mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Outcome: cited
particular, new Boston submitted that the new test to be applied should not equate to a finding that the claim must have reasonable prospects of success (see also Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 519-520 [3] - [4] Brennan CJ and McHugh J). In Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 the Queensland Court of Appeal considered rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld) and Pt 24 of the Civil Procedure Rules (Eng) which had come into force in England and Wales in 1999. Williams JA (with whom McMurdo P at [1] and Atkinson J at [46]-[47] agreed) held that the approach adopted by Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 was appropriate. The Master of the Rolls said (at [11]): 'The words "no real prospect of being successful or succeeding" do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.'
Case: Ex Christmas Islanders Assocation Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671
Outcome: considered
Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671 at [20] French J pointed out that the power to award costs against a legal practitioner has been approached in different ways by State appellate courts and Full Courts of this Court as exemplified in Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 (under provisions such as s 43 of the Federal Court Act and O 62 r 9 of the Federal Court Rules ). He reasoned that considerations of whether legal practitioners should be ordered to pay costs under the provisions governing this Court's jurisdiction depended upon whether there had been an error in the observation by a legal practitioner of a duty owed to the Court. French J followed the approach of the Privy Council in Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 706 [57] where their Lordships said: 'The essential point is that it is not errors of judgment that attract the exercise of the jurisdiction, but errors of a duty owed to the court.' (see also at [2001] 2 AC at 703 [49], 706 [57]; and Cook v Pasminco Ltd [2001] FCA 1277 per Stone J and, the article by N Beaumont, 'What are "Reasonable Prospects of Success?"' (2004) 78 ALJR 812)
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: discussed
Capital pointed out that the purpose to which s 31A was directed was to provide a more lenient test than the traditional one reflected by the exception which s 31A(3) creates. The latter provision identifies the concepts of hopelessness or being bound to fail which were part of the old test explained by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 and provides that these are no longer the only basis for summary judgment. GE Capital relied on the second reading speech and explanatory memorandum for the introduction of s 31A to show that it was the intention of the Parliament to give the Court greater flexibility than Barwick CJ's well known test provided to strike out claims which were unlikely ever to succeed. And, more recently, in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437 [46] , Gleeson CJ, Gummow, Hayne and Crennan JJ said that the statements by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 ' ... should not be given canonical force'. They then referred with approval to the joint judgment in Agar v Hyde (2000) 201 CLR at 575-576 [57]. Gleeson CJ, Gummow, Hayne and Crennan JJ later said that the Court had an obligation owed to both sides to quell the controversy according to law (227 ALR at 441 [63]) and continued: 'The "right" of the plaintiff with a common law claim to institute an action is not at large. It is subject to the operation of the whole of the applicable procedural and substantive law administered by the court, whose processes are enlivened in the particular circumstances. This includes the principles respecting abuse of process.'
Case: Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678
Outcome: considered
Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671 at [20] French J pointed out that the power to award costs against a legal practitioner has been approached in different ways by State appellate courts and Full Courts of this Court as exemplified in Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 (under provisions such as s 43 of the Federal Court Act and O 62 r 9 of the Federal Court Rules ). He reasoned that considerations of whether legal practitioners should be ordered to pay costs under the provisions governing this Court's jurisdiction depended upon whether there had been an error in the observation by a legal practitioner of a duty owed to the Court. French J followed the approach of the Privy Council in Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 706 [57] where their Lordships said: 'The essential point is that it is not errors of judgment that attract the exercise of the jurisdiction, but errors of a duty owed to the court.' (see also at [2001] 2 AC at 703 [49], 706 [57]; and Cook v Pasminco Ltd [2001] FCA 1277 per Stone J and, the article by N Beaumont, 'What are "Reasonable Prospects of Success?"' (2004) 78 ALJR 812)
Case: Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430
Outcome: applied
CJ and McHugh applied that observation in Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 522 [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having 'no reasonable prospect of successfully prosecuting a proceeding' has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell [1947] HCA 54 ; (1947) 75 CLR 125 at 130-131, approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441-442): 'If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law , and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.' (emphasis added) (see also Swain v Waverley Municipal Council [2005] HCA 4 ; (2005) 220 CLR 517 at 522 [9] per Gleeson CJ, 561-562 [128]-[131] per Gummow J and 580 [203], 582-583 [208]-[209] per Kirby J; see also at 531-532 [33]-[34] per McHugh J)
Case: Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516
Outcome: cited
particular, new Boston submitted that the new test to be applied should not equate to a finding that the claim must have reasonable prospects of success (see also Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232; Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 519-520 [3] - [4] Brennan CJ and McHugh J). Brennan CJ and McHugh applied that observation in Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 522 [9] to a situation which an appellate court was exercising a discretion to permit a further step to be taken in an appeal that had already been instituted. Obviously, where there is a contested application under s 31A, both parties will be present to explain their case, but not in the context of a trial. The procedure envisaged by s 31A is summary. The concept of a party having 'no reasonable prospect of successfully prosecuting a proceeding' has some similarity to the test at common law for determining whether a jury properly instructed could reach a verdict for the plaintiff. That test was authoritatively stated by the Judicial Committee in Hocking v Bell [1947] HCA 54 ; (1947) 75 CLR 125 at 130-131, approving the following statement from the dissenting judgment of Latham CJ ( Hocking v Bell [1945] HCA 16 ; (1945) 71 CLR 430 at 441-442): 'If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law , and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.' (emphasis added) (see also Swain v Waverley Municipal Council [2005] HCA 4 ; (2005) 220 CLR 517 at 522 [9] per Gleeson CJ, 561-562 [128]-[131] per Gummow J and 580 [203], 582-583 [208]-[209] per Kirby J; see also at 531-532 [33]-[34] per McHugh J)
Case: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300
Outcome: considered
number of cases have looked at how s 31A of the Federal Court Act might work. GE Capital argued that the Court should engage in a predictive assessment as to whether the proceedings had no reasonable prospect of success. It relied upon the analogy with the similar wording of s 345 of the Legal Profession Act 2004 (NSW) (and their analogues) although it accepted that there were differences in the way that that legislation worked. However, the concept of a claim so lacking in merit or substance as to be not fairly arguable was suggested as being helpful ( Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [132] per McColl JA). In addition, reliance was placed on Bernstrom v National Australia Bank [2003] 1 Qd R 469 at [41] that a party who seeks to resist a claim for summary judgment on rr 292 and 293 of the Uniform Civil Procedure Rules 1999 (Qld), which are similar to, but not identical to s 31A, should provide evidence of this basic material to support the arguability of its claim. The analogy suggested between the threshold of a standard of 'no reasonable prospect of successfully prosecuting a proceeding' and situations in which legal practitioners have been held by courts to be liable for costs orders in respect of claims cannot be decisive. In the latter class of liability an element of the test is whether the claim or defence 'has reasonable prospects of success' (see e.g. s 198J of the Legal Profession Act 1987 (NSW) and now; s 345 of the Legal Profession Act 2004 (NSW)). This analogy cannot be carried too far since the statutory provisions for such costs orders contain their own definitions and conditions in which the orders can be made. So much was made clear by McColl JA (with whom Hodgson JA and Ipp JA agreed) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [134] . She pointed out, following what Gibbs J had said in The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australian [1978] HCA 51 ; (1978) 140 CLR 470 at 473 that the mere fact that a case is dismissed is not sufficient to establish that the proceedings were instituted 'without reasonable cause' under the provisions of s 197A of the Conciliation Arbitration Act 1904 (Cth). The concept of 'reasonable cause' for instituting proceedings is not the same as the statutory concept in s 31A, since, as McHugh J pointed out in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 499 [27] , a person may institute proceedings on the basis of legal advice so as to have 'reasonable cause'.
Case: Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155
Outcome: cited
Ex Christmas Islanders Association Inc v The Attorney-General for the Commonwealth (No 2) [2006] FCA 671 at [20] French J pointed out that the power to award costs against a legal practitioner has been approached in different ways by State appellate courts and Full Courts of this Court as exemplified in Levick v Deputy Commissioner of Taxation [2000] FCA 674 ; (2000) 102 FCR 155 (under provisions such as s 43 of the Federal Court Act and O 62 r 9 of the Federal Court Rules ). He reasoned that considerations of whether legal practitioners should be ordered to pay costs under the provisions governing this Court's jurisdiction depended upon whether there had been an error in the observation by a legal practitioner of a duty owed to the Court. French J followed the approach of the Privy Council in Harley v McDonald [2001] UKPC 18 ; [2001] 2 AC 678 at 706 [57] where their Lordships said: 'The essential point is that it is not errors of judgment that attract the exercise of the jurisdiction, but errors of a duty owed to the court.' (see also at [2001] 2 AC at 703 [49], 706 [57]; and Cook v Pasminco Ltd [2001] FCA 1277 per Stone J and, the article by N Beaumont, 'What are "Reasonable Prospects of Success?"' (2004) 78 ALJR 812)
Case: Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105
Outcome: discussed
Allstate Life Insurance Co v Australia &amp; New Zealand Banking Group Limited [1994] FCA 814 at 18 (unreported, Beaumont J, 7 November 1994) Beaumont J followed Park v Allied Mortgage Corporation Ltd (1993) ATPR (Digest) 46-105 at 53,467 and 54,469; [1993] FCA 404 at 3-4 where Davies J said: 'In my opinion, a right to claim damages under ss. 82 and 87 of the Trade Practices Act 1974 (Cth) is, in general, a bare right of action which cannot be assigned. I am not speaking of an assignment such as may occur on the bankruptcy or death of a person or on the merger of a company into another entity. Absent such special circumstances, a right to claim under ss. 82 and 87 cannot, in my opinion, be assigned. Section 82 provides:- "(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention." The section does not allow for the award of damages in respect of a loss which was not suffered by any party to the proceedings. Both the terms of the statutory provision and the principle as enunciated in cases such as Dawson v Great Northern &amp; City Railway Co. [1905] 1 KB 260 at 270-1, Defries v Milne [1913] 1 Ch 98 and Pulton v The Commonwealth [1952] HCA 70 ; (1953) 89 CLR 540 at 602, preclude Mrs Regan from suing for damages in respect of any loss suffered by Mr and Mrs Park. Mr and Mrs park have discontinued their claims and that is an end to them. The assignment has effect, however, insofar as it assigns to Mrs Regan all the entitlement of Mr and Mrs Park under the mortgage into which all the applicants had entered as mortgagees. Thus, if any ancillary relief under s. 87 depends upon the approval or request of the mortgagors, the remaining applicants now hold all interests in respect thereof.'
Case: Pritchard v Racecage Pty Ltd (1997) 72 FCR 203
Outcome: approved
J agreed saying that in his view the contrary was not reasonably arguable. Lindgren J followed both these decisions in National Mutual Property Services (Australia) v CitiBank Ltd (1995) 132 ALR 514 at 539, as did von Doussa J in Chapman v Luminis (No 4) [2001] FCA 1106 ; (2001) 123 FCR 62 at 116-117 [204] - [207] . And, in Pritchard v Racecage Pty Ltd (1997) 72 FCR 203 at 218F-G Branson J (with whom Spender and Olney JJ agreed) applied the reasoning of Davies and Lindgren JJ to hold that the estate of a deceased person could not satisfy the statutory requirement of s 82 of being a 'person' who suffered loss or damage. Her Honour also held that the estate could not satisfy the statutory requirements of s 87 of the Act of being 'a person who is a party to the proceeding' or 'a person who has suffered, or is likely to suffer, loss or damage'.
Case: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
analogy suggested between the threshold of a standard of 'no reasonable prospect of successfully prosecuting a proceeding' and situations in which legal practitioners have been held by courts to be liable for costs orders in respect of claims cannot be decisive. In the latter class of liability an element of the test is whether the claim or defence 'has reasonable prospects of success' (see e.g. s 198J of the Legal Profession Act 1987 (NSW) and now; s 345 of the Legal Profession Act 2004 (NSW)). This analogy cannot be carried too far since the statutory provisions for such costs orders contain their own definitions and conditions in which the orders can be made. So much was made clear by McColl JA (with whom Hodgson JA and Ipp JA agreed) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300 at 331 [134] . She pointed out, following what Gibbs J had said in The Queen v Moore; Ex parte Federated Miscellaneous Workers' Union of Australian [1978] HCA 51 ; (1978) 140 CLR 470 at 473 that the mere fact that a case is dismissed is not sufficient to establish that the proceedings were instituted 'without reasonable cause' under the provisions of s 197A of the Conciliation Arbitration Act 1904 (Cth). The concept of 'reasonable cause' for instituting proceedings is not the same as the statutory concept in s 31A, since, as McHugh J pointed out in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 499 [27] , a person may institute proceedings on the basis of legal advice so as to have 'reasonable cause'.
Case: Rossetto v Meriton Apartments Pty Limited [2006] FCA 1290
Outcome: considered
it seems to me that it is fanciful to suggest that there is any claim which new Boston can bring based on representations GE Capital allegedly made to old Boston. Old Boston never sought to pursue whatever rights it might have had to bring those claims and has now ceased to exist. It is not pleaded that any contract or pre-contractual representation alleged to give rise to a contractual term was ever made to new Boston, on the contrary, it is pleaded that all relevant dealings going to the formation of the GE Capital contract were between GE Capital and old Boston. In Rossetto v Meriton Apartments Pty Limited [2006] FCA 1290 at [15] - [16] , Bennett J held that a company incorporated after representations were made to its director who at the time of the incorporation had been informed that the representations were untrue and had been offered rescission of the contract, had no arguable cause of action for the purposes of O 11 r 16. There is, of course, a distinction here. While new Boston must have been aware at the time of the sale agreement that the representation was untrue (if it became a contractual term) because it had been breached by GE Capital in relation to the number of field service calls, no offer had been made for rescission.
Case: Three Rivers DC v Bank of England (No 3) [2001] UKHL 16 ; [2003] 2 AC 1
Outcome: discussed
Woolf's approach was subsequently endorsed by the House of Lords in Three Rivers DC v Bank of England (No 3) [2001] UKHL 16 ; [2003] 2 AC 1 at 259 [90] , 261 [95] per Lord Hope of Craighead; 272-273 [133]-[134] per Lord Hutton, 282-285 [159]-[162], per Lord Hobhouse of Woodborough; see also at 294 [192] per Lord Millett.
Case: Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137
Outcome: cited
Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 154-155, Dawson, Gaudron and McHugh JJ said that a party should not be shut out from litigating an issue which was fairly arguable and that the power to grant leave to amend should be exercised with that in mind. They observed (189 CLR at 154) that '...the ultimate aim of a court is the attainment of justice'. Obviously, s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section. In granting leave to appeal on a decision involving the application of s 31A, Wilcox J observed in Vans, Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12] that it was arguable that the effect of s 31A was that there could be summary judgment for an applicant '... notwithstanding the possibility that the applicant's case will break down at trial; in other words, it is now not enough for a party resisting a summary judgment application to seek merely to put the other side to proof' (his Honour's emphasis).
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
Capital argues that a claim under the Act cannot be assigned as a matter of law. The statutory cause of action under s 82(1) of the Act arises '... when the plaintiff suffers loss or damage "by" contravening conduct of another person' ( Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525 per Mason CJ, Dawson, Gaudron and McHugh JJ). And, the plaintiff can only recover compensation for actual loss or damage incurred, as distinct from potential or likely damage (175 CLR at 526). What s 82(1) authorizes is the recovery of the amount of loss or damage at the suit of the person who suffers it. The terms of the section appear to confer a right which is personal to the person who suffers loss or damage by the conduct of another done in contravention of a relevant provision of the Act. Now s 82(1B) provides that those damages may be reduced to the extent to which the Court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage A number of decisions of this Court identify the cause of action for the recovery of damages under s 82 as not being one which is capable of assignment.