Taylor v CGU Insurance Ltd (No.2) - [2005] FMCA 1153

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

The application filed 10 March 2005 be dismissed.
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

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.
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.
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 substantially results in dismissal of the application.
The applicant's representatives have complained that the decision made rather than simply being confined to the matter referred to by the registrar effectively has put an end to the application, both in terms of any relief that the court might grant in the exercise of its jurisdiction and/or indeed in relation to the issue of whether it could properly be said that in this case the court has accrued or associated jurisdiction to deal with any claim by the applicant against the applicant's former solicitors. I infer from the submissions made this day the applicant is concerned that the matter proceeded to a judgment of the kind set out in my reasons delivered on 2 August 2005 which clearly went beyond what might have been contemplated by the parties.
When a matter is referred, however, by the registrar to this court, albeit against the backdrop of directions that the parties file and serve written submissions on the issue of jurisdiction and power in respect to the orders sought in what was described as the interlocutory application filed 10 March 2005, that does not then constrain this court in hearing and determining the application, both in terms of determining the issue of jurisdiction but otherwise making what I regard as an appropriate and practical final determination of the matter.
I am not satisfied in the present case that had the matter been simply determined as a preliminary issue with then further argument and submissions on whether or not a claim could or should have been made out, that any further material would in all probability be provided in support of the application by the applicant. Of course other submissions may have been made in relation to issues of negligence and indeed issues of accrued and associated jurisdiction. However, those matters have been considered by the court and I am satisfied that in considering those issues it was appropriate for the court to then, having reached the conclusions it reached, dismiss the application.
I do not accept that in those circumstances with the issues having been agitated both in submissions and in the affidavit material that there has been any substantial denial of procedural fairness to the applicant. However, it does lead to a conclusion that may be relevant on the issue of costs. The former solicitors of the applicant through their representative before this court have argued that they should be entitled to an order for costs of and incidental to these proceedings whereby the applicant sought certain orders against his former solicitors. The costs are estimated to be $2500.00.
The applicant has argued there should be no order as to costs and arising from the description of the proceedings set out earlier in this judgment. The description of the proceedings set out earlier in this judgment essentially the argument advanced for and on behalf of the applicant is that the opportunity not being given to properly and perhaps more thoroughly consider the substantive issue that the jurisdiction issue having been determined essentially in favour of the applicant that there should be no order as to costs. Although costs normally follow the event, as submitted by the representative for Talbot & Olivier, in this instance it is argued that there should be no order as to costs because essentially the issue of jurisdiction was found in favour of the applicant and the other issue, the substantive issue as to whether or not the application should be dismissed, albeit clearly against the applicant, was a decision made in circumstances where the applicant was not given what is claimed to be the full opportunity to argue either the issue of whether the application should be dismissed or indeed to further pursue the question of associated or accrued jurisdiction.
Whilst superficially there is some attraction in the arguments advanced for and on behalf of the applicant in my view it was appropriate for the court to determine this matter and to do so in the manner set out in the reasons published on 2 August 2005. That resulted in a substantial victory for the applicant's former solicitors who have been brought before the court as a result of the application filed on 10 March 2005. I accept, however, that in the exercise of the court's discretion the court is entitled to have regard to the nature of the proceedings and ought to, as a matter of fairness to both parties, affix the costs payable so as to avoid at least any further uncertainty or remove any other doubts that might be raised in relation to the consequences of these orders.
It also provides both parties with a degree of certainty so that each can consider their respective positions and rights which may be available on appeal. It is clear that in a matter of this kind that the issues raised in the very detailed and thorough submissions and at the hearing require the court to consider what I regard as significant practical issues concerning the administration of justice by this court as a Federal Court in the Commonwealth of Australia. As I have indicated, however, I am satisfied that the applicant had the opportunity, indeed took the opportunity to make submissions on the issues finally determined by this court.
Whilst it may be claimed that the applicant, and indeed perhaps to some extent his former solicitors, had a perception that the matter might be dealt with as a preliminary issue in my view the procedure followed by the court in this instance, having regard to the way in which the matter was argued in both written submissions and before the court was appropriate. It did result in a substantial victory for the applicant's former solicitors and because the application of the applicant was dismissed then clearly the applicant has failed. It is my conclusion that costs should follow the event but taking into account the nature of the proceedings and in the exercise of my discretion it is my further view that the amount of the costs should be fixed in a reasonable sum, given that the applicant has had the opportunity to have the matters raised before the court, albeit unsuccessfully, but perhaps to some extent may feel a sense of deprivation in not pursuing the matters in as much detail as the applicant may have wished.
In one sense, however, if the conclusions reached by the court are correct, and clearly it is my view that those conclusions are correct, there is indeed a benefit to the applicant in not pursuing in this court remedies which may well be available in another place with appropriate jurisdiction. To that extent ironically the applicant by these proceedings having been determined in this manner they will have saved indeed additional costs and expense of a further hearing before this court. In any event, doing the best I can on the material before me I am satisfied it is appropriate to make the following 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 $2000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 4 August 2005