Category Archives: Practice and Procedure

Civil procedure, Evidence, Pleadings, Practice and Procedure, Sydney Lawyers

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 | 5 August 2009

ON 5 AUGUST 2009, the High Court of Australia delivered Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html

In Aon Risk Services Australia Limited v Australian National University, the Australian National University on day three of a four week hearing was granted an adjournment to make significant amendments to their statement of claim against their insurance broker. The ACT Court of Appeal dismissed an appeal of the decision except in relation to costs. The High Court of Australia allowed an appeal, setting aside the Court of Appeal’s decision and sending the matter back to the ACT Supreme Court for directions towards final determination.

The High Court considered its earlier decision of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997) in the light of how it had been applied by the courts across Australia.

JL Holdings contains the often quoted passage regarding case management:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

Queensland v JL Holdings had come to be an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend  (2)case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.

The majority in Aon Risk Services Australia Limited v Australian National University (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [111-113] held that applications for leave to amend should not be approached on the basis that a party is entitled to raise an arguable claim subject to costs as compensation.

The majority also held that the statements made in Queensland v JL Holdings regarding the limiting of case management principles should not be applied in the future.

French CJ at [30] added that to ignore the concerns of case management would be to ignore the facts of undue delay, wasted costs, strain and uncertainty and erode public confidence in the legal system.

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Civil procedure, Criminal Procedure, Practice and Procedure

Williams v Spautz [1992] HCA 34 | 27 July 1992

ON 27 JULY 1992, the High Court of Australia delivered Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 (27 July 1992).

http://www.austlii.edu.au/au/cases/cth/HCA/1992/34.html

The case concerns the use of the court’s power to grant a stay of proceedings when the proceedings have been used for an improper purpose.

After being dismissed from the University of Newcastle, Dr Spautz threatened, instituted and maintained private prosecutions of charges of conspiracy and criminal defamation against former colleagues including Professor Williams and others (“the appellants”).

The appellants obtained a stay of proceedings order from the Supreme Court of NSW. The trial judge found that the proceedings had been brought for the improper purpose of “exerting pressure upon the University of Newcastle to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case”.

The NSW Court of Appeal quashed the orders, holding that the appellants could receive a fair trial and that there was no evidence of any misconduct in the way the prosecution was conducted.

The High Court allowed an appeal, setting aside the Court of Appeal’s decision, declaring that the prosecutions were an abuse of process and ordering that the prosecutions be stayed permanently.

The decision provides:

  • Australian courts have the inherent jurisdiction to stay criminal and civil proceedings.
  • The court may grant stays in (1) proceedings in which a party may not receive a fair trial and (2) proceedings brought for an improper purpose.
  • Before granting a stay for improper purpose, the court is not required to satisfy itself that there will be an unfair trial if the prosecution is not stopped: at 519-520.
  • Proceedings may be stayed notwithstanding that the prosecution has a prima facie case: at 522.
  • The court must have the power to act effectively within its jurisdiction, even if it means refraining from exercising their jurisdiction as it is in the public interest to ensure public confidence that the processes are used fairly and not for oppression or injustice.

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Costs, Ethics, Pleadings, Practice and Procedure

White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806 | 14 July 1998

ON 14 JULY 1998, the Federal Court of Australia delivered White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806 (14 July 1998).

http://www.austlii.edu.au/au/cases/cth/FCA/1998/806.html

Flower & Hart (a firm of lawyers) was ordered to pay the legal costs of White Industries (Qld) Pty Ltd who had been sued by Flower & Hart’s client, Caboolture Park Shopping Centre Pty Ltd (in liquidation).

Proceedings alleging misleading and deceptive conduct, fraud and negligence had been brought by Caboolture Park for the ulterior purpose of delaying payment of monies due under a building contract. The solicitor for Caboolture Park, Michael Meadows, held the view that the proceedings did not have any prospects or any substantial prospects of success but nevertheless advised his client to proceed in order to secure a bargaining position against White Industries.

Goldberg held that:

  • the proceedings were not brought for a legitimate purpose of vindicating a right but rather, they had no prospects of success and were brought to postpone or delay the ultimate determination of the legitimate claim of White Industries.
  • it was unreasonable to make the allegations in circumstances where there was no factual basis and no consideration was given as to whether or not there was a factual basis.
  • it was unreasonable for the solicitors to initiate and continue the proceedings as they amounted to an abuse of process and oppressive conduct.
  • it was unreasonable for the solicitor to shelter behind the advice of counsel, Ian Callinan QC.

As the impetus came from the solicitor, his Honour ordered that they pay the legal costs of White Industries, on an indemnity basis.

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Practice and Procedure

Rippon v Chilcotin [2001] NSWCA 142 | 13 July 2001

ON 13 JULY 2001, the NSW Court of Appeal delivered Rippon v Chilcotin [2001] NSWCA 142 (13 July 2001).

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2001/142.html

The Court of Appeal allowed an appeal by a firm of accountants against the NSW District Court’s decision to refuse to stay and dismiss proceedings brought by a purchaser of a business who had been unsuccessful in earlier proceedings against the vendor.

The Court of Appeal set aside the District Court’s decision and dismissed the purchaser’s proceedings on the grounds that they were an abuse of process.

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Administrative Law, Practice and Procedure

Re Hunter Valley Developments Pty Limited [1984] FCA 176 | 5 July 1984

ON 5 JULY 1984, the Federal Court of Australia delivered Re Hunter Valley Developments Pty Limited; Anthony Neary Walker; Mende Brown v the Honourable Barry Cohen Minister of Home Affairs and Environment [1984] FCA 176; (1984) Admn 96-034 /; 3 FCR 344 (5 July 1984).

http://www.austlii.edu.au/au/cases/cth/FCA/1984/176.html

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Costs, Practice and Procedure

ANZ Banking Group v Arapali [2014] NSWSC 881

ON 27 JUNE 2014, the Supreme Court of NSW delivered ANZ Banking Group v Arapali [2014] NSWSC 881 (27 June 2014).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/881.html

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Sydney, Australia

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Pleadings, Practice and Procedure, Property Law

National Australia Bank Ltd v Kamboj [2014] NSWSC 865

ON 27 JUNE 2014, the Supreme Court of NSW delivered National Australia Bank Ltd v Kamboj [2014] NSWSC 865 (27 June 2014).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/865.html

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Mortgage, Practice and Procedure, Property Law

Commonwealth Bank of Australia v Tallents [2014] WASC 218

ON 24 JUNE 2014, Supreme Court of WA delivered Commonwealth Bank of Australia v Tallents [2014] WASC 218 (24 June 2014).

http://www.austlii.edu.au/au/cases/wa/WASC/2014/218.html

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Sydney, Australia

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Civil procedure, Equity, Injunctions, Practice and Procedure, Property Law

Mareva Compania Naviera SA v International Bulkcarriers SA (“The Mareva”) [1980] 1 All ER 213 | 23 June 1975

ON 23 JUNE 1975, the English Court of Appeal delivered Mareva Compania Naviera SA v International Bulkcarriers SA
(“The Mareva”) [1980] 1 All ER 213.

http://www.uniset.ca/other/cs4/19801AER213.html

The court introduced the asset freezing Mareva injunction by ordering that the defendant be restrained from removing its assets from it’s jurisdiction pending trial.

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Sydney, Australia

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