McLean v Australian and New Zealand Banking Group Limited [1993] FCA 1086

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY GEN DIVISION

No VG 1 of 1993

BETWEEN: CAMERON McLEAN (Applicant) AND: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED and ANOR (Respondents ) Coram: Ryan J Place: Melbourne Date: 1 April 1993

EX TEMPORE REASONS FOR _ JUDGMENT

Ryan J: I accept Mr Derham's submission on the application of R.22.02(1) of the Rules of this Court to the present application which has orally been made on behalf of the applicants for leave to discontinue. I consider that since the date for the directions hearing appointed in the application, namely 16 March 1993, has passed, even though the directions hearing on that day was adjourned to this day, dit is no longer open to the applicants to discontinue the

proceedings without leave pursuant to paragraph 22.02(1)(a).

Accordingly, the applicants are thrown back on their application pursuant to paragraph 22.02(1)(d) for leave of the

Court to discontinue.

The grant of leave is not opposed by Mr Derham of Counsel for

contends that two

and the second requiring the applicants

applicants not to disclose, by evidence, what has prompted

their desire to discontinue. In my view, those difficulties

can best be accommodated by an Order that the discontinuance

be on terms that unless

this Court by the applicants for the same, or substantially

the same, causes of action as are disclosed by the statement

of claim herein.

terms:

"I believe that it is appropriate to consider awarding "solicitor and client" or "indemnity" costs whenever it appears that an action has been commenced or continued in circumstances where the applicant, Properly advised, should have known that he had no chance of success. In such cases, the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the Clearly established law."