Pollack, Philip John v Retravision (NSW) Ltd [1997] FCA 1049

Pollack, Philip John v Retravision (NSW) Ltd [1997] FCA 1049

Mr Pollack failed to prove that Retravision's claim in the Federal Court proceedings for a costs order against him personally, or any related steps taken by or on behalf of Retravision, were carried out for the pleaded improper predominant purpose of forcing him to cease acting for his clients. The Court accepted the evidence that the costs application was motivated by concern to recover costs from a possible source because the clients were impecunious, and that it was not pursued after legal advice that it lacked reasonable prospects. Essential elements of abuse of process were therefore not established.

Jurisdiction
Australia
Judgment Date
13 October 1997
Procedural Posture
Proceeding Claiming Damages for Abuse of Process of the Federal Court / Final Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['abuse of Process' 'costs Order Against Solicitor Personally' "bankrupt's Right to Continue Proceedings for Personal Injury or Wrong" 'solicitor Acting Where Likely to Be a Witness']
['practice and Procedure' 'bankruptcy' 'legal Practitioners'] ['abuse of Process' 'costs Order Against Solicitor Personally' "bankrupt's Right to Continue Proceedings for Personal Injury or Wrong" 'solicitor Acting Where Likely to Be a Witness']

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Procedural Posture

Proceeding Claiming Damages for Abuse of Process of the Federal Court / Final Judgment After Hearing

Legal Issues

  1. 1 ["Whether Retravision's application in the Federal Court proceedings for an order that Mr Pollack personally pay costs was brought for the improper predominant purpose of forcing him to cease acting for his clients." 'Whether other steps taken by or on behalf of Retravision in the Federal Court proceedings were carried out for the pleaded improper purpose.' 'Whether the proceedings could be continued by Mr Pollack despite his bankruptcy as an action in respect of personal injury or wrong done to the bankrupt.' "Whether a solicitor's acting in proceedings while likely to be a witness on contentious issues was appropriate."]

Ratio Decidendi

Mr Pollack failed to prove that Retravision's claim in the Federal Court proceedings for a costs order against him personally, or any related steps taken by or on behalf of Retravision, were carried out for the pleaded improper predominant purpose of forcing him to cease acting for his clients. The Court accepted the evidence that the costs application was motivated by concern to recover costs from a possible source because the clients were impecunious, and that it was not pursued after legal advice that it lacked reasonable prospects. Essential elements of abuse of process were therefore not established.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' "The respondent file with his Honour's Associate and serve any written submissions on costs on or before 27 October 1997." "The applicant file with his Honour's Associate and serve any written submissions on costs on or before 10 November 1997."]