mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NBBL v MIMIA [2006] FCA 1045
Outcome: cited
a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: cited
a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: Petitt v Dunkley (1971) 1 NSWLR 376
Outcome: distinguished
appellant has submitted, in essence, that the absence of reasons given by the learned Federal Magistrate for refusing to go behind the judgment gave rise to an error of law. He has cited as authority Petitt v Dunkley (1971) 1 NSWLR 376, a decision of the New South Wales Court of Appeal. However, with respect, Petitt is in no way comparable to the case which was before her Honour, or the case before me. In the present case there is a history of litigation demonstrating that there is a judgment debt upon which the bankruptcy notice, and subsequently the creditor's petition, are founded. It was clear to her Honour, as it is clear to me, that the appellant has had numerous opportunities in Court, across both Federal and State jurisdictions, through multiple actions, and through multiple levels of appeal, to establish flaws in either the judgment debt or the process which has resulted in the judgment debt being enforceable against him. He has been consistently unsuccessful. While as a general rule it is desirable to give reasons for a decision, to paraphrase Cussen ACJ in Brittingham v Williams [1932] VLR 237 at 239, a case may 'be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person'. In my view, this is such a case with respect to this ground of appeal.
Case: Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635
Outcome: cited
appellant also submits that the respondents must provide an affidavit particularising the debt due not only at the date of presentation of the petition but also at the date of the hearing, and cites a number of cases including Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635, Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475 and CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257. In the judgment of Rimmer FM, her Honour noted that, within the meaning of s 44(1) Bankruptcy Act , the relevant debt must be payable not only at the date of presentation of the petition, but also at the date of hearing. Her Honour referred to Agrillo , Padagas and CSR cited earlier in this judgment as authority for this proposition.
Case: Re Carmody; ex parte Glennan [2000] HCA 37
Outcome: cited
his written submissions, the appellant submitted: 'The Court erred in holding that the order of the Federal Court was a final judgment or order with (sic) the meaning of the act. Where an application for leave to appeal is not brought within 7 days does not render the judgment a final judgment or order within the meaning of the Act: Re Carmody: Ex parte Glennan [2000] HCA 37 at 19, 20 and 26. The Federal Court rules provide that extensions of time for an application for leave to appeal is brought out of time.' In this case the act of bankruptcy upon which the sequestration order was founded was the failure of the appellant to comply with a bankruptcy notice in respect of a debt the subject of a final judgment or final order within the meaning of s 40(1)(g) Bankruptcy Act . That debt arose from the failure of the appellant to pay the respondent the sum of $24 000.00 in accordance with a costs order made by Deputy District Registrar Baldwin in the Federal Court on 26 November 2004. In my view this submission of the appellant is misconceived. This is enough to dispose of this submission. I note the respondents' submission that this is the fifth occasion on which the appellant has sought to litigate this issue. The meaning of 'final judgment or final order' has been the subject of extensive judicial comment. It is unnecessary to examine this issue further, other than to emphasise the general principle that a decision of a superior court which can otherwise be considered a final judgment or final order will not lose this characteristic simply because it is liable to be set aside (Gibbs J in Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378 at 380) or appealed to an appellate court (cf O 52 r 17 Federal Court Rules ). To that extent, the appellant's argument is misguided to the extent that he submits that an order is not final until all avenues of appeal have been exhausted. I note the submissions of the appellant with respect to Re Carmody; ex parte Glennan [2000] HCA 37. However this case concerned ( inter alia ) the jurisdiction of the Full Court of the Federal Court to hear and determine, out of time, an appeal from an interlocutory decision of a primary judge interpreting the Taxation Administration Act 1953 (Cth), and I do not find the case helpful in the present context.
Case: Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378
Outcome: cited
is enough to dispose of this submission. I note the respondents' submission that this is the fifth occasion on which the appellant has sought to litigate this issue. The meaning of 'final judgment or final order' has been the subject of extensive judicial comment. It is unnecessary to examine this issue further, other than to emphasise the general principle that a decision of a superior court which can otherwise be considered a final judgment or final order will not lose this characteristic simply because it is liable to be set aside (Gibbs J in Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378 at 380) or appealed to an appellate court (cf O 52 r 17 Federal Court Rules ). To that extent, the appellant's argument is misguided to the extent that he submits that an order is not final until all avenues of appeal have been exhausted. I note the submissions of the appellant with respect to Re Carmody; ex parte Glennan [2000] HCA 37. However this case concerned ( inter alia ) the jurisdiction of the Full Court of the Federal Court to hear and determine, out of time, an appeal from an interlocutory decision of a primary judge interpreting the Taxation Administration Act 1953 (Cth), and I do not find the case helpful in the present context.
Case: Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475
Outcome: cited
appellant also submits that the respondents must provide an affidavit particularising the debt due not only at the date of presentation of the petition but also at the date of the hearing, and cites a number of cases including Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635, Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475 and CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257. In the judgment of Rimmer FM, her Honour noted that, within the meaning of s 44(1) Bankruptcy Act , the relevant debt must be payable not only at the date of presentation of the petition, but also at the date of hearing. Her Honour referred to Agrillo , Padagas and CSR cited earlier in this judgment as authority for this proposition.
Case: Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418
Outcome: cited
articulation was adopted by the High Court in Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438. Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: &#8226; where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) &#8226; the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) &#8226; taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) &#8226; whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) &#8226; whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) &#8226; whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) &#8226; the merits of the grounds raised. This was explained by the Full Court of the Federal Court in Iyer v MIMIA [2000] FCA 1788 at [24] in the following terms: 'However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.'
Case: The Drink Nightclub &amp; Anor v Worchild [2005] FMCA 1454
Outcome: affirmed
matter before me is an appeal from a decision of Rimmer FM delivered on 12 October 2005 ( The Drink Nightclub &amp; Anor v Worchild [2005] FMCA 1454). In that case the respondents successfully presented a creditor's petition seeking a sequestration order against the appellant, and were awarded costs by her Honour. The appellant seeks the following orders from this Court: 1. The appeal be allowed. 2. The orders of the Federal Magistrate of 12 October 2005 be set aside. 3. The application for a sequestration order be remitted to the Federal Magistrates Court for reconsideration. 4. Costs. Mr Cross is a director of The Drink Nightclub (Qld) Pty Ltd. In this judgment I shall refer to Mr Worchild as 'the appellant' and The Drink Nightclub (Qld) Pty Ltd and Mr Cross as 'the respondents'.
Case: Thompson v Metham (1999) FCA 935
Outcome: cited
the appellant claimed in ground 1 of the supplementary notice of appeal that Rimmer FM erred in finding that the creditor's petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. In his submissions on this point, I note that the appellant, in relying on Thompson v Metham [1999] FCA 935 , actually addressed the issue whether a copy of the judgment and/or a copy of the certificate of taxation ought be attached to the bankruptcy notice . However in any event this ground of appeal fails for the reason that her Honour made no such finding as claimed by the appellant. Indeed, after considering the appellant's submission at par 69 of her judgment, her Honour went on to state: 'In relation to paragraph 1 the petition is compliant and the Bankruptcy Notice contains the order made on 25 November 2004 . Similar arguments were put by the debtor in his application to have the Bankruptcy Notice set aside and that application has been determined and dismissed with an order being made against the debtor for costs. ' (emphasis added) 2. The appellant submits that paragraph 2 of the petition 'states that the applicant creditor does not hold security of the property of the debtor this leaves doubt as to whether the one or the other holds security over the property of the debtor'. This issue was dealt with by her Honour at par 71 of her judgment where her Honour said: 'Paragraph 2 of the petition to (sic) also clear and unequivocal. It is a requirement of the standard form for such a statement to be made in those terns as to the holding of any security over any property of the debtor by the creditors. There is no uncertainty raised to a reasonable person with the knowledge of the debtor. There is no defect in the making of this statement.' There is no 'weight of evidence' indicating that the respondents do hold such security, or even raising doubt as to whether they hold such security, contrary to her Honour's finding. In my view, no error in her Honour's judgment is demonstrated by this submission of the appellant. This also answers the seventh ground of appeal in the original notice of appeal, which accordingly fails. 3. The appellant submits that the 'petition refers to creditor and creditors including reference to the agent for the Petitioner. This creates doubt as to who the Petitioner is and whether or not there is two joint petitioners and whether or not the agent holds instruction to act on behalf of both petitioners'. In the judgment of Rimmer FM, her Honour dealt with this issue at par 73 as follows: 'Following his Honour's reasoning with which I agree the fact that an 's is left off the word creditor on one occasion does not create any confusion and is not a matter which would properly give rise to a substantive defect in the notice as required to set the Petition aside. I am satisfied that the debtor is fully aware that there are two creditors, one a company and one the director of that company. He is also well aware that the solicitors Hynes Lawyers act for both of the creditors. This is a spurious argument without merit.'
Case: Water Board v Moustakos [1988] HCA 12 ; (1994) 180 CLR 491
Outcome: applied
principle was again applied by the High Court in Water Board v Moustakos [1988] HCA 12 ; (1994) 180 CLR 491 at 497 where Mason CJ, Wilson, Brennan and Dawson JJ said: 'More than once it has been held by this court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.'
Case: Worchild v University of Queensland Law Society Inc [2005] QDC 161
Outcome: cited
respondents have drawn my attention to the decision of McGill DCJ of the District Court of Queensland in Worchild v University of Queensland Law Society Inc [2005] QDC 161. I note that his Honour's decision was delivered on 10 June 2005. In this case it appears that the appellant was prosecuting the claim against the Law Societies to which he adverted in ground 6 of the original notice of appeal. His Honour found against the appellant, and the appellant unsuccessfully appealed the decision of Gill DCJ to the Queensland Court of Appeal. The decision of the Court of Appeal was delivered on 5 October 2005 ( Worchild v. University of Queensland Law Society [2005] QCA 37). I understand the appellant sought special leave to appeal to the High Court from this decision, and it was refused ( Worchild v University of Queensland Law Society [2006] HCA Trans 181).
Case: Worchild v University of Queensland Law Society [2005] QCA 37
Outcome: cited
respondents have drawn my attention to the decision of McGill DCJ of the District Court of Queensland in Worchild v University of Queensland Law Society Inc [2005] QDC 161. I note that his Honour's decision was delivered on 10 June 2005. In this case it appears that the appellant was prosecuting the claim against the Law Societies to which he adverted in ground 6 of the original notice of appeal. His Honour found against the appellant, and the appellant unsuccessfully appealed the decision of Gill DCJ to the Queensland Court of Appeal. The decision of the Court of Appeal was delivered on 5 October 2005 ( Worchild v. University of Queensland Law Society [2005] QCA 37). I understand the appellant sought special leave to appeal to the High Court from this decision, and it was refused ( Worchild v University of Queensland Law Society [2006] HCA Trans 181).
Case: Worchild v University of Queensland Law Society [2006] HCA Trans 181
Outcome: cited
respondents have drawn my attention to the decision of McGill DCJ of the District Court of Queensland in Worchild v University of Queensland Law Society Inc [2005] QDC 161. I note that his Honour's decision was delivered on 10 June 2005. In this case it appears that the appellant was prosecuting the claim against the Law Societies to which he adverted in ground 6 of the original notice of appeal. His Honour found against the appellant, and the appellant unsuccessfully appealed the decision of Gill DCJ to the Queensland Court of Appeal. The decision of the Court of Appeal was delivered on 5 October 2005 ( Worchild v. University of Queensland Law Society [2005] QCA 37). I understand the appellant sought special leave to appeal to the High Court from this decision, and it was refused ( Worchild v University of Queensland Law Society [2006] HCA Trans 181).
Case: Worchild v University of Queensland Law Society [2006] FCA 1078
Outcome: cited
I understand that subsequent to the decision of Rimmer FM the appellant commenced fresh proceedings in the Federal Court against the Student Law Societies. These proceedings, or the prospect of commencing them, were not raised before her Honour. In any event, the proceedings were recently dismissed by Spender J ( Worchild v University of Queensland Law Society [2006] FCA 1078). On the basis of the principles I explained earlier, I do not consider there are exceptional circumstances which entitle the appellant to raise this new issue on appeal. Accordingly this ground of appeal fails. The appellant claimed that Rimmer FM failed to appreciate that security for costs is required to contest a bill of costs in the Federal Court. In particular, the appellant submitted that: &#8226; in order to contest a bill of costs in the Federal Court one needs to file security for costs &#8226; if a party cannot provide security for costs because of impecuniosity, then ostensibly the provision is a statutory abrogation of the right to a hearing, a denial of natural justice or a right to be heard.
Case: Beach Petroleum v LV Johnson (1995) 57 FCR 119
Outcome: cited
The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of the taxation process: Beach Petroleum v LV Johnson (1995) 57 FCR 119 at 120. An order that costs be assessed as a gross sum does not require that any process similar to that involved in taxation should take place. However, the power must be exercised judicially and after giving the parties adequate opportunity to make submissions on the matter: Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26.