copy of which ACE's solicitors have declined to produce on the basis of commercial confidentiality. My reading of the scheme of transfer itself is that CICA has retained its non-insurance liabilities in Australia although, as Mr O'Donnell points out, it appears to have an indemnity from ACE under clause 6 of the scheme in respect of suits of the present kind. In any event I am satisfied, at least prima facie, that the scheme has not had the effect of extinguishing CICA's liability to Ms Fox. 5 Ms Fox's application seeks payment for unpaid leave under s 232(2) of the Workplace Relations Act 1996 (Cth). On the basis of the prior litigation it is clear she has a strong case because CICA's Australian sales agents have already been held to be its employees. The only apparently live question, at least at this stage, is what the extent of CICA's liability might be. 6 Under Federal Court Rules 2011 (Cth) r 10.43(4) where it is sought to serve an originating process in a foreign country under the Hague Convention the Court must be satisfied of three matters: first, that the Court has jurisdiction; secondly, that the proceeding is of a kind mentioned in r 10.42; thirdly, that the applicant has a prima facie case for the relief sought. 7 I am satisfied of each of these matters. This court has jurisdiction to hear a suit under s 232(2) of the Workplace Relations Act 1996 (Cth) for the reasons given by me at [7]-[22] in ACE v Trifunovski. The proceeding is of a kind mentioned at items 12-14 of r 10.42, namely, a claim for damages under an Australian statute. I am satisfied that there is a prima facie case for the relief claimed because Ms Fox's essential contention has already been determined in ACE v Trifunovski litigation. 8 For those reasons I grant leave to Ms Fox to serve the originating application and statement of claim on CICA in the United States in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.