Fox v Robinson and Ors (No.1) - [2005] FMCA 1310

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FOX v ROBINSON & ORS (No.1)

[2005] FMCA 1310

PRACTICE AND PROCEDURE – Trade Practices – whether Court has jurisdiction – claim against insurer – contract of insurance – no claim under Federal legislation – whether accrued/associated jurisdiction – current proceedings by same Applicant against Respondent in Victorian Civil and Administrative Tribunal.

Federal Magistrates Court Rules 2001, Rules 13.10, 17.05
Domestic Building Contract Act (Vic) (1995), ss.59A, 60
Federal Magistrates Act 1999, ss.10, 18
Trade Practices Act 1974, s.52

Fox v Robinson & Anor [2003] FMCA107
Mahoney v AGD Mining & Ors (No 2) [2003] FMCA431

Applicant:

VICTORIA JANE FOX

First Respondent:

KRISTINE ANNE ROBINSON

Second Respondent:

GODDARD ELLIOTT (A FIRM)

Third Respondent:

AUSTRALIAN INTERNATIONAL INSURANCE LIMITED
(ACN 006 544 690)

File Number:

MLG 645 of 2001

Judgment of:

McInnis FM

Hearing date:

5 September 2005

Delivered at:

Melbourne

Delivered on:

9 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr A Donald

Solicitors for the Applicant:

Norris Coates

Solicitor for the First Respondent:

Mr J Mackenzie

Solicitors for the First Respondent:

J P Mackenzie

Solicitors for the Second Respondent:

Minter Ellison

Counsel for the Third Respondent:

Mr M H Whitten

Solicitors for the Third Respondent:

Melbourne Building & Construction Solicitors Pty Ltd

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 645 of 2001

VICTORIA JANE FOX

Applicant

And

KRISTINE ANNE ROBINSON

First Respondent

And

GODDARD ELLIOTT (A FIRM)

Second Respondent

And

AUSTRALIAN INTERNATIONAL INSURANCE LIMITED

Third Respondent

REASONS FOR JUDGMENT

By an application filed on 27 July 2005, Australian International Insurance Ltd (AIIL) applies for orders pursuant to Rule 17.05 of the Federal Magistrates Court Rules 2001 (the Rules) that the claim brought against it by Victoria Jane Fox (the Applicant) be dismissed on the grounds that the Court does not have jurisdiction in respect of the claim. In the alternative an order is sought, pursuant to Rule 13.10 of the Rules, that the proceedings against AIIL be dismissed or alternatively stayed on the basis that the Applicant's claim for relief against AIIL is frivolous, vexatious and/or an abuse of process of the Court.
The claim by the Applicant against AIIL is set out in a Further Amended Statement of Claim dated 8 April 2005. To understand that part of the claim it is useful to set out a summary of the substantive claim by the applicant against the other respondents, namely Kristine Anne Robinson (the First Respondent) and Goddard Elliott (the Second Respondent) referred to in an earlier decision of the court in Fox v Robinson & Anor [2003] FMCA107, where the court stated:-
“1.In this application Victoria Jane Fox (the Applicant) by application filed 21 August 2001 has made a claim against Kristine Anne Robinson (the First Respondent) and Goddard Elliott (the Second Respondent). The claim against the First Respondent arises from an agreement alleged to be entered into between the Applicant and that Respondent on or about 20 January 2001 in relation to the purchase of land and construction of a home on that land for the price of $173,000. Reliance is placed upon terms of the agreement alleged to include warranties that work would be carried out in a proper and workmanlike manner, that materials used in the works would be good and suitable for the purpose for which they were used and would be new, works would be carried out in accordance with all relevant laws including the Building Act 1993 (Vic) (the Building Act) and Regulations made thereunder, that the works would be carried out with reasonable skill and care, that the home would be suitable for occupation at the time the work was completed and that the First Respondent was covered by insurance as required under the Building Act. Reliance is also placed on an implied term pursuant to s.8 of the Domestic Building Contracts Act 1995 (Vic) (the DBC Act).
2.Further reliance is placed upon alleged representations by the First Respondent to the Applicant of a kind similar to the warranties to which I have referred. In the particulars subjoined to paragraph 4 of the Statement of Claim annexed to the Application, the Applicant refers to the representations of the First Respondent being transmitted by the First Respondent’s agent to the Applicant’s solicitors who are now the Second Respondent.
3.The claim against the Second Respondent is based upon an alleged breach of a retainer which in brief terms alleges that the Second Respondent did not exercise skill, care and diligence of a reasonably competent solicitors, did not exercise the proper professional skill, diligence and care in the performance of the retainer in acting for the Applicant as her solicitors and did not make all necessary and appropriate searches and enquiries concerning the property including whether the First Respondent was covered by the required insurance and did not inform the Applicant of the results of any searches and enquiries or advise her in relation to those searches and enquiries.
4.It is further claimed against the Second Respondent that representations were made to the Applicant by the Second Respondent that the contract note in relation to the property complied with the laws of the State of Victoria and provisions of the Building Act and that the Applicant would be covered by insurance as required by the Building Act.

It is claimed that in breach of the representations by the Second Respondent the contract note did not comply with the laws of the State of Victoria or the Building Act and that the Applicant was not covered by insurance as required by that Act. It is further claimed that by acting upon the representations of the Second Respondent, the Applicant did not terminate the agreement by a certain date which would have been possible pursuant to s.31 of the Sale of Land Act and moreover that she paid the purchase price to the First Respondent on the settlement date.
5.Representations referred to by both the First and Second Respondent are said to constitute misleading and deceptive conduct in breach of s.52 of the Trade Practices Act 1974. When the matter was first listed before the Court it became evident that a jurisdictional issue arose concerning the further hearing of the application. Orders were made for that jurisdictional issue to be heard after the filing of an Outline of Submissions by the parties. After the hearing supplementary submissions were filed by leave of the Court on behalf of the First Respondent.”
The claim in the Further Amended Statement of Claim against AIIL is set out in paragraphs 22 to 32 of that Statement of Claim, which may accurately be summarised in the following terms:-
a)That AIIL provided insurance in respect of certain building works carried out by Robinson.
b)That Robinson did not carry out that works properly.
c)That Robinson's breaches are insured events under the insurance.
d)That Fox made a claim under the policy.
e)AIIL is obliged to indemnify Fox in respect of her claim.
f)AIIL has failed and/or refused to indemnify Fox in respect of her claim or pay it.
The orders sought against AIIL by the Applicant include indemnity and, in the alternative, that AIIL pay the claim and then, further in the alternative, damages.
It would seem that the Applicant's claim against AIIL is almost identical to a claim she has brought in the Victorian Civil and Administrative Tribunal (VCAT) in proceedings number D878/2004 commenced on 24 December 2004. It is common ground however that in the VCAT proceedings the Applicant has sought a review of the insurer's decision to reject the Applicant's claim and ask the Tribunal to review the matter pursuant to ss.59A and 60 of the Domestic Building Contract Act (Vic) (1995) ("the DBC Act").
Further background and chronology of events in this matter has been set out in a table incorporated in the AIIL outline of submissions dated 12 August 2005, and for present purposes it is convenient to include the table in this judgment, noting that solely for the purpose of this application the facts set out in the table are not disputed by the Applicant.

Date	Event
19 January 2001	Report by Archicentre on the condition of the property, annexed to section 32 statement.
5 February 2001	Fox purchases unit 3/16 McMahon's Road, Ferntree Gully ("the property") from Robinson
28 February 2001	Robinson’s application for insurance from Reward (AIIL’s predecessor) in relation to certain domestic building works performed on the property.
1 March 2001	Insurance policy issued.
21 August 2001	Fox commences proceedings in the FMC against Robertson and the Goddard Elliott.
11 September 2001	Defence by Goddard Elliott
30 November 2001	Defence by Robinson
11 December 2001	Application by first and second respondents for summary dismissal of Fox's claim in the FMC proceeding.
31 March 2003	McInnis FM decision on application by first and second respondents for summary dismissal.
8 April 2003	Amended statement of claim by Fox (adding claims under the Fair Trading Act (Vic) 1999 re TPA claims).
28 April 2003	Cross-claim filed by Robinson against Fox and Trade Core Constructions Pty Ltd
8 May 2003	Defence by Goddard Elliott to Fox's Amended Statement of Claim
8 May 2003	Cross Response by Trade Core to Robinson's cross-claim
25 September 2003	Claim (dated 1 September 2003) made by Fox (sent by Fox's solicitors) on Reward Insurance re defects and incomplete work by Robinson. Supported by report from Coghlan Lorich Associates Pty Ltd. Estimate of costs of rectification and completion: $34,558.00
19 November 2003	Building Assist (Reward's agent) to Fox's solicitors - seeking details of the FMC proceeding and mediation in mid-December.
5 December 2003	Property inspected by Building Assist (Julian Davies) on behalf of Reward. Some items claimed accepted and others rejected. Schedule of Works annexed to report setting out those items which are to be rectified.
10 December 2003	Reward's decision re Fox's claim in accordance with the Building Assist report.
14 January 2004	Fox's solicitors advise Building Assist that the mediation in the FMC proceeding has been re fixed for 3 February 2004, and that they require a response regarding indemnity and rectification "at a reasonable time prior to the mediation in order to assist the timely resolution of the matter".
16 March 2004	Fox's solicitors to Building Assist, requesting copy of geotechnical engineers report and written response regarding indemnity and rectification.
10 May 2004	Fox's solicitors to Building Assist - "... In the absence of your confirmation that an engineer pointed by the insurer will inspect the footings of the property this week to ensure their compliance with the Building Regulations and having regard to the observations made in the report of C. E. Lawrence & Associates, will seek instructions to have the insurer joined as a party to our clients proceedings already on foot in the Federal Magistrates Court of Australia or alternatively issue fresh proceedings in VCAT."
5 September 2004	Quotation from Master Menders to Building Assist - cost of rectification: $82,187.00.
17 November 2004	Building Assist to Fox's solicitors - insurer has requested that we obtain a written explanation of the FMC proceedings, copies of the points of claim and defence and any applicable orders. When in possession of these documents, the insurer will advise of a final decision.
19 November 2004	Fox's solicitors to Building Assist - enclosing documents regarding the FMC proceedings and advising that the owner builder joined Trade Core Constructions Pty Ltd is a cross respondent been the builder that actually carried out the work. Trade Core is now in liquidation. The proceeding is fixed for hearing on 4 April 2005. Mediation has been scheduled for 9 December 2004 and the insurer's response is required well prior to this day to avoid the need for further adjournment.
3 December 2004	Australian Home Warranty (AIIL's agent) to Fox's solicitors - if Fox succeeds in claim that the sale agreement to the purchaser the property is void (as sought pursuant to the TPA/FTA) and for the owner builder to repay the purchase price upon transfer the property back to Robinson, then Fox's unable to demonstrate any loss or damage will have been suffered and therefore AIIL is not obliged to indemnify under the policy.
24 December 2004	VCAT proceedings commenced by Fox against AIIL.
19 January 2005	AIIL to Fox's solicitors - re VCAT proceedings... in essence being a review of the insurer's decision... normal practice in such review proceedings for all relevant parties to be named accordingly the insurer believes the owner builder should be joined by Fox as a further party to proceedings.
25 January 2005	Fox's solicitors to AIIL - FMC proceeding is fixed the mediation on 7 February 2005... "We consider that the insurer should attend the mediation in an attempt to resolve this matter. We advise that the Respondents to our clients proceeding in the FMC have refused to participate in mediation until the insurer's position is known. The insurer's current position makes a situation circular and unsatisfactory. We have obtained advice from Counsel that there is no reason why the VCAT proceeding cannot be stayed and the insurer joined as a party to the FMC proceeding. Such joinder may be unnecessary if the insurer actively participate in the mediation on 7 February.... ".
9 February 2005	AIIL to Fox's solicitors - refers to section 57 of the DBC Act which "makes it clear that VCAT is to be chiefly responsible for resolving domestic building disputes... in addition, section 59 A expressly provides VCAT with jurisdiction to hear and determine any dispute concerning an insurance claim concerning domestic building work or an insurer decision on such a claim. Accordingly, it is the insurer's view that the appropriate jurisdiction for any review of the insurer's decision is in VCAT. Further, the insurer is also of the view that is highly unlikely the FMC in fact has jurisdiction over any dispute concerning the insurer's decision in relation to your client's claim under the domestic warranty insurance policy issued by the insurer, under Victorian state legislation.... confirm that a mediation in the VCAT proceeding is listed for 16th February 2005... will be seeking that the mediation date be vacated and seek an order to allow the joinder of the owner builder."
16 February 2005	Mediation in the VCAT proceeding.
11 March 2005	Order of McInnis FM joining AIIL as a respondent to the FMC proceedings (upon an application by Fox).
6 April 2005	Mediation in FMC proceeding scheduled for 24 August 2005.
8 April 2005	Fox's solicitors serve Further Amended Statement of Claim on AIIL.
29 April 2005	Fox's solicitors advised they will be seeking a stay of the VCAT proceeding.
3 May 2005	AIIL's solicitors to Fox's solicitors - confirming that AIIL was joined to the FMC proceedings without prior notice of any such application and without the insurer being given the opportunity to be heard... Fox has joined the insurer almost 3 months after commencing the VCAT proceeding against AIIL for essentially the same alleged loss and damage... that claim discloses no course of action against the insurer known to law... the FMC lacks the appropriate jurisdiction... the joinder of AIIL to the FMC proceeding is in the circumstances an abuse of process... instructed to make application to have the claim against the insurer dismissed or stayed pursuant to regulation 13.10. It is the insurer's intention to produce this letter to the Court on the question of costs... will be seeking solicitor/client or indemnity costs... Should have the entire case heard and determined in VCAT.
10 May 2005	Fox's solicitors to AIIL's solicitor - intend applying for a stay of the VCAT proceeding pending the outcome of the Federal Court proceeding.... VCAT is not able to hear and determine all of the allegations against the relevant parties because VCAT does not have jurisdiction to deal with matters pursuant to the TPA... the DBC Act does not give the Tribunal exclusive jurisdiction to deal these claims... given there are matters of Commonwealth law involved arising out of a single justiciable issue, they can be dealt within any of the Commonwealth Courts.
12 May 2005	AIIL's solicitor to Fox's solicitors - Fox's claims in the FMC proceeding are under both the TPA and the FTA. VCAT is empowered to hear claims under the FTA. All the claims can therefore be heard and determined in VCAT. Reference to Ghodsian v RCI Builders Insurance and another [1999] VCAT 55.
16 May 2005	Directions hearing in the VCAT proceeding. Application by Fox to have the VCAT proceeding stayed. Application refused. Further directions given for the conduct of the VCAT proceeding.
18 May 2005	AIIL's solicitor to Fox's solicitor -"... Considering the observations made by Deputy President Aird in relation to your client's claim in the current proceeding in the FMC, my client requests you obtain your client's further instructions and also seek the attitude of the other parties in having the FMC proceeding dealt with in VCAT with the review of the insurer’s decision.... Should this matter not be resolved within 14 days, I am instructed to make application to the FMC to have your client's claim against AIIL dismissed or stayed as indicated in my previous correspondence..."
31 May 2005	Fox's solicitor to AIIL's solicitor - review of McInnis FM decision in Fox v Robinson & another [2003] FMCA 107 (reasons why FMC has jurisdiction re claim against the insurer)... our client's main concern is to get all relevant parties to a mediation in an attempt to settle this dispute, we believe that the only sensible course of action is for your client to refrain from taking the procedural point at the stage and join the relevant parties to the proceeding, and have a roundtable discussion with a view to settling the matter.... There are three other parties to this proceeding who have been involved in the FMC proceeding for some 3 1/2 years, and transferring the matter to VCAT will lead to a duplication of costs in some areas..."
16 June 2005	AIIL's solicitor to Fox's solicitors - still maintains that the FMC has no jurisdiction to hear Fox's claims against the insurer.... intends requesting that the matter be referred to a hearing on the issue of jurisdiction and for orders that Fox's claim against the insurer be struck out... It is in the interests of all parties to all proceedings that the FMC matter should in effect be discontinued and heard and determined in VCAT and dealt with in the VCAT proceeding already commenced by Fox...
20 June 2005	VCAT order joining Robinson as second respondent to that proceeding. Further orders made re discovery.
22 July 2005	Directions hearing before McInnis FM - directions given for application by AIIL for summary dismissal or stay under rules 17 and/or 13.
27 July 2005	Application by AIIL for summary dismissal or stay of Fox’s claim.

Jurisdiction

The jurisdiction of the Federal Magistrates Court is found in ss.10 and 18 of the Federal Magistrates Act 1999, which provide as follows:-
“10 Jurisdiction
(1) The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:
(a) by express provision; or
(b) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Magistrates Court in relation to a matter.
(2) The original jurisdiction of the Federal Magistrates Court includes any jurisdiction vested in it to hear and determine appeals from decisions of persons, authorities or tribunals other than courts.
(3) The process of the Federal Magistrates Court runs, and the judgments of the Federal Magistrates Court have effect and may be executed, throughout Australia.”
“18 Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked.”

The Court on previous occasions has considered whether an application falls within the court's associated or accrued jurisdiction. In Mahoney v AGD Mining & Ors (No 2) [2003] FMCA431, I stated, after referring to s.18 of the Federal Magistrates Act, the following:-
“13.That section is almost identical to s.32(1) of the Federal Court of Australia Act 1976 which had been considered by the High Court in Philip Morris Inc. v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. In that case Mason J at p.506 stated:-
“Plainly it was intended to vest a jurisdiction in the Federal Court to hear and determine matters not otherwise within its jurisdiction, matters that are ‘associated’ with matters in which the jurisdiction of the Court is invoked’. The expression ‘to the extent that the Constitution permits’ suggests that s 32 is directed, not merely to jurisdiction to hear and determine matters arising under federal laws not otherwise vested in the Federal Court, but also to jurisdiction arising under state or other non federal laws. Problems of constitutional validity arise in relation to the latter, but not in relation to the former. The opening words of section 32(1) would serve no purpose at all if the sub-section was exclusively directed to matters arising under federal laws.”
14.Further in the Philip Morris case at p.512 Mason J states when referring to the severability of a claim the following:-
“Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction”.
I accept as submitted by Counsel for AIIL that apart from the issue of a common substratum of facts, the following factors are relevant:-
·whether a matter is a "single justiciable controversy"
·the question is not a "separate and distinct matter"
·whether there is an "identity of facts" (see Tait v Harris [2003] FCAFC 117, referring to Phillip Morris)
·whether any federal jurisdiction has properly been invoked (see Hebbard v Bell Potter Securities Ltd [2005] 216 ALR 779, referring to Walker v Lifespan Financial Planning (2003) 176 FLR 166 at [16])
·whether the claim under the relevant federal law is a substantial part of a controversy the whole of which would be appropriately and conveniently determined by the Court vested with jurisdiction in matters arising under that law (see Mahoney v AGD Mining, referring to Fencott v Muller (1983) 152 CLR 570 at p.610)
·whether a matter is a justiciable controversy which must either be constituted by or must include a claim arising under a federal law but which may also include another cause of action arising under another law, provided it is attached to and is not severable from the former claim (see Mahoney v AGD Mining, referring to Phillip Morris at pp.494-495)
·whether there is but one matter where different claims are so related that the determination of one is essential to the determination of the other (see re Wakim; Ex parte McNally (1999) 198 CLR 511 per Gummow and Hayne JJ at 585)
In the present case it is submitted by AIIL that the only common facts between the claims made by the Applicant against the First Respondent and the other Respondents, and the claim made against AIIL, is that there was a block of land on which certain domestic building work was performed. It is argued at that point the two categories of claims diverge. The first category involves claims for relief under the Trade Practices Act 1974 (the TPA), as well as damages for breach of agreement/retainer. The second category as against AIIL solely concerns the Applicant's asserted rights and entitlements under a policy of insurance established pursuant to a Victorian statutory scheme. It is argued there is no common substratum of facts, no single justiciable controversy, and the claim against AIIL is a separate, distinct and severable matter.
It is further submitted that any identity of facts is limited to the land and the works, and no federal jurisdiction has been invoked against AIIL. The claim against the other respondents are not so related to the claims against AIIL that the determination of one is essential to the determination of the other.
On this basis it is submitted that the claim against AIIL does not fall within the Court's accrued or associated jurisdiction and that therefore the Court does not have jurisdiction to hear and determine the claim. The proceedings against AIIL should therefore be dismissed with costs.
In the Outline of Submissions filed on behalf of the Applicant, reference was made to the background in some further detail whereby it is asserted that the First Respondent "as an owner-builder" constructed a unit in 2001. In February 2001 the Applicant bought the unit from the First Respondent and engaged a firm of solicitors (Goddard Elliott) to act for her in the investigation and transfer of the title and "advise generally in respect to the purchase". Reference was made to AIIL's predecessor, Reward Insurance Ltd, carrying on business of selling insurance in 2001 and issuing an insurance contract to the Applicant in March 2001, allegedly providing a cover set out in the contract in respect of defects caused by improper or poor workmanship in the construction of that unit. A contract of insurance is claimed to have come into existence between the insurer (then Reward Insurance, now AIIL) and the Applicant as insured.
It is noted in the submissions for the Applicant that the claim against the First and Second Respondents both involve statutory claims pursuant to the TPA.
It was submitted that there is indeed a common substratum of facts arising from the central question in the case; namely the physical state of the unit and the relationship of that state to its construction. Ancillary to that central question, it is argued, is not only questions concerning the construction contract and sale of the unit but also the making of the insurance contract. Forensic questions common to all parties are stated to be the following:-
·are there any defects in the unit
·if there are defects, was each defect caused by the improper and unworkmanlike construction of the unit
·if each defect was caused by the improper and unworkmanlike construction of the unit, what is the appropriate method of construction for the proper rectification of each defect
·what is a fair and reasonable cost for the rectification of each defect
It was argued that at the trial of this matter AIIL, along with the other Respondents, would adduce evidence in relation to the key questions referred to above. It was noted that AIIL have already engaged an expert, who has provided a report summary, indicating that there were defects in the unit which might ultimately result in liability for AIIL.

It follows, according to the Applicant's submissions, the claim against AIIL is not separate, nor distinct or capable of severance from the balance of the case.
In my view the submissions made for and on behalf of AIIL in relation to jurisdiction are correct. On a proper reading of the Amended Statement of Claim I am satisfied that the claim against AIIL is a claim simpliciter arising out of an insurance contract. The questions identified by the Applicant as being questions common to each party in my view arise from the claim as pleaded against the First and Second Respondents. Both claims rely upon a breach of the TPA. There is no similar claim against AIIL. Indeed, I accept that there is in fact no federal claim at all against AIIL.
Applying the authorities to which reference has been made earlier in this judgment, I am satisfied that in the present case it would not be proper to invoke the accrued jurisdiction of this Court.
In considering the claim by the Applicant against the First and Second Respondents, I cannot see any or any proper basis upon which the claim arising out of the insurance contract against AIIL could properly be regarded as being so related that the determination of one is essential to the determination of the other. The question concerning the defects of the unit and whether or not they were caused by improper and unworkmanlike behaviour and other issues are what I regard as building dispute issues. On the current pleadings against the First and Second Respondents there is a link to federal legislation on the basis of misleading and deceptive conduct in breach of s.52 of the TPA. However, those pleadings do not provide a sufficient basis upon which it could be argued there is common substratum of facts to be determined in that claim against the First and Second Respondents and the claim against AIIL.
The claim against AIIL in my view a separate, distinct and severable matter, as it relates specifically to issues arising out of an insurance contract and on that basis alone this Court does not have jurisdiction. The accrued jurisdiction would only be invoked if I were satisfied that there was some common substratum of facts or a single justiciable controversy. It is clear that there is no claim at all under relevant federal law, and I am further satisfied that on a proper analysis of the relevant claims it could not be argued that they are so related to that the determination of one is essential to the determination of the other.
In particular, in my view the claim under the insurance contract is a discrete claim which may be pursued elsewhere. I do not regard it as being a claim which could properly be regarded as part of this Court's jurisdiction. Specifically, it is not part of what I would regard as this Court's accrued or associated jurisdiction.
Having found that the Court does not have jurisdiction to hear the claim by the Applicant against the AIIL it is not necessary in my view to further consider whether the Court should make an order dismissing the claim pursuant to Rule 13.10 of the Rules as being frivolous, vexatious and/or an abuse of process of the Court.
Accordingly it follows that the appropriate order of the Court is that the claim by the Applicant against the Third Respondent should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 9 September 2005