mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.
Case: Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35
Outcome: cited
The respondents contend that her Honour's judgment is an interlocutory judgment and although her Honour's order finally disposes of the particular proceedings, an order staying an action on the ground that it is frivolous, vexatious or an abuse of process or an order striking out an action on the ground that the proceeding does not disclose a cause of action, has always been treated as an interlocutory judgment. Such an order does not finally dispose of the rights of the parties ( Tampion v Anderson (1974) 3 ALR 414; Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423; Little v Victoria (1998) 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1; and Platypus Leasing Inc &amp; Ors v Commissioner of Taxation [2005] NSWCA 399 [24] [30]). The rationale for such an approach seems to be that no final disposition of rights occurs because there has been no adjudication of the controversy of fact nor a dispositive application of the law to the facts as found. A question might arise as to whether the order has 'the practical effect' of determining the claim of an applicant to a remedial order ( Johnston v Cameron [2002] FCAFC 251 ; (2002) 124 FCR 160). One difficulty, however, is the respondents also contend that should the applicant commence fresh proceedings (assuming, as appears to be the case, the limitation period has not expired), Mr Rogers would be met with a contention of res judicata . If that contention is good, it seems to me that the order must necessarily be a final order consistent with the observations of Gibbs, Mason &amp; Murphy JJ in Port of Melbourne Authority v Ashun Pty Limited [1980] HCA 41 ; (1980) 147 CLR 35 at 38.
Case: D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: cited
If the judgment is an interlocutory judgment, Mr Rogers must demonstrate that in all the circumstances the decision of her Honour is attended by sufficient doubt to warrant its being reconsidered by the Full Court and secondly, that substantial injustice would result if leave was refused supposing the decision to be wrong ( D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v University of Melbourne (No. 2) [2004] FCA 1275). 39 Since the respondents contend that the effect of her Honour's order would be to bring about a res judicata in respect of the claims Mr Rogers has sought to agitate in his further further amended statement of claim, I propose to treat her Honour's judgment as a final judgment. In determining the question of whether further time ought be allowed to file and serve a notice of appeal for the purposes of Order 52, rule 15(1)(b) , I propose to determine whether the applicant has demonstrated an arguable error on the part of her Honour and, if so, whether substantial injustice would arise should an extension of time be refused. In that sense, I propose to essentially apply the test identified in D&eacute;cor Corp Pty Ltd v Dart Industries Inc (supra). 40 In applying this test, I have had regard to not only the judgment of her Honour but also the further further amended statement of claim filed on 20 July 2006. The matters to be considered are set out hereafter. 41 The applicant contends that the respondents engaged in conduct in contravention of s 60 of the TPA. 42 The applicant thus contends that the corporate respondents by their officers, servants or agents engaged in physical force and undue harassment or coercion in connection with the supply of services to the applicant as a consumer of the relevant services, or, that such conduct occurred in connection with the payment for such services. 43 The applicant contends that the third and fourth respondents were the authors of the conduct, with others, and were persons 'involved in the contravention' for the purposes of the TPA.
Case: Ogawa v University of Melbourne (No. 2) [2004] FCA 1275
Outcome: cited
If the judgment is an interlocutory judgment, Mr Rogers must demonstrate that in all the circumstances the decision of her Honour is attended by sufficient doubt to warrant its being reconsidered by the Full Court and secondly, that substantial injustice would result if leave was refused supposing the decision to be wrong ( D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Ogawa v University of Melbourne (No. 2) [2004] FCA 1275).
Case: Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 427
Outcome: cited
The statement of claim fails to plead facts which establish the service supplied or to be supplied by the corporate respondents for the purposes of s 60 of the TPA; the conduct on the part of the relevant respondents 'in connection with' that supply or possible supply relied upon by the applicant; the price of the relevant services; or any facts that establish supply or possible supply to the applicant as a consumer for the purposes of s 4B(1)(b) of the TPA (see generally Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 427 [44] [66], per Hill J). Moreover, if the services relied upon by Mr Rogers for the purposes of s 60 of the TPA are financial services as the pleading seems to suggest, s 51AF(1) provides that Part V of the Act within which s 60 falls 'does not apply to the supply, or possible supply, of services that are financial services' . The relevant statutory instrument regulating financial services is the Australian Securities and Investments Commission Act 2001 (Cth). In addition, the statement of claim does not assert a claim for damages pursuant to s 82 of the TPA in reliance upon a contravention of s 60 and the reference to s 87(1D) relates to a contravention of a provision of Part IVA and not Part V. 45 The applicant fails to plead facts that demonstrate a claim to recover damages or compensation for personal injury, stress, anxiety or wrong done to Mr Rogers arising out of the contravening conduct. Rather, the claim asserts harassment and coercion as a fact. The true character of the claim and its relationship with s 116(2)(g) of the Bankruptcy Act is not pleaded and nor is any particularisation given of the estimated quantum of the claim, that is, $45 million. In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers. 46 A contravention of s 60 of the TPA is the only cause of action relied upon by the applicant as the foundation 'right of the bankrupt' for the purposes of s 116(2)(g) of the Bankruptcy Act .
Case: Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713
Outcome: cited
The question seems to be whether any part of the damages arising out of the contravention are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. In Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Sir Owen Dixon in formulating the accepted test had regard to the test formulated in similar terms by Earle J in Beckham v Drake (1849) 2 HLC 579 at 604 although Earle J adopted a qualification on the estimation of the damages by use of the phrase 'and without immediate reference to his rights of property' whereas Dixon J qualified the estimation of the damages by reference to the phrase 'and without reference to his rights of property' . 54 In Mannigel v Hewlett Phelps BC9101907 , the Full Court of the Supreme Court of New South Wales considered a claim by two bankrupt appellants against their solicitors for damages for physical and mental stress said to arise out of the negligence of the solicitor's conduct in connection with a property transaction. The claimants admitted that the damages although to be estimated by reference to physical and mental stress and anxiety were 'a consequence of' the economic loss they suffered arising out of the conduct of the transaction. The Full Court in reliance upon Daemar v Industrial Commission of New South Wales &amp; Ors (1988) 79 ALR 591 concluded that because the claims were consequential upon alleged breaches of duty owed by the solicitors in relation to the purchase of the land, the claims for distress and injury to the physical and mental health of the claimants were not claims 'without reference to their rights of property' as contemplated by Dixon J in Cox v Journeaux (No. 2) (supra). 55 Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson considered by Dixon J was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim.
Case: Beckham v Drake (1849) 2 HLC 579
Outcome: cited
The question seems to be whether any part of the damages arising out of the contravention are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property. In Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Sir Owen Dixon in formulating the accepted test had regard to the test formulated in similar terms by Earle J in Beckham v Drake (1849) 2 HLC 579 at 604 although Earle J adopted a qualification on the estimation of the damages by use of the phrase 'and without immediate reference to his rights of property' whereas Dixon J qualified the estimation of the damages by reference to the phrase 'and without reference to his rights of property' .
Case: Wilson v United Counties Bank Ltd (1920) AC 102
Outcome: cited
Accordingly, if the estimation of any part of the damages claimed by the bankrupt involves a reference to the bankrupt's rights of property, the common law exception adopted in the Bankruptcy Act and reflected in s 116(2)(g) , may not be enlivened. His Honour Dixon J also had regard to the decision of the House in Wilson v United Counties Bank Ltd (1920) AC 102 in which a bankrupt claimant, Major Wilson, was held entitled to maintain a claim for damages for defamation (personal injury to his credit and reputation) by reason of the bank's negligent management of Major Wilson's financial affairs whilst he was out of England engaged in war service during the course of the 1 st World War. That claim arose out of the same cause of action vested in the trustee of Major Wilson who properly maintained a claim for the benefit of the creditors for damages for economic loss due to the negligent management of Major Wilson's financial affairs.
Case: Faulkner v Bluett (1981) 52 FLR 115
Outcome: cited
In Faulkner v Bluett (1981) 52 FLR 115, Lockhart J described the common thread running through the cases as establishing a proposition that where the primary and substantial right of action is direct pecuniary loss to the property or the estate of the bankrupt, the right to sue passes to the trustee. In that case, Lockhart J also concluded that any damages to which the applicant may be entitled would be ' estimated ' by ' immediate reference to her rights of property and not to pain felt by her in respect of her body, mind or character' [emphasis added]. In Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, O'Loughlin and Merkel JJ described the exemption as 'limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors' [emphasis added].
Case: Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545
Outcome: cited
In Faulkner v Bluett (1981) 52 FLR 115, Lockhart J described the common thread running through the cases as establishing a proposition that where the primary and substantial right of action is direct pecuniary loss to the property or the estate of the bankrupt, the right to sue passes to the trustee. In that case, Lockhart J also concluded that any damages to which the applicant may be entitled would be ' estimated ' by ' immediate reference to her rights of property and not to pain felt by her in respect of her body, mind or character' [emphasis added]. In Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, O'Loughlin and Merkel JJ described the exemption as 'limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors' [emphasis added]. 55 Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson considered by Dixon J was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim.
Case: Mannigel v Hewlett Phelps BC9101907 
Outcome: cited
In Mannigel v Hewlett Phelps BC9101907 , the Full Court of the Supreme Court of New South Wales considered a claim by two bankrupt appellants against their solicitors for damages for physical and mental stress said to arise out of the negligence of the solicitor's conduct in connection with a property transaction. The claimants admitted that the damages although to be estimated by reference to physical and mental stress and anxiety were 'a consequence of' the economic loss they suffered arising out of the conduct of the transaction. The Full Court in reliance upon Daemar v Industrial Commission of New South Wales &amp; Ors (1988) 79 ALR 591 concluded that because the claims were consequential upon alleged breaches of duty owed by the solicitors in relation to the purchase of the land, the claims for distress and injury to the physical and mental health of the claimants were not claims 'without reference to their rights of property' as contemplated by Dixon J in Cox v Journeaux (No. 2) (supra).
Case: Daemar v Industrial Commission of New South Wales &amp; Ors (1988) 79 ALR 591
Outcome: cited
In Mannigel v Hewlett Phelps BC9101907 , the Full Court of the Supreme Court of New South Wales considered a claim by two bankrupt appellants against their solicitors for damages for physical and mental stress said to arise out of the negligence of the solicitor's conduct in connection with a property transaction. The claimants admitted that the damages although to be estimated by reference to physical and mental stress and anxiety were 'a consequence of' the economic loss they suffered arising out of the conduct of the transaction. The Full Court in reliance upon Daemar v Industrial Commission of New South Wales &amp; Ors (1988) 79 ALR 591 concluded that because the claims were consequential upon alleged breaches of duty owed by the solicitors in relation to the purchase of the land, the claims for distress and injury to the physical and mental health of the claimants were not claims 'without reference to their rights of property' as contemplated by Dixon J in Cox v Journeaux (No. 2) (supra).
Case: Fortron Automotive Treatments Pty Ltd v Jones (No. 2) (2006) FCA 1401
Outcome: cited
The further question is whether her Honour arguably erred in refusing leave to deliver a further further further amended statement of claim wholly re-pleading any claim in respect of which Mr Rogers might demonstrate standing and whether her Honour arguably erred in dismissing the proceedings pursuant to s 31A of the Act and also in reliance upon Order 20, rule 2 of the Federal Court Rules . Recently, French J in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) (2006) FCA 1401 observed that s 31A is not a vehicle for simply striking out parts of a pleading that are deficient. His Honour observed that alternative remedies arise under the Federal Court Rules to deal with deficient pleadings and that, in principle, recourse ought not to be had to s 31A of the Act which deals with entering summary 'judgment' in 'a proceeding'. His Honour, in consequence, respectfully disagreed with the approach adopted by Heerey J in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which Heerey J observed that s 31A of the Act was introduced to establish a lower standard for 'strike outs'. The question, relevantly in this case, the court asks, for the purposes of s 31A of the Act, is whether it can be satisfied that the applicant in the proceeding has no reasonable prospect of successfully prosecuting the proceeding. That state of satisfaction will rarely be achieved (except in the most transparent of cases) on the strength of a conclusion that the applicant's statement of claim is deficient either in whole or in part because, as French J observes, leave to re-plead might reveal material facts within a properly identified legal framework that, upon proof, gives rise to a recognised remedy.
Case: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458
Outcome: cited
The further question is whether her Honour arguably erred in refusing leave to deliver a further further further amended statement of claim wholly re-pleading any claim in respect of which Mr Rogers might demonstrate standing and whether her Honour arguably erred in dismissing the proceedings pursuant to s 31A of the Act and also in reliance upon Order 20, rule 2 of the Federal Court Rules . Recently, French J in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) (2006) FCA 1401 observed that s 31A is not a vehicle for simply striking out parts of a pleading that are deficient. His Honour observed that alternative remedies arise under the Federal Court Rules to deal with deficient pleadings and that, in principle, recourse ought not to be had to s 31A of the Act which deals with entering summary 'judgment' in 'a proceeding'. His Honour, in consequence, respectfully disagreed with the approach adopted by Heerey J in Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 in which Heerey J observed that s 31A of the Act was introduced to establish a lower standard for 'strike outs'. The question, relevantly in this case, the court asks, for the purposes of s 31A of the Act, is whether it can be satisfied that the applicant in the proceeding has no reasonable prospect of successfully prosecuting the proceeding. That state of satisfaction will rarely be achieved (except in the most transparent of cases) on the strength of a conclusion that the applicant's statement of claim is deficient either in whole or in part because, as French J observes, leave to re-plead might reveal material facts within a properly identified legal framework that, upon proof, gives rise to a recognised remedy.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
Order 20, rule 2 contemplates that a proceeding may be stayed or dismissed generally in circumstances where the court is satisfied that the proceeding discloses no reasonable cause of action; the proceeding is frivolous or vexatious; or the proceeding is an abuse of the process of the court. In reaching the relevant state of satisfaction, the court will examine the claims and allegations of the applicant to determine whether the contentions are so clearly untenable that they cannot possibly succeed in the sense contemplated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 recognising that the principles stated by the Chief Justice ought not to be given 'canonical force' ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437, per Gleason CJ, Gummow, Hayne and Crennan JJ) and the test to be applied by the court is whether the court can be satisfied of a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way' ( Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 575-6 [57] per Gaudron, McHugh, Gummow and Hayne JJ) in determining whether the issues in the proceeding should be decided 'in a summary way' .