Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2024] FCA 840

FEDERAL COURT OF AUSTRALIA

Icon Co (NSW) Pty Ltd v Liberty Mutual Insurance Company Australian Branch trading as Liberty Specialty Markets [2024] FCA 840 File number: VID 954 of 2023

Judgment of: MOSHINSKY J

Date of judgment: 1 August 2024

Catchwords: PRACTICE AND PROCEDURE – application for permanent stay or strike out of a particular claim – where the applicants (the insureds) claimed that the first respondent (the insurer) had breached its duty of utmost good faith – where the insurer contended that the claim should be permanently stayed or struck out on the basis of Anshun estoppel and/or abuse of process principles – whether it was unreasonable not to have brought the claim in an earlier proceeding – held: application for permanent stay or strike out of claim dismissed

Legislation: Federal Court of Australia Act 1976 (Cth), ss 37M, 37N Insurance Contracts Act 1984 (Cth), ss 13, 58 Federal Court Rules 2011, rr 16.02, 16.21

Cases cited: Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 Gibbs v Kinna [1999] 2 VR 19 Hungerfords v Walker [1989] HCA 8; 171 CLR 125 O'Brien v Tanning Research Laboratories (1988) 14 NSWLR 601 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Williams v Spautz [1992] HCA 34; 174 CLR 509