Supreme Court New South Wales Medium Neutral Citation: Hart v MetLife Insurance Limited [2022] NSWSC 1251 Hearing dates: Submissions as to orders 8 September 2022 Date of orders: 15 September 2022 Decision date: 15 September 2022 Jurisdiction: Equity Before: Black J Decision: Orders made dismissing proceedings and as to costs; liberty to apply reserved as to an order of the kind specified in paragraph 4 of this judgment Catchwords: CIVIL PROCEDURE — Separate determination of questions — Orders following determination — Orders dismissing proceedings and as to costs JUDGMENTS AND ORDERS — Restraint against commencing further proceedings — Reserving liberty to apply for an order that a party be restrained from commencing further proceedings until that party has paid the costs of these proceedings Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 28.4 Cases Cited: - Hart v MetLife Insurance Limited [2022] NSWSC 1157 - Idoport v National Australia Bank Ltd [2006] NSWCA 202 - Sheridan v Colin Biggers & Paisley [2019] NSWSC 621 Category: Costs Parties: Marie Hart (Plaintiff) Aware Super Pty Ltd (First Defendant) MetLife Insurance Ltd (Second Defendant) Representation: Counsel: A Coombes (Plaintiff) S Lloyd SC/J Harrison (Second Defendant) Solicitors: Firths (Plaintiff) Moray + Agnew (Second Defendant) File Number(s): 2022/77139 Judgment 1. By my judgment delivered on 31 August 2022 ([2022] NSWSC 1157) I answered three separate questions in the proceedings, and observed that the likely result of the determination of those questions was that the proceedings should be dismissed with costs. I directed the parties to bring in agreed short minutes to give effect to the judgment, including as to costs, within 7 days or, if there was no agreement between them, to bring in their respective short minutes of order and short submissions as to any differences between them. 2. The parties agree that the proceedings should be dismissed and that the Plaintiff, Ms Hart, must pay the costs of the remaining Defendant, MetLife Insurance Ltd ("MetLife"), on the ordinary basis. MetLife seeks a further order which provides for judgment for MetLife against Ms Hart, although it had brought no claim against her. In submissions in support of that order, MetLife refers to the provisions of the Civil Procedure Act 2005 (NSW) which deal with the effect of a dismissal of the proceedings and also refers to r 28.4 of the Uniform Civil Procedure Rules 2005 (NSW) which deals with the orders that the Court may make where its determination of separate questions substantially disposes of proceedings or the whole or any part of them. MetLife also expresses concern that it incurred significant costs in defending Ms Hart's claims, and refers to the fact that the relevant issues have been agitated, inter alia, first in the Federal Court of Australia and now in this Court. It expresses concern that Ms Hart may seek to take further steps, including bringing a complaint to the Australian Financial Complaints Authority ("AFCA") on a basis that is inconsistent with the result of these proceedings. 3. I am not persuaded that I should order judgment for MetLife against Ms Hart, where it brought no claim against her, other than the usual order dismissing the proceedings and dealing with the costs of the proceedings. However, it seems to me that MetLife is reasonably concerned about the risk of being exposed to further costs in the re-agitation of these issues, and that concern would have particular weight if its costs incurred in defending these proceedings have not been paid by Ms Hart. 4. I therefore reserve liberty for MetLife to apply for an order restraining Ms Hart from commencing further proceedings or bringing, maintaining or continuing a complaint to AFCA in relation to the matters in issue in these proceedings, unless she has first paid the costs of these proceedings in full. I note that orders of that kind have been made by this Court, in the exercising of its inherent jurisdiction, extending to the conduct of proceedings in other Courts in, for example, Idoport v National Australia Bank Ltd [2006] NSWCA 202 at [29] and in Sheridan v Colin Biggers & Paisley [2019] NSWSC 621. I would need to hear the parties as to whether that jurisdiction extends to permit the making of an order restraining a complaint to AFCA if MetLife exercises that leave. 5. For these reasons, I make the orders proposed by Ms Hart, and a further order reserving liberty to apply for an order of the kind referred to in paragraph 4 of this judgment. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2022