King v GIO Australia Holdings Ltd - [2000] FCA 1543

FEDERAL COURT OF AUSTRALIA
King v GIO Australia Holdings Ltd [2000] FCA 1543
SHANE ROBERT KING v GIO AUSTRALIA HOLDINGS LIMITED, GRANT SAMUEL & ASSOCIATES PTY LIMITED, DAVID MORTIMER, BRUCE HOGAN, STEWART STEFFEY, RONALD ASHTON, MARINA DARLING, ANDREW KALDOR, LLOYD LANGE, DAVID O'HALLORAN and IAN POLLARD
N955 of 1999
WILCOX, LEHANE and MERKEL JJ
SYDNEY
1 NOVEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N955 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SHANE ROBERT KING
Applicant

AND:

GIO AUSTRALIA HOLDINGS LIMITED
First Respondent

GRANT SAMUEL & ASSOCIATES PTY LIMITED
Second Respondent

DAVID MORTIMER
Third Respondent

BRUCE HOGAN
Fourth Respondent

STEWART STEFFEY
Fifth Respondent

RONALD ASHTON
Sixth Respondent

MARINA DARLING
Seventh Respondent

ANDREW KALDOR
EIGHTH RESPONDENT

LLOYD LANGE
Ninth Respondent

DAVID O'HALLORAN
Tenth Respondent

IAN POLLARD
Eleventh Respondent

JUDGES:

WILCOX, LEHANE and MERKEL JJ

DATE OF ORDER:

1 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant in the principal proceeding, Shane Robert King, have leave to file and serve on each of the respondents within seven days a Fourth Further Amended Application and a Third Further Amended Statement of Claim in the form of the documents submitted to the Court under cover of the applicant’s solicitors’ letter of 1 September, 2000.

2.Paragraph 2 of the Order of Moore J made on 12 May 2000 be set aside and in lieu thereof it be ordered that the costs of all parties of the notices of motion filed on 5 April 2000 be their costs in the cause.

3.Otherwise leave to appeal against the orders made by Moore J on 12 May, 2000 be refused.

4.The costs of the applicant and of the respondents of all of the applications for leave to appeal be their costs in the cause.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N955 of 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SHANE ROBERT KING
Applicant

AND:

GIO AUSTRALIA HOLDINGS LIMITED
First Respondent

GRANT SAMUEL & ASSOCIATES PTY LIMITED
Second Respondent

DAVID MORTIMER
Third Respondent

BRUCE HOGAN
Fourth Respondent

STEWART STEFFEY
Fifth Respondent

RONALD ASHTON
Sixth Respondent

MARINA DARLING
Seventh Respondent

ANDREW KALDOR
Eighth Respondent

LLOYD LANGE
Ninth Respondent

DAVID O'HALLORAN
Tenth Respondent

IAN POLLARD
Eleventh Respondent

JUDGES:

WILCOX, LEHANE and MERKEL JJ

DATE:

1 NOVEMBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:

Each of the respondents to this proceeding sought leave to appeal against orders made by Moore J on 12 May 2000. By those orders, his Honour dismissed with costs notices of motion brought by each respondent in which they sought the striking out of the Third Further Amended Application and the Second Further Amended Statement of Claim and/or the staying of the proceeding. The proceeding is a representative proceeding brought in pursuance of Part IVA of the Federal Court of Australia Act 1976 (“the…

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: [2000] FCA 1543
Decision Date: 1 NOVEMBER 2000

CaseChat Overview and Summary

Shane Robert King commenced proceedings against GIO Australia Holdings Ltd in the Federal Court of Australia. The dispute centres around allegations of misleading or deceptive conduct, breach of contract, and negligent misstatement by GIO. This case has undergone multiple amendments and appeals, with King seeking leave to file further amendments to his pleadings. The court was tasked with determining whether King should be granted leave to file a Fourth Further Amended Application and a Third Further Amended Statement of Claim, and whether the costs orders made by Moore J on 12 May 2000 should be set aside or altered.

The legal issues before the court included whether King's proposed amendments were permissible, the appropriateness of the costs orders made previously, and whether the appeal against those orders should be allowed. The court considered the principles of justice and the need to ensure that proceedings are not unduly protracted. It examined the history of the case, the reasons for the proposed amendments, and the implications of altering the costs orders. The court also assessed whether the appeals were frivolous or vexatious.

The court concluded that King should be granted leave to file the further amended pleadings, as the amendments appeared to be necessary to properly plead his case. It found that the previous costs orders should be set aside and replaced with an order that all parties bear their own costs for the applications filed on 5 April 2000. The court refused leave to appeal against the earlier costs orders, considering the appeals to be without merit. Consequently, the costs of the current applications for leave to appeal were ordered to be borne by the parties themselves. The court's decision was based on a careful balance of the interests of justice and the need to avoid unnecessary delay in the proceedings.

Orders

Orders of the court

1. The applicant in the principal proceeding, Shane Robert King, have leave to file and serve on each of the respondents within seven days a Fourth Further Amended Application and a Third Further Amended Statement of Claim in the form of the documents submitted to the Court under cover of the applicant’s solicitors’ letter of 1 September, 2000.

2. Paragraph 2 of the Order of Moore J made on 12 May 2000 be set aside and in lieu thereof it be ordered that the costs of all parties of the notices of motion filed on 5 April 2000 be their costs in the cause.

3. Otherwise leave to appeal against the orders made by Moore J on 12 May, 2000 be refused.

4. The costs of the applicant and of the respondents of all of the applications for leave to appeal be their costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N955 of 1999

BETWEEN:	SHANE ROBERT KING Applicant
AND:	GIO AUSTRALIA HOLDINGS LIMITED First Respondent GRANT SAMUEL & ASSOCIATES PTY LIMITED Second Respondent DAVID MORTIMER Third Respondent BRUCE HOGAN Fourth Respondent STEWART STEFFEY Fifth Respondent RONALD ASHTON Sixth Respondent MARINA DARLING Seventh Respondent ANDREW KALDOR EIGHTH RESPONDENT LLOYD LANGE Ninth Respondent DAVID O'HALLORAN Tenth Respondent IAN POLLARD Eleventh Respondent
JUDGES:	WILCOX, LEHANE and MERKEL JJ
DATE OF ORDER:	1 NOVEMBER 2000
WHERE MADE:	SYDNEY

JUDGES:	WILCOX, LEHANE and MERKEL JJ
DATE:	1 NOVEMBER 2000
PLACE:	SYDNEY