Bagshaw v Scott [2005] FCA 104

FEDERAL COURT OF AUSTRALIA

Bagshaw v Scott [2005] FCA 104 COSTS – indemnity costs – where any extant causes of action vested in applicant's trustee in bankruptcy – whether proceedings commenced or continued in circumstances where the applicant should have known he had no chance of success LEGAL PRACTITIONERS – duty to court not to initiate or continue an action unreasonably where it has no chance of success – where limited instructions and evidence to support actions – whether dereliction of duty by solicitor for applicant – whether proceedings initiated or continued unreasonably – whether solicitor for the applicant should be jointly liable for costs – solicitor liable with respect to one of the claims COURTS AND JUDICIAL SYSTEM – substitution of judge in heard proceeding –where parties did not object to substitution of judge Bankruptcy Act 1966 (Cth) ss 58(1), 116(1)(a) Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules O 11 r 1B, O 62 r 9 Law Society of New South Wales' Solicitors' Rules, Rule A35 A159 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1087 referred to Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance (1986) 10 FCR 177 followed Bagshaw v Jefferson (Trustee) [2002] FCA 955 referred to Brennan v Brennan (1953) 89 CLR 129 referred to Buckingham Gate International Pty Ltd v Australia New Zealand Banking Group Ltd (2000) 35 ACSR 411 referred to Chua Chee Chor v Chua Kim Young [1963] 1 All ER 102 referred to Coleshill v Manchester Corporation [1928] 1 KB 776 referred to Cook v Pasminco Ltd (No 2) (2000) 107 FCR 44 followed Cotogno v Lamb (No 2) (1986) 3 NSWLR 221 referred to Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178 cited De Sousa v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 544 followed Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383 referred to Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 followed Gersten v Minister for Immigration & Multicultural Affairs [2000] FCA 922 referred to Hamod v State of New South Wales [2002] FCAFC 97 referred to Kumar v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 133 FCR 582 followed Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155 followed McMahon v Livingstone [2001] NSWSC 55 referred to Orr v Holmes (1948) 76 CLR 632 referred to Pegler v Dale [1975] 1 NSWLR 265 cited Re Bendeich (No 2) (1994) 53 FCR 422 referred to Re British Reinforced Concrete Engineering Co Ltd's Application (1929) 45 TLR 186 referred to Ridehalgh v Horsefield [1994] Ch 205 referred to Rondel v Worsley [1969] 1 AC 191 referred to Scott v Bagshaw [2002] FCA 276 referred to Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218 referred to Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 followed Vasram v AMP Life Ltd [2002] FCA 1286 followed Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 followed Westpac v Bagshaw [1999] NSWSC 466 referred to Westpac v Bagshaw [1999] NSWSC 479 referred to White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 referred to LEITH GORDON BAGSHAW V JOHN JOSEPH SCOTT, JOHN SHEAHAN AS TRUSTEE IN BANKRUPTCY OF KENNETH ROBERT LIVINGSTONE, LYN THOMAS, DEL THOMAS, JUDITH HERMANSON, CHARLES PERRY, GREG STEVENS AND WADLOW SOLICITORS PTY LTD NSD 2543 OF 2003 BENNETT J 17 FEBRUARY 2005 SYDNEY