mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Upper Hunter District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429
Outcome: cited
Tenth, even if I were to assume for present purposes that the Retainer Agreement was partly oral and partly written, and included a "no win-no fee" oral term, it is highly probable that it would avail the appellant nothing. First it seems to me that the term would fail because it is uncertain: Scammell &amp; Nephew Ltd v Ouston [1941] AC 251 at 268 (approved Upper Hunter District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 437 per Barwick CJ). Second the respondent was unable to finalise the Supreme Court litigation as its retainer was terminated by the appellant and the other litigants in April 1999 before the litigation was resolved. At this time the appellant retained Mr Levitan who had by then left the employ of the respondent and established his own law firm. In those circumstances the appellant could not rely upon a "no win-no fee" term for refusing to pay the respondent's costs on a quantum merit basis. It cannot be doubted that these would have exceeded $2,000.
Case: Wren v Mahony [1972] HCA 5 ; (1971) 126 CLR 212
Outcome: cited
The Court, considering the petition, may, in its discretion, accept a judgment as satisfactory proof, or not, of the petitioning creditor's debt. Such a judgment is prima facie evidence of the antecedent debt. The discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner: Wren v Mahony [1972] HCA 5 ; (1971) 126 CLR 212 at 224-5 per Barwick CJ with whom Windeyer and Owen JJ agreed. 18 The appellant submits that the affidavit evidence was sufficient to establish a "bona-fide allegation" that no real debt lies behind the judgment: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357-8. Putting it another way, he submits that substantial reasons had been demonstrated for questioning whether behind the Judgment there was in truth and reality a debt due to the respondent: Wren at p 224-5. He relied upon his own affidavits sworn on 22 and 24 May 2007 and that of Mr Richard Kurland sworn on 5 November 2007. Mr Kurland was engaged by the appellant and the other litigants to assist them in their Supreme Court action.
Case: Wolff v Donovan (1991) 29 FCR 480
Outcome: referred to
The Court will not go behind a judgment as a matter of course, but where a judgment is obtained by default the Court in bankruptcy will more readily look behind the judgment than it would if the judgment were obtained following a hearing on the merits: Wolff v Donovan (1991) 29 FCR 480 at 486 per Lee and Hill JJ. At 487 their Honours said: "[T]he true position is that there is a shifting onus. Once the judgment is proved, and it is prima facie evidence of the existence of the underlying debt, there is a tactical onus on the debtor to show that there are circumstances which make it appropriate to go behind the debt to see whether the judgment was in truth and reality a true debt. The overall onus of proof of the existence of a real debt underlying a judgment, however, remains always with the petitioning creditor." 23 There is no suggestion in the reasons of the primary judge, in the papers before me or the submissions of the parties, that the court below was asked to enter upon a two-staged process involving, first, the adjudication of a preliminary issue, whether reason was shown for questioning whether behind the Judgment there was really a debt, before proceeding at a later hearing to determine the issue of whether there was in truth a real debt: Wolff at p 486. 24 Rather, the court below was invited to consider such evidence as was before it and to exercise its discretion one way or the other. If it exercised its discretion in favour of going behind the Judgment, it would then, on the same body of evidence, adjudicate the question whether a debt was truly owed. If it exercised the discretion against going behind the Judgment then a sequestration order would immediately follow. 25 The affidavit evidence concerns what allegedly occurred at a meeting on 21 September 1995 at the respondent's offices and in a later alleged telephone conversation a few weeks after 21 September 1995. The defence in the District Court action did not plead or particularise that any term of the "Terms of Engagement" was made on any date other than 21 September 1995. The background to the meeting according to Mr Kurland was that he had come to Perth with the appellant in September 1995 to attempt to identify a law firm which would act for the appellant and the other litigants in the Supreme Court action on a "no win-no fee" basis. The respondent was identified by him as such a firm and he arranged a meeting for 21 September 1995 to discuss the matter of fees.
Case: Duke of Bedford v Ellis [1901] AC 1
Outcome: referred to
6 r 13(1) provides as follows: Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. Therefore, before O 6 r 13(1) can be invoked, there must be "numerous persons" having "the same interest in [the] proceeding". This requirement must be satisfied at the time the proceeding is commenced. The interest in question is an interest in the proceeding, to be judged by reference to the effect of the matters at issue on the rights and obligations of the representing respondent and the represented persons. A representative proceeding will not necessarily be defeated because some members, or even the representing party, have separate interests additional to a common interest, providing there is a common interest: compare Duke of Bedford v Ellis [1901] AC 1 at 7 per Lord Macnaghten. Thus, on the respondents' motion, the basic question is whether, at the time the proceeding commenced, it could be said that numerous persons had the same interest in the proceeding as between themselves and Swimart Balwyn. For the reasons stated below, I would answer this question in the negative. In order to understand my reasons for ruling against Stacey Brothers, it is necessary to refer to the case law on the operation of O 6 r 13 and provisions like it. Whether there are sufficient persons to constitute "numerous" persons has been said to depend on whether "the parties were so numerous that you could never 'come at justice' ... if everybody interested was made a party": see Duke of Bedford v Ellis [1901] AC at 8 per Lord Macnaghten. Today, the question may be put a little differently whether the representative proceeding can be regarded as an efficient and just way to proceed, having regard to the likely costs, the issues involved and the capacity of the Court to manage the proceeding suitably. In view of my conclusion as to lack of commonality of interest, it is unnecessary to explore this question further. It is also unnecessary to consider the effect on this issue of Mr Sloan's third affidavit, as to which see below.
Case: Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255
Outcome: cited
High Court considered Pt 8 , r 13 of the Supreme Court Rules (NSW), which at the time was relevantly the same as O 6 r 13 of the Federal Court Rules , in Carnie v Esanda Finance Corporation Ltd [1995] HCA 9 ; (1995) 182 CLR 398 and Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd [2006] HCA 41 ; (2006) 229 CLR 386: contrast Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 , an applicant representative action under Pt IVA of the Federal Court of Australia Act 1976 (Cth). As noted in Carnie , "the ancestor" to these Rules "is to be found in the English Rules of the Supreme Court", which was "in turn derived from an earlier rule which itself was derived from the practice of the Court of Chancery": see Carnie 182 CLR at 415 per Toohey and Gaudron JJ and 427-429 per McHugh J.
Case: Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 ; (2007) 70 NSWLR 565
Outcome: referred to
discussing Carnie in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 ; (2007) 70 NSWLR 565 at 582 [74] , Mason P, with whom Ipp JA and McColl JA agreed, usefully summarised the various approaches in Carnie thus: McHugh J suggested (at 427) that a plaintiff and the represented persons would have 'the same interest' in legal proceedings when they have a community of interest in the determination of any substantial question of law or fact that arises in the proceedings. Brennan J (at 408) agreed with this test. Toohey and Gaudron JJ said (at 421) that persons would have the same interest in proceedings if there was a significant question common to all members of the class and they stood to be equally affected by the (declaratory) relief sought by the appellants in the instant proceedings. Mason CJ, Deane and Dawson JJ thought (at 404) that the 'same interest' requirement 'may ... [extend] to a significant common interest in the resolution of any question of law or fact arising in the proceedings'. In the context of a defendant (or respondent) representative proceeding, the nature of defences may be especially significant. The authorities support the proposition that a proceeding will generally not disclose persons in the same interest where defendants are entitled to raise different defences, although this is not an absolute rule. I agree with Mason P who said, in Trustees of the Roman Catholic Church v Ellis 70 NSWLR at 582 [74], that "[t]he requirement that each member of the class have identical defences may not be an absolute proposition". Whether the fact that different defences may be taken will defeat a finding of commonality of interest depends on the nature of the case, the centrality of any common questions of law and fact, and, having regard to the proceeding as a whole, the reality, importance and likely scope of the different defences.
Case: BT (Australasia) Pty Ltd v New South Wales [1997] FCA 1553
Outcome: referred to
foreshadowed, I accept that there are significant differences between plaintiff (or applicant) representative actions and defendant (or respondent) representative actions: see also BT (Australasia) Pty Ltd v New South Wales [1997] FCA 1553 per Sackville J. As Sackville J noted, members of a represented group may have much to gain when represented by a plaintiff and everything to lose when represented by a defendant.
Case: Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] UKHL 1 ; [1901] AC 426
Outcome: cited
development of the law relating to defendant representative proceedings reflects the fact that they have typically been used in the past against members of unions and unincorporated associations: see, e.g., Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] UKHL 1 ; [1901] AC 426 at 438-439 per Lord Macnaghten, 443 per Lord Lindley; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 30 per Lord Atkinson, 39 per Lord Parker; and John v Rees [1970] 1 Ch 345 at 371 per Megarry J.
Case: London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Outcome: cited
development of the law relating to defendant representative proceedings reflects the fact that they have typically been used in the past against members of unions and unincorporated associations: see, e.g., Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] UKHL 1 ; [1901] AC 426 at 438-439 per Lord Macnaghten, 443 per Lord Lindley; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 30 per Lord Atkinson, 39 per Lord Parker; and John v Rees [1970] 1 Ch 345 at 371 per Megarry J.
Case: John v Rees [1970] 1 Ch 345
Outcome: cited
development of the law relating to defendant representative proceedings reflects the fact that they have typically been used in the past against members of unions and unincorporated associations: see, e.g., Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] UKHL 1 ; [1901] AC 426 at 438-439 per Lord Macnaghten, 443 per Lord Lindley; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 30 per Lord Atkinson, 39 per Lord Parker; and John v Rees [1970] 1 Ch 345 at 371 per Megarry J.
Case: Amos Removals &amp; Storage Pty Ltd v Small [1981] 2 NSWLR 525
Outcome: discussed
Removals &amp; Storage Pty Ltd v Small [1981] 2 NSWLR 525 is illustrative of this history. The plaintiffs, who were members of the New South Wales Road Transport Association, sued 19 members of the Committee of Management of the Shipping Section of the Federated Clerks Union of Australia (NSW Branch) as representing the Section, or at least those members of the Section that attended a meeting at which certain resolutions were passed. The plaintiffs relied on the representative procedure of the NSW Supreme Court, which, as we have seen, was then equivalent to O 6 r 13. In giving reasons for judgment in the case, Hunt J identified three requirements for a defendant representative procedure: first, that the persons to be represented formed an identifiable group or class; secondly, that the person selected as a representative must be in management of the group or class and have control of its funds; and thirdly, that those selected to be represented must have a common interest or a community of interest with all other members: see Amos Removals [1981] 2 NSWLR 525 at 529-530. Hunt J held that this last element was satisfied in Amos Removals because "the liability as alleged against the members ... was ... enlarged to become one of conspiracy, based upon what is said to be the history of concerted action by those members and the resolution" at the meeting: Amos Removals [1981] 2 NSWLR 535 at 520. The respondents in this case made much of the "management" issue. Subsequent cases indicate, however, that "management" is neither a sufficient nor a necessary requirement, although there must be something that binds the group together so as to give rise to a commonality of interest and render a representative proceeding appropriate. In truth, in Amos Removals , Hunt J's first two "requirements" are to be understood as factors that were strongly indicative of a commonality of interest. In other circumstances, respondent representative orders have been made where there has been no management and control, although there has been some other factor linking the group. For example, a respondent representative order was made in an action involving breach of trademark to support an ex parte interlocutory injunction against the members of the represented group where the evidence indicated that there was in fact a group of persons acting in a co-ordinated way: see Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414. See also EMI Records Ltd v Kudhail [1985] FSR 36. In these cases, there were factors other than mere management and control that supported the representative order, such as knowledge within the group of the group's members, co-ordinated action, and common purpose.
Case: Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia [2003] FCA 773 ; (2003) 130 FCR 447
Outcome: referred to
against unincorporated associations and unions, a representative proceeding is not properly brought where the essential inquiries concern the individual circumstances of the members. For example, in Geelong Wool Combing Ltd v Textile, Clothing and Footwear Union of Australia [2003] FCA 773 ; (2003) 130 FCR 447 at 452 [12] , Finkelstein J held that the representative procedure of this Court was unavailable and that the union could not represent its members participating in a picket. First, the evidence did not establish that the members of the group were acting with a common purpose and, secondly, the proceeding was one to recover penalties. As his Honour said, the applicant had to establish that each respondent had contravened the legislation, which involved an inquiry into each respondent's conduct and purpose and, if the contravention were established, separate consideration of the amount of the penalty. There was, therefore, "no community of interest" amongst the members of the group.
Case: Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414
Outcome: cited
respondents in this case made much of the "management" issue. Subsequent cases indicate, however, that "management" is neither a sufficient nor a necessary requirement, although there must be something that binds the group together so as to give rise to a commonality of interest and render a representative proceeding appropriate. In truth, in Amos Removals , Hunt J's first two "requirements" are to be understood as factors that were strongly indicative of a commonality of interest. In other circumstances, respondent representative orders have been made where there has been no management and control, although there has been some other factor linking the group. For example, a respondent representative order was made in an action involving breach of trademark to support an ex parte interlocutory injunction against the members of the represented group where the evidence indicated that there was in fact a group of persons acting in a co-ordinated way: see Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414. See also EMI Records Ltd v Kudhail [1985] FSR 36. In these cases, there were factors other than mere management and control that supported the representative order, such as knowledge within the group of the group's members, co-ordinated action, and common purpose.
Case: EMI Records Ltd v Kudhail [1985] FSR 36
Outcome: cited
respondents in this case made much of the "management" issue. Subsequent cases indicate, however, that "management" is neither a sufficient nor a necessary requirement, although there must be something that binds the group together so as to give rise to a commonality of interest and render a representative proceeding appropriate. In truth, in Amos Removals , Hunt J's first two "requirements" are to be understood as factors that were strongly indicative of a commonality of interest. In other circumstances, respondent representative orders have been made where there has been no management and control, although there has been some other factor linking the group. For example, a respondent representative order was made in an action involving breach of trademark to support an ex parte interlocutory injunction against the members of the represented group where the evidence indicated that there was in fact a group of persons acting in a co-ordinated way: see Tony Blain Pty Ltd trading as Acme Merchandising v Jamison (1993) 41 FCR 414. See also EMI Records Ltd v Kudhail [1985] FSR 36. In these cases, there were factors other than mere management and control that supported the representative order, such as knowledge within the group of the group's members, co-ordinated action, and common purpose.
Case: Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206
Outcome: referred to
example, the general rule (that separate defences defeat the same interest criterion) did not prevent insurers being sued via representative orders in Irish Shipping Ltd v Commercial Union Assurance Co Plc [1991] 2 QB 206 , where a shipowners' contractual claim, which all insurers had an interest in resisting, disclosed a community of interest amongst the insurers, even though there was a possibility that some foreign insurers might have a defence not available to all insurers: see [1991] 2 QB at 227 per Staughton LJ, 231-232 per Sir John Megaw, and 240 per Purchas LJ. An argument that the representative order might work injustice because a represented insurer might wish to contend lack of authority, fraud or misrepresentation was put aside on the basis that there was "no suggestion" that any such contention would be made, and appropriate steps could be taken if there were: see [1991] 2 QB at 232.
Case: Mercantile Marine Service Association v Toms [1916] 2 KB 243
Outcome: referred to
other circumstances, however, the availability of different defences has precluded a finding of community of interest. Thus, in Mercantile Marine Service Association v Toms [1916] 2 KB 243 , the members of an unincorporated association were to be represented on the defendant's side in a libel action against them. Swinfen Eady LJ noted, at 246, that the various members of the association might be "in a wholly different position", saying: If the members of the management committee were sued, and if in fact they had authorized the publication of the libel they could raise such defences as might be open to them. It might be that their defence would be that the words complained of were not capable of the meaning alleged or of any defamatory meaning, or that the words did not refer to the plaintiffs. The other members of the association, if sued, might say that, however defamatory the words complained of might be, they did not authorize their publication; that they were on the high seas and knew nothing about the matter.
Case: Roche v Sherrington [1982] 2 All ER 426
Outcome: referred to
in Roche v Sherrington [1982] 2 All ER 426 , a proceeding to set aside gifts on the grounds of undue influence against defendants representing the present members of Opus Dei, an organisation within the Roman Catholic Church, failed for lack of common interest amongst the represented defendants. Slade J held that the representative proceeding rule was not available against the defendants because members of the group were likely to have separate defences. His Honour said that "where separate defences may be opened to some members of the class in question, there can be no common interest within the rule": see [1982] 2 All ER at 434.
Case: Hardie &amp; Lane Ltd v Chiltern [1928] 1 KB 663
Outcome: cited
if membership of a defendant group is liable to fluctuate, then this may indicate a want of sufficient particularity and a lack of commonality: see Hardie &amp; Lane Ltd v Chiltern [1928] 1 KB 663 and Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655. In Taubenfeld at 659, Mackenzie J pointed to "the difficulty in establishing the necessary identity of interest of all persons against whom the [representative] order was sought and of eliminating the possibility of different defences" on account of the fluctuating nature of membership of the group.
Case: Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655
Outcome: referred to
if membership of a defendant group is liable to fluctuate, then this may indicate a want of sufficient particularity and a lack of commonality: see Hardie &amp; Lane Ltd v Chiltern [1928] 1 KB 663 and Minister for Industrial Development of Queensland v Taubenfeld [2003] 2 Qd R 655. In Taubenfeld at 659, Mackenzie J pointed to "the difficulty in establishing the necessary identity of interest of all persons against whom the [representative] order was sought and of eliminating the possibility of different defences" on account of the fluctuating nature of membership of the group.