Forgetting

Question 1

Gould v Vaggelas

Answer 1

Test bullock and Sanderson Test is interdependence of claims against successful and unsuccessful defendants – whether unsuccessful defendant contributed to joinder of successful defendant

Question 2

Cardile v LED Builders

Answer 2

“Good arguable case” means less than prima facia case, only requires “reasonably arguable on factual and legal matters”

Question 3

Reinehr Industrial Lease & Finance v Jordan

Answer 3

t st set aside DJ – Discretionary – “balance the competing interests” and determine if “interests of justice” require set aside – application is determined not as to underlying merits but whether triable issue raised)

R​Rodger​​Regularity
R​Ramjet​​Reasons for default
D​Decapitates​Delay (c.f. CPA, s 58)
P​Peter​​Prejudice to P
P​Piper​​Prospects of success

Question 4

Herning v GWS Machinery

Answer 4

– Must be “real and genuine attempt to settle”

Question 5

Jones v Bradly

Answer 5

Failure of formalities under r 20.26, court may still take offer into account – Calderbank will rarely warrant indemnity costs unless rejection unreasonable

Question 6

Barton v Minister for Foreign Affairs –

Answer 6

Satisfaction of r 42.21 does not require order for security

Question 7

Johnson Tiles v Esso

Answer 7

– No rigid rules governing leave to appeal, but leave should be granted where there are “substantial reasons”

Question 8

Fox v Percy

Answer 8

– Task of CoA is determine whether decision below correct taking into account advantages of trial judge

Question 9

SCA s 75A

Answer 9

Appeal to COA by way of rehearing

Question 10

Appeals from DC

Answer 10

s 127, DCA – Appeal as of right to SC, except in case of interlocutory, costs, summary judgment, consent, small matters (< $100,000) for which leave is required

s 48, SCA – Appeals from DC assigned to CoA

s 128, DCA – DC may order stay where appeal pending, but not automatic

Question 11

Appeals from LC

Answer 11

s 39, LCA – Appeal as of right from GD of LC to SC on pure question of law

s 40, LCA – Leave required to appeal from GD of LC to SC on mixed question of law and fact, interlocutory matter, consent, or costs

s 49, SCA – Appeal from the GD of the LC is to the SC (not the CoA)

s 39, LCA Appeal lies as of right from SCD of LC to DC only where lack of jurisdiction or denial of procedural fairness

s 40, LCA – On appeal, appellate court may vary, set-aside, or dismiss

Question 12

Appeal procedure

Answer 12

r 51.51 Application for leave to adduce further evidence on appeal by notice of motion
r 51.4 Each person who is directly affected by relief sought or interested in maintaining decision below must be joined as a respondent.

r 51.8 Notice of intention to appeal (or seek leave to appeal) to be filed within 28 days of the material date (generally judgment date)

r 51.9 Filing notice of intention to appeal extends time to appeal or seek leave to 3 months

r 51.10 Application for leave to appeal is by summons filed and served within 28 days of material date, or within 3 months where notice of intention to appeal filed

r 51.12 White folder must be filed and served with summons seeking leave to appeal

r 51.16 Notice of appeal to be filed within 7 days of leave, 3 months of notice of intention or 28 days of material date

r 51.40 Party successful below may file notice of contention with 28 days of notice to appeal

r 51.41 Respondent may make application to dismiss the appeal on grounds of incompetence under r 51.41

r 51.44 Does not automatically stay decision or order below, but may order stay

Question 13

FC appeals

Answer 13

s 24, FCA FC has appellate jurisdiction over appeals from single judge – no appeal from interlocutory matter, consent judgment or summary judgement except with leave

s 25, FCA Appellate jurisdiction generally exercised by Full Federal Court

s 27, FCA May have regard to evidence in proceedings below and admit new evidence on leave

s 28, FCA Broad powers to affirm, vary or dismiss

s 29, FCA Does not automatically stay proceedings, but FFC may grant a stay