Practice & Procedure

Alpert v Commonwealth of Australia (Department of Defence) (No 2) [2024] FCA 447​
www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2024/447.html
Practice and Procedure – interlocutory application – application for leave to file an amended originating application and second amended statement of claim – whether proposed amendments to statement of claim embarrassing – whether proposed causes of action futile - malicious prosecution, misfeasance of public office and negligence 

 Blondell & Assoc Pty Ltd v Ilouri Nominees Pty Ltd [2008] VSC 358; BC200808073

Practice and procedure – leave to appeal against a costs order of the Master – principles to be applied

Brown v AEP Belgium SA [2004] VSC 255; BC200404636

Practice and procedure - Leave to appeal - stay and injunctive relief pending application - principles to be considered - Victorian Civil and Administrative Tribunal Act s 148 - Transfer of Land Act ss 76 and 78

Cha Van Pham & Ors v Australia & New Zealand Banking Group Limited [2002] VSCA 206; BC200207647

Appeal - Late application to amend Notice of Appeal - Discretionary considerations - Fresh evidence - Costs thrown away - Application refused. Fresh evidence - Availability at trial and character of evidence - Reasons for non-production at trial - Credibility of fresh evidence - Findings of fact - When challengeable on appeal - Inferences available from non-calling of witness. Guarantee and indemnity - Contract of guarantee - Nature of disclosure necessary to surety - Whether non-disclosure.

Chariah Resources Limited v Tricontinental Corporation Limited & Johns (1991) VSC; BC91000686

Practice and procedure - Trial - application to stay civil trial whilst criminal charges yet to be heard – applicable principles

Commercial Credit Co-Operative Limited v Jedan Pty Ltd & Ors (1993) VSC; BC9300952

Practice and procedure - Judgments and orders – amending, varying setting aside –substitution of plaintiff by statute – slip rule r.36.07 – r.36.01

Glowtide Pty Ltd v Oceanic Life Ltd [Pyramid] (1996) 19 ACSR 471; [1996] FCA 1390; BC9601287

Practice and procedure - Courts and Judges - cross-vesting legislation - separate proceeding in Supreme Court of New South Wales - application to transfer proceeding and matter in the Federal Court to Supreme Court of New South Wales - whether the "rival" proceedings in the two courts constitute one "matter" - consideration of whether the matter in the Federal Court is the defence to the proceeding in the Supreme Court - consideration of whether the matter is essentially a contractual dispute with intermingled but incidental and ancillary Trade Practices Act claims - it is in the interests of justice that the matter be heard in the Supreme Court of New South Wales.

Hoddinott v Willmott Forests Limited [2012] VSC 282

Practice and procedure - Costs – Orders agreed without adjudication on the merits – Relevant principles for an award of costs in a compromised proceeding – Costs order made – Corporations Act 2001 (Cth), s 601ND

Insolvency Litigation Fund Pty Ltd v Advanced Communications Technologies (Aust) Pty Ltd  [2004] VSC 228; BC200404524

Practice and Procedure - receiver to protect property at risk - whether sufficient in the property - present disposal of future rights - whether receiver and manager can confer on creditor priority over debenture holder

Iliopoulos & Iliopoulos [2010] FamCA 

Practice and procedure – Illegally obtained evidence - whether admissible - s 138  Evidence Act 1995 (Cth) - test

Iphostrou & Iphostrou and Ors (No. 2) [2011] FamCA 84

Practice and procedure – Courts and Judges – Perceived bias - Recusal – application dismissed

Iphostrou & Iphostrou and Ors (No. 3) [2011] FamCA 138

Practice and procedure - Family Law – Costs - Costs against legal practitioner - Indemnity costs refused - Family Law Act 1975 (Cth)

Iphostrou & Iphostrou and Ors (No. 4) [2011] FamCA 220

Practice and procedure - Family Law - Courts and Judges – Bias – Disqualification – Where the applicants requested that the primary judge recuse himself on the ground of apprehended bias in the form of prejudgment – Where prior to the application separate applicants had brought an application for disqualification – Whether the primary judge should recuse himself due to apprehended bias - Family Law Act 1975 (Cth), ss 79, 80, 106B

Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No 1) [2007] FCA 489; BC200705883

Practice and procedure - Application for summary judgment – applicant alleges breaches of Trade Practices Act 1974 (Cth) and breach of contract – applicant seeks summary judgment for damages to be assessed on part of claim only – where applicant alleges an oral agreement between applicant and first respondent – where respondents allege oral agreement with different terms – whether relevant part of claim can be determined with certainty without determination of factual issues at trial – where applicant makes alternative claim for declaratory relief – whether declaratory relief should be granted in the circumstances – whether application for summary judgment should be brought pursuant to O 20 r 1 of the Federal Court Rules or s 31A of the Federal Court of Australia Act 1976 (Cth).

Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No2) [2007] FCA 903; BC200704540 

Practice and procedure - Costs – indemnity costs – application by respondent for indemnity costs – where applicant failed to comply with orders of Court requiring applicant to file certain documents in preparation for trial – where respondents brought notice of motion seeking orders in relation to applicant’s non-compliance – where commencement of trial adjourned – where applicant’s failure to file documents the principal reason for adjournment of trial – circumstances in which Court may vary ordinary rule as to costs – whether applicant’s conduct warrants special order as to costs.  Costs – application for costs to be paid before conclusion of principal proceeding – whether appropriate to depart from general rule in O 62, r 3(3) – guillotine orders – where respondents seek order pursuant to O 35A that proceedings be stayed or dismissed if applicant does not comply with another order of Court – whether such order appropriate in circumstances – relevant principles.  

Jianshe Southern Pty Ltd (ACN 007 031 905) v Turnbull Cooktown Pty Ltd (ACN 069 894 275) (No3) [2007] FCA 903; BC200704540 

Practice and procedure - costs – security for costs – where respondents seek security for costs against applicant company – where significant and avoidable delay in bringing application for security – where trial imminent – whether delay in bringing application will prejudice applicant if security is ordered – where applicant is impecunious company – where no evidence put forward about assets or liabilities of persons standing behind applicant company – where cross-claim on foot – where respondents indicate that if security is ordered cross-claim will be abandoned – whether estimate by respondents’ solicitor of respondents’ future costs admissible – relevant principles on application for security for costs.

KC Parksafe Pty Ltd v SEAA Enterprises Pty Ltd ([1994] VSC 519; BC9406264

Practice and procedure – third party discovery application – costs of compliance

MLW Technology Pty Ltd v May (No. 4) [2003] VSC 293; BC200304423

Practice and procedure - Costs - where nominal damages only are obtained by the plaintiff - where defendants' defences and counterclaims substantially failed. 

Nguyen v DPP  [2014] VSC 633

Criminal Law – Bail Application – Considerations - Exceptional circumstances – Bail Act 1997, ss 4(2)(aa)(i), 4(2)(d)(i)

Page v Douglas Shire Council [2005] QPEC 40
Planning Appeals - Qld - Hearing de novo - principles - grounds of appeal stand as pleadings - must identify issues to be tried with particularity - procedural fairness

Platt v Morris Appel [1998] VSCA 48; BC9805375

Practice and procedure - Discovery of documents - Application for discovery refused - Further application after amendment of statement of claim - Documents discoverable by reason of amendment Supreme Court Rules, R.29.08 

PSL Industries Ltd & Ors v Simplot Australia Pty Ltd (2003) 7 VR 106; [2003] VSCA 7; BC200300607 {assocd -Agtrack (NT) Pty Ltd v Hatfield (2003) 7 VR 63; [2003] VSCA 6}

Practice and procedure - Pleadings - Amendment to pleadings - Amendment claiming breach of s.52 of the Trade Practices Act 1974 after expiration of limitation period in s.82(2) of the Act - Whether inconsistency for purpose of s.109 of the Constitution between s.82(2) and s.34 of the Limitation of Actions Act 1958 and r.36.01(6) of the Rules of Court - Whether s.82(2) provides "otherwise" for the purposes of s.79(2) of the Judiciary Act 1903 - Whether repeal of Fair Trading Act 1985 (Vic.) by Fair Trading Act 1999 abolished potential claims through breach of s.11 of Fair Trading Act 1985 - Whether potential claim for breach of s.11 of Fair Trading Act 1985 prosecutes "accrued rights" at time of its repeal for the purposes of s.14(2)(e) of the Interpretation of Legislation Act 1984 - Constitution Act, s.109, Judiciary Act 1903 (Cth) ss.39(2), 79, Trade Practices Act 1974 (Cth) ss.82(1)(2), Limitation of Actions Act 1958 (Vic.) s.34, Rules of Court, r.36.01(6).

REMM Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd [1991] SASC 3100

Practice and procedure - application by plaintiff for order for early trial and separate trials of causes of action - plaintiff not having provided security for costs of fifth, sixth and seventh defendants pursuant to order of Master - all defendants apart from first defendant joined in proceedings pursuant to order under R.27 - preliminary objection that proceedings against all defendants stayed by virtue of R.100.03.

Sartori v BM2008 Pty Ltd (in liq) & Ors [2010] FCA 1160

Practice and procedure – assignment of choses in action – joinder of assignees with assignor -joinder of parties – principles to be applied – amendment of application and statement of claim– s 175 Corporations Act 2001 – costs.

Strategic Management Australia APL Pty Ltd & Anor v Precision Sports & Entertainment Group Pty Ltd & Anor [2015] VSC 717
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Practice and procedure - Open justice principle - Exceptions - Privacy and Confidentiality - Countervailing considerations -Administration of Justice - Inherent jurisdiction of the Court  -  Open Courts Act 2013

The Beach Club Port Douglas Pty Ltd v Page [2005] QSC 195; BC200505051

Practice and procedure - Pleadings - Negligence – duty of care – reasonable foreseeability of damage – where economic or financial loss – where claim made for damages for negligent commencement of appeal by applicant – where respondent asserts applicant owed it a duty of care regarding commencement of appeal -  where respondent asserts appeal had no reasonable prospects of success – whether duty of care exists between parties contemplating commencement of civil proceedings – whether damages recoverable from a party for loss suffered due to commencement of claim – where finality in litigation an issue

Timbercorp Finance Pty Ltd (In Liq) v Allan [2016] VSC 481
Practice and procedure– Service of originating process by agreement – Service interstate – Whether notice under Service and Execution of Process Act 1992 (Cth) (‘SEPA’) required –  Whether  writ  validly  served  –  Whether  agreement  for  service  constitutes  a waiver of SEPA notice requirement – Service not effective.    Extending validity of writ  – Whether good reason shown  to extend validity of writ for service – Technical deficiency due to oversight in omitting SEPA notice – Plaintiff made reasonable but unsuccessful efforts to serve the Defendant – Good reason to extend writ shown.

Twenty-First Larena Pty Ltd, Re: Maximova v Goodin [2010] VSC 84; BC201001471

Practice and procedure – exercise of power to dismiss summarily where plea of res judicata substantiated – estoppel – res judicata – settlement of earlier proceeding – action struck out with a right of reinstatement in the event of failure to pay settlement sum – compliance with settlement terms – conclusive determination of rights and liabilities in earlier proceeding – finality of order for the purposes of res judicata – application of principles of res judicata to consent order – where different causes of action in later proceedings – whether cause of action is substantially the same in subsequent proceeding.

 Zorita Nominees Pty Ltd & Ors v Australia & New Zealand Banking Group Limited [1995] VSC 396; BC9503849

Practice and procedure - Whether claim for damages based on duty owed by defendant to plaintiff constitutes a new claim barred by effluxion of time – Whether damages claim authorised by the notice of contribution.