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." ~ 3 - which was canvassed by Gummow J in Botany Municipal Council y The Secretary of the Department of the Arts, Sport, Environment, Tourism and Territories, (1992) 34 FCR 412, has been acknowledged by Mr P Ginnane of Counsel for the applicants to have been deliberately taken, I consider that I should draw an inference adverse to the applicants in respect of the considerations outlined by Woodward J in Fountain Meats (supra). Accordingly, I impose as a second condition, a term that the applicants pay the costs of the respondents, including any reserved costs, the costs of the respondents' motion on notice dated 10 March 1993, and also including the costs of this day, such costs to be taxed as between solicitor and client. I therefore grant leave on the two conditions which I have indicated. I certify that this and the preceding two (2) pages are a true copy of the Ex Tempore Reasons for Judgment of his Honour Mr Justice Ryan , Asrecia A ore Vall dae: 27 Apel 1990 Counsel for the applicant: Mr P Ginnane Solicitor for the applicant: R J Macnab and Associates Counsel for the respondent: Mr D M Derham Solicitor for the respondent: Blake Dawson Waldron