mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Inspector-General in Bankruptcy v Bradshaw [2005] FCA 424
Outcome: referred to
The fact was that, in oral submissions at the first hearing, counsel for the first respondent ("Bradshaw") conceded that the Commonwealth was entitled to recover its investigatory costs but argued that the application for payment should be dismissed because the Commonwealth had not quantified these costs or any other loss. At the first hearing, the applicants maintained that quantification was irrelevant, although they had tendered the affidavit of Mr TD Clarke, which referred to the costs incurred by the Commonwealth in investigating the bankrupt estates under Bradshaw's control. The respondents had not contested the contents of Mr Clarke's affidavit. Further, the applicants had not told the Court that the Commonwealth's costs could not be quantified, although they had said as much to the respondents earlier (see further below). The respondents had submitted that the Commonwealth should and could quantify its costs and had not referred to the applicants' statement to them that it could not do so. It was in these circumstances that I gave my directions on 15 April 2005: see Inspector-General in Bankruptcy v Bradshaw [2005] FCA 424 (" Bradshaw (No 1) ") at [80]. 6 Bearing this in mind, at the directions hearing of 8 June 2005, I stated that the parties should be permitted to make further submissions as to the appropriate disposition of the case. In particular, I held that it was open to the respondents to submit that the Commonwealth was precluded from recovering its loss for the reasons outlined in their letters to the applicants and to contest the recoverability and quantification of any loss specified by the applicants. The applicants had concomitant rights to pursue their claim and answer the respondents. The respondents stated that they would not pursue their motions for leave to appeal and the matter continued before me on 13 December 2005. 7 At the hearing on 13 December 2005 ("the second hearing") the applicants sought to rely on a further affidavit of Mr TD Clarke sworn on 24 May 2005, the affidavits of Darren Kane and Shane Kirne sworn on the same day, and the affidavit of Terrence Burke sworn on 23 May 2005. There was no cross-examination, but, as foreshadowed, the respondents contended that it was not, or ought not to be, open to the applicants to adduce this further evidence.
Case: Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403
Outcome: referred to
Ace contended that Cachia v Hanes [1994] HCA 14 ; (1994) 179 CLR 403 prevented recovery for the cost of lawyers' investigations preparatory to Bradshaw's prosecution. Further, the costs of the time involved in the investigatory work of Mr Clarke, his ITSA colleagues and Mr Kane were irrecoverable because they were costs incurred within the scope of the work they were employed to perform in any event. Ace also argued that the applicants' reference to the difficulty in assessing loss was misplaced and refuted the applicants' submission that exemplary damages might be awarded. 14 The applicants denied that they had made any election. According to them, they had simply called on payment under the bonds, which had been breached. They added: "The quantification of the loss cannot be seen as an attempt to exercise 'alternative and inconsistent rights'. The applicants wish to do no more than what the respondents themselves have been urging the applicants to do. ... The debate is now over proof and assessment of loss that is not a different remedy."
Case: Hughes v Hill [1937] SASR 285
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25].
Case: Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25].
Case: Brown v Petranker (1991) 22 NSWLR 717
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25].
Case: Murray v Figge (1974) 4 ALR 612
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25].
Case: Henning v Lynch [1974] 2 NSWLR 254
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25].
Case: Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471
Outcome: cited
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ( Hughes v Hill [1937] SASR 285 at 287 ; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error ( Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts ( Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (" UTA ") at 478; and (4) mistaken apprehension of the law ( UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard's Pty Ltd (No 2) [2004] FCA 1310 (" Silver Fox ") at [22] and [25].
Case: David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48 ; (1992) 175 CLR 353
Outcome: referred to
The present is not a case of new evidence, inadvertent error or mistaken apprehension of the facts. Further, I accept that, as counsel for the respondents submitted, this was not a case of mistaken apprehension of the law, because the applicants knew the substance of the respondents' case, which depended on an understanding of the law that differed from their own. That is, with full knowledge that there was another view of the law to theirs, the applicants decided not to attempt to present the evidence that was relevant and necessary if the Court accepted the respondents' case and not theirs. This was not a case in which a particular issue was pleaded or argued but, by reason of circumstances outside the relevant litigant's control, was not adequately addressed at trial (as in David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48 ; (1992) 175 CLR 353 at 386 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ). There could have been no misapprehension on the applicants' part about the respondents' position as to the law. All that has happened is that the Court has accepted the respondents' submissions on the bond in preference to their own. I accept that, as counsel for Ace contended, the principle of finality of litigation should preclude the Court from regarding this circumstance as a relevant 'misapprehension' on an application for leave to re-open. 26 As already noted, however, the overriding principle requires that the Court consider whether, taken as a whole, the justice of the case favours the grant of leave to re-open. In this case, the applicants' decision not to present evidence on quantification was deliberate, but, as Clarke JA, with whom Mahoney and Meagher JJA agreed, said in UTA at 478: "No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not to call a witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel."
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: cited
In view of this conclusion, it is strictly unnecessary to consider the question of election, which is generally said to arise "when a state of affairs comes into existence which enables a person to exercise alternative and inconsistent rights against another": see GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 (" GEC Marconi ") at 89 [356] per Finn J. When faced with such a choice (e.g., the right to terminate a contract for breach or repudiation or the right to insist on performance of the contract), a person is required to elect which of the mutually exclusive courses of action the person wishes to take. Before such a choice arises, the person must be aware of the circumstances giving rise to the choice: GEC Marconi at 90 [357]. 30 Counsel for Ace contended that the applicants sought to exercise alternative inconsistent rights by seeking, at the first hearing, payment under the bond without proof of the quantum of loss and, now, payment under the bond to the extent of proven loss. This misconstrues the right in issue, which is the Commonwealth's right to payment under the bond. The relevant debate was whether the Commonwealth was entitled to the whole of the bond amount or to an amount that represented the Commonwealth's quantified loss. This was not a case of election in the sense discussed in GEC Marconi . 31 Since I would not grant the applicants' leave to re-open their case, it is also strictly unnecessary to consider the further question of quantification. I do so, however, since the parties have argued various issues relating to quantification. 32 The applicants' uncontested evidence was as follows. Between February and December 1996, Mr Clarke was employed by ITSA on a salary of $47,591 per annum and spent approximately 60% of his time in the investigation of Bradshaw's conduct as trustee of bankrupt estates. Between December 1996 and June 1998, he also spent some time in preparing for and attending court. In 1996, two other officers also spent about one week of their time assisting Mr Clarke in the investigation. At the time they were employed on annual salaries of $41,000 and $54,000 respectively. The applicants claimed $31,933 in respect of Mr Clarke and a total of $2,219 in respect of ITSA's other employees. Further, in the investigation and prosecution of Bradshaw, the Commonwealth, through ITSA, incurred out of pocket expenses in the sum of $4,729.
Case: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257
Outcome: cited
The disbursements incurred by the Commonwealth, through ITSA, in investigating the misconduct of Bradshaw in the administration of the estates under his control may well be part of the loss to the Commonwealth. However, the evidence that the applicants have sought to rely on would be insufficient to establish that the Commonwealth, through ITSA or the AFP, suffered the further losses deposed to in the affidavits of Mr Clarke and Mr Kane. It was incumbent on the applicants to prove, on the balance of probabilities, not only that they suffered loss as a result of the breach of the condition of the bond but also the amount of that loss. This is not a case where the plaintiff cannot adduce precise, or at the least relatively precise, evidence of what has been lost: see Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at 266 per Hayne J.
Case: Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 4) (1995) 16 WAR 277
Outcome: cited
In the present context, had the Commonwealth expended monies in investigating Bradshaw's conduct as trustee, then it would have been entitled to payment under the bond in respect of such expenditure. The affidavits of Mr Clarke and Mr Kane provide no evidence of such expenditure. They show only that the Commonwealth, through ITSA and the AFP, expended monies in the employment of these officers who, in the course of their employment as salaried officers of the Commonwealth, undertook the investigation. There was no necessary correlation, causal or otherwise, demonstrated between the cost of the work done on account of Bradshaw's misfeasance and the cost of Mr Clarke's or Mr Kane's annual salary. Put another way, there is no necessary connection between Bradshaw's breach of the condition of his bond and the amount claimed in relation to Mr Clarke and Mr Kane. Further, there is nothing to indicate that their services would not have been retained or that they would have been more profitably employed but for their investigation of Bradshaw: compare National Coal Board v Galley [1958] 1 WLR 16 at 29-30 referred to by Harvey McGregor in McGregor on Damages (16 th ed, Sweet &amp; Maxwell Ltd, 1997) at [1250]. There is nothing to show that their work on Bradshaw's account saved the Commonwealth from other expenditures: compare Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 4) (1995) 16 WAR 277 at 280. There is no evidence in the relevant affidavits about the work that they would have undertaken if they had not undertaken the investigations into Bradshaw's activities. 37 Moreover, whilst the Commonwealth might recover payment under the bond in respect of its expenditure in investigating Bradshaw, it does not follow that it would be entitled to recover its expenditure on Bradshaw's prosecution. The prosecution flowed from a decision by the DPP to prosecute Bradshaw and not from the breach by Bradshaw of the condition of his bond. The decision to prosecute is separate and distinct from the investigation that flowed from the breach of the bond. The costs of the prosecution cannot be said to flow from that breach. 38 For the reasons advanced by counsel for Ace, there is no basis upon which the Court might award exemplary damages.
Case: Australian Securities Commission v Macleod (1994) 54 FCR 309
Outcome: distinguished
The respondents contended that Ms Wu's application should fail because she failed to provide legally admissible evidence of all the facts necessary to substantiate her entitlement to the relief claimed. Under the former O 10 r 7, an applicant was required to file proof by way of evidence of his or her claims when seeking judgment: see Australian Securities Commission v Macleod (1994) 54 FCR 309 at 312-313 per Drummond J. Under the new O 35A r 3, it now seems that reliance may be placed on the allegations in the relevant statement of claim. Judges of the Court have held that the rule does not require proof by way of evidence of the applicant's claim, but that on the face of the statement of claim there is a claim for the relief sought and that the court has jurisdiction to grant that relief: see Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433 at [3] per Heerey J; Australian Competition and Consumer Commission v 1 CellNet LLC [2005] FCA 856 at [14] per Nicholson J; Australian Competition and Consumer Commission v Albert [2005] FCA 1311 at [6] --[7] per Jackson J and Deisel Spa v Hwang [2005] FCA 1619 at [2] per Tamberlin J. Having read the statement of claim, I find that these conditions are satisfied. Accordingly, the motion does not fail because of an insufficiency of evidence showing entitlement to relief claimed.
Case: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Outcome: applied
In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 (" Lenijamar "), Wilcox and Gummow JJ considered the nature of the Court's power when a party is in default. Although Lenijamar concerned the former O 10 r 7, certain of their Honours' observations can be applied to O 35A: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718 (" Cadbury Schweppes ") at [22]-[23] per Ryan J. As with O 35A, the power given by the former O 10 r 7 is conditioned only upon the failure of the party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, or of inordinate and inexcusable delay, or of prejudice to the other party: Lenijamar at 395-396. These are, however, usually important factors to be weighed in the exercise of the discretion. Further, the power conferred on the Court must be "administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default]": Lenijamar at 396. 50 In Lenijamar , Wilcox and Gummow JJ also observed that, while it was undesirable to make any exhaustive statement of the circumstances in which the power granted by O 10 r 7 would be appropriately exercised, there were two obvious candidates for such exercise: "cases in which the history of non-compliance ... is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases ... in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the [other party]": Lenijamar at 396.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718
Outcome: followed
In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 (" Lenijamar "), Wilcox and Gummow JJ considered the nature of the Court's power when a party is in default. Although Lenijamar concerned the former O 10 r 7, certain of their Honours' observations can be applied to O 35A: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718 (" Cadbury Schweppes ") at [22]-[23] per Ryan J. As with O 35A, the power given by the former O 10 r 7 is conditioned only upon the failure of the party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, or of inordinate and inexcusable delay, or of prejudice to the other party: Lenijamar at 395-396. These are, however, usually important factors to be weighed in the exercise of the discretion. Further, the power conferred on the Court must be "administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default]": Lenijamar at 396.