mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188 , 107 FCR 144
Outcome: followed
The " final judgment or final order " in the present proceeding, it was ultimately submitted by the Applicant, was the judgment of the District Court. The form of a bankruptcy notice is that prescribed by reg 4.02 of the Bankruptcy Regulations 1996 (Cth) and clause 2 to that form provides as follows: The creditor claims that the debt is due and payable by you. A copy of the judgments or orders relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgments or orders had not been stayed. If a bankruptcy notice is to satisfy the requirements of s 41(1) and (2) of the Bankruptcy Act as to form, it must correctly identify the source of the bankrupt's liability to make the payment demanded by the notice: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 , 133 ALR 718 at 721 per Drummond J. Only a judgment upon which a creditor is in a position to issue execution when he issues the bankruptcy notice can constitute a final judgment for the purposes of s 40(1)(g): cf. Pepper v McNiece [1941] HCA 27 ; (1941) 64 CLR 642 at 657 per Williams J. A judgment which has been stayed may not found a bankruptcy notice: s 41(3)(b) ; Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 187 8 per Riley J; Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188 , 107 FCR 144.
Case: Ryan v Hansen [2000] NSWSC 354 , 49 NSWLR 184
Outcome: followed
When making a determination, it is no part of the function of a costs assessor to entertain cross-claims which may be brought or to determine whether or when costs are payable: Muriniti v Lyons [2004] NSWSC 135. Albeit addressing the provisions in the Legal Profession Act 1987 (NSW), Dunford J there observed: [56] Having regard to the status and powers of Costs Assessors and the ordinary meaning of the word "assessor", I am satisfied that the powers of Costs Assessors are limited to determining the value of the work done or services rendered in circumstances where there is no dispute that costs are payable and the only issue is as to the amount. It is no part of their function to determine whether or when such costs are payable. The matters set out in s 208A which they must, and in s 208B which they may, take into account are all matters relevant to putting a value on the work done or services rendered and the fairness or justice of the amount claimed; but are not matters which relate to the terms of a costs agreement (particularly if oral) and whether any conditions precedent to payment have been fulfilled. The determination of such questions requires the reception of sworn evidence, which can be tested by cross-examination, and an assessment of such evidence. Costs Assessors do not have the power to deal with such matters. [57] For similar reasons it has been held that a Costs Assessor has no power to hear a cross-claim by a client against a solicitor based on negligence, nor to award damages: Ryan v Hansen, supra per Kirby J; or to make an assessment when no costs are presently due and payable: Lace v Younan [1999] NSWSC 1072 per Master Harrison (no bill of costs rendered); Baker v Kearney [2002] NSWSC 746 per Master Malpass (judgment in District Court that applicant for assessment not entitled to costs). I am therefore satisfied that on being notified of the dispute as to the plaintiff's liability to pay the costs, the Costs Assessor should have declined to make a determination or issued a certificate unless and until such issue was resolved. Nothing said by the Court of Appeal in Wentworth v Rogers [2006] NSWCA 145 , 66 NSWLR 474 detracts from this particular conclusion of Dunford J. See also: Ryan v Hansen [2000] NSWSC 354 , 49 NSWLR 184. The same observations may be made in respect to the 2004 legislation.
Case: Smart v Esanda Finance Corp Ltd [2000] FCA 235
Outcome: followed
Whether a claim " could not have been set up " is thus to be determined by reference to legal considerations and not by reference to " practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. These comments have since been approved by the Full Court: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ. See also: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J. In Re Ling , Hill J concluded that a claim could be set up in the Federal Court as against the Commonwealth even though to do so the judgment debtor would have had to have commenced proceedings in the High Court of Australia and to have had those proceedings remitted to the Federal Court. The fact that such a " tortuous route " had to be followed did not mean that the proceeding could not have been set up in the Federal Court. His Honour reviewed some of the authorities and concluded (at 137): These cases, it seems to me, establish that a cross-claim will be one which could be set up in the action, notwithstanding that to do so the debtor may need to transfer the proceedings first to another court, or may need to obtain in his or her favour the exercise of a discretion before doing so. The onus of showing that the claim is not one that could have been set up in the creditor's proceedings lies upon the debtor. That onus will not be satisfied merely by showing that some indirect course may need be followed (that course being in the discretion of the debtor) nor by showing that there existed a discretion which could have been exercised against the setting up of the claim as a cross-claim. To satisfy that onus the debtor must show that, as a matter of law and in the circumstances prevailing, he or she could not have set up the cross-claim. That the debtor has not done in the present case. In Nath v Clipway Pty Ltd [1999] FCA 625 at [4] Spender J agreed with these observations of Hill J. Kiefel and Hely JJ agreed with Spender J. See also: Lau v Accord Pacific Properties Pty Ltd [2003] FCA 795 at [9] [10] per Branson J.
Case: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152
Outcome: followed
Whether a claim " could not have been set up " is thus to be determined by reference to legal considerations and not by reference to " practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. These comments have since been approved by the Full Court: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ. See also: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J. In Re Ling , Hill J concluded that a claim could be set up in the Federal Court as against the Commonwealth even though to do so the judgment debtor would have had to have commenced proceedings in the High Court of Australia and to have had those proceedings remitted to the Federal Court. The fact that such a " tortuous route " had to be followed did not mean that the proceeding could not have been set up in the Federal Court. His Honour reviewed some of the authorities and concluded (at 137): These cases, it seems to me, establish that a cross-claim will be one which could be set up in the action, notwithstanding that to do so the debtor may need to transfer the proceedings first to another court, or may need to obtain in his or her favour the exercise of a discretion before doing so. The onus of showing that the claim is not one that could have been set up in the creditor's proceedings lies upon the debtor. That onus will not be satisfied merely by showing that some indirect course may need be followed (that course being in the discretion of the debtor) nor by showing that there existed a discretion which could have been exercised against the setting up of the claim as a cross-claim. To satisfy that onus the debtor must show that, as a matter of law and in the circumstances prevailing, he or she could not have set up the cross-claim. That the debtor has not done in the present case. In Nath v Clipway Pty Ltd [1999] FCA 625 at [4] Spender J agreed with these observations of Hill J. Kiefel and Hely JJ agreed with Spender J. See also: Lau v Accord Pacific Properties Pty Ltd [2003] FCA 795 at [9] [10] per Branson J.
Case: Van Leeuwen v Bank of Western Australia Ltd [2001] FCA 1826
Outcome: followed
The objective of the legislature in providing for a bankruptcy notice to be set aside where a judgment debtor has a " counter-claim, set-off or cross demand " is " to prevent a judgment creditor from pursuing bankruptcy proceedings when, as between himself and the judgment debtor, the balance of account is in favour of the judgment debtor ": In re Judd, Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ. See also: Van Leeuwen v Bank of Western Australia Ltd [2001] FCA 1826 at [14] per French J.
Case: Wentworth v Rogers [2006] NSWCA 145 , 66 NSWLR 474
Outcome: followed
When making a determination, it is no part of the function of a costs assessor to entertain cross-claims which may be brought or to determine whether or when costs are payable: Muriniti v Lyons [2004] NSWSC 135. Albeit addressing the provisions in the Legal Profession Act 1987 (NSW), Dunford J there observed: [56] Having regard to the status and powers of Costs Assessors and the ordinary meaning of the word "assessor", I am satisfied that the powers of Costs Assessors are limited to determining the value of the work done or services rendered in circumstances where there is no dispute that costs are payable and the only issue is as to the amount. It is no part of their function to determine whether or when such costs are payable. The matters set out in s 208A which they must, and in s 208B which they may, take into account are all matters relevant to putting a value on the work done or services rendered and the fairness or justice of the amount claimed; but are not matters which relate to the terms of a costs agreement (particularly if oral) and whether any conditions precedent to payment have been fulfilled. The determination of such questions requires the reception of sworn evidence, which can be tested by cross-examination, and an assessment of such evidence. Costs Assessors do not have the power to deal with such matters. [57] For similar reasons it has been held that a Costs Assessor has no power to hear a cross-claim by a client against a solicitor based on negligence, nor to award damages: Ryan v Hansen, supra per Kirby J; or to make an assessment when no costs are presently due and payable: Lace v Younan [1999] NSWSC 1072 per Master Harrison (no bill of costs rendered); Baker v Kearney [2002] NSWSC 746 per Master Malpass (judgment in District Court that applicant for assessment not entitled to costs). I am therefore satisfied that on being notified of the dispute as to the plaintiff's liability to pay the costs, the Costs Assessor should have declined to make a determination or issued a certificate unless and until such issue was resolved. Nothing said by the Court of Appeal in Wentworth v Rogers [2006] NSWCA 145 , 66 NSWLR 474 detracts from this particular conclusion of Dunford J. See also: Ryan v Hansen [2000] NSWSC 354 , 49 NSWLR 184. The same observations may be made in respect to the 2004 legislation.
Case: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45
Outcome: cited
in this case the defamatory meanings alleged to have been conveyed to the ordinary reasonable reader are largely congruent with the representations alleged to have been made by the same publications in contravention of s 53B. In determining whether representations have been conveyed to the public (such as by a mass media or internet publication) the Court usually must identify the effect of the publication, including what representations it made, on ordinary or reasonable members of the public: Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 85-86 [101] - [103] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. Thus, here, a jury will be able to determine whether the representations alleged were made at the same time as deciding on whether the same defamatory meanings were conveyed. Ms Ra asserted that the length of the trial would increase from one to two weeks to four to five weeks if there were a jury. I reject that submission. In my opinion it is unlikely that the length of the trial will be any greater with a jury. Essentially, the issues for trial will revolve around the oral evidence of witnesses concerning what did or did not happen in Ms Ra's business so far as that relates to the issues in the matters complained of. Ms Ra also relied on a suggestion that the police or prosecution brief, for the purposes of the criminal proceedings, consisted of about 40 lever arch folders of documents. There was no evidence before me that any substantial amount of this material is likely to be adduced in evidence. The allegations that Ms Ra mistreated young women in her employ and exploited them by imposing significant debts on them which were not otherwise merited are the issues at the heart of this matter. It is unlikely that young women providing sexual services in a brothel would be engaged in keeping significant books of account, involving the necessity for prolonged examination of those documents. Nor would Ms Ra's records of their wages or debts be likely to be complex. Such documents as may be relevant to those issues are highly likely to be understood by a jury. If those documents were kept in a foreign language the jury would be likely to be concerned only with their translation. Again, these matters will be within relatively confined bounds and simple to understand.
Case: Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR p40-887
Outcome: followed
Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR p40-887 at 49,604, Jenkinson J observed that this Court would be likely to grant an application for a trial by a jury in a matter where claims under the Trade Practices Act were "tenuous" and the real subject matter was a defamation action. He distinguished an earlier decision of Northrop J in Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714 who refused to order a trial by jury of a claim by a comprehensive insurer of motor vehicles for damages arising from a contravention of s 52 by radio and television advertisements. Neither of those proceedings appears to have involved an individual's right to his or her personal reputation or allegations of the kind involved in the publications complained of here. This factor was considered to be of significance by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR p41-866 at 44,852 [15].
Case: Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699
Outcome: discussed
the other hand, Hunt J refused the Prime Minister of Australia a jury of 12 in respect of the publication in a country newspaper of an allegedly defamatory letter. That occurred more than a year before he became Prime Minister in Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 706E-707B. Where a person is a contentious figure or one with a prominent public role, his or her position as a party to an action tried before a jury may cause concern about its potential effect on a jury of 4 persons. He or she is more likely to be given a dispassionate and fair trial by a jury of 12. This is because a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties. Balanced against that concern, must be the Court's recognition that jurors obey the directions of trial judges to put aside their own personal prejudices and feelings. And members of a jury panel ordinarily can be expected to accept the invitation before being called to the box, to indicate whether they feel they could not bring an impartial and dispassionate mind to the resolution of the issues for trial or by reason of the matters disclosed to them as to what the proceedings are about and who the parties are; see s 38(8) of the Jury Act which provides: "(8) Before the selection of the jury at a civil trial, the judge must, subject to the regulations: (a) direct the parties to the proceedings to inform the jurors on the panel of the nature of the action and the identity of the parties and of the principal witnesses to be called by the parties, and (b) call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case." Here the publications are in a daily newspaper with a large circulation in Sydney, and contemporaneous internet publications of the same or similar material. They allege criminal and other serious wrongdoing by Ms Ra. And she has the highly contentious occupation of running a brothel. I am comfortably satisfied that the nature of the publications complained of here and the fact that, on this application at least, no challenge has been made to their capacity to convey the imputations alleged raise matters which could well excite prejudice in some members of the community, particularly those with strong moral views against Ms Ra. Such moral views might be held by a member of the jury. I am of opinion that an expanded jury of 12 is more likely to reflect and balance the range of community values, morality and thought so as to ensure a fair trial. Accordingly, I will grant Ms Ra's application that the jury be a jury of 12.
Case: Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714
Outcome: cited
Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR p40-887 at 49,604, Jenkinson J observed that this Court would be likely to grant an application for a trial by a jury in a matter where claims under the Trade Practices Act were "tenuous" and the real subject matter was a defamation action. He distinguished an earlier decision of Northrop J in Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714 who refused to order a trial by jury of a claim by a comprehensive insurer of motor vehicles for damages arising from a contravention of s 52 by radio and television advertisements. Neither of those proceedings appears to have involved an individual's right to his or her personal reputation or allegations of the kind involved in the publications complained of here. This factor was considered to be of significance by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR p41-866 at 44,852 [15].
Case: John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503
Outcome: applied
governing law with respect to torts committed in Australia that have an interstate element is now the lex loci delicti (the law of the place of the wrong): John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503 at 540 [87] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Before the recent uniformity in defamation legislation, a national publication of an article that defamed a person might have resulted in up to eight different governing laws being applicable: John Pfeiffer 203 CLR at 539 [81]. But now s 11 of the uniform Defamation Acts have provided a solution to choice of law issues in defamation actions. The applicable substantive law is now the law of the jurisdiction with which the harm occasioned by the publication has its closest connection: see s 11(2).
Case: Lang v Australian Consolidated Press Limited [1967] 1 NSWR 157
Outcome: followed
ordinary mode of trial by jury in New South Wales is that there be a jury of 4: Jury Act s 20(1). However, the discretion to order a jury of 12 is open to be exercised where it is shown that the case is more fitly tried by a larger jury. In Lang v Australian Consolidated Press Limited [1967] 1 NSWR 157 , Nagle J held that the test to be employed was a quantitative one rather than a qualitative one and said: "... a jury of 12 would seem to give a better 'spread' and be more representative of the views of the community as a whole."
Case: Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520
Outcome: cited
concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 ; (2009) 254 ALR 606 at 616 [36] per French CJ, Gummow, Kiefel and Bell JJ. The importance of the law of defamation in balancing the right of an individual to the protection of his or her reputation and the right commonly described as freedom of speech plays a crucial role in our democratic system of government. That balance is affected at common law by the operation of the defence of qualified privilege as elaborated in Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 , see at 565-576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ.
Case: McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154
Outcome: discussed
Parliament has evinced a general policy in s 39 of the Federal Court Act of trial in this Court by judge alone. That policy informs but does not overwhelm the exercise of the discretion to order a trial by jury. In McDermott v Collien [1953] HCA 44 ; (1953) 87 CLR 154 at 157 Fullagar J considered whether to exercise a discretion to order a trial by jury under provisions similar to ss 39 and 40 of the Federal Court Act . He observed that, by providing that trial by a justice alone was the usual mode of trial then available in the High Court, unless that Court ordered otherwise, the relevant legislation had settled on a general policy for such a mode of trial. Fullagar J observed that one could hardly expect much guidance from decided cases in considering whether a case warranted departure from that usual mode of trial.
Case: O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 421
Outcome: discussed
O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 421 , Taylor J ordered that a jury of 12 try a defamation action brought by a well known actor and producer who complained of the publication of a review asserting that his production of Shakespeare's play " Othello " was "dishonest". He held that the matter was one of public importance and public interest so as to make it appropriate to have a larger jury. His Honour found that the plaintiff held a high position and reputation in the Australian community and that what he did was of great public interest and concern to a large number of people. That decision was upheld by the Court of Appeal of the Supreme Court of New South Wales: O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 422 per Wallace A-CJ, Walsh and Holmes JJA.
Case: O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 422
Outcome: cited
O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 421 , Taylor J ordered that a jury of 12 try a defamation action brought by a well known actor and producer who complained of the publication of a review asserting that his production of Shakespeare's play " Othello " was "dishonest". He held that the matter was one of public importance and public interest so as to make it appropriate to have a larger jury. His Honour found that the plaintiff held a high position and reputation in the Australian community and that what he did was of great public interest and concern to a large number of people. That decision was upheld by the Court of Appeal of the Supreme Court of New South Wales: O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 422 per Wallace A-CJ, Walsh and Holmes JJA.