National Australia Bank Limited v Nautilus Insurance Pte Ltd

1. On or before Friday 21 June 2019, the second, third and fourth respondents file and serve any further evidence upon which they will seek to rely at the hearing of any interlocutory application, together with full written submissions in support of those interlocutory applications.
2. The matter be stood over until a date to be fixed for case management or hearing of any interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ALLSOP CJ: 1 In this matter, the applicant, the National Australia Bank, seeks declarations as to the proper construction of three insurance policies issued by Nautilus Insurance Pte Limited reinsured by three groups of underwriters in London which are the second, third and fourth respondents. The originating application is supported by a statement of claim, which seeks in its totality only declarations as to the proper construction of particular aspects of the three policies which are in largely common form. 2 The reinsurers - the second, third and fourth respondents - seek, on a number of bases, to have the proceedings set aside or dismissed. A general theme of those bases is that the matter is said to be hypothetical and lacks utility and involves an inappropriate use of the declaratory procedure to resolve only part of a dispute between the parties. 3 The second, third and fourth respondents wish to have, at a convenient time prior to the hearing, the interlocutory applications heard. The applicant suggests that the interlocutory applications be stood over to the first day of the hearing. There is some merit, if I may respectfully say so, in the applicant's suggestion. However, given the substantive nature of the arguments and the not insubstantial nature of the underlying proceeding, at the moment I am minded to permit the interlocutory applications to go forward prior to any scheduled final hearing. 4 To this end, what I propose is that, on or before Friday, 21 June, the second, third and fourth respondents file and serve any further evidence upon which they wish to rely in the interlocutory application, together with full written submissions in support of those applications. Upon examination of those submissions in particular, I will make an order or not, as the case may be, for the earlier hearing of the interlocutory applications before any final hearing. Thus, if I take the view that there should be an earlier hearing of the interlocutory applications, I will make orders convenient to the parties for the filing by the applicant of any evidence and written submissions in relation to the interlocutory applications. 5 The applicant has provided, prior to the case management hearing today, a proposed order for the bringing of the case to trial for an estimated two days in the second half of October 2019. The applicant provided for steps to be taken by itself in the drafting of a statement of agreed facts, filing and serving any affidavits and documents and, one could add, submissions, upon which it intends to rely. The applicant is free to proceed with that timetable. Whether or not I order it will depend on my view of the matter after reading the full written submissions of the second, third and fourth respondents. 6 The applicants seek an additional order that, shortly, the respondents each file and serve their defence to the statement of claim. I appreciate that the second, third and fourth respondents would say that that is premature given their views about the matter and the anticipated interlocutory applications. Nevertheless, there may be some benefit in having what is a fairly settled body of debate in the correspondence regularised by a statement in a defence. I interpolate at this point that the statement of claim - and, no doubt, for reasons the subject of proper advice - could have been a concise statement, in which case the notion of pleading would be somewhat attenuated. I will consider again, after reading the second, third and fourth respondents' submissions, whether I will order a defence to be filed in order that the applicant may proceed with its steps in preparation for a hearing should the interlocutory applications be unsuccessful. 7 Thus, the only orders that I will make today are that: