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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1310
Decision Date: 9 September 2005

CaseChat Overview and Summary

The case of Fox v Robinson and Ors (No.1) involved a dispute between Victoria Jane Fox and several respondents, including Kristine Anne Robinson, Goddard Elliott (a firm), and Australian International Insurance Limited (AIIL). Fox filed a claim against AIIL, alleging that the insurer failed to indemnify her under a policy of insurance related to defects in a property she purchased from Robinson. AIIL applied to the Federal Magistrates Court for the dismissal of Fox's claim on the basis that the Court did not have jurisdiction. The court had to determine whether the Federal Magistrates Court had the jurisdiction to hear the claim against AIIL, considering the accrued or associated jurisdiction.

The court examined the nature of the claims against AIIL and the other respondents. The claims against Robinson and Goddard Elliott involved alleged breaches of statutory provisions and misleading and deceptive conduct under the Trade Practices Act 1974. However, the claim against AIIL solely concerned the Applicant's rights and entitlements under an insurance policy established pursuant to a Victorian statutory scheme. The court held that the claims against AIIL were separate, distinct, and severable matters from the claims against the other respondents.

The court concluded that the claim against AIIL did not fall within the Court's accrued or associated jurisdiction, and therefore, the Court did not have jurisdiction to hear and determine the claim. As a result, the claim by the Applicant against AIIL was dismissed with costs.

Orders