mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Outcome: cited
In support of its submission that 'the injury must be the injury as identified by the notice and claim', Comcare relied on Telstra Corporation Ltd v Hannaford [2006] FCAFC 87 and Frosch v Comcare [2004] FCA 1642. In Frosch at [8] , Whitlam J commented, with respect to similar requirements in s 53 of the SRC Act: 'the essential information to be imparted under s 53 will be the nature of an injury or ailment and its connection with the employment.' I do not take issue with these comments but in my view they do not support Comcare's case.
Case: Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7
Outcome: referred to
Mr Lang's initial claim was determined in accordance with the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act). That Act has been superseded by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) which commenced on 24 June 1988 and which governs the present application. Section 124 of the SRC Act provides that a person is only entitled to compensation under the Act for an injury sustained prior to its commencement if the person would have been entitled to compensation under the relevant preceding Act, in this case the 1971 Act. 11 The Tribunal provided a short summary of Mr Lang's medical history. It found that Mr Lang suffered from conditions which caused pain in the thoracic region of his spine prior to his alleged fall in 1981. The clinical notes of Mr Lang's general practitioners in the relevant period, Dr Reeve and Dr Herath, supported this finding. 12 The Tribunal also referred to a report of Dr Andrews, Consultant Neurologist, in August 1982 which indicated that any aggravation of Mr Lang's condition due to his work for the Commonwealth would have only lasted a short period of time (a few months) and to a report of Dr Kitchin that Mr Lang's complaint, in March 1983, was of thoracic degenerative disease. 43 Section 54 of the 1971 Act provides that no compensation is payable under the Act unless a claim in writing for the compensation was served, as prescribed, on the Commissioner within the relevant time. This provision is a procedural pre-requisite to an entitlement to compensation under the Act: see Ward v Military Rehabilitation and Compensation Commission [2007] FCA 7 at [25] in relation to a similar provision under the 1930 Act. 44 Comcare submitted that the 1981 fall had not been notified or claimed by Mr Lang and accordingly that liability for that injury had not been accepted by Comcare in 1984. Accordingly, the fall could not have been the subject of Comcare's determination in 2004 and therefore could not be relevant to the Tribunal's review. I accept that the Tribunal's enquiry was limited to a consideration of whether Mr Lang was, as at the date of the Tribunal's decision, entitled to compensation for the injury as claimed however it does not follow from this that any damage to Mr Lang's back that may have been caused by the 1981 fall was necessarily outside of this enquiry.
Case: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343
Outcome: cited
is a good deal of law on the circumstances in which the Court will inquire into, or examine, a judgment. The circumstances will vary according to the circumstances in which the judgment came to be entered. A Court will be far more inclined to inquire into and examine a judgment entered by default or consent, than it will in the case of a judgment entered after a contested trial on the merits followed by an appeal or perhaps even an unsuccessful application to set aside the judgment to the Court which entered it. Those are in effect the two ends of the spectrum. It has been said that, in the former case, a bona fide allegation that there was no pre-existing debt will be sufficient for the Court to inquire into or examine the judgment (see Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 (" Corney v Brien ") at 357-358 per Fullagar J). It has been said that, in the latter case, the Court will not inquire into or examine a judgment unless there is evidence of fraud, collusion or a miscarriage of justice: Petrie v Redmond (1942) 13 ABC 44 at 48-49 per Latham CJ (with whom Rich and McTiernan JJ agreed); Corney v Brien at 356-357 per Fullagar J. The principles must be applied in a flexible fashion, having regard to the myriad of circumstances which may arise (see the discussion by J L Goldring in "Going Behind a Judgment" (1973) 47 ALJ 377).
Case: In re Newman; Ex parte Brooke (1876) 3 Ch D 494
Outcome: cited
power to inquire into a judgment arises not only in cases where the judgment reflects a pre-existing debt or liquidated claim, but also in cases where the judgment follows from the determination of an unliquidated claim and the judgment itself creates the debt: In re Newman; Ex parte Brooke (1876) 3 Ch D 494 ; Wenkart v Abignano [1999] FCA 354 at [23] . Plainly, a claim for damages for defamation falls into the latter category.
Case: Olivieri v Stafford (1989) 24 FCR 413
Outcome: cited
Court has the power to set aside a bankruptcy notice or to extend the time for compliance with it. The power to set aside a bankruptcy notice is contained in s 30(1) of the Act and, as Gummow J said, sitting as a judge of this Court in Olivieri v Stafford (1989) 24 FCR 413 (" Olivieri ") at 430, the express power in s 41 to extend the time for compliance with the requirements of such a notice has been said to carry with it the power to set aside the notice itself (see Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125 ; 30 ALR 77). The power to extend the time for compliance with the requirements of a bankruptcy notice is contained in s 41(6A) of the Act, which is in the following terms: "(6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice: (a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or (b) an application has been made to the Court to set aside the bankruptcy notice; the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice." There is no doubt this Court has the power, in an appropriate case, to go behind a judgment debt in the sense of examining whether, in truth, there was, as it is sometimes put, consideration for the judgment debt. That power may be exercised on an application to set aside a bankruptcy notice ( Olivieri at 429 per Gummow J). The power may result in the Court determining that there is, in truth, no consideration for the judgment debt and, although the Court has no power to set aside the judgment of another Court, it may decide to set aside the bankruptcy notice. The Court's power to inquire into or examine a judgment may involve two steps. First, the Court may ask itself whether there are grounds to inquire into the judgment. Secondly, assuming the answer to the first question is yes, the Court may inquire into the judgment. In certain circumstances, it may be more appropriate for the Court to extend the time for compliance with the requirements of a bankruptcy notice, while an application to set aside the judgment is determined by the Court which entered the judgment, rather than inquiring into the judgment itself. The power to inquire into or examine a judgment is part of the power to set aside a bankruptcy notice and is not the aspect of ordering inquiries under s 30(2) of the Act.
Case: Petrie v Redmond (1942) 13 ABC 44
Outcome: cited
is a good deal of law on the circumstances in which the Court will inquire into, or examine, a judgment. The circumstances will vary according to the circumstances in which the judgment came to be entered. A Court will be far more inclined to inquire into and examine a judgment entered by default or consent, than it will in the case of a judgment entered after a contested trial on the merits followed by an appeal or perhaps even an unsuccessful application to set aside the judgment to the Court which entered it. Those are in effect the two ends of the spectrum. It has been said that, in the former case, a bona fide allegation that there was no pre-existing debt will be sufficient for the Court to inquire into or examine the judgment (see Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 (" Corney v Brien ") at 357-358 per Fullagar J). It has been said that, in the latter case, the Court will not inquire into or examine a judgment unless there is evidence of fraud, collusion or a miscarriage of justice: Petrie v Redmond (1942) 13 ABC 44 at 48-49 per Latham CJ (with whom Rich and McTiernan JJ agreed); Corney v Brien at 356-357 per Fullagar J. The principles must be applied in a flexible fashion, having regard to the myriad of circumstances which may arise (see the discussion by J L Goldring in "Going Behind a Judgment" (1973) 47 ALJ 377).
Case: Re Ling; Ex parte Ling v Commonwealth of Australia [1995] FCA 1410 ; (1995) 58 FCR 129
Outcome: discussed
reason was identified as to why the cross demand could not have been set up in the defamation action. Even if it is appropriate to attribute to the applicant the statement of the applicant's husband that he was not advised that he could bring a cross demand, such a reason is not sufficient to show that the cross demand could not have been set up in the defamation action. In Re Ling; Ex parte Ling v Commonwealth of Australia [1995] FCA 1410 ; (1995) 58 FCR 129 , Hill J said (at 132): "What emerges here is that the practical reason why no action was taken against the Commonwealth, whether by the institution of a cross-claim or otherwise, is that the debtor was not advised that he could do so. But that does not suffice to make the claim one which the debtor could not have set up in the Commonwealth proceedings. That is not a question to be determined by reference to practicalities; it is a question to be answered by reference to legal considerations: Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 44 FLR 135 ; Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183 ; Walton v National Mutual Life Association of Australasia Ltd [1994] FCA 1114 ; (1994) 49 FCR 406 at 408; Re Scott; Ex parte Scott v Beneficial Finance Corporation Ltd [1994] FCA 1379 ; (1994) 53 FCR 324 ; Re Martinovic (unreported, Federal Court, Kiefel J, 23 June 1995). Thus the mere fact that there was an excuse as to why the cross-claim was not brought will not avail a debtor seeking to come within s 41(7) of the Act, if a cross-claim could legally have been brought." I accept the respondent's fourth submission. I am not satisfied that a cross demand in relation to the first publication could not have been set up in the defamation action. Second publication The USFA published a bulletin to the Ukrainian community throughout Australia, including South Australia. In Volume 15, July-September 2002, there was an article which referred to the applicant in defamatory terms. The evidence of the applicant's husband as to the respondent's involvement in the publication was as follows: "I refer to the affidavit of Mr Whittaker of 22 December 2008 and to the exhibit thereto, namely a translation of the USFA Bulletin 15 of July September 2002. The USFA bulletin was published throughout Australia to the Ukrainian community including in South Australia. I have been informed by my wife whom I verily believe that she was told by the then chairman of the USFA Mr Jurko Suchowerskyj, who took over that position when Dr Motyka was not re-elected that Dr Motyka was the author of the defamatory statements about me contained in it. We have attempted to contact Mr Suchowerskyj recently but he now denies his previous statement."
Case: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125
Outcome: referred to
Court has the power to set aside a bankruptcy notice or to extend the time for compliance with it. The power to set aside a bankruptcy notice is contained in s 30(1) of the Act and, as Gummow J said, sitting as a judge of this Court in Olivieri v Stafford (1989) 24 FCR 413 (" Olivieri ") at 430, the express power in s 41 to extend the time for compliance with the requirements of such a notice has been said to carry with it the power to set aside the notice itself (see Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125 ; 30 ALR 77). The power to extend the time for compliance with the requirements of a bankruptcy notice is contained in s 41(6A) of the Act, which is in the following terms: "(6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice: (a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or (b) an application has been made to the Court to set aside the bankruptcy notice; the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice."
Case: Wenkart v Abignano [1999] FCA 354
Outcome: cited
power to inquire into a judgment arises not only in cases where the judgment reflects a pre-existing debt or liquidated claim, but also in cases where the judgment follows from the determination of an unliquidated claim and the judgment itself creates the debt: In re Newman; Ex parte Brooke (1876) 3 Ch D 494 ; Wenkart v Abignano [1999] FCA 354 at [23] . Plainly, a claim for damages for defamation falls into the latter category.
Case: Airservices Australia v Transfield Pty Ltd [1999] FCA 886
Outcome: followed
For present purposes it is sufficient to be satisfied that the powers conferred by O 15A, r 6 may not have been " exhausted ". Had the view been formed that those powers had been " exhausted ", or even most probably " exhausted ", a different conclusion may well have been warranted as to whether there was any power to now require the Respondent to be made available for cross-examination or, at the very least, how any discretion should be exercised. Had that view been formed, it may have been more desirable to have resolved that question prior to resolving any question as to cross-examination. Without finally resolving that question, it is considered that there most probably remains outstanding a basis upon which the Applicants can still contend that they have a " reasonable cause to believe that [the Respondent] has or is likely to have or has had or is likely to have had possession " of further documents " relating to the question whether [the Applicants have a] right to obtain the relief and that inspection of the document [s] ... would assist in making the decision ": Order 15A, r 6(c). The rule does not " mandate mere rummaging through another's affairs ", but an applicant " will not necessarily be denied preliminary discovery because he or she already has available evidence establishing a prima facie case for the granting of relief ": Airservices Australia v Transfield Pty Ltd [1999] FCA 886 at [5] , [1999] FCA 886 ; 92 FCR 200 at 203 per Finn J (appeal dismissed: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1).
Case: Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651
Outcome: considered
The remaining question is whether such cross-examination should be conducted using a video link. To some extent there may be a difference of practice as between the Federal Court of Australia and the Supreme Court of New South Wales. The Federal Court has, perhaps, more readily embraced the technology (cf Tetra Pak Marketing Pty Ltd v Musachi Pty Ltd [2000] FCA 1261) than the Supreme Court of New South Wales ( Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651 at [25] [26] per Palmer J, 53 NSWLR 1).
Case: Carey v Carey [2007] FCA 1482
Outcome: cited
On 8 August 2007 Cowdroy J made orders under O 15A, r 12: Carey v Carey [2007] FCA 1482. In making those orders, Cowdroy J recounted that the Applicants are the executors of the estate of Grace Dorothy Carey, a retired medical practitioner, and that the Respondent is the brother of the Applicants and a beneficiary of that estate. His Honour concluded: [19] The applicants have made inquiries of banking institutions in Sydney and the accountants for the deceased but they have not been able to ascertain any further details of any overseas accounts of the deceased. The Court is satisfied that there is reasonable cause to believe that the respondent has or is likely to have information relative to the foreign owned assets in accordance with O 15A r 6 of the Rules and that it is in the interests of the administration of justice that the applicants be given the opportunity of obtaining such information. 3 The Respondent resides in the Netherlands. 4 Since that date there has been a series of revisions to the orders as first made. 8 A further Motion has since been filed on 9 April 2008. That Motion , filed on behalf of the Respondent, seeks a variety of orders including an order that the preservation order as previously made by Cowdroy J (and later varied) be discharged unless the Applicants file and serve proceedings seeking the recovery of assets within 28 days. 9 Of immediate concern, however, is a further order seeking to vacate the order requiring that the Respondent attend in person for cross-examination. It is this issue which must be resolved as quickly as possible. If the Respondent is to attend in person, albeit pursuant to an order previously made and long outstanding, it is nevertheless appropriate to have that issue resolved expeditiously. 10 In respect of the hearing on 1 and 2 May 2008, Counsel for the Respondent has previously confirmed that Affidavits filed thus far by the Respondent will be relied upon. No question thus arises as to the Court itself requiring a party to attend " for examination ". An " Addendum ", however, has since been filed on behalf of the Respondent on 15 April 2008. The effect of that " Addendum ", if properly understood, is that the Respondent now wishes to reserve his position and give such evidence " by way of reply only to the matters the Applicants seek to agitate ". He also contends that " justice will only be served if the Respondent's evidence is limited to evidence in chief, unless the Respondent submits by consent to cross-examination ". Notwithstanding that " Addendum ", Counsel for the Respondent has this morning confirmed that he will seek to " tender " the Respondent's Affidavits previously filed, albeit for the limited purpose of establishing " compliance " with previous orders.
Case: Carey v Carey [2007] FCA 2045
Outcome: cited
On 2 October 2007 the Applicants filed a Notice of Motion seeking a further variation of the orders, as did the Respondent on 8 November 2007. On 9 November 2007, both Notices of Motion were set down for hearing on 4 December 2007. That date was vacated on 29 November 2007 and the Notices of Motion were again set down for hearing on 10 and 11 March 2008. One of the orders made on 29 November 2007 was that the Respondent was to " attend in person on the adjourned hearing date so as to be able to be cross examined ". Affidavits , it should be noted, had previously been filed by the Respondent upon which reliance was to be placed. A further application to vary the orders previously made was rejected on 6 December 2007: Carey v Carey [2007] FCA 2045. 6 On at least one prior occasion a hearing date has been vacated, with the consent of the Applicants, to accommodate the personal circumstances of the Respondent and, in particular, his wife. 7 Both of the present Notices of Motion are set down for hearing on 1 and 2 May 2008.
Case: Hooper v Kirella Pty Ltd [1999] FCA 1584
Outcome: cited
For present purposes it is sufficient to be satisfied that the powers conferred by O 15A, r 6 may not have been " exhausted ". Had the view been formed that those powers had been " exhausted ", or even most probably " exhausted ", a different conclusion may well have been warranted as to whether there was any power to now require the Respondent to be made available for cross-examination or, at the very least, how any discretion should be exercised. Had that view been formed, it may have been more desirable to have resolved that question prior to resolving any question as to cross-examination. Without finally resolving that question, it is considered that there most probably remains outstanding a basis upon which the Applicants can still contend that they have a " reasonable cause to believe that [the Respondent] has or is likely to have or has had or is likely to have had possession " of further documents " relating to the question whether [the Applicants have a] right to obtain the relief and that inspection of the document [s] ... would assist in making the decision ": Order 15A, r 6(c). The rule does not " mandate mere rummaging through another's affairs ", but an applicant " will not necessarily be denied preliminary discovery because he or she already has available evidence establishing a prima facie case for the granting of relief ": Airservices Australia v Transfield Pty Ltd [1999] FCA 886 at [5] , [1999] FCA 886 ; 92 FCR 200 at 203 per Finn J (appeal dismissed: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1).
Case: Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728
Outcome: considered
Those are areas of cross-examination which, it is considered, can be further pursued in an application under O 15A. But it must further be recognised that the point of time at which the Applicants must be required to file an application and statement of claim and thereafter invoke the general rules for discovery conferred by O 15A must be very imminent. Whether such an order should be made, as is sought by the Respondent, will be further considered at the hearing on 1 and 2 May 2008. Rule 6 is a rule " designed to amplify the court's power to penetrate obscurities and uncertainties in the interests of justice ": cf Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728 at 733 per Burchett J. It is a rule which should be " beneficially construed, given the fullest scope that its language will reasonably allow, with the proper brake on any excesses lying in the discretion of the Court, exercised in the particular circumstances of each case ": St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360 at [26] , [2004] FCA 1360 ; 211 ALR 147 at 153 per Hely J.
Case: Tetra Pak Marketing Pty Ltd v Musachi Pty Ltd [2000] FCA 1261
Outcome: considered
The remaining question is whether such cross-examination should be conducted using a video link. To some extent there may be a difference of practice as between the Federal Court of Australia and the Supreme Court of New South Wales. The Federal Court has, perhaps, more readily embraced the technology (cf Tetra Pak Marketing Pty Ltd v Musachi Pty Ltd [2000] FCA 1261) than the Supreme Court of New South Wales ( Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651 at [25] [26] per Palmer J, 53 NSWLR 1).