REASONS FOR JUDGMENT
THE COURT:
1 The parties seek leave to file a notice of discontinuance in relation to an application for leave to appeal in relation to which judgment stands reserved. However, the notice of discontinuance which has been provided is entitled as if in the original proceeding and is in the following form:
"The applicant wholly discontinues the within proceedings."
As there is some ambiguity about what is proposed, a short history of this litigation follows.
2 On 8 October 1997 Elders Limited, DEREL ERF Limited and Fosters Brewing Group Limited (together "Elders") filed an application against Christopher Mark Swinbank and others ("the insurers") for a declaration that the insurers are liable to indemnify the applicant under an insurance policy and seeking judgment for $4,819,700, together with costs and damages. After pleadings, on 13 May 1998 an order was made that certain issues be determined as a separate question. On 16 June 1999 judgment was delivered answering some slightly revised questions (Elders Ltd v Swinbank [1999] FCA 798). The effect of the judgment was to uphold certain of the claims for indemnity.
3 The insurers sought leave to appeal. This was necessary as the judgment was interlocutory, but the grounds advanced went to the substance of the finding. No jurisdictional issue was raised. On 17 November 1999 a notice of motion seeking leave to amend the statement of claim to expressly raise issues pursuant to the Insurance Contracts Act 1984 (Cth) was filed for the purposes of the hearing of the application in the Full Court.
4 On 4 February 2000 a Full Court made the following orders:
"1. Leave be granted to appeal against the declarations and orders pronounced by the Honourable Justice Mansfield in this proceeding on 16 June 1999, such leave being limited to whether this Court had jurisdiction to hear and determine the proceeding or any part thereof.
2. The appeal be allowed on the ground that this Court has no jurisdiction to hear and determine the proceeding or any part thereof.
3. The entire proceeding be stayed for want of jurisdiction."
That judgment (Elders Ltd v Swinbank (2000) 96 FCR 303) was significant as to the jurisdiction of this Court arising out of the application of s 39B(1A)(c) of the Judiciary Act 1983 (Cth) in the context of the Insurance Contracts Act, but had wider ramifications. Special leave to appeal to the High Court was granted on 28 November 2000.
5 On 13 August 2001, in a decision which has escaped reporting to date, the Chief Justice of the High Court, on behalf of the Court, said:
"The Court is of the opinion that the Federal Court of Australia had jurisdiction to hear and determine the application for leave to amend made by notice of motion dated 17 November 1999 and that if the amendment was granted, the Federal Court would have jurisdiction to hear and determine the whole matter, including the application for leave to appeal against the decision of Justice Mansfield. Because the respondent insurers do not now oppose the making of the amendment sought and will consent to its making, it is unnecessary to consider whether, as it is contended in this Court, the Federal Court otherwise had jurisdiction.
The orders that the Court will make are: in matter No A43 of 2000:
1. Appeal allowed;
2. Orders of the Full Court of the Federal Court of Australia made on 4 February 2000 set aside;
3. Appellant's application for leave to amend their statement of claim and the respondent's application for leave to appeal from the declarations and orders of Justice Mansfield made on 16 June 1999 remitted to the Full Court of the Federal Court of Australia for determination in accordance with these reasons for judgment;
4. There will be no order as to the costs of the appellants' application for special leave or of this appeal;
5. The parties' costs of the proceedings to date otherwise are to be determined by the Full Court of the Federal Court of Australia.
In matter No A23 of 2000, we will order that the application be dismissed with no order as to costs."
(Elders Ltd v Swinbank A43/00 (13 August 2001)). It is as a result of those orders that we heard the substance of the application for leave to appeal, the requisite amendments being made.
6 The hearing took place on 11, 12 and 13 February 2002. As there was no doubt that leave to appeal ought be granted, full argument was heard as on appeal. The arguments advanced require the resolution of some difficult questions which are not directly answered by authority, notwithstanding the fact that the insurance policy is in relatively common form. Preparation of the judgment was well advanced when notification was received from the parties that they had resolved their differences.
7 There are extant orders of the High Court of Australia in relation to the proceeding and a subsequent order of this Court amending the proceeding itself. Although the question is by no means free from doubt, the better view is that the nature of the orders to which we have referred is not inconsistent with, and should not stand in the way of, leave being given to discontinue the application for leave to appeal. That would leave the orders below undisturbed. Those orders do not dispose of the proceeding. It is not clear what the parties propose about those orders. It is plainly not possible to discontinue a proceeding where there is an extant judgment. Even if that judgment were set aside, it is by no means certain that it would be appropriate that a proceeding with this history, which has occupied so much of the resources of the Court, should simply be discontinued pursuant to O 22 r 2 rather than dismissed or, at least, discontinued upon appropriate terms. In our view, the proper course is that the question as to what should happen to the proceeding itself should be dealt with by the docket judge.
8 The order of the Court is that the insurer is granted leave to file and serve a notice of discontinuance of the application for leave to appeal. No order for costs will be made.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices French, Merkel and Gyles .