mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31
Outcome: cited
McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.
Case: Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739
Outcome: cited
McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.
Case: Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829
Outcome: cited
McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.
Case: Saitta Pty Ltd v Commonwealth [2000] FCA 1596 ; (2000) 106 FCR 1
Outcome: cited
McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.
Case: Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 85 ALD 346
Outcome: discussed
McGowan forms part of a line of cases which recognises that the Court has a discretion to decline to embark on the judicial review of an administrative decision if a full merits review of that decision is available before an independent statutory tribunal, and the tribunal's decision can then be appealed to, or reviewed by, a court: Edelsten at 423-424; Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523 at 530; Bragg v Secretary of the Department of Employment, Education and Training (1995) 59 FCR 31 (' Bragg' ) at 33; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750; Du Pont (Australia) Ltd v Comptroller-General of Customs (1993) 30 ALD 829; Saitta Pty Ltd v Commonwealth [2000] FCA 1546 ; (2000) 106 FCR 554 at 575 [104] ; and Re Kamha v Australian Prudential Regulation Authority [2005] FCA 480 ; (2005) 146 FCR 24 ( 'Re Kamha' ) at 35 [41] and 36 [46]. In Re Kamha , Gyles J declined to exercise his discretion at a preliminary stage of the case: at 35 [39]. However, after the evidentiary case had been completed and the applicant had completed its submissions, Gyles J determined that it was appropriate to decline judicial review. In doing so, his Honour emphasised that a full merits review before the Administrative Appeals Tribunal was the appropriate means of reviewing the decision, and that means was likely to provide a more satisfactory remedy than the Court could provide on judicial review: at 35 [41] and 36 [46]. In Bragg at 33, Davies J said that the alternative method of review referred to in s 10(2)(b)(ii) of the ADJR Act is one involving 'an independent exercise of powers directly affecting the decision reviewed'. Courts have taken a range of considerations into account in exercising the discretion to decline judicial review, including matters such as whether the alternative form of review will be conclusive of the dispute, whether it is to be undertaken by a specialist tribunal that operates in a technical field, the inability of the court to provide a review on the merits, and whether any hardship or disadvantage will be caused by the applicant being forced to pursue the alternative remedy.
Case: Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312 ; (1987) 76 ALR 137
Outcome: cited
Section 44(1) of the Act provides that a creditor's petition shall not be presented against a debtor unless there is owed by the debtor, to the petitioning creditor, a debt or debts that amount to $2,000 or more. Further, s 52(1) of the Act provides that, at the hearing of the creditor's petition, the Court shall require proof of the matters stated in the petition. Those matters include the debtor's indebtedness to the petitioning creditor. The Court can only make a sequestration order if it is satisfied that there is proof of those matters. If any genuine dispute exists as to the liability of the debtor to the petitioning creditor it ought to be investigated before he is made bankrupt: Ahern v Deputy Commissioner of Taxation (Qld) [1987] FCA 312 ; (1987) 76 ALR 137 at 148.
Case: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343
Outcome: cited
The appellant submits that the affidavit evidence was sufficient to establish a "bona-fide allegation" that no real debt lies behind the judgment: Corney v Brien [1951] HCA 31 ; (1951) 84 CLR 343 at 357-8. Putting it another way, he submits that substantial reasons had been demonstrated for questioning whether behind the Judgment there was in truth and reality a debt due to the respondent: Wren at p 224-5. He relied upon his own affidavits sworn on 22 and 24 May 2007 and that of Mr Richard Kurland sworn on 5 November 2007. Mr Kurland was engaged by the appellant and the other litigants to assist them in their Supreme Court action. 22 It will often be necessary, in considering whether or not to exercise the discretion to go behind a judgment to conduct some preliminary investigation of the merits of the attack on the judgment: Corney v Brien at 358. The primary judge took that course. His Honour gave consideration to whether the allegation that the parties agreed on 21 September 1995, to an oral term for payment of a $50,000 success fee could succeed and whether it was, in effect, a bona fide allegation.
Case: Joosse v Deputy Commissioner of Taxation [2004] FCAFC 245 ; (2004) 137 FCR 576
Outcome: cited
It is not necessary for a respondent debtor to prove that they are not, in truth and reality, indebted to the petitioning creditor. All that is required of a respondent debtor was to show that there was "substantial reason for questioning whether there is ... a debt": Joosse v Deputy Commissioner of Taxation [2004] FCAFC 245 ; (2004) 137 FCR 576 at 579 [6] per North and Finkelstein JJ. 15 The primary judge declined to go behind the Judgment for reasons he expressed in the following way. [17] Accepting that this Court can go behind a judgment, and that it can do so more easily where there is as here a default judgment, the matter is ultimately one for the exercise of the Court discretion. Given: a) the history of the litigation and the delays which have occurred (none of which are the fault of the Applicant); and b) that the Respondent has now failed, resoundingly, twice in the District Court and twice in the Court of Appeal in attempts to allow it to effectively further pursue the matter with a view to undoing the order of Sleight DCJ giving rise to the Judgment Debt; this Court does not consider it appropriate to go behind the Judgment Debt. There is a general principle of comity and recognition of other courts' judgments which also underlies this Court's view. [18] In any event, the Court does not consider the allegations of champerty and maintenance, or other illegality in the Terms, can succeed or are genuinely arguable. The Applicant was entitled to be paid for its services as a professional service firm, and the Respondent agreed to do so on the terms of a standard Law Society of Western Australia costs agreement. The express terms of that agreement preclude the implication of a term as to a success fee. Further, the evidence of the success fee agreement relied upon by the Respondent is, in any event, entirely hearsay and not admissible.
Case: Leonard Cohen &amp; Co v Richardson [2005] WADC 172 
Outcome: referred to
The Judgment was entered following the dismissal of an appeal by the appellant and Mr Paligorov against a springing order that had been made by a Deputy Registrar on 5 May 2005 following a series of defaults by the appellant and Mr Paligorov in providing proper discovery. As the springing order had not been complied with, judgment was entered for the respondent: Leonard Cohen &amp; Co v Richardson [2005] WADC 172. The reasons of Sleight DCJ recounted that: ...the history of this matter demonstrates that the defendants have deliberately attempted to frustrate the plaintiff's attempts to obtain proper discovery, and in doing so they have sought to avoid putting the plaintiffs in the position which they will be able to prepare adequately for trial.
Case: Payne v Parker [1976] 1 NSWLR 191
Outcome: cited
The appellant submits that Mr Kurland's testimony is uncontradicted in that Mr Levitan did not provide an affidavit concerning this alleged telephone conversation. It is by no means clear that Mr Levitan is a witness who would ordinarily have been expected to be called by the respondent. Mr Levitan acted as the appellant's solicitor in the Supreme Court litigation after the respondent's retainer ended. He was, at least, equally available as a witness for both parties in this matter and possibly more available to the appellant given the past relationship of confidence between them as solicitor and client: Payne v Parker [1976] 1 NSWLR 191 at 201-202. More importantly the evidence of a $50,000 success fee term agreed to orally a few weeks after 21 September 1995 does not support the appellant's pleaded defence in the District Court action: a defence from which he did not resile in the court below. 49 Finally, I consider that the primary judge was correct to take into account the history of the District Court action and the appeals by the appellant to the Court of Appeal of Western Australia, particularly the criticisms made by Sleight DCJ and Wheeler JA respectively. They are testimony to the improper conduct of the appellant in the litigation but for which the merits of the respondent's claim and more significantly the appellant's defence would long ago have been heard and determined. This conduct, in my opinion, is a relevant factor in the Court's overall consideration of the merits of the defence and whether the evidence of the appellant and Mr Kurland raise genuine issues and a reason therefore to go behind the Judgment. These considerations weigh in the balance against the appellant. 50 For these reasons I would reject each of the three grounds of appeal. I am not satisfied that the appellant has demonstrated that the discretion of the primary judge miscarried. The appeal should be dismissed with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 12 September 2008 Counsel for the Appellant: Mr C S Williams Solicitor for the Appellant: Solomon Brothers Counsel for the Respondent: Mr B W Ashdown Solicitor for the Respondent: Stewart Forbes, Barrister and Solicitor Date of Hearing: 28 August 2008 Date of Judgment: 12 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1392.html
Case: Richardson v Leonard Cohen &amp; Co (a firm) [2006] WASCA 64 
Outcome: referred to
An appeal from the Judgment was dismissed by the Court of Appeal of Western Australia following further procedural defaults by the appellant and Mr Paligorov: Richardson v Leonard Cohen &amp; Co (a firm) [2006] WASCA 64. Wheeler JA at [2] in reasons for judgment noted that the appellants had "... demonstrated a continuing disregard of their obligations ... over a considerable period of time". An application by the appellant to extend time for a review of that decision was dismissed: Richardson v Leonard Cohen &amp; Co (a firm) [No 2] [2008] WASCA 101.
Case: Richardson v Leonard Cohen &amp; Co [2007] WADC 128
Outcome: referred to
In September 2006 the appellant applied to the District Court for orders extending the time to comply with the springing order and setting aside the Judgment. That application was dismissed by a Deputy Registrar on 3 October 2006. An appeal from that decision was dismissed by the District Court on 12 January 2007: Richardson v Leonard Cohen &amp; Co [2007] WADC 128. An appeal from that decision was dismissed by the Court of Appeal on 20 September 2007: Richardson v Leonard Cohen &amp; Co (a firm) [No 2] [2007] WASCA 205.
Case: Richardson v Leonard Cohen &amp; Co (a firm) [No 2] [2007] WASCA 205
Outcome: referred to
An appeal from the Judgment was dismissed by the Court of Appeal of Western Australia following further procedural defaults by the appellant and Mr Paligorov: Richardson v Leonard Cohen &amp; Co (a firm) [2006] WASCA 64. Wheeler JA at [2] in reasons for judgment noted that the appellants had "... demonstrated a continuing disregard of their obligations ... over a considerable period of time". An application by the appellant to extend time for a review of that decision was dismissed: Richardson v Leonard Cohen &amp; Co (a firm) [No 2] [2008] WASCA 101. 8 In September 2006 the appellant applied to the District Court for orders extending the time to comply with the springing order and setting aside the Judgment. That application was dismissed by a Deputy Registrar on 3 October 2006. An appeal from that decision was dismissed by the District Court on 12 January 2007: Richardson v Leonard Cohen &amp; Co [2007] WADC 128. An appeal from that decision was dismissed by the Court of Appeal on 20 September 2007: Richardson v Leonard Cohen &amp; Co (a firm) [No 2] [2007] WASCA 205.
Case: Richardson v Leonard Cohen &amp; Co [2007] FMCA 78 
Outcome: referred to
In September 2006 the appellant also applied unsuccessfully for time to comply with the Bankruptcy Notice to be extended. An application for review to the Federal Magistrates Court was dismissed in February 2007: Richardson v Leonard Cohen &amp; Co [2007] FMCA 78. 10 Despite these numerous proceedings across a period of years the merits of the respondent's action have never been tried.
Case: Richardson v Leonard Cohen &amp; Co (a firm) [2008] WASCA 101
Outcome: referred to
An appeal from the Judgment was dismissed by the Court of Appeal of Western Australia following further procedural defaults by the appellant and Mr Paligorov: Richardson v Leonard Cohen &amp; Co (a firm) [2006] WASCA 64. Wheeler JA at [2] in reasons for judgment noted that the appellants had "... demonstrated a continuing disregard of their obligations ... over a considerable period of time". An application by the appellant to extend time for a review of that decision was dismissed: Richardson v Leonard Cohen &amp; Co (a firm) [No 2] [2008] WASCA 101.
Case: Scammell &amp; Nephew Ltd v Ouston [1941] AC 251
Outcome: cited
Tenth, even if I were to assume for present purposes that the Retainer Agreement was partly oral and partly written, and included a "no win-no fee" oral term, it is highly probable that it would avail the appellant nothing. First it seems to me that the term would fail because it is uncertain: Scammell &amp; Nephew Ltd v Ouston [1941] AC 251 at 268 (approved Upper Hunter District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 437 per Barwick CJ). Second the respondent was unable to finalise the Supreme Court litigation as its retainer was terminated by the appellant and the other litigants in April 1999 before the litigation was resolved. At this time the appellant retained Mr Levitan who had by then left the employ of the respondent and established his own law firm. In those circumstances the appellant could not rely upon a "no win-no fee" term for refusing to pay the respondent's costs on a quantum merit basis. It cannot be doubted that these would have exceeded $2,000.