Taylor v CGU Insurance Ltd (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAYLOR v CGU INSURANCE LTD (No.2) [2005] FMCA 1153

PRACTICE AND PROCEDURE – Costs – whether Applicant should pay costs to former solicitors where claim against them have failed.

Applicant: ROBERT FLYNN TAYLOR

Respondent: CGU INSURANCE LTD

File Number: PEG 46 of 2004

Judgment of: McInnis FM

Hearing date: 4 August 2005

Delivered at: Melbourne

Delivered on: 4 August 2005

REPRESENTATION

Counsel for the Applicant: Mr D.Solomon

Solicitors for the Applicant: Solomon Brothers

Solicitors for the Respondent: No appearance

Counsel for Talbot & Olivier: Mr G Pynt

Solicitors for Talbot & Olivier: Pynt & Partners

ORDERS

1. The application filed 10 March 2005 be dismissed.

2. The Applicant shall pay the costs of Talbot & Olivier fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 46 of 2004

ROBERT FLYNN TAYLOR

Applicant

And

CGU INSURANCE LTD

Respondent

REASONS FOR JUDGMENT

1. In this application the court published reasons for decision on 2 August 2005 and in those reasons for judgment the court indicated it would hear the parties in relation to the precise form of any orders and any additional orders for costs arising out of the judgment.  It was indicated, however, in the judgment that an application for costs filed on 10 March 2005 by the applicant against his former solicitors Talbot & Olivier that that application for costs be dismissed.  In the course of the proceedings the application filed on 10 March 2005 was the subject of orders by a registrar referring the matter to this court on a date and time to be fixed.

2. The issue which had been agitated before the registrar, which I accept was regarded by the parties as a threshold issue, was the question of whether indeed the court had jurisdiction and power in respect of the orders sought by the applicant in the application filed 10 March 2005.  It is not necessary for the court to now recite in further detail the matters it has already considered in its reasons published on 2 August 2005 save to indicate that the court was certainly seized of the issues then sought to be agitated by the applicant in support of the application that the former solicitors should pay the applicant and indeed the applicants costs of the substantive trial and indeed those costs the applicant had been ordered to pay to the respondent.

3. In those circumstances, albeit in the absence of formal substantive submissions on whether or not the application itself should be dismissed upon the court determining whether it had jurisdiction to entertain the application it was my view that it would be artificial and indeed costly for the parties to be put to further trouble and expense of embarking upon an analysis of the merits of the claim that had not been already set out in the affidavit material and indeed submissions made for and on behalf of the applicant.  It was on that basis that the court proceeded to make a determination which…