Taylor v CGU Insurance Limited - [2006] FCA 548

FEDERAL COURT OF AUSTRALIA
Taylor v CGU Insurance Limited [2006] FCA 548
PRACTICE AND PROCEDURE – application to recover costs against own solicitor – further application by unsuccessful applicant to recover costs ordered to be paid to the applicant’s former solicitors as damages for contractual or tortious negligence or monies paid under mistake or for damages – such issues determined after listing of hearing on issue of jurisdiction and power – common ground that determination of issues of jurisdiction and power not in accord with requirements of procedural fairness – finding that claim based on negligence not within accrued or associate jurisdiction of court in error of law – appropriate form of orders
COSTS – non-party respondent – eligible for federal costs certificate
Federal Court of Australia Act 1976 (Cth) ss 22, 23, 24(1A)
Federal Magistrates Act 1999 (Cth) s 79
Federal Proceedings (Costs) Act 1981 (Cth) ss 4(1), 6, 6(1), 6(3), 6(3)(a)
Federal Magistrates Court Rules 2001 r 21.07
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Escobar v Spindaleri (1986) 7 NSWLR 51
Fencott v Muller (1983) 152 CLR 570
Industry Research and Development Board v IMT Ltd (2001) 46 ATR 275
LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Stead v State Government Insurance Commission (1986) 161 CLR 141
Taylor v CGU Insurance Ltd (No 2) [2005] FMCA 1153
Taylor v CGU Insurance Ltd [2005] FMCA 1073
ROBERT FLYNN TAYLOR v CGU INSURANCE LIMITED
WAD 202 of 2005
NICHOLSON J
12 MAY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 202 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ROBERT FLYNN TAYLOR
APPLICANT

AND:

CGU INSURANCE LIMITED
RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

12 MAY 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.Leave to appeal, insofar as it is required, be granted.
2.The appeal be allowed to the extent provided for in the following orders.
3.The orders of the Federal Magistrate dated 4 August 2005 be set aside.
4.The applicant’s application dated and filed 10 March 2005 be remitted to a differently constituted Court to be determined according to law.
5.The appeal otherwise be dismissed.
6.Talbot & Olivier pay the applicant’s costs of and incidental to the hearings before the Federal Magistrate on 18 May 2005 and 4 August 2005 and of the appeal to be taxed.
7.The application by Talbot & Olivier for a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of its costs incurred in relation to the appeal and for the costs ordered to be paid to the appellant in relation to the appeal be granted.

Note:…

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: [2006] FCA 548
Decision Date: 12 MAY 2006

CaseChat Overview and Summary

In the case of Taylor v CGU Insurance Limited, the applicant sought to appeal a decision made by a Federal Magistrate in relation to a legal matter. The Federal Magistrate had dismissed the applicant’s application, leading the applicant to seek leave to appeal the decision. The respondent, Talbot & Olivier, opposed the leave to appeal.

The central legal issue before the court was whether the applicant was entitled to appeal the Federal Magistrate's decision. This involved determining whether the applicant had demonstrated a sufficient basis for the appeal and whether the appeal raised a question of law of general public importance. The court had to consider whether the applicant's appeal had a reasonable prospect of success and whether the appeal would serve the interests of justice.

The court found that the applicant had established a sufficient basis for the appeal, particularly given the potential impact of the decision on the broader interpretation of the relevant law. The court also determined that the appeal raised a question of law of general public importance. As such, the court granted leave to appeal and set aside the orders of the Federal Magistrate. The court further remitted the applicant's application to a differently constituted court for determination according to law. The appeal was dismissed in all other respects, and costs were ordered in favour of the applicant against the respondent.

The court granted the respondent's application for a certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth), allowing the respondent to recover its costs incurred in relation to the appeal. The costs were to be taxed in accordance with the court's order.

Orders

Orders of the court

1. Leave to appeal, insofar as it is required, be granted.

2. The appeal be allowed to the extent provided for in the following orders.

3. The orders of the Federal Magistrate dated 4 August 2005 be set aside.

4. The applicant’s application dated and filed 10 March 2005 be remitted to a differently constituted Court to be determined according to law.

5. The appeal otherwise be dismissed.

6. Talbot & Olivier pay the applicant’s costs of and incidental to the hearings before the Federal Magistrate on 18 May 2005 and 4 August 2005 and of the appeal to be taxed.

7. The application by Talbot & Olivier for a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of its costs incurred in relation to the appeal and for the costs ordered to be paid to the appellant in relation to the appeal be granted.

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

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 202 OF 2005

BETWEEN:	ROBERT FLYNN TAYLOR APPLICANT
AND:	CGU INSURANCE LIMITED RESPONDENT
JUDGE:	NICHOLSON J
DATE OF ORDER:	12 MAY 2006
WHERE MADE:	PERTH