Switzerland General Insurance Co. Ltd v Q.B.E. Insurance Ltd [1986] FCA 552

NOT CONSIDERED SUITABLE FOR CIRCULATION

IN THE FEDERAL COURT OF AUSTRALIA

No. G.232 of 1986

NEW SOUTH WALES DISTRICT REGISTRY No. G.233 of 1986

we wee ws

GENERAL DIVISION

BETWEEN:

SWITZERLAND GENERAL INSURANCE COMPANY LIMITED

Applicant

E

Q.B.E. INSURANCE LIMITED

Respondent

AND BETWEEN:

FORSIKRINGSSELSKABET TOP INTERNATIONAL

Applicant AND:

Q.B.E. INSURANCE LIMITED

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

As I rather suggested during argument, it does seem to me that the true point of paragraph (c) of sub-rule (2) of rule 2

Order 8 is to ensure that leave is not given in clgi

2.

brought. I think what was said by Lord Simonds in the Vitkovic

case [1951] A.C. 869 at p.878, though formulated in accordance

with the somewhat differently worded English rule, evinces a similar approach. In my view, if one takes that approach, in a case such as this, where clearly the applicant for leave is not in a position to bring all of the relevant facts before the Court, but where it does appear that the allegations have already been made in the Court in what appear to be proceedings not brought lightly, there is a sufficient basis for holding that the

purpose of paragraph (c) of the sub-rule has been fulfilled.

Accordingly, I think it is an appropriate case to dispense with literal compliance with the terms of the paragraph,

so I am prepared to make the first order sought in the notice of

motion.

Is there a second notice of motion in the other matter?

MR. CAMPBELL: There is, in the same terms.

HIS HONOUR: I do that in respect of each notice of motion. Then the second order sought is that the cross-claimant have leave to serve the cross-claim on the first cross-respondent outside the Commonwealth and in the United Kingdom. That is identical in each notice of motion?

MR. CAMPBELL: It is, your Honour.

HIS HONOUR: I think in each case it has been shown that it