Muc v AON Risk Services Australia [2007] FCA 1915

Muc v AON Risk Services Australia [2007] FCA 1915

The applicants did not comply with the condition imposed when leave to amend was granted, no motion was filed to further amend the statement of claim, and there had been a complete failure by the applicants to attend to their own interests. The respondents' dismissal applications were legitimate. In light of the respondents' undertaking not to rely on the making and effect of the s 20(5)(c) order as creating a statute-bar if any future s 20(5)(da) application were otherwise successful, dismissal under ss 20(5)(c) and 20(5)(d)(i) was the appropriate course. The applicants were also to pay the respondents' costs of the motions on an indemnity basis.

Jurisdiction
Australia
Judgment Date
30 November 2007
Procedural Posture
Federal Court Proceeding Involving Respondents' Notices of Motion to Dismiss / Hearing of Respondents' Motions After Leave to Amend Was Revoked and No Motion for Further Amendment Was Filed
Outcome
Application dismissed; applicants ordered to pay respondents' costs, including the costs of the motions on an indemnity basis.
Legal Topics
['dismissal of Application' 'leave to Amend Statement of Claim' 'failure to Comply With Court Condition' 'indemnity Costs' 'federal Court of Australia Act 1976 (cth) Ss 20(5)(c), 20(5)(d)(i) and 20(5)(da)']
['civil Procedure' 'costs'] ['dismissal of Application' 'leave to Amend Statement of Claim' 'failure to Comply With Court Condition' 'indemnity Costs' 'federal Court of Australia Act 1976 (cth) Ss 20(5)(c), 20(5)(d)(i) and 20(5)(da)']

Case Brief

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Procedural Posture

Federal Court Proceeding Involving Respondents' Notices of Motion to Dismiss / Hearing of Respondents' Motions After Leave to Amend Was Revoked and No Motion for Further Amendment Was Filed

Legal Issues

  1. 1 ['Whether the application should be dismissed after the applicants failed to file all of their evidence by the date required as a condition of leave to amend.' "Whether the applicants should receive a two week adjournment and further time to obtain evidence instead of the respondents' motions being dealt with." "Whether the applicants should pay the respondents' costs of the motions on an indemnity basis."]

Ratio Decidendi

The applicants did not comply with the condition imposed when leave to amend was granted, no motion was filed to further amend the statement of claim, and there had been a complete failure by the applicants to attend to their own interests. The respondents' dismissal applications were legitimate. In light of the respondents' undertaking not to rely on the making and effect of the s 20(5)(c) order as creating a statute-bar if any future s 20(5)(da) application were otherwise successful, dismissal under ss 20(5)(c) and 20(5)(d)(i) was the appropriate course. The applicants were also to pay the respondents' costs of the motions on an indemnity basis.

Court Disposition

Application dismissed; applicants ordered to pay respondents' costs, including the costs of the motions on an indemnity basis.

Orders

  • ['Pursuant to ss 20(5)(c) and 20(5)(d)(i) of the Federal Court of Australia Act 1976 (Cth), the application be dismissed.' 'The applicants to the proceeding pay the costs of the respondents to the proceeding (being the applicants on the notices of motion) of the motions on an indemnity basis.' "To the extent that...