FEDERAL COURT OF AUSTRALIA Johnstone v HIH Insurance Ltd (In Liquidation) [2009] FCA 1314 BRIAN ALEXANDER JOHNSTONE v HIH INSURANCE LTD (IN LIQUIDATION) (ACN 008 636 575)& ORS NSD 317 of 2002 BRIAN ALEXANDER JOHNSTONE v HANNOVER RUCKVERSICHERUNG AG & ORS NSD 449 of 2007 EMMETT J 6 NOVEMBER 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 317 of 2002 GENERAL DIVISION BETWEEN: BRIAN ALEXANDER JOHNSTONE Applicant AND: HIH INSURANCE LTD (IN LIQUIDATION) (ACN 008 636 575) First Respondent GEOFFREY ARTHUR COHEN Second Respondent JUSTIN HERBERT GARDENER Third Respondent CHARLES PERCY ABBOTT Fourth Respondent ROBERT REGINALD STITT Fifth Respondent RODNEY STEPHEN ADLER Sixth Respondent RAYMOND REGINALD WILLIAMS Seventh Respondent TERENCE KEVIN CASSIDY Eighth Respondent DOMINIC FODERA Ninth Respondent ARTHUR ANDERSON Tenth Respondent HANNOVER RUSKVERSICHERUNGS-AKTIENGESELLSCHAFT (ARBN 002 927 031) Eleventh Respondent HANNOVER REINSURANCE (IRELAND) LTD Twelfth Respondent E&S REINSURANCE (IRELAND) LTD Thirteenth Respondent SWISS RE AUSTRALIA LTD (ACN 004 360 909) Fifteenth Respondent JUDGE: EMMETT J DATE OF ORDER: 6 NOVEMBER 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 449 of 2007 GENERAL DIVISION BETWEEN: BRIAN ALEXANDER JOHNSTONE Plaintiff AND: HANNOVER RUCKVERSICHERUNG AG (ARBN 002 927 031) First Defendant HANNOVER REINSURANCE (IRELAND) LTD Second Defendant E & S REINSURANCE (IRELAND) LTD Third Defendant JUDGE: EMMETT J DATE OF ORDER: 6 NOVEMBER 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The proceeding be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 317 OF 2002 BETWEEN: BRIAN ALEXANDER JOHNSTONE Applicant AND: HIH INSURANCE LTD (IN LIQUIDATION) (ACN 008 636 575) First Respondent GEOFFREY ARTHUR COHEN Second Respondent JUSTIN HERBERT GARDENER Third Respondent CHARLES PERCY ABBOTT Fourth Respondent ROBERT REGINALD STITT Fifth Respondent RODNEY STEPHEN ADLER Sixth Respondent RAYMOND REGINALD WILLIAMS Seventh Respondent TERENCE KEVIN CASSIDY Eighth Respondent DOMINIC FODERA Ninth Respondent ARTHUR ANDERSON Tenth Respondent HANNOVER RUSKVERSICHERUNGS-AKTIENGESELLSCHAFT (ARBN 002 927 031) Eleventh Respondent HANNOVER REINSURANCE (IRELAND) LTD Twelfth Respondent E&S REINSURANCE (IRELAND) LTD Thirteenth Respondent SWISS RE AUSTRALIA LTD (ACN 004 360 909) Fifteenth Respondent NSD 449 OF 2007 BETWEEN: BRIAN ALEXANDER JOHNSTONE Plaintiff AND: HANNOVER RUCKVERSICHERUNG AG (ARBN 002 927 031) First Defendant HANNOVER REINSURANCE (IRELAND) LTD Second Defendant E & S REINSURANCE (IRELAND) LTD Third Defendant JUDGE: EMMETT J DATE: 6 NOVEMBER 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 These two proceedings were listed for directions today in order to determine whether they are still on foot. The applicant in NSD 317 of 2002, being the plaintiff in NSD 449 of 2007 is Mr Brian Alexander Johnstone. Both proceedings were in Tamberlin J's docket. In the first proceeding, NSD 317 of 2002, an order was made on 28 April 2006, giving the applicant leave to file a notice of discontinuance. No such notice of discontinuance has been filed. 2 In proceeding NSD 449 of 2007, orders were made on 20 December 2007. On that occasion Tamberlin J ordered that the proceeding be stayed until the costs of certain of the respondents in the earlier proceeding had been paid. A further order for costs was made and the first respondent was given leave to collect and tax the costs forthwith. 3 When both matters were called on for directions today there was no appearance for Mr Johnstone. The solicitors on the record for Mr Johnstone were notified of the directions hearings. In the circumstances I consider it is appropriate that each of the proceedings be dismissed. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 November 2009 Solicitor for the Seventh Respondent in NSD 317 of 2002: Arnold Bloch Leibler Solicitor for the Eleventh to Thirteenth Respondents in NSD 317 of 2002 and the Respondents in NSD 449 of 2007: Minter Ellison Date of Hearing: 6 November 2009 Date of Judgment: 6 November 2009