Case Law Flashcards
Southern Cross Exploration NL v Fires & All Risks Insurance Co Ltd
Per Waddell J
“In my opinion the authorities cited make it clear that a party is not entitled, in effect, to amend a pleading by giving particulars of further material facts. To permit a party to do so would be to allow amendment contrary to the rules which require, in various circumstances, the filing of an amended pleading, the consent of other parties, or the leave of the court. But it is possible that particulars in effect amending a pleading might be accepted by the opposite party and a proceeding might be conducted on that basis.”
Bendir v Anson (1936) 3 All ER 326
“Lord Wright considered the construction of a building which blocked the light to two buildings on the opposite side of the street was a transaction.”
“Transactions” are liberally construed and don’t just mean contracts.
Birtles v Commonwealth [1960] VR 247
“A solicitors failure to issue a notice of the plaintiffs intention to sue within the time limit was a transaction allowing the joinder of the solicitor as a co-defendant in the plaintiff’s personal injury action. The plaintiffs must show a causal act or breach by the defendant which damaged the plaintiffs.”
“Transactions” are liberally construed and don’t just mean contracts.
Payne v Young (1980) 145 CLR 609
High Court upheld the defendants arguments against joinder. Each plaintiff had entered into a separate transaction with the inspection authorities. The transactions were not related. There was a common interest in the validity of the regulations but this was not enough to justify joinder.
Smith v Foley [1912] VLR 315
Causes of action can only be joined if there is a common question.
Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278
“Where a defendant applies to add a co-defendant over the plaintiff’s opposition the co-defendant’s presence must be necessary for the complete adjudication of the issues between the existing parties. Courts are generally reluctant to permit a defendant to add another defendant.”
Banque Commerciale SA En Liq. v Akhil Holdings Ltd (1990) 169 CLR 279
Mason CJ and Gaudron J (at 286)
“The function of pleadings is to state with sufficient clarity the case that must be met.”
“In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issue for decision.”
Port of Melbourne Authority v Anshun Pty Limited (No 2) (1981) 147 CLR 589
Per Gibbs CJ, Mason and Aickin JJ (at 604):
“The matter now sought to be raised by the Authority was a defence to Anshun’s claim in the first action. It was so closely connected with the subject matter of that action that it was to be expected that it would be relied upon as a defence to that claim and as a basis for recovery by the authority from Anshun. …. If reserved for assertion in a later action, it would increase costs and give rise to a conflicting judgement.”
HCA dismissed the appeal, estoppel did arise to prevent the second claim.
Anshun Estoppel
Phillip v Morris
Applications for collective redress requirements:
Application must include three categories of information
the relief claimed by the principal applicant
the relief claimed by the group members
a sufficient description or identification of the group members.
Application must meet s 33C(1) requirements:
7 or more person against the same person
claims in respect or arise out of the same/similar circumstances
claims of all persons gives rise to a substantial common issue of law or fact.
Hogan v Australian Crime Commission
the moment you no longer need a closed court, then the court must be opened.
Comandate Marine Corp v Pan Australia Shipping Pty Ltd
Allsop J held that filing a writ does not extinguish rights under the arbitration agreement and the party commencing litigation proceedings is not seen to be ‘electing’ between inconsistent rights.
PMT Partners
HCA held that clauses that enable one party to choose arbitration and thus bind or oblige the other party to participate in arbitration is an arbitration agreement. This is valid and the HCA held that it is not necessary for the arbitration agreement to require the parties to agree on arbitration to the exclusion of all other DR methods. There is a unilateral right to refer to arbitration.
Phillips v Phillips (1878)
The pleading did not contain the facts that ought to be proved because the pleading was drafted as a “fishing statement” and not precise.
Henderson v Henderson (1843)
“Where a matter becomes the subject matter of litigation in and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case…”
The Court generally “not permit the same parties to open the same subject of litigation in contest” that was not pleaded earlier.
The plea of res judicata applies not only to cases the court decides but which the parties, exercising reasonably diligence, might have brought at the time.
Bishop v Bridgelands Securities (1990)
Applicant sought to join 114 applicants who also received the letter containing the alleged misleading and deceptive conduct. Wilcox J held that the basic principle to take into account is whether the joinder is what is most conducive to the just resolution of disputes?
Leave should not be granted where the joinder is likely to cause delay, unfairness or an undue burden on the respondent.
