Potts v Dennis Jones & Co Pty Ltd [1995] FCA 713

CATCHWORDS PRACTICE AND PROCEDURE - costs - parties to cross claim for indemnity agreeing that it be dismissed following settlement of head claim - both cross claimant and cross respondents had been respondents to head claim - applicant had discontinued against cross respondents prior to commencement of hearing of head claim, and after that commencement settled with remaining respondents including cross claimant - determination of costs issues on cross claim at parties' request in situation in which cross respondents did not participate in substantive hearing down to time when head claim settled - "abandonment" by cross respondents of participation in principal proceedings on first day of hearing with result that cross claimant, in its role as a respondent, compelled to settle with applicant - cross respondents' non-participation in principal proceedings allegedly due to a misunderstanding of effect of non- participation - alleged failure to appreciate that effect would be that affidavit evidence in opposition to applicant's affidavit evidence would not become evidence before the Court - litigant in person - whether costs on cross claim should "follow the event" of its dismissal or whether special order appropriate. Trade Practices Commission v Nicholas Enterprises Pty Ltd (1979) 28 ALR 201 (FCA/Fisher J). Ritter v Godfrey [1920] 2 KB 47. Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 (Hill J). Australian Securities Commission v Lee, unreported, FCA/Branson J, 19 July 1995. LESTER NEIL POTTS v DENNIS JONES & CO PTY LIMITED & ORS (No 3) No NG 882 of 1992 Lindgren J Sydney 8 September 1995

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 882 of 1992 GENERAL DIVISION )

BETWEEN: LESTER NEIL POTTS Applicant AND: DENNIS JONES & CO PTY LIMITED First Respondent DENNIS JONES Second Respondent RAY SMITH Third Respondent NATIONAL MUTUAL PROPERTY SERVICES (AUSTRALIA) PTY LTD Fourth Respondent CITIBANK SAVINGS LTD Fifth Respondent PERMANENT TRUSTEE COMPANY LTD Sixth Respondent LANCE KELLY FINANCIAL MANAGEMENT PTY LTD Seventh Respondent CITIBANK SAVINGS LTD Cross Claimant DENNIS JONES & CO PTY LTD First Cross Respondent DENNIS JONES Second Cross Respondent RAY SMITH Third Cross Respondent