FEDERAL COURT OF AUSTRALIA
Macteldir Pty Limited v Dimovski [2005] FCA 1528
Practice and Procedure – costs claimed against legal practitioners for alleged incompetence in propounding a notice of motion found by a Full Court not to be within the jurisdiction of the Court.
Jurisdiction of the Court – contract to enforce a settlement of a proceeding within the jurisdiction of the Court being a contract between the same parties to the original proceeding can be enforced in this Court – whether as part of the original matter or, if a separate matter as a matter arising under a law of the Parliament under s 39B(1A)(c) of the Judiciary Act as undertakings to the Court – enforcement of undertakings to the Court by procedure short of contempt.
Federal Court of Australia Act 1976 s 25(6), s 43
Judiciary Act s 39B(1A)(c)
Federal Court Rules O 62 r 9, O 35 r 11
Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
AMIEU v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Building Construction Employees’ and Builders’ Labourers’ Federation v
Commonwealth (1981) 53 FLR 396 referred toBurgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212applied
Darling Downs Investment Pty Ltd v Ellwood (1988) 18 FCR 510 discussed
Fencott v Muller (1983) 152 CLR 570 referred to
Hooper v Kirella (1999) 167 ALR 358 referred to
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 referred to
Levick v Commissioner of Taxation (2000) 102 FCR 155 discussed and applied
LNC Industries v BMW (Aust) Pty Ltd (1983) 151 CLR 575 discussed an dapplied
Macteldir Pty Limited v Dimovski (2003) 132 FCR 492 discussed and not followed
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS (2005) 215 ALR 733 referred to
Moorgate Tobacco v Phillip Morris (1980) 145 CLR 457 referred to
Myers v Elman [1940] AC 282 referred to
NEC Information Systems Australia Pty Ltd v Iveson (1992) 36 FCR 258 applied
Needlework Warehouse Pty Limited v Chansonette Pty Limited [2005] FCA 1525
Pallas v Finlay (1985) 61 ALR 220 discussed and distinguished
PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520 discussed and applied
Philip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457 applied
Phillips v Walsh (1990) 20 NSWLR 206 discussed
Re Wakim; Ex parte McNally (1999) 198 CLR 511 applied
Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555 referred to
Webb v Repatriation Commission (2000) 105 FCR 415 discussed and distinguished
Wenkart v Pantzer (No 3) (2004) 135 FCR 422 followed
MACTELDIR PTY LIMITED v MILE DIMOVSKI AND ANOR
NSD 207 of 2001ALLSOP J
2 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 207 of 2001
BETWEEN:
MACTELDIR PTY LIMITED
APPLICANT
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- Case
- [2005] FCA 1528
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of this case included whether the solicitor and barrister's conduct in filing the motion amounted to professional misconduct and if the Court had jurisdiction to make an order against them. The Court had to consider the precedent set by the Full Court's decision and the principles governing the Court's jurisdiction. Additionally, the Court needed to assess the correctness of the Full Court's decision and whether the legal representatives' actions were indeed incompetent or negligent.
In reaching its decision, the Court carefully examined the precedent set by the Full Court and noted that while it was not bound by the Full Court's decision, it would only deviate if it found the decision plainly wrong. The Court found that the Full Court's decision was distinguishable and did not need to be reconsidered on its merits. Ultimately, the Court held that the legal representatives had not acted in a manner warranting an order against them, as they had not acted incompetently or negligently. The Court dismissed the applicant's notice of motion and ordered that the applicant pay the respondents' costs, except for certain costs related to advice provided to the applicant.
Orders
Orders of the court
1. The notice of motion of the applicant filed on 24 February 2004 be dismissed.
2. The applicant pay the costs of Mr James Roskov and Mr John de Meyrick of said motion, with the exception of the costs of the argument and preparation therefor covering the asserted waiver of privilege as to advice to the applicant in July 2004.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: ALLSOP J
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