In the Matter of the Returned & Services League of Australia Ltd Gilson, Brian Laurence & Ors v The Returned & Services League of Australia Ltd & Anor [1996] FCA 368

In the Matter of the Returned & Services League of Australia Ltd Gilson, Brian Laurence & Ors v The Returned & Services League of Australia Ltd & Anor [1996] FCA 368

The application should not be dismissed because s260 of the Corporations Law confers a broad discretion and the relief was not unavailable merely because of the form of the application. Since the second respondent was not re-elected and the removal relief could no longer be granted due to circumstances beyond the control of the parties, the appropriate course was to grant leave to discontinue against him and to allow discontinuance of his cross-claim. Costs of the discontinuance, apart from the hearing before Tamberlin J, should be reserved for the trial judge because the later hearing against the first respondent would involve scrutiny of the second respondent's conduct and put the trial...

Jurisdiction
Australia
Judgment Date
17 May 1996
Procedural Posture
Application for Removal of the Second Respondent as President of the Central Queensland District Branch of the First Respondent Under S 260 of the Corporations Law / Notices of Motion Concerning Discontinuance Against the Second Respondent, Discontinuance of the Second Respondent's Cross Claim, Dismissal, and Costs
Outcome
Notice of motion for dismissal dismissed; applicants granted leave to discontinue against the second respondent; second respondent granted leave to discontinue his cross-claim; costs of the discontinuance reserved; no order as to costs of the hearing before Tamberlin J.
Legal Topics
['discontinuance' 'dismissal' 'costs' 'relief Under S 260 of the Corporations Law' 'federal Court Rules']
['practice and Procedure' 'corporations Law'] ['discontinuance' 'dismissal' 'costs' 'relief Under S 260 of the Corporations Law' 'federal Court Rules']

Case Brief

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Procedural Posture

Application for Removal of the Second Respondent as President of the Central Queensland District Branch of the First Respondent Under S 260 of the Corporations Law / Notices of Motion Concerning Discontinuance Against the Second Respondent, Discontinuance of the Second Respondent's Cross Claim, Dismissal, and Costs

Legal Issues

  1. 1 ['Whether the applicants should be granted leave to discontinue against the second respondent and on what terms as to costs' 'Whether the proceedings should be dismissed against the second respondent with costs' 'Whether the relief sought for removal was unavailable under s 260 of the Corporations Law' 'Whether costs of discontinuance should be determined immediately or reserved for the trial judge']

Ratio Decidendi

The application should not be dismissed because s260 of the Corporations Law confers a broad discretion and the relief was not unavailable merely because of the form of the application. Since the second respondent was not re-elected and the removal relief could no longer be granted due to circumstances beyond the control of the parties, the appropriate course was to grant leave to discontinue against him and to allow discontinuance of his cross-claim. Costs of the discontinuance, apart from the hearing before Tamberlin J, should be reserved for the trial judge because the later hearing against the first respondent would involve scrutiny of the second respondent's conduct and put the trial...

Court Disposition

Notice of motion for dismissal dismissed; applicants granted leave to discontinue against the second respondent; second respondent granted leave to discontinue his cross-claim; costs of the discontinuance reserved; no order as to costs of the hearing before Tamberlin J.

Orders

  • ['The notice of motion for dismissal as against the second respondent be dismissed.' 'The applicants be granted leave to discontinue against the second respondent.' 'The second respondent be granted leave to discontinue his cross-claim against the applicants.' 'The costs of the application for discontinuance by the...