mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339
Outcome: applied
As stated by the High Court (Dixon CJ, McTiernan and Windeyer JJ) in Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350: "The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand.... In Re A Debtor [1958] 1 Ch 81 Roxburgh J said: 'But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success' (at 99). Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand." 36 Having reviewed the material before me, and read: &#8226; the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 &#8226; the application filed in QUD525/2005 (which is annexed to the affidavit of Mr Whittle sworn 19 June 2007 in these proceedings) and &#8226; the affidavits (including that of the applicant) filed in support of that application (which are annexed to the affidavit of Mr Whittle sworn 6 September 2007 in these proceedings). it is clear that the facts, matters and circumstances upon which the applicant is relying in the substantive proceedings before me to have the relevant bankruptcy notice set aside - and which relate to a set off or counterclaim for damages for financial loss and psychological or mental damage caused by conduct of the respondents - are exactly the same facts, matters and circumstances which were before Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371. I note that Spender J dismissed the claim of the applicant for damages for economic loss and mental damage as a result of the conduct of the respondents. It is inappropriate to allow the application before me to continue, on the basis that there is a set off or counterclaim for damages for financial loss and psychological or mental damage as a result of the conduct of the respondents, which identical claim has already been dismissed. In this respect, I accept the submission of the respondents that there is, in fact, no setoff or counterclaim as envisaged by ss 40(1)(g) and 41 (7) Bankruptcy Act 1966 (Cth) and the High Court in Ebert 104 CLR at 350.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Section 31A Federal Court Act applies to all cases commenced on or after 1 December 2005. The nature of the provision and its overlap with O 20 r 2 Federal Court Rules have been considered in a number of cases in this Court, including the recent decision of Lindgren J in White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In that case, his Honour articulated a number of principles including: &#8226; Section 31A of the Federal Court Act, like O 20 of the Rules, is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form (at [50]). &#8226; Section 31A(2) is comparable to O 20 r 2 in that they are both concerned with dismissals of proceedings (at [50]). &#8226; The only difference that suggests itself between the concept of no reasonable cause of action being disclosed (O 20 r 2(1)(a)) and no reasonable prospect of successfully prosecuting a proceeding (s 31A(2)) is that the latter makes plain that there may be taken into account the unavailability of evidence necessary to bring success at trial, whereas it is arguable that the former does not permit the unavailability of such evidence to be taken into account (at [51]). &#8226; It appears that the legislature's intention in enacting s 31A was to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by such authorities as Dey v Victorian Railway Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92, and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 (at [54]). (To that extent the test in s 31A appears less stringent than that in O 20 r 2: Spender J in Rogers v Asset Loan Co Pty Ltd (2007) FCA 1371 at [55] ). &#8226; The "no reasonable prospects of success" formula of s 31A reflects the approach adopted in r 24.2 of the United Kingdom's Civil Procedure Rules (at [53]). In the United Kingdom it has been held in the context of that equivalent rule that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects (at [59]). &#8226; The same test has been adopted in r 292(2) and r 293(2) of Queensland's Uniform Civil Procedure Rules 1999 (at [53]). The Queensland Court of Appeal has similarly held that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 (at [59]).
Case: Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404
Outcome: cited
More recently, as Jessup J observed in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500: "There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action...: see, for example, Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198." (cf the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ; Finn J in Lidden and Anor v Composite Buyers Ltd &amp; Ors (1996) 139 ALR 549; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414) Section 31A
Case: Lidden and Anor v Composite Buyers Ltd &amp; Ors (1996) 139 ALR 549
Outcome: cited
More recently, as Jessup J observed in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500: "There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action...: see, for example, Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198." (cf the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ; Finn J in Lidden and Anor v Composite Buyers Ltd &amp; Ors (1996) 139 ALR 549; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414) Section 31A
Case: Re A Debtor [1958] 1 Ch 81
Outcome: cited
As stated by the High Court (Dixon CJ, McTiernan and Windeyer JJ) in Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 29 ; (1960) 104 CLR 339 at 350: "The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand.... In Re A Debtor [1958] 1 Ch 81 Roxburgh J said: 'But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide: the Court must be satisfied that it has a reasonable probability of success' (at 99). Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand."
Case: Reichel v Magrath (1889) 14 App Cas 665
Outcome: applied
That an attempt to re-litigate matters already determined is an abuse of process and should not be entertained by the Court is a principle of long-standing authority. In Reichel v Magrath (1889) 14 App Cas 665 at 668-669, Lord Halsbury LC said that it would be: "...a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. ...it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action."
Case: Rogers v Asset Loan Co Pty Ltd [2006] FCA 434
Outcome: cited
An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: &#8226; the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 &#8226; my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding."
Case: Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708
Outcome: cited
An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: &#8226; the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 &#8226; my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding."
Case: Rogers v Asset Loan Co Pty Ltd [2007] FCA 195
Outcome: cited
An order for costs in the proceeding." 5 The applicant also claims the following: " B. Claim for Interlocutory Relief AND the applicant claims by way of interlocutory relief: 1. An order extending time to comply with a Bankruptcy Notice served by the Second Respondent dated 19 April 2007 served on 25 May 2007 2. An order that the respondents do not harass, intimidate or coerce the applicant or her immediate family 3. Any other orders that the court deems fit." 6 There is history to this dispute which has involved both the applicant and her husband bringing a number of claims in this Court against the respondents. The applicant and Mr Handran for the respondents have drawn my attention to: &#8226; the decision of Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 &#8226; the decision of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 434 &#8226; my decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708. 7 The application filed in QUD525/2005, upon which judgment was given by Spender J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 1371 , is annexed to the affidavit of Mr Sean Whittle sworn 19 June 2006 and filed 20 June 2006 in these proceedings. The application in that matter stated that it was a "Claim for Relief under the Trade Practices Act ". The Details of Claim were described as: "A. Details of Claim On the grounds stated in the accompanying affidavit or statement of claim the applicant claims. 1. An order that any loan agreements, mortgages and deeds of settlement are void 2. An order that any or all security documents in relation to a property at 2 Crown Street Fingal Head, NSW are void 3. An order for damages 4. Any other orders that the court deems fit 5. An order for the return of interest paid, return of costs incurred as a result of any or all agreements between the parties 6. An order for costs in the proceeding." 17 The applicant has submitted that the current proceedings have been commenced under the ASIC Act instead of the Trade Practices Act in light of the comments of Greenwood J in Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 at [44] that the ASIC Act was the relevant legislation in respect of financial services. The applicant has further submitted that the matters are different because they are brought under different statutory schemes and that since QUD525/2005 was commenced "new breaches" had occurred (TS p 20, ll 43-44). 18 The application before me asserts that it is brought pursuant to ss 12DA and 12DJ ASIC Act . There is no reference to any particular sections of the Trade Practices Act in the application file in QUD525/2005 however, the comparable sections in the Trade Practices Act are s 52 and s 60 respectively. 19 Sections 12DA and 12DJ ASIC Act are found in Pt 2 Div 2 Subdiv D which is entitled "Consumer Protection". Sections 52 and 60 Trade Practices Act are found in Pt V Div 1 which is entitled "Unfair Practices".
Case: Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491
Outcome: applied
More recently, as Jessup J observed in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500: "There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action...: see, for example, Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198." (cf the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ; Finn J in Lidden and Anor v Composite Buyers Ltd &amp; Ors (1996) 139 ALR 549; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414) Section 31A
Case: Wilson v Commonwealth of Australia [1999] FCA 1308
Outcome: cited
More recently, as Jessup J observed in Thirteenth Corp Pty Ltd v State (2006) 232 ALR 491 at 500: "There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action...: see, for example, Hunter v Chief Constable of the West Midlands Police [1982] AC 529; [1981] 3 All ER 727; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198." (cf the Full Court in Wilson v Commonwealth of Australia [1999] FCA 1308 at [11] - [12] ; Finn J in Lidden and Anor v Composite Buyers Ltd &amp; Ors (1996) 139 ALR 549; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414) Section 31A
Case: Beyazkilinc v Manager, Baxter Immigration Reception &amp; Processing Centre (2006) 155 FCR 465
Outcome: referred to
respondent has objected to the competency of the application. The application, he submits, is not within the jurisdiction of this Court due to the operation of s 476A of the Act. That section limits the Court's jurisdiction in migration matters to those set out in s 476A(1) ; see Beyazkilinc v Manager, Baxter Immigration Reception &amp; Processing Centre (2006) 155 FCR 465 at [51] [52] per Besanko J. See also Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370 ; (2007) 158 FCR 510 at [64] per Lindgren J.
Case: Raikua v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 158 FCR 510
Outcome: referred to
respondent has objected to the competency of the application. The application, he submits, is not within the jurisdiction of this Court due to the operation of s 476A of the Act. That section limits the Court's jurisdiction in migration matters to those set out in s 476A(1) ; see Beyazkilinc v Manager, Baxter Immigration Reception &amp; Processing Centre (2006) 155 FCR 465 at [51] [52] per Besanko J. See also Raikua v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 370 ; (2007) 158 FCR 510 at [64] per Lindgren J.
Case: Mobil Oil Australia Limited v Guina Developments Pty Limited [1996] 2 VR 34
Outcome: cited
This sort of question has arisen before, and in particular is the subject of a decision of the Court of Appeal of Victoria, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34. The decision of the court was given by Hayne JA. His Honour pointed out at 38 that when the question of disclosure of confidential information to a trade rival arises, it must be remembered that confidential information once received cannot be forgotten, and may be used in a way in which the party disclosing the information never becomes aware. 5 I think that is an important consideration in the present case. I am satisfied that the information in question is genuinely confidential. The evidence in the substantive hearing disclosed there is very close competition in the project homes market. Knowledge to a competitor of costings and margins would be very valuable for the purpose of setting prices. 6 I do not think Barrett are seriously disadvantaged for the purpose of making its election because, as already mentioned, their Chief Financial Officer will have access to the report. If they wish, they could also retain some independent expert with knowledge of this particular industry. 7 I note in particular that Mr Roberts is a person who is involved in the day-to-day operations of the business, and so the more likely to be in a position to take advantage of the information. This is not necessarily a case of any dishonest or improper use of information. As is stressed in Mobil Oil , once information is disclosed it becomes part of the person's stock of knowledge and it is unrealistic to expect that knowledge to be ignored. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 17 June 2008 Counsel for the Applicants: C D Golvan SC Solicitor for the Applicants: Middletons Counsel for the Respondent: S M Rebikoff Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 17 June 2008 Date of Judgment: 17 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/930.html
Case: ACD Tridon v Tridon Australia [2002] NSWSC 896
Outcome: followed
Marine argued that the making of a choice between having disputes determined by arbitration or curially was not an election by a party to an arbitration agreement. It relied on what Austin J had said in ACD Tridon v Tridon Australia [2002] NSWSC 896 at [58] , [68]-[69]. He held that mere delay in invoking a reference to arbitration by a party to an arbitration agreement, who had been sued by the other party in curial proceedings, was not an election or waiver: see too Australian Granites Ltd v Eisenwerk Hensel Bayreuth Dipl-ing Burkhardt GmbH [2001] 1 Qd R 461 at 469 [25]. But that is quite distinct from the position, here, where the party asserting the binding obligation to arbitrate later initiated the Boomerang I 's arrest without, at that time, seeking or foreshadowing a claim for curial assistance in those proceedings in enforcing the arbitration agreement.
Case: Allonah Pty Limited v The Ship 'Amanda N' (1989) 21 FCR 60
Outcome: cited
Allonah Pty Limited v The Ship 'Amanda N' (1989) 21 FCR 60, Sheppard J followed Sheen J's decision. In that case, similarly, a consent arbitration was proceeding at the time the vessel was arrested. Again, there is no indication in the report of the claims made in the writ in consequence of which the vessel was arrested. However, his Honour set out what Sheen J had said and concluded that the same approach should be adopted in the construction of s 29 of the Admiralty Act 1988 (Cth) (21 FCR at 64). He continued: 'In my opinion the use of the words, "should be determined by arbitration", has nothing to say on the question whether the arbitration has already commenced or is to commence in the future.' As Sheen J and Sheppard J reasoned, the enactment of s 29 of the Admiralty Act 1988 (Cth) and its analogue permit the arrest of a vessel so that security will be available to satisfy any award made in an arbitration proceeding which the parties to the writ, when the defendant appears, are contractually bound to submit to arbitration or have already begun to arbitrate. But such an arrest, in my opinion can only be justified if the relief sought from the Court is not inconsistent with the obligation to arbitrate. Comandate Marine submitted that its dominant, but not sole, purpose in bringing the proceedings in rem was to seek security for the arbitration. It said that if the Court did not stay the proceedings or refer them to arbitration, the proceedings would continue. Thus, the Court could grant the actual and only relief sought in the writ, namely the arrest which was made and damages, interest and costs.