mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663
Outcome: cited
The applicants assert no legal right or any cause of action against the Insurers. But the want of a legal right or a cause of action is not a bar to the grant of declaratory relief. It is, nevertheless, necessary that declaratory relief be sought in respect of a real question that is not abstract or hypothetical. It must be directed to the determination of a legal controversy. Moreover the party seeking the relief must have a real interest in raising it: Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 per Lockhart J (Spender and Cooper JJ concurring) and authorities there cited.
Case: Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43
Outcome: cited
King CJ referred in his judgment to s 31 of the Supreme Court Act 1935 , which is similar in form and the same in substance as s 21 of the Federal Court Act. He enunciated the following propositions about the grant of declaratory relief: 1. That the jurisdiction to grant declaratory relief is very wide and judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of discretion rather than to jurisdiction. 2. It is not necessary that the plaintiff have a cause of action against the defendant. 3. There is no jurisdictional limit against the grant of declaratory relief. The Court's power to grant such relief "is only limited by its own discretion". 4. There may be circumstances which so contraindicate the exercise of the discretion in favour of the grant of declaratory relief that they would lead almost inevitably to the exercise of the discretion against the making of a declaration. 5. A declaration will not be made except in matters "which have a real legal context, and to the determination of which the Court's procedure is apt", citing Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 61 (Hutley JA). 6. There must be some person who has a true interest in opposing the declaration. The question must not be purely theoretical. 7. If the determination of the question could not affect the plaintiff's legal rights or commercial or personal interests now or in the future the declaration would almost certainly be refused: citing Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at 188 (Mason J). The principles so enunciated are, with respect, not contentious.
Case: Gardner v Dairy Industry Authority (1977) 52 ALJR 180
Outcome: cited
King CJ referred in his judgment to s 31 of the Supreme Court Act 1935 , which is similar in form and the same in substance as s 21 of the Federal Court Act. He enunciated the following propositions about the grant of declaratory relief: 1. That the jurisdiction to grant declaratory relief is very wide and judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of discretion rather than to jurisdiction. 2. It is not necessary that the plaintiff have a cause of action against the defendant. 3. There is no jurisdictional limit against the grant of declaratory relief. The Court's power to grant such relief "is only limited by its own discretion". 4. There may be circumstances which so contraindicate the exercise of the discretion in favour of the grant of declaratory relief that they would lead almost inevitably to the exercise of the discretion against the making of a declaration. 5. A declaration will not be made except in matters "which have a real legal context, and to the determination of which the Court's procedure is apt", citing Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 61 (Hutley JA). 6. There must be some person who has a true interest in opposing the declaration. The question must not be purely theoretical. 7. If the determination of the question could not affect the plaintiff's legal rights or commercial or personal interests now or in the future the declaration would almost certainly be refused: citing Gardner v Dairy Industry Authority (1977) 52 ALJR 180 at 188 (Mason J). The principles so enunciated are, with respect, not contentious.
Case: CE Heath Casualty and General Insurance Ltd v Pyramid Building Society (In Liquidation) (1997) 2 VR 256
Outcome: cited
JN Taylor Holdings 59 SASR 432 was distinguished by the Court of Appeal in Victoria in CE Heath Casualty and General Insurance Ltd v Pyramid Building Society (In Liquidation) (1997) 2 VR 256. In that case a building society in liquidation sued its former auditors for breaches of retainer and duty of care. The insurers were conducting the defence. However upon inquiry from the plaintiff, they neither admitted nor denied liability to indemnify the auditors. They declined to commit themselves about the interpretation of the policies so far as they provided for maximum amounts of cover. The plaintiff sought leave to join them as defendants and to seek declarations against them as to the application of their policies. The Court of Appeal allowed an appeal against an order at first instance granting leave to join them. The Court held there was no basis for the joinder under the Supreme Court Rules . The issues raised against the insurers were additional to those between the building society and the auditors. They depended upon discrete facts. The Court also rejected the proposed joinder on discretionary considerations.
Case: Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19
Outcome: cited
The decision of the Court of Appeal of Victoria in CE Health [1997] 2 VR 256 was followed by the Full Court in South Australia in Beneficial Finance Corporation Ltd v Price Waterhouse (1996) 68 SASR 19. The critical point there was not only that indemnity had not been declined but there had been an acceptance of liability. In that case a firm of chartered accountants, formerly auditors to the State Bank of South Australia, were sued by a number of parties including a subsidiary of the Bank for $1 billion. The claims were based on breaches of duty on the part of the auditors. The trial of the action was estimated to last in excess of a year. Estimated costs of proceeding to trial, $13 million, would exceed the known assets of the auditors' partners. The plaintiffs had obtained orders from the trial judge requiring the auditors' insurer to discover and produce all applicable policies of professional indemnity insurance. The auditors were also ordered to discover and produce confidential correspondence between them and their insurer relating to notification of the claim and indemnification generally. The insurer appealed the production orders to the Full Court. They contended that they were dealing with the claim as if it attracted indemnity in a relevant policy year and had not declined the indemnity.
Case: Interchase Corporation Ltd (in liq) v FAI General Insurance Co Ltd [1982] 2 QD R 301
Outcome: cited
The Queensland Court of Appeal in Interchase Corporation Ltd (in liq) v FAI General Insurance Co Ltd [1998] 2 Qd R 301 by majority, declined to follow JN Taylor Holdings 59 SASR 432 . In that case Interchase Corporation commenced proceedings against valuers in connection with the development of a retail and commercial complex in Brisbane. It claimed to have lost about $60 million through a negligent valuation of the complex. FAI was the professional indemnity insurer of the valuers. FAI conducted the defence of the litigation for some time then declined indemnity. The valuers did not object to that decision and did not foreshadow any possibility of contesting it. Interchase then sought to join FAI as an additional defendant to obtain a declaration that it was liable to indemnify the valuers in respect of their liability to Interchase. A judge acceded to that application and an appeal from that decision was allowed by majority. The majority held in substance that convenience alone could not justify joinder of an additional defendant under the Rules of the Supreme Court. There was no controversy between the valuers and the insurer and therefore their rights inter se would not be determined in the action. The joinder would serve no useful purpose.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: cited
In dissent, Davies JA said (at 309): I accept that there would be no point in making the order for joinder if the declaration did not, in practice, effectively determine the issue of FAI's liability to the valuers as between those parties. But I do not think it is sufficient, for the joinder to lack utility, that it is not binding between those parties at law if, in its practical effect, it is. He agreed with Byrne J that Interchase and the valuers were not privies for the purposes of res judicata and issue estoppel. He also agreed that neither doctrine would operate to bind FAI and the valuers inter se in respect of that question. His Honour went on however to refer to the wider concept of estoppel enunciated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589, a case in which admittedly there was mutuality. He said (at 310): There was mutuality in Anshun and their Honours in the joint judgment to which I have referred did not find the abuse of process test, as elucidated in some of the English cases, of great utility. However, abuse of process is a similar mechanism designed "to protect against 'the scandal of conflicting decisions'," which can achieve that protection where mutuality is absent as it is here. FAI and the valuers would have the full opportunity of contesting the question in respect of which the declaration was sought. Davies JA thought it would therefore be an abuse of process to permit either to litigate that question in subsequent proceedings. It followed that the declarations sought would effectively determine the question of FAI's liability to the valuers as between those parties.
Case: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699
Outcome: cited
I respectfully agree with the view expressed by Byrne J that the decision of Jacobs J in Multi-tech Services 30 SASR 218 does not seem to be authority for the proposition that an insurer joined as a co-defendant at the suit of a claimant against the insured, would be bound as between itself and the insured, by a declaration that it was liable to provide indemnity to the insured. There was no exposition by Jacobs J of any principle that would support that proposition. It is not necessary for me to decide the general question here. In my opinion the approach taken in JN Taylor 59 SASR 432 is supportable on a wider basis without reliance on a res judicata or issue estoppel. That wider basis was enunciated by Davies JA. In this respect I refer also to my review of the authorities relating to the general concept of abuse of process by relitigation in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59] [69]. I consider, as did Davies JA, that there is utility in a declaration against an insurer in circumstances such as the present. That factor however, while important, does not exhaust the discretionary considerations, particular to this case, to which I should have regard.
Case: Brink, Re; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433
Outcome: applied
Although, as Lockhart J said in Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 at 439, the Court is not required to undertake a preliminary trial of the counter-claim, set-off or cross demand, a substantial body of evidence was adduced at the hearing. 7 The evidence consisted of two affidavits of Mr Dekkan and an affidavit of each of Ms Evans and Ms Ramsay. Having regard to the background of the matter and the overall circumstances, I permitted Mr Dekkan to cross-examine Ms Evans and Ms Ramsay. 8 At the start of the hearing Mr Dekkan filed a notice of motion seeking to have the hearing adjourned due to his mental and physical condition which he said prevented him from adequately dealing with the matter. He went into the witness box and was cross-examined.
Case: Dekkan v Picciau [2008] NSWCA 18
Outcome: referred to
The relevant details of the District Court proceedings are set out in the judgment of Basten JA (with whom Hodgson and Tobias JJA agreed) on the application for leave to appeal: Dekkan v Picciau [2008] NSWCA 18. 19 When the hearing in the District Court commenced on 25 October 2006, Mr Dekkan was represented by a solicitor, Mr Joseph Johnson of Bruce Dennis &amp; Co. At the commencement of the hearing Mr Johnson applied to vacate the hearing on the ground that Mr Dekkan was "in a psychiatric hospital". 20 Evidence was given by Mr Dekkan's psychiatrist, Dr Selwyn Smith, that Mr Dekkan was experiencing a major depressive episode.
Case: Glew, Re; Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331
Outcome: applied
The matters as to which an applicant to set aside a bankruptcy notice must satisfy the Court were stated succinctly by Lindgren J in Re Glew; Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331 at [9] . 52 His Honour there observed that the authorities indicate that an applicant must satisfy the Court of three interrelated, and sometimes overlapping matters: first, that he or she has a " prima facie case", even if evidence is not adduced which would be admissible on a final hearing; second, that he or she has "a fair chance of success"; third, that the claim is "genuine" or " bona fide. " 53 Lindgren J summed up the test as follows at [12]: Perhaps little more can usefully be said than that a debtor must satisfy the court that there is sufficient substance to the counter-claim, set-off or cross-demand asserted to make it one which the debtor should, in justice, be permitted to have heard and determined in the usual way, rather than be forced to comply with the bankruptcy notice by payment or to commit an act of bankruptcy. 54 I have no doubt that Mr Dekkan believes he has a genuine claim but the authorities show that this is not sufficient; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Re Brink: Ex parte CBC at 438. 55 Whether the test be expressed as a prima facie case, or a fair chance of success, it is plain that the claim propounded by Mr Dekkan does not reach either threshold. There are four reasons for this.
Case: Makhoul v Barnes (1995) 60 FCR 572
Outcome: referred to
Although I am satisfied that the ground stated in s 40(1)(g) is not enlivened, the authorities establish that in an appropriate case, on the hearing of a petition where substantial reasons are shown, the Court may exercise a discretion to go behind the judgment debt: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224-225; Makhoul v Barnes (1995) 60 FCR 572 at 580-582. 69 In Makhoul v Barnes at 582, Hill, Cooper and Branson JJ observed that where on an application to set aside a bankruptcy notice, a court has investigated the question of whether a real debt lies behind the judgment debt, it would rarely, if ever, do so again. 70 The thrust of my consideration of the matter has been to determine whether Mr Dekkan has a claim which satisfies s 40(1)(g). To the extent that the question of the quantum of the indebtedness may arise on the hearing of the petition, it will be a matter for the judge hearing that application to decide whether, and to what extent, to exercise a discretion to go behind the judgment debt. 71 The orders I will make are: 1. The application to set aside the bankruptcy notice be dismissed. 2. The applicant pay the costs of the respondents.
Case: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212
Outcome: referred to
Although I am satisfied that the ground stated in s 40(1)(g) is not enlivened, the authorities establish that in an appropriate case, on the hearing of a petition where substantial reasons are shown, the Court may exercise a discretion to go behind the judgment debt: Wren v Mahony [1972] HCA 5 ; (1972) 126 CLR 212 at 224-225; Makhoul v Barnes (1995) 60 FCR 572 at 580-582.
Case: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
is certainly the case that, traditionally, there is a distinction in the manner in which appellate courts treat an exercise of discretion on a point of practice or procedure as is the case before me and an exercise of discretion which determines substantive rights (cf Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 177, In re the Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323). However I accept the submission of Mr Merrell, supported by Mr O'Grady, that it is incumbent on the appellate court to carefully examine each case before it, and identify whether an error has been made in exercising the discretion. As was observed by Atkin LJ in Maxwell v Keun [1928] 1 KB 645 at 653: The other point that was made by the defendants was that this was a discretionary order and that the Court of Appeal ought not to interfere with the discretion of the learned judge. I quite agree the Court of Appeal ought to be very slow indeed to interfere with the discretion of the learned judge on such a question as an adjournment of a trial, and it very seldom does do so; but on the other hand, if it appears that the result of the order made below is to defeat the rights of the parties altogether, and to do that which the Court of Appeal is satisfied would be an injustice to one or other of the parties, then the court has power to review such an order, and it is, to my mind, its duty to do so. (cf Dick v Piller [1943] KB 497 at 506-507, Jarrett v Westpac Banking Corporation [1999] FCA 425 at [78] )
Case: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Outcome: distinguished
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon [2009] HCA 27 at [5] , Goldberg v Morrow [2004] FCA 1490 at [36] , Trivett v Zoccoli [2002] WASCA 138 ). Appeals against an exercise of discretion are governed by established principles: House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504. As Dixon, Evatt and McTiernan JJ observed in the following well-known passage: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)
Case: Goldberg v Morrow [2004] FCA 1490
Outcome: cited
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon [2009] HCA 27 at [5] , Goldberg v Morrow [2004] FCA 1490 at [36] , Trivett v Zoccoli [2002] WASCA 138 ). Appeals against an exercise of discretion are governed by established principles: House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504. As Dixon, Evatt and McTiernan JJ observed in the following well-known passage: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: applied
decision of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon [2009] HCA 27 at [5] , Goldberg v Morrow [2004] FCA 1490 at [36] , Trivett v Zoccoli [2002] WASCA 138 ). Appeals against an exercise of discretion are governed by established principles: House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504. As Dixon, Evatt and McTiernan JJ observed in the following well-known passage: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)