PRACTICE AND PROCBDURE - Where final judgment sought against respondent pursuant to 0 10 r 7, applicant must support motion for judgment with material in legally admissible form
sufficient to prove: Court's jurisdiction, circumstances
justifying grant of discretionary remedy and facts necessary to prove entitlement to re1 ief claimed under judgment applied for.
orwratione
- S 1323
rt of A
-
Act 1976 - s 4
Pedetal - 0 l r 4, 0 4 rr 1 and 6, 0 10, 0 10 r 1, 0 l0 r 1(2), 0 10 r 7, 0 10 r 7(l)(b), 0 11 r 13, 0 11 r 23, 0 14 r 9(3), 0 15 r 16, 0 16 r 9, 0 19 rr l(2) and 2(1), O 3 3 r 2 , O 3 3 r 3
-V
(1990) 27 F.C.R.
388 Considered
S Ptv. L&
v m 0
Ptv. LtdL (1992) 36 F.C.R.
&-v
of
Rev-
(1890) 25 Q.B.D. 65
Referred to
v ppie (1951) 84 C.L.R. 362 Referred to
Pearce v Butfon (1986) 8 P.C.R. 408 Referred to
v m (1888) 58 L.T. 710 Referred to
v
loo
I n d u a t r i e e P t v . L t d .
(1986) 66
-
A.L.R. 537 Referred to
m v
[l8921 2 Ch. 135 Considered
Brisbane
U
THE
COURT OF A U S T W )
No. QG 3011 of 1992
DIS-
1
-
1
I N THE MATTER OF ROBERT JAMES MACLEOD AND OTHERS
Applicant
-
F i r s t
Respondent
A.C.N.
001506332
Second Respondent
STUD-
A.C.N.
051750442
Third Respondent
S PTY. m
A.C.N.
055168128
Fourth Respondent
PTY. LTe,
A.C.N.
055168155
F i f t h
Respondent
Drummond J
10 November, 1994
Brisbane
The matter is adjourned t o Tuesday, 22 November,
1994 a t 9.00 a.m.
R)TE:
Settlement and
e n t r y of
orders
is
d e a l t with
i n
Order 36 of t h e -
.
OF AUSTRALIB )
No. QG 3011 of 1992
)
1
IN THE MATTER OF ROBERT JAMES MACLEOD AND OTHERS
Applicant
-
First Respondent
A.C.N. 001506332
Second Respondent
A.C.N. 051750442
Third Respondent
A.C.N. 055168128
Fourth Respondent
-
A.C.N. 055168155
Fifth Respondent
!22UJll:
Drummond J
RkfiQ:
10 November, 1994
Z h Q :
Brisbane
This is an application by the applicant in the
proceedings for judgment in the action pursuant to 0. 10, r.
7(l)(b) the pederal Court
against all respondents.
A defence has been filed by all the respondents, but they have failed to comply with a direction given pursuant to
0. 10, r. 1 that required them to file and serve further
particulars of this defence by 20 October, 1993. A direction to furnish these particulars was first given in May 1993. This direction was by consent and fixed a date for "the respondentsm to file and serve the particulars. Subsequently, objection was taken by the respondents to providing some…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Australian Securities Commission v MacLeod [1994] FCA 901
Case
[1994] FCA 901
Decision Date
CaseChat Overview and Summary
In the matter of Robert James MacLeod and others, the Australian Securities Commission (Applicant) filed an application in the Federal Court seeking final judgment against all respondents. The respondents filed a defense but failed to comply with a direction given under Order 10, rule 1 of the Federal Court Rules to file and serve further particulars of their defense by a specific date. The court had to decide whether the applicant needed to present evidence to prove their entitlement to the judgment claimed under Order 10, rule 7(1)(b) of the Federal Court Rules.
The court held that an applicant seeking final judgment against a respondent who has defaulted in complying with a direction or other procedural step must provide evidence sufficient to prove their entitlement to the judgment claimed. The court must be satisfied of its jurisdiction, the circumstances justifying the grant of the discretionary remedy, and all the facts necessary to prove the applicant's entitlement to the relief claimed under the judgment applied for. The applicant has filed material sufficient to entitle it to final judgment in the action.
The court granted final orders in the case, at least in terms of paragraphs 1, 2A, 3A, 4, and 4A of the amended application filed on 11 March 1993. The applicant is also entitled to an order against the respondents for the payment of its costs of and incidental to the proceedings.