Clark v ING Life Limited [2007] FCA 1960

Clark v ING Life Limited [2007] FCA 1960

The Court granted leave to discontinue with no order as to costs because there was no delinquency, misconduct or unreasonable conduct by Mrs Clark, the proceedings had not been determined on the merits, there was a sufficient basis for her to have brought and pursued the claims against Adept, and it was inappropriate to decide costs by hindsight or by predicting the outcome of untried claims. Adept had not shown that Mrs Clark acted unreasonably in not suing Suncorp earlier or in bringing and discontinuing the proceedings against Adept.

Jurisdiction
Australia
Judgment Date
22 November 2007
Procedural Posture
Practice and Procedure; Application for Leave to Discontinue Proceedings / Application by the Applicant for Leave to Discontinue Proceedings Against the Second Respondent With No Order as to Costs
Outcome
Leave to discontinue against the second respondent granted with no order as to costs; the second respondent ordered to pay the applicant's costs of the amended notice of motion.
Legal Topics
['discontinuance of Proceedings' 'costs Discretion' 'leave of the Court' 'insurance Claims' 'misleading or Deceptive Conduct']
['practice and Procedure' 'costs' 'insurance'] ['discontinuance of Proceedings' 'costs Discretion' 'leave of the Court' 'insurance Claims' 'misleading or Deceptive Conduct']

Case Brief

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Procedural Posture

Practice and Procedure; Application for Leave to Discontinue Proceedings / Application by the Applicant for Leave to Discontinue Proceedings Against the Second Respondent With No Order as to Costs

Legal Issues

  1. 1 ['Whether the applicant should have leave under O 22 r 2(1)(d) of the Federal Court Rules 2001 (Cth) to discontinue proceedings against the second respondent with no order as to costs.' "Whether leave to discontinue should be conditional on the applicant paying the second respondent's costs." 'Whether the applicant acted unreasonably by failing to sue Suncorp earlier or when commencing proceedings against ING and Adept.']

Ratio Decidendi

The Court granted leave to discontinue with no order as to costs because there was no delinquency, misconduct or unreasonable conduct by Mrs Clark, the proceedings had not been determined on the merits, there was a sufficient basis for her to have brought and pursued the claims against Adept, and it was inappropriate to decide costs by hindsight or by predicting the outcome of untried claims. Adept had not shown that Mrs Clark acted unreasonably in not suing Suncorp earlier or in bringing and discontinuing the proceedings against Adept.

Court Disposition

Leave to discontinue against the second respondent granted with no order as to costs; the second respondent ordered to pay the applicant's costs of the amended notice of motion.

Orders

  • ['The applicant have leave to file a notice of discontinuance against the second respondent with no order as to costs.' "The second respondent pay the costs of the applicant's amended notice of motion dated 19 November 2007."]