case_text: The key principle assisting the Court in determining whether leave to appeal should be granted pursuant to s 24(1A) Federal Court of Australia Act is whether the judgment was attended by sufficient doubt to warrant it being reconsidered and accordingly whether substantial injustice would result if leave were refused: Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542. 11 In Court this afternoon the applicant clarified the first paragraph in his affidavit as being referable to the fact that the respondent had filed Ms Genz's affidavit after the date ordered by Jarrett FM on 13 March 2008, rather than the fact that the respondent had not actually filed a defence. In relation to this point I note in passing that there is no general requirement to file a defence in such matters before the Federal Magistrates Court. Part 4 of the Federal Magistrates Court Rules allows the respondent to file a response (r 4.04) which must be filed and served within 14 days after the service of the application, and an affidavit must be filed with the response (r 4.05). I understand that the respondent filed a response and supporting affidavit on 24 December 2007. 12 In this case I am unable to see that the decision of the Federal Magistrate was attended by sufficient doubt to warrant it being reconsidered, or that substantial injustice would result if leave to appeal were refused to the applicant. 13 First, in my view, paras 2, 3 and 4 deposed by the applicant in his affidavit of 30 May 2008 have little merit as grounds for leave to appeal. I make this observation because, dealing with each factor in turn: • the reference by the applicant to the respondent failing to comply with O 15 in para 2 is unclear; • what appear to be minimal irregularities to Ms Genz's affidavit in relation to the date it was sworn, while undesirable without proper attestation, nonetheless do not support an adjournment of the substantive hearing in these proceedings; and • I understand from the submissions of Mr Hooper for the respondent that the firm of lawyers earlier representing the respondent merged with another firm but that the resultant merged firm continued to act for the respondent. Part 9 of the Federal Magistrates Court Rules deals with lawyers, and in particular r 9.02 which deals with change of lawyers. It is not clear to me how the applicant is affected, or has been affected, by the respondent changing its lawyer. The fact that a solicitor from the newly merged firm may have contacted him contrary to an arrangement that there be no telephone contact between the parties does not in my view form a reason of any substance for his Honour refusing to adjourn the substantive hearing. 14 Second, I am not persuaded that the applicant would suffer substantial injustice should leave to appeal be refused. The principal issue raised by the applicant, namely the fact that the respondent served an affidavit several days late and with a page missing, was addressed by his Honour during the hearing on 29 May 2008. Although the applicant indicated at that hearing that the lateness and incompleteness of the affidavit would prejudice him in preparation of his case for the hearing, including calling witnesses, I do not see how the applicant has suffered more than some inconvenience. The applicant has commenced these proceedings - it is his responsibility to prosecute his case. This includes organisation of evidence for the trial, and filing and serving affidavits of witnesses upon whose evidence the applicant wishes to rely at trial. I note that, according to the Federal Magistrates Court file, the only witness upon whose evidence the applicant is currently relying is himself and yet if the applicant wished to rely on the evidence of other witnesses it would have been incumbent on him to file and serve affidavits of those witnesses in accordance with the timetable ordered by the Federal Magistrate. Indeed, the applicant would be in breach of the orders of Jarrett FM were he to produce at trial witnesses whose evidence was not previously filed and served. While the applicant has a number of complaints about the lack of cooperation of the respondent and his resultant inability to contact potential witnesses to give evidence in support of his application, this is not in my view relevant to the application currently before me. 15 Further, the applicant claims that he has not been given sufficient time to prepare his case for trial. However these proceedings have been on foot since December 2007. The applicant today raised the need to care for his son as an issue which impacts upon his ability to prepare for trial. While I consider this to be a very real issue, there is no evidence before me that this has ever been raised before Jarrett FM as an issue relevant to the timing of the trial; nor does it relate in my view to the issue of lateness of service and incompleteness of Ms Genz's affidavit which forms the basis of the primary submissions of the applicant in this case. 16 The applicant has indicated that he is not ready for trial tomorrow. However the decision for me, in deciding whether to grant leave to appeal, is whether the judgment of Jarrett FM refusing to adjourn the hearing of the substantive proceedings is attended by sufficient doubt to warrant reconsideration. In my view it is not. The appropriate order is that leave to appeal be refused, and I so order. I will also order that the applicant pay the respondent's costs of today's proceedings, to be taxed if not otherwise agreed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 12 June 2008 The Applicant appeared in person Solicitor for the Respondent: Mr G Hooper of McKenzie Cox Date of Hearing: 3 June 2008 Date of Judgment: 3 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/841.html


case_outcome: applied

case_text: helpful and reflective summary of principle in relation to the reception of expert evidence having regard to the Uniform Evidence Act (of which the Evidence Act is an exemplar), is to be found in the judgment of Allsop J, as his Honour then was, in Evans Deakin Proprietary Limited v Sebel Furniture Limited [2003] FCA 171 at [670] . His Honour there observed: Central to the orderly and admissible presentation of any expert evidence is the clear identification of the opinions that the expert seeks to present. This is a separate question from whether, for the opinions of the expert to be admissible, the basis of the opinions on the assumed facts must be set out, about which there may be different views expressed in Makita and Quick v Stoland . I think, however, any such difference is unlikely, in most cases, to be of significance in the light, in particular, of s 135 of the Evidence Act and its likely application to disembodied and unsubstantiated expressions of opinion, a matter to which reference was made in Quick v Stoland . If I may say so, without intending to put to one side the comprehensive reasons of Heydon JA in Makita or the careful reasons of the Judges in Quick v Stoland, in this case I particularly bear in mind what Gleeson CJ said in HG v The Queen at 727: "The opinions of Mr McCombie were never expressed in admissible form." And then his Honour emphasised this: An expert whose opinion is sought to be tendered should differentiate between the assumed facts upon which the opinion is based, and the opinion in question. Then a little later: Argument in this Court proceeded on the basis that it was possible to identify from Mr McCombie's written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Then again Allsop J emphasised this in Gleeson CJ's reasons in HG v The Queen [1999] HCA 2 at [39] : Even so, the provisions of section 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question. This particular passage goes to the second basis upon which objection is taken to Mr Tait's opinion, which is that it is non-compliant with the requirements of the exception to the opinion rule, found in s 79 of the Evidence Act . Though initially, on the face of the report itself, I was apprehensive as to whether Mr Tait had exposed any particular expertise in relation to fish ecology and biology as applied to lungfish, I am satisfied, having regard to his supplementation of his experience in the affidavit filed this morning by leave, that he does have experience in relation to the ecology and management issues associated with the passage of freshwater fish, including lungfish, over barriers. The difficulty is that his report, as I have observed, ranges much more widely than the issues on the pleadings. Further, insofar as section 4 in particular of the report is concerned, that appears to be but a mere collation, as opposed to, overtly, the views of someone experienced with lungfish enlarging upon, by reference to his own specialised knowledge, the views of others which he regards as correct and appropriately included by way of highlighting particular qualities of the lungfish. There is also the vice elsewhere evident in the report, insofar as it may be relevant, of not making plain what is fact and what is opinion.


case_outcome: cited

case_text: That process relevantly commenced with the making of an order for the payment of costs by the Supreme Court and the subsequent issue by a costs assessor of a certificate pursuant to s 368(1) of the Legal Profession Act . Section 372 of that Act provides for the finality of such determinations as follows: Determination to be final A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division. Provision is made for the review of determinations made (ss 373 383) and for an appeal against a decision of a costs assessor " as to a matter of law " (s 384. See: O'Brien v Doherty [2008] NSWSC 205 ; Cassegrain v CTK Engineering [2008] NSWSC 457).


case_outcome: considered

case_title: Chesson v Smith (1992) 35 FCR 594

case_text: Some decisions involving the application of s 40(1)(g) have involved circumstances in which a costs order has been made in an interlocutory application and the question as to whether the " cross-claim, set-off or cross demand " sought to be relied upon could have been raised in that interlocutory application. Notwithstanding the interlocutory nature of a proceeding, reliance in such cases is placed upon s 40(3) of the 1966 Act which relevantly provides as follows: For the purposes of paragraph (1)(g): ... (b) a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained; ... One such decision is Re Gould; Ex parte Skinner (1983) 72 FLR 393. An application had there been made for an interlocutory injunction to restrain the sale of property. That application failed because there was a failure to establish that an undertaking as to damages would have had any substance. The cross-claim or set off was there said to be a claim for damages for breach of an obligation as encumbrancee to exercise reasonable care with respect to the sale of the property. That cross-claim or set-off, Fitzgerald J held, could not have been set up in the action seeking the interlocutory injunction. His Honour concluded (at 407 8): It was not in dispute before me that the order for costs upon the dismissal of the application for an interlocutory injunction in Queensland Supreme Court action No 1473 of 1982 is one which is enforceable as or in the same manner as a final judgment obtained in an action in that Court. The order for costs is therefore deemed by s 40(3)(b) of the Act to be a "final judgment so obtained", that is, a "final judgment" obtained in an "action". However, s 40(3)(b) of the Act does not stop there; the "action" is identified. For the purposes of s 40(1)(g), the statutory fiction effected by the deeming is extended to convert the "proceedings" in which the order was in fact obtained into the "action" in which the notional "final judgment" was obtained. In my opinion, the test in such circumstances called for by s 40(1)(g) of the Act is to ascertain not whether the cross demand could have been set up in the Supreme Court action No 1473 of 1982, but whether it could have been set up in the deemed action, the proceeding in which the order for costs was made, that is, the application for an interlocutory injunction in that action. The answer is clearly negative. ... Another comparable decision is Chesson v Smith (1992) 35 FCR 594. An application had there been filed in the Supreme Court of New South Wales seeking leave to commence proceedings under the De Facto Relationships Act 1984 (NSW) out of time. The application was dismissed with costs. A certificate of taxation issued and, subsequently, a bankruptcy notice. It was accepted that there was a cross demand which exceeded the debt. But it was not a cross demand which could have been set up in the " proceeding ", that " proceeding " either being the application for the interlocutory order for leave or the application for the costs order in that interlocutory application. 34 In the present Application there was a lack of precision in the identification by the Applicant of the " action or proceeding in which the judgment or order was obtained ". At the outset of oral submissions it was contended that the " action or proceeding " was to be found in the Supreme Court proceedings and was either: (i) the claim for declaratory relief, together with costs; or, more narrowly (ii) the claim for the costs order. An analogy was sought to be drawn between the interlocutory nature of the " proceeding " before Hall J in the Supreme Court and the decisions in Re Gould and Chesson v Smith . The narrower the identification of the " proceeding ", the easier the Applicant contended it was to conclude that the claim in respect of losses could not have been set up as an answer. A more broadly phrased submission advanced on behalf of the Applicant in his written submission was that " where an order for costs is made on an interlocutory application within other proceedings, that interlocutory application is itself deemed to be the action in which the relevant order is obtained (see s40(3)(b)) ". By the end of oral submissions, however, the Applicant contended that the " action or proceeding " was: (iii) the " proceeding " in the District Court whereby judgment was entered for the sum of money assessed in the Certificate of Determination of Costs .


case_outcome: followed

case_text: A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.


case_text: Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up as a matter of law; a mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 FLR 135, at p 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 53 , at p 57, especially per Lukin J where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... . Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40.


case_title: Dekkan v Evans [2008] FCA 1004


case_title: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431


case_title: Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 , 239 ALR 330

case_text: The Application was filed in this Court on 29 February 2008. That Application seeks an order setting aside the Bankruptcy Notice . The power of this Court to set aside a bankruptcy notice was not questioned: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83 per Lockhart J; Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 at [25] , [2007] FCA 308 ; 239 ALR 330 at 337 per Ryan J.


case_title: Esber v Massih [2006] NSWSC 321

case_text: On 26 April 2006 His Honour Justice Hall of that Court published reasons for his decision that the Plaintiff had an interest in the development property and was entitled to 50% of the profits on sale. His Honour granted leave to the parties " to bring in short minutes of orders to give effect to the orders proposed ": Esber v Massih [2006] NSWSC 321. That was done by way of orders made on 8 March 2007, including an order that " there be an account of such profits " and an order that the " Defendant pay the Plaintiff's costs of the proceedings as assessed or agreed ". 11 A Certificate of Determination of Costs dated 15 October 2007 certified that the present Applicant was to pay costs in the sum of $77,498.96. 12 On 8 May 2008 a Notice of Motion was filed in the Supreme Court seeking leave to file and serve a Cross-Claim or seeking a variation of the judgment of Hall J by way of a declaration that " the defendant is entitled to contribution from the plaintiff to half of any losses from the development and sale of the property ". An Amended Notice of Motion was resolved by Acting Justice Bryson on 31 July 2008 when His Honour concluded in relevant part: [4] The order which the trial Judge made on that subject was, obviously in its terms, interlocutory; it is not a final order and could not be the source of any estoppel or res judicata. The order speaks extremely briefly of an account of profits, obviously in contemplation of further detailed directions about the taking of such an account and about what was to be done with the matter ascertained on taking the account. ... [6] An order for an account of profits, including the order made on 8 March 2007 which used "such profits" to refer back to the declaration previously made, on its ordinary and natural meaning and without any further exposition is an order for an account of losses if matter accounted for should have generated losses. If the Court had intended anything so strange as an account or enquiry limited only to profits, and to leave ascertainment of losses, if there should be any, to be neglected and not dealt with, there would have been a marked departure from the Court's statutory duty to resolve the whole controversy. If the order of 8 March 2007 had been intended to effect any [sic] so strange a result I am confident that it would say so in a highly explicit manner. 13 Those provisions of the Bankruptcy Act of immediate relevance to the Application now before this Court are ss 40(1)(g) and 41 (7). 14 Section 40(1)(g) of the 1966 Act provides as follows: Acts of bankruptcy (1) A debtor commits an act of bankruptcy in each of the following cases: ... (g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not: (i) where the notice was served in Australia--within the time specified in the notice; or (ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service; comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained; ...


case_text: It is not considered that the " final judgment or final order " could be constituted by the order for costs made by the Supreme Court, either on its own or together with the Certificate of Determination of Costs : Franks v Warringah Council [2003] FCA 1047 , 131 FCR 287. A certificate that sets out the determination of the costs assessor, without being filed in a court of competent jurisdiction, is not sufficient to found a bankruptcy notice: Snelgrove v Roskell [2007] FCA 122 at [53] , 157 FCR 313 at 319 per Jacobson J. In Franks , the Land and Environment Court had there ordered that the Council's costs be agreed or assessed under the then Legal Profession Act 1987 (NSW). A bankruptcy notice was served, the schedule to which stated that costs had been so assessed and annexed a certificate. Branson J summarised the submissions there being advanced as follows: [16] It was submitted by the Council that the argument that it could only recover its costs by filing in a court of competent jurisdiction a certificate issued pursuant to s 208J of the Legal Profession Act was contrary to established authority and the proper construction of the relevant legislation. The Council submitted that in respect of each order of the Land and Environment Court, having received the determination of the costs assessor, it had two options open to it for the purpose of the Bankruptcy Act . The first option, it argued, was the option of filing the certificate issued under s 208J of the Legal Profession Act in a court of competent jurisdiction and issuing a bankruptcy notice on the judgment thereby deemed to have been obtained. The second option, it argued, was the option which it in fact adopted; that is, the option of issuing a bankruptcy notice founded on the order of the Land and Environment Court supported by the certificate issued under s 208J. The Council contended that the second of these options remained open to it even after it had filed in a court of competent jurisdiction the certificate issued by the costs assessor. Her Honour reviewed the authorities and then concluded: [30] The submissions of the Council identified in [16] are, in my view, unsustainable. Section 40(1)(g) does not, as it seems to me, admit of the possibility that a creditor may have obtained against a debtor more than one final judgment or final order in respect of the one debt, or perhaps more accurately, sourced from the same obligation. Further, s 40(1)(g) of the Bankruptcy Act refers only to final judgments and final orders that can be enforced by a writ of execution (Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 198 per Riley J). I incline to the view that Pt 44 r 7 of the Supreme Court Rules (NSW), as presently worded, does not allow a writ of execution to issue in respect of the orders of the Land and Environment Court on which reliance is here placed. It seems to me to be implicit in Pt 44, r 7, as presently worded, that a writ of execution may only issue in respect of costs determined under the Legal Profession Act to enforce a judgment entered as a result of the filing of a certificate under the Legal Profession Act . ... [32] I conclude that each of the bankruptcy notices should be set aside on the basis that it is fatally flawed because the judgment or order upon which it is founded, and which is attached to it as required by Form 1, is not "a final judgment or final order, being a judgment or order the execution of which has not been stayed" within the meaning of s 40(1)(g) of the Bankruptcy Act .


case_title: Guss v Johnstone [2000] HCA 26 , 171 ALR 598

case_text: To " satisfy " the Court it is not necessary for the debtor to prove, as on a final hearing, the asserted entitlement to recover as against the creditor. That which is to be established is whether the Court is " satisfied " that the debtor " has a claim deserving to be finally determined ": Re Glew; Glew v Harrowell [2003] FCA 373 at [11] , [2003] FCA 373 ; 198 ALR 331 at 334. Lindgren J there observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: • that they have a "prima facie case", even if they do not adduce evidence which would be admissible on a final hearing making out that case... • that they have "a fair chance of success" or are "fairly entitled to litigate" the claim... and • that they are advancing a "genuine" or "bona fide" claim... It may be that the first and second formulations are intended to cover the same ground. In [Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a "prima facie case" ... as a reference to "a fair chance of success". This was subsequently characterised by His Honour as a " relatively low threshold ": at [64]. The judgment to be made " involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim ": Guss v Johnstone [2000] HCA 26 at [40] , [2000] HCA 26 ; 171 ALR 598 at 606 per Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ.


case_text: The present Bankruptcy Notice was served on 11 February 2008 requiring either payment or the making of an " arrangement to the creditor's satisfaction for settlement of the debt " within 21 days. Annexed to the Bankruptcy Notice was a Certificate of Judgment of the District Court certifying the recovery of judgment in that Court. 5 The Application was filed in this Court on 29 February 2008. That Application seeks an order setting aside the Bankruptcy Notice . The power of this Court to set aside a bankruptcy notice was not questioned: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83 per Lockhart J; Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 at [25] , [2007] FCA 308 ; 239 ALR 330 at 337 per Ryan J. 6 In the present proceeding it is claimed that the Applicant has " a counter-claim, set-off or cross-demand as referred to in s 40(1)(g) " of the Bankruptcy Act 1966 (Cth). Section 41(7) of the 1966 Act has the effect that, upon that Application having been filed, the time for compliance with the Notice is deemed to have been extended until the Court determines the Application . 7 The " counter-claim, set-off or cross-demand " relied upon by the present Applicant is his right to set-off the losses incurred in respect to the development of the Merrylands property. These losses, it is accepted by the parties, exceed the judgment debt upon which the Bankruptcy Notice is founded. 8 That " counter-claim, set-off or cross-demand " is said by the Applicant to be one that he " could not have set up in the action or proceeding in which the judgment or order was obtained " within the meaning of and for the purposes of s 40(1)(g). 9 The litigation in the Supreme Court dates back to 2004 when an Amended Statement of Claim was apparently filed seeking declaratory relief as to the arrangement between the parties in respect to the development property. To be resolved was whether the nature of any arrangement between the then Plaintiff and Defendant was simply one whereby work was performed in return for remuneration or whether the parties would each be entitled to a 50% share of profits on sale. 23 In In re Judd, Ex parte Pike, supra, Maughan AJ observed that the word " counter-claim " most probably refers to " those claims which might be the subject of a counter-claim in equity "; the term " set-off " was said to refer to " those claims which might be the subject of a set-off at common law ". And the term " cross demand " was said to be " not a technical term and must ... refer to claims other than those which would be comprised in the two expressions 'counter-claim' and 'set-off' ": (1924) 24 SR (NSW) 537 at 539. An " unrestricted meaning ", it was said, was to be given to the word " cross demand " (at 540). The meaning of each of these terms was also explored in In re A Bankruptcy Notice [1934] 1 Ch 431. Declaratory relief sought in the Chancery Division as to an entitlement to a charge on the proceeds of property was held not to be a " counter-claim, set-off or cross demand ". Lord Hanworth MR there observed that " set-off " was " a word well known and established in its meaning " (at 437). Of the term " cross demand " it was observed (at 438): I turn, therefore, to what to my mind is the wider word, "cross-demand." If a cross-demand is only to be interpreted as meaning something which could have been introduced into the action by way of counterclaim, it adds nothing to the word "counterclaim." "Cross-demand" seems to me to be a word introduced in order to give a wider ambit to the meaning of these claims, something that would not be described, certainly, as a set-off, something that could not have been brought in the action, something that still lies outside a counterclaim, but is of a nature which can be specified and which is of such a nature that it equals or exceeds the amount of the judgment debt. I do not desire to say what "cross-demand" may include, but it is not difficult to say that it does not include a claim of such uncertain nature as appears in these Chancery proceedings. That claim does not appear to be one which it would be proper to describe as a cross-demand; it is a claim of right which may inure ultimately for the benefit of the judgment debtor. Therefore, it appears that there is no sufficient ground for setting aside this bankruptcy notice; the bankruptcy notice stands good and must be complied with. Romer and Maugham LJJ delivered separate judgments but agreed with Lord Hanworth MR. 37 Attached to the Bankruptcy Notice as served upon the Applicant on 11 February 2008 was the judgment of the District Court, being the Certificate of Judgment signed by the Registrar of that Court. For the purposes of s 40(1)(g) , the " action or proceeding " in which that judgment was obtained was necessarily the District Court proceeding. " A proceeding ", it may be noted, " may mean something as distinct from an action or any step thereunder in which final orders are made for the payment of money. It may also mean a step in an action, in which proceeding a final order is made for the payment of money ": Re Black; Ex parte Jeffery (1932) 4 ABC 157 at 160 per Lukin J. 38 The judgment entered by that Court was entered as a consequence of the Certificate having been issued in respect to those costs which had been ordered to be paid by the Supreme Court and the subsequent filing of that Certificate by the Respondent with the District Court. There was no suggestion that that judgment had in fact been stayed. The Bankruptcy Notice as served stated that it had not been stayed. 39 The process whereby that judgment came to be entered by the District Court is regulated by the provisions of the Legal Profession Act 2004 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) . 46 The result of the present Application, it is considered, can be stated simply. For the purposes of the present Application , it was accepted that the joint venture agreement as between the Applicant and the Respondent gave rise to losses, those losses being said to be approximately $160,000. Those losses obviously exceed the judgment debt of $77,498.96. But, as at the date upon which the Bankruptcy Notice was served in February 2008, no account had been taken -- as had been ordered by Hall J in March 2007. Whether an account had or had not been taken, however, those losses could not have been set up during the process whereby the costs assessor made a determination as to costs. Nor could those losses have been set up in opposition to the filing of the Certificate of the costs assessor with the District Court and the judgment thereafter being taken to have been made by reason of s 368(5) of the Legal Profession Act . 47 The Application to have the Bankruptcy Notice as served on 11 February 2008 set aside should thus be allowed. 48 The orders of the Court are: 1. The Application be allowed. 2. The Bankruptcy Notice No NN 0290 of 2008 be set aside. 3. The Respondent is to pay the costs of the Applicant. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 24 September 2008 Counsel for the Applicant: A McInerney Solicitor for the Applicant: Ellison Tillyard Callanan Counsel for the Respondent: D Ash Solicitor for the Respondent: Watson and Watson Date of Hearing: 18 September 2008 Date of Judgment: 24 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1452.html


case_title: In re a Debtor [1914] 3 KB 726

case_text: A claim for unliquidated damages for breach of contract can fall within the term " cross demand " ( Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29) ; as can a claim for unliquidated damages for a tort ( In re Judd, Ex parte Pike , supra at 539 40). A claim for relief under the Industrial Relations Act 1996 (NSW), being a claim that the creditor pay the debtor any money that may be found owing under an arrangement as varied by the Industrial Relations Commission may also be a cross-claim or counter-demand: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 at [33] [34], [2000] FCA 1187 ; 178 ALR 694 at 704 5 per Madgwick J. A " cross demand " need not have any connection with the cause of action out of which the judgment debt arose: cf In re a Debtor [1914] 3 KB 726. A judgment debtor is thus able to " buy up a claim against the judgment creditor in order to have a 'cross demand' ": In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ. 28 Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up as a matter of law; a mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 FLR 135, at p 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 53 , at p 57, especially per Lukin J where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... . Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40.


case_text: 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. 23 In In re Judd, Ex parte Pike, supra, Maughan AJ observed that the word " counter-claim " most probably refers to " those claims which might be the subject of a counter-claim in equity "; the term " set-off " was said to refer to " those claims which might be the subject of a set-off at common law ". And the term " cross demand " was said to be " not a technical term and must ... refer to claims other than those which would be comprised in the two expressions 'counter-claim' and 'set-off' ": (1924) 24 SR (NSW) 537 at 539. An " unrestricted meaning ", it was said, was to be given to the word " cross demand " (at 540). The meaning of each of these terms was also explored in In re A Bankruptcy Notice [1934] 1 Ch 431. Declaratory relief sought in the Chancery Division as to an entitlement to a charge on the proceeds of property was held not to be a " counter-claim, set-off or cross demand ". Lord Hanworth MR there observed that " set-off " was " a word well known and established in its meaning " (at 437). Of the term " cross demand " it was observed (at 438): I turn, therefore, to what to my mind is the wider word, "cross-demand." If a cross-demand is only to be interpreted as meaning something which could have been introduced into the action by way of counterclaim, it adds nothing to the word "counterclaim." "Cross-demand" seems to me to be a word introduced in order to give a wider ambit to the meaning of these claims, something that would not be described, certainly, as a set-off, something that could not have been brought in the action, something that still lies outside a counterclaim, but is of a nature which can be specified and which is of such a nature that it equals or exceeds the amount of the judgment debt. I do not desire to say what "cross-demand" may include, but it is not difficult to say that it does not include a claim of such uncertain nature as appears in these Chancery proceedings. That claim does not appear to be one which it would be proper to describe as a cross-demand; it is a claim of right which may inure ultimately for the benefit of the judgment debtor. Therefore, it appears that there is no sufficient ground for setting aside this bankruptcy notice; the bankruptcy notice stands good and must be complied with. Romer and Maugham LJJ delivered separate judgments but agreed with Lord Hanworth MR. 24 A claim for unliquidated damages for breach of contract can fall within the term " cross demand " ( Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29) ; as can a claim for unliquidated damages for a tort ( In re Judd, Ex parte Pike , supra at 539 40). A claim for relief under the Industrial Relations Act 1996 (NSW), being a claim that the creditor pay the debtor any money that may be found owing under an arrangement as varied by the Industrial Relations Commission may also be a cross-claim or counter-demand: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 at [33] [34], [2000] FCA 1187 ; 178 ALR 694 at 704 5 per Madgwick J. A " cross demand " need not have any connection with the cause of action out of which the judgment debt arose: cf In re a Debtor [1914] 3 KB 726. A judgment debtor is thus able to " buy up a claim against the judgment creditor in order to have a 'cross demand' ": In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ.


case_text: 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_title: Muriniti v Lyons [2004] NSWSC 135

case_text: 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_title: Nath v Clipway Pty Ltd [1999] FCA 625


case_title: O'Brien v Doherty [2008] NSWSC 205


case_text: 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_text: Attached to the Bankruptcy Notice as served upon the Applicant on 11 February 2008 was the judgment of the District Court, being the Certificate of Judgment signed by the Registrar of that Court. For the purposes of s 40(1)(g) , the " action or proceeding " in which that judgment was obtained was necessarily the District Court proceeding. " A proceeding ", it may be noted, " may mean something as distinct from an action or any step thereunder in which final orders are made for the payment of money. It may also mean a step in an action, in which proceeding a final order is made for the payment of money ": Re Black; Ex parte Jeffery (1932) 4 ABC 157 at 160 per Lukin J.


case_text: The " counter-claim, set-off or cross demand " referred to in s 40(1)(g) and 41(7) " must be something sounding in money ": Re Brinks; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 , 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J.


case_text: This provision exists for the benefit of the debtor: Re Willats; Ex parte Nissan Finance Corp Ltd [1991] FCA 407 ; (1991) 31 FCR 206. O'Loughlin J there observed (at 212): The reference in s 40(1)(g) of the Act to a counterclaim that could not have been set up in the proceedings exists for the protection of the debtor. Notwithstanding that his creditor may have obtained a judgment against him, that judgment cannot be used to found a bankruptcy notice if there is -- outside the spectrum of those legal proceedings -- a counterclaim of equal or greater size. But the Act intends a debtor, at the earliest opportunity, to raise against his creditor such counterclaim, if any, as he may have and which can be properly raised in the creditor's proceedings; if he does not he cannot complain (by way of raising that counter-claim) when the creditor applies to this court to issue a bankruptcy notice. The statutory phrase " must not be narrowed ". A judgment debtor is " not to lie by with his cross-demand, but must prosecute it with due diligence ": Re Brown, Ex parte Peisley Brothers (1892) 3 BC (NSW) 13 at 14 per Manning J. " A debtor having a claim against his or her creditor can not just stand by while judgment is obtained and later seek to use that claim to set aside a bankruptcy notice founded upon that judgment ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 137 per Hill J.


case_text: But the phrase refers only to those causes of action which a debtor was entitled to plead up to the time of judgment that are capable of amounting to a " counter-claim, set-off or cross demand " within the meaning of s 40(1)(g): Re Deen, Ex parte Deen v Muller (1995) 58 FCR 441. A claim acquired subsequent to the time of judgment is not a claim which could have been set up as against the judgment debt, even though the debtor could have acquired the claim -- had he so chosen -- prior to judgment. 33 Section 40(1)(g) refers to a creditor who has obtained against a debtor " a final judgment or final order " and further refers to the ability to set up the " counter-claim, set-off or cross demand " in the " action or proceeding in which the judgment or order was obtained ".


case_title: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152


case_title: Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 , 133 ALR 718


case_title: Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331


case_text: Some decisions involving the application of s 40(1)(g) have involved circumstances in which a costs order has been made in an interlocutory application and the question as to whether the " cross-claim, set-off or cross demand " sought to be relied upon could have been raised in that interlocutory application. Notwithstanding the interlocutory nature of a proceeding, reliance in such cases is placed upon s 40(3) of the 1966 Act which relevantly provides as follows: For the purposes of paragraph (1)(g): ... (b) a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained; ... One such decision is Re Gould; Ex parte Skinner (1983) 72 FLR 393. An application had there been made for an interlocutory injunction to restrain the sale of property. That application failed because there was a failure to establish that an undertaking as to damages would have had any substance. The cross-claim or set off was there said to be a claim for damages for breach of an obligation as encumbrancee to exercise reasonable care with respect to the sale of the property. That cross-claim or set-off, Fitzgerald J held, could not have been set up in the action seeking the interlocutory injunction. His Honour concluded (at 407 8): It was not in dispute before me that the order for costs upon the dismissal of the application for an interlocutory injunction in Queensland Supreme Court action No 1473 of 1982 is one which is enforceable as or in the same manner as a final judgment obtained in an action in that Court. The order for costs is therefore deemed by s 40(3)(b) of the Act to be a "final judgment so obtained", that is, a "final judgment" obtained in an "action". However, s 40(3)(b) of the Act does not stop there; the "action" is identified. For the purposes of s 40(1)(g), the statutory fiction effected by the deeming is extended to convert the "proceedings" in which the order was in fact obtained into the "action" in which the notional "final judgment" was obtained. In my opinion, the test in such circumstances called for by s 40(1)(g) of the Act is to ascertain not whether the cross demand could have been set up in the Supreme Court action No 1473 of 1982, but whether it could have been set up in the deemed action, the proceeding in which the order for costs was made, that is, the application for an interlocutory injunction in that action. The answer is clearly negative. ... Another comparable decision is Chesson v Smith (1992) 35 FCR 594. An application had there been filed in the Supreme Court of New South Wales seeking leave to commence proceedings under the De Facto Relationships Act 1984 (NSW) out of time. The application was dismissed with costs. A certificate of taxation issued and, subsequently, a bankruptcy notice. It was accepted that there was a cross demand which exceeded the debt. But it was not a cross demand which could have been set up in the " proceeding ", that " proceeding " either being the application for the interlocutory order for leave or the application for the costs order in that interlocutory application. 34 In the present Application there was a lack of precision in the identification by the Applicant of the " action or proceeding in which the judgment or order was obtained ". At the outset of oral submissions it was contended that the " action or proceeding " was to be found in the Supreme Court proceedings and was either: (i) the claim for declaratory relief, together with costs; or, more narrowly (ii) the claim for the costs order. An analogy was sought to be drawn between the interlocutory nature of the " proceeding " before Hall J in the Supreme Court and the decisions in Re Gould and Chesson v Smith . The narrower the identification of the " proceeding ", the easier the Applicant contended it was to conclude that the claim in respect of losses could not have been set up as an answer. A more broadly phrased submission advanced on behalf of the Applicant in his written submission was that " where an order for costs is made on an interlocutory application within other proceedings, that interlocutory application is itself deemed to be the action in which the relevant order is obtained (see s40(3)(b)) ". By the end of oral submissions, however, the Applicant contended that the " action or proceeding " was: (iii) the " proceeding " in the District Court whereby judgment was entered for the sum of money assessed in the Certificate of Determination of Costs .


case_text: A claim for unliquidated damages for breach of contract can fall within the term " cross demand " ( Re Griffin, Ex parte Soutar (1890) 1 BC (NSW) 29) ; as can a claim for unliquidated damages for a tort ( In re Judd, Ex parte Pike , supra at 539 40). A claim for relief under the Industrial Relations Act 1996 (NSW), being a claim that the creditor pay the debtor any money that may be found owing under an arrangement as varied by the Industrial Relations Commission may also be a cross-claim or counter-demand: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 at [33] [34], [2000] FCA 1187 ; 178 ALR 694 at 704 5 per Madgwick J. A " cross demand " need not have any connection with the cause of action out of which the judgment debt arose: cf In re a Debtor [1914] 3 KB 726. A judgment debtor is thus able to " buy up a claim against the judgment creditor in order to have a 'cross demand' ": In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537 at 540 per Maughan AJ.


case_title: Re Jocumsen (1929) 1 ABC 82

case_text: The " counter-claim, set-off or cross demand " referred to in s 40(1)(g) and 41(7) " must be something sounding in money ": Re Brinks; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 , 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J. 28 Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up as a matter of law; a mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 FLR 135, at p 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 53 , at p 57, especially per Lukin J where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... . Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40.


case_text: This provision exists for the benefit of the debtor: Re Willats; Ex parte Nissan Finance Corp Ltd [1991] FCA 407 ; (1991) 31 FCR 206. O'Loughlin J there observed (at 212): The reference in s 40(1)(g) of the Act to a counterclaim that could not have been set up in the proceedings exists for the protection of the debtor. Notwithstanding that his creditor may have obtained a judgment against him, that judgment cannot be used to found a bankruptcy notice if there is -- outside the spectrum of those legal proceedings -- a counterclaim of equal or greater size. But the Act intends a debtor, at the earliest opportunity, to raise against his creditor such counterclaim, if any, as he may have and which can be properly raised in the creditor's proceedings; if he does not he cannot complain (by way of raising that counter-claim) when the creditor applies to this court to issue a bankruptcy notice. The statutory phrase " must not be narrowed ". A judgment debtor is " not to lie by with his cross-demand, but must prosecute it with due diligence ": Re Brown, Ex parte Peisley Brothers (1892) 3 BC (NSW) 13 at 14 per Manning J. " A debtor having a claim against his or her creditor can not just stand by while judgment is obtained and later seek to use that claim to set aside a bankruptcy notice founded upon that judgment ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 137 per Hill J. 29 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_text: It is not considered that the " final judgment or final order " could be constituted by the order for costs made by the Supreme Court, either on its own or together with the Certificate of Determination of Costs : Franks v Warringah Council [2003] FCA 1047 , 131 FCR 287. A certificate that sets out the determination of the costs assessor, without being filed in a court of competent jurisdiction, is not sufficient to found a bankruptcy notice: Snelgrove v Roskell [2007] FCA 122 at [53] , 157 FCR 313 at 319 per Jacobson J. In Franks , the Land and Environment Court had there ordered that the Council's costs be agreed or assessed under the then Legal Profession Act 1987 (NSW). A bankruptcy notice was served, the schedule to which stated that costs had been so assessed and annexed a certificate. Branson J summarised the submissions there being advanced as follows: [16] It was submitted by the Council that the argument that it could only recover its costs by filing in a court of competent jurisdiction a certificate issued pursuant to s 208J of the Legal Profession Act was contrary to established authority and the proper construction of the relevant legislation. The Council submitted that in respect of each order of the Land and Environment Court, having received the determination of the costs assessor, it had two options open to it for the purpose of the Bankruptcy Act . The first option, it argued, was the option of filing the certificate issued under s 208J of the Legal Profession Act in a court of competent jurisdiction and issuing a bankruptcy notice on the judgment thereby deemed to have been obtained. The second option, it argued, was the option which it in fact adopted; that is, the option of issuing a bankruptcy notice founded on the order of the Land and Environment Court supported by the certificate issued under s 208J. The Council contended that the second of these options remained open to it even after it had filed in a court of competent jurisdiction the certificate issued by the costs assessor. Her Honour reviewed the authorities and then concluded: [30] The submissions of the Council identified in [16] are, in my view, unsustainable. Section 40(1)(g) does not, as it seems to me, admit of the possibility that a creditor may have obtained against a debtor more than one final judgment or final order in respect of the one debt, or perhaps more accurately, sourced from the same obligation. Further, s 40(1)(g) of the Bankruptcy Act refers only to final judgments and final orders that can be enforced by a writ of execution (Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 198 per Riley J). I incline to the view that Pt 44 r 7 of the Supreme Court Rules (NSW), as presently worded, does not allow a writ of execution to issue in respect of the orders of the Land and Environment Court on which reliance is here placed. It seems to me to be implicit in Pt 44, r 7, as presently worded, that a writ of execution may only issue in respect of costs determined under the Legal Profession Act to enforce a judgment entered as a result of the filing of a certificate under the Legal Profession Act . ... [32] I conclude that each of the bankruptcy notices should be set aside on the basis that it is fatally flawed because the judgment or order upon which it is founded, and which is attached to it as required by Form 1, is not "a final judgment or final order, being a judgment or order the execution of which has not been stayed" within the meaning of s 40(1)(g) of the Bankruptcy Act . 36 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_text: A debtor cannot " satisfy " the Court, for example, by showing no more than the fact that a claim is made and how the claim may be made out: Re Duncan, Ex parte Modlin (1917) 17 SR (NSW) 152 per Street J. It is not sufficient that a debtor believes he has a genuine claim; what is required is that the Court must be satisfied that it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J. See also: Dekkan v Macquarie Leasing Pty Ltd (No 2) [2008] FCA 1431 per Buchanan J; Cirillo v Consolidated Press Property Pty Ltd [2007] FCA 139. Mere production of a statement of claim, without more, is not sufficient: Re Cox (1934) 7 ABC 98. Nor is a " shadowy " claim that could not fairly be litigated: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.


case_text: The Application was filed in this Court on 29 February 2008. That Application seeks an order setting aside the Bankruptcy Notice . The power of this Court to set aside a bankruptcy notice was not questioned: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 30 ALR 77 at 83 per Lockhart J; Dimasi v Nangiloc Colignan Farms Pty Ltd [2007] FCA 308 at [25] , [2007] FCA 308 ; 239 ALR 330 at 337 per Ryan J.


case_title: Re Stokvis (1934) 7 ABC 53

case_text: Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up as a matter of law; a mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 FLR 135, at p 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 53 , at p 57, especially per Lukin J where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... . Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40. 30 Similarly, a claim which may be brought by way of a cross-claim, but only upon the claimant electing to discontinue a pending action, is nevertheless a claim which could be set up as a " counter-claim, set-off or cross demand ": Re Stokvis (1934) 7 ABC 53.


case_text: Consistent with the legislative objective sought to be achieved by s 40(1)(g) , it has been held that the phrase " could not have been set up " refers to a " cross-claim, set-off or cross demand " which could not have been set up as a matter of law; a mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 FLR 135, at p 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 ABC 82 , at p 85; Re A Debtor [1914] 3 KB 726, at p 730 per Avory J.; Re Stockvis (1934) 7 ABC 53 , at p 57, especially per Lukin J where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained ... . Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." The judgment debtor was there asserting that, despite his best endeavours, he could not obtain " factual and expert evidence " to establish his counterclaim. That was not sufficient to bring himself within s 40(1)(g). Fisher J concluded (at 326): In my opinion these statements of principle... determine the matter against the debtor. There was no reason in law why he could not set up his counterclaim in the creditor's proceedings. ... See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J; Clark v UDC Finance Ltd [1985] 2 NZLR 636 at 639 40.


case_title: Re Willats; Ex parte Nissan Finance Corp Ltd [1991] FCA 407 ; (1991) 31 FCR 206


case_title: Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694


case_title: Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188 , 107 FCR 144


case_title: Ryan v Hansen [2000] NSWSC 354 , 49 NSWLR 184


case_title: Smart v Esanda Finance Corp Ltd [2000] FCA 235


case_title: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152


case_text: 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_title: Wentworth v Rogers [2006] NSWCA 145 , 66 NSWLR 474


case_text: 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_text: 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_outcome: discussed

case_text: 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_title: Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714


case_text: 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_text: 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_text: 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_text: 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_text: 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_title: O'Shaughnessy v Mirror Newspapers Limited [1969] 1 NSWR 422


case_text: Suk Ra is a brothel owner. She commenced these proceedings against the publisher of The Daily Telegraph newspaper, Nationwide News Pty Limited and its associated company, News Digital Media Pty Limited. News Digital publishes material on the internet including extracts from the Daily Telegraph . On 3 December 2008, The Daily Telegraph also published an editorial headed "Sydney's Own Horror House". The text of the editorial appears to have been republished on the internet by News Digital on either 3 or 4 December. On the same day the Daily Telegraph published an article under the headline "Sex Slave Trade Revealed". The article had a subheading, "Brothel Madam Walks Scott Free". On 4 December 2008, News Digital published an internet article headed "No Way Out for Women in Debt and Total Despair". A web blog or section on the News Digital website allowed readers to post comments on this article. On and after 4 December 2008 a number of comments were posted on this part of the website. Ms Ra claimed that each of these publications contravened s 53B of the Trade Practices Act 1974 (Cth). She alleged that one or other of the publishers had engaged in conduct that was liable to mislead persons seeking such employment as to the nature, terms or conditions of that employment by making a variety of misleading representations in each of the five publications in relation to employment that was or may be offered by her. In times less free than those in which we now live, the charge of criminal libel was often employed as a means of censoring freedom of expression and opinion. Until the passage of Fox's Libel Act in 1792 (32 Geo 3 c 60), the judges of England had asserted that it was their province to determine whether or not a matter was defamatory: R v Shipley ( The Dean of St Asaph's Case ) (1784) 4 Doug 73 at 164-165 per Lord Mansfield CJ, as explained by Lord Blackburn in The Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 772-776. But juries constantly defied them by refusing to convict on a direction by a judge that the matter complained of was libellous. Fox's Libel Act squarely placed the decision of whether or not the matter complained of was a libel in the hands of the jury, and there it has remained in England to the present time, as it has until recent times in many of the Australian States. Lord Denning graphically explained, in his inimitable style, some of the history that informed the passage of Fox's Libel Act in Landmarks in The Law (1984) at 284-294.


case_text: 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. The test does not imply that the hypothetical referees will exercise a moral judgment about the plaintiff or applicant because of what is said about him or her. Rather, the test identifies the attributes of persons who share the standards of the general community and will apply them: Chesterton 254 ALR at 616 [37]-[38]. And, the moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation: Chesterton 254 ALR at 618 [46]. The standard to be applied must be one common to society rather than one which reflects an attitude of a section of it: Chesterton 254 ALR at 619 [48]. French CJ, Gummow, Kiefel and Bell JJ continued ( Chesterton 254 ALR at 618 [46]: "In such cases the ordinary reasonable person may be expected to draw upon such community standards as may be relevant, in order to answer the question whether there has been injury to that reputation." I am of opinion that the essential balances that will need to be struck in respect of the critical issues in this matter (other than damages) are quintessentially better determined by a jury. This assessment will best be done by the community referees to whom French CJ, Gummow, Kiefel and Bell JJ referred in Chesterton 254 ALR at 616 [37]-[38], 618 [46], 619 [48] as did Brennan J in Lamb 150 CLR at 506. Accordingly, I am satisfied that the ends of justice render it expedient to direct a trial by jury of all issues in the proceedings, other than damages and any other issue which, pursuant to the Defamation Act would not be left to the jury. Thus, the question of the capacity of the matters complained of to convey any of the defamatory meanings alleged (as opposed to whether they in fact were conveyed) would remain a question of law to be decided by a judge. The part of this controversy that arises under s 53B of the Trade Practices Act should also be decided by a jury. This is because it is inextricably related to the meanings conveyed to ordinary reasonable readers by the matters complained of and whether Ms Ra has been injured in her reputation as an employer for the purposes of s 53B. However, if the jury returned a verdict in her favour on the issues of liability, the amount of compensation to be awarded pursuant to s 82 of that Act should be assessed by a judge.


case_text: of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. In Reader's Digest Services Pty Limited v Lamb [1982] HCA 4 ; (1982) 150 CLR 500 at 505-506 Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed said: "Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees -- Lord Selborne's reasonable men ( Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741 , at p 745) or Lord Atkin's right-thinking members of society generally ( Sim v. Stretch (1936) 52 TLR 669 , at p 671) or Lord Reid's ordinary men not avid for scandal ( Lewis v. Daily Telegraph Ltd. [1964] AC, at p 260)) -- would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ( Byrne v. Deane [1937] 1 KB 818 , at p. 833, being a standard common to society generally ( Miller v. David (1874) LR 9 CP 118 ; Myroft v. Sleight (1921) 90 LJKB 883 ; Tolley v. J.S. Fry & Sons Ltd. [1930] 1 KB 467, at p. 479)." (emphasis added) Brennan J went on to say ( Lamb 150 CLR at 506): "But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally ." (emphasis added) This matter raises issues that very much involve giving effect to moral and social values of the community. I am satisfied that a trial by a jury would be a better mode of trial than by judge alone to assess the various claims and defences in these defamation proceedings. The jury will be better able to make such an assessment than a judge and to do so in a way likely to arrive at a reflection of the attitude of society generally: Lamb 150 CLR at 506. I am of opinion that the essential balances that will need to be struck in respect of the critical issues in this matter (other than damages) are quintessentially better determined by a jury. This assessment will best be done by the community referees to whom French CJ, Gummow, Kiefel and Bell JJ referred in Chesterton 254 ALR at 616 [37]-[38], 618 [46], 619 [48] as did Brennan J in Lamb 150 CLR at 506. Accordingly, I am satisfied that the ends of justice render it expedient to direct a trial by jury of all issues in the proceedings, other than damages and any other issue which, pursuant to the Defamation Act would not be left to the jury. Thus, the question of the capacity of the matters complained of to convey any of the defamatory meanings alleged (as opposed to whether they in fact were conveyed) would remain a question of law to be decided by a judge. The part of this controversy that arises under s 53B of the Trade Practices Act should also be decided by a jury. This is because it is inextricably related to the meanings conveyed to ordinary reasonable readers by the matters complained of and whether Ms Ra has been injured in her reputation as an employer for the purposes of s 53B. However, if the jury returned a verdict in her favour on the issues of liability, the amount of compensation to be awarded pursuant to s 82 of that Act should be assessed by a judge.


case_title: Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR p41-866