Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd - [2002] FCA 1002

FEDERAL COURT OF AUSTRALIA
Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2002] FCA 1002
CHECKED-OUT PTY LTD v EAGLE EYE INSPECTIONS PTY LTD
N169 OF 1999
EMMETT J
2 AUGUST 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 169 OF 1999

BETWEEN:

CHECKED-OUT PTY LTD (ACN 071 965 798)

FIRST APPLICANT

PHILIP JULIAN HARDCASTLE

SECOND APPLICANT

AND:

EAGLE EYE INSPECTIONS PTY LTD (ACN 084 722 234)

FIRST RESPONDENT

JOSEPH WILLIAMS

SECOND RESPONDENT

WAYNE THOMAS COOK

THIRD RESPONDENT

TIMOTHY BOLLINS

FOURTH RESPONDENT

DEBORAH JEAN WILLIAMS

FIFTH RESPONDENT

PETER ADAMS trading as PETER ADAMS, SOLICITORS & ATTORNEYS

SIXTH RESPONDENT

KATARINA MUC trading as G.H. HEALEY & CO. BLACKTOWN and BRUCE McCANN trading as B.E. McCANN & CO., SOLICITORS

SEVENTH RESPONDENT

MARK KELADA trading as MARK KELADA SOLICITORS

EIGHTH RESPONDENT

MICHAEL QUINN trading as QUINNS SOLICITORS

NINTH RESPONDENT

JOHN MICHAEL NOYCE and GREGORY LAURENCE MARTIN trading as NOYCE LAWYERS

TENTH RESPONDENT

HENRY GRECH trading as GRECH PARTNERS SOLICITORS

ELEVENTH RESPONDENT

GREGORY PETER GUY trading as GUY & ASSOCIATES SOLICITORS
TWELTH RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

2 AUGUST 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.leave is granted to the applicant to carry on the proceeding without a solicitor for the purposes of resisting the notices of motion of the twelfth respondent, dated 12 November 2001; the sixth to eleventh respondents dated 4 December 2001; and the first to fifth respondents dated 4 December 2001 (“the dismissal motions”);

2.leave is granted for the applicant to be represented on the hearing of the dismissal motions by Mr Philip Hardcastle;

3. the notice of motion dated 24 July 2002 be otherwise dismissed; and
4.the applicant pay the respondents' costs of the hearing of the notice of motion dated 24 July 2002.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 169 OF 1999

BETWEEN:

CHECKED-OUT PTY LTD
APPLICANT

PHILIP JULIAN HARDCASTLE
SECOND APPLICANT

AND:

EAGLE EYE INSPECTIONS PTY LTD (ACN 084 722 234)

FIRST RESPONDENT

JOSEPH WILLIAMS

SECOND RESPONDENT

WAYNE THOMAS COOK

THIRD RESPONDENT

TIMOTHY BOLLINS

FOURTH RESPONDENT

DEBORAH JEAN WILLIAMS

FIFTH RESPONDENT

PETER ADAMS trading as PETER ADAMS, SOLICITORS & ATTORNEYS

SIXTH RESPONDENT

KATARINA MUC trading as G.H. HEALEY & CO. BLACKTOWN and BRUCE McCANN trading as B.E. McCANN & CO., SOLICITORS

SEVENTH RESPONDENT

MARK KELADA trading as MARK KELADA SOLICITORS

EIGHTH RESPONDENT

MICHAEL QUINN trading as QUINNS SOLICITORS

NINTH RESPONDENT

JOHN MICHAEL NOYCE and GREGORY LAURENCE MARTIN trading as NOYCE LAWYERS

TENTH RESPONDENT

HENRY GRECH trading as GRECH PARTNERS SOLICITORS

ELEVENTH RESPONDENT

GREGORY PETER GUY trading as GUY & ASSOCIATES SOLICITORS
TWELTH RESPONDENT

JUDGE:

EMMETT J

DATE:

2 AUGUST 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant, by notice of motion filed on 24 July 2002, seeks orders as follows:
1.That the Court gives leave for Philip Julian Hardcastle to act for the applicant.
2.The applicant's address for service be permitted to be…

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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Details

Case: [2002] FCA 1002
Decision Date: 2 AUGUST 2002

CaseChat Overview and Summary

Checked-Out Pty Ltd brought proceedings against Eagle Eye Inspections Pty Ltd in the Supreme Court of New South Wales. The applicant sought to recover losses allegedly suffered as a result of the breach of a contract for the supply of inspection services. The defendants moved to dismiss the claim on various grounds, including that the applicant had failed to engage a solicitor to represent them. In response, the applicant applied for leave to proceed without a solicitor and for a particular individual, Mr Philip Hardcastle, to represent them on the hearing of the dismissal motions. The court was required to determine whether the applicant should be granted leave to proceed without a solicitor and whether Mr Hardcastle was qualified to represent the applicant on the hearing of the dismissal motions.

The court held that the applicant should be granted leave to proceed without a solicitor, as the applicant had demonstrated a genuine intention to proceed with the claim and had taken steps to ensure that they were adequately represented. The court also held that Mr Hardcastle was qualified to represent the applicant on the hearing of the dismissal motions, as he was a suitably qualified and experienced practitioner. The court further held that the notice of motion dated 24 July 2002 should be dismissed and that the applicant should pay the respondents' costs of the hearing of that motion. The court noted that the applicant had not demonstrated that the dismissal motions were without merit and that the applicant's failure to engage a solicitor had caused unnecessary delay and expense.

Orders

Orders of the court

1. leave is granted to the applicant to carry on the proceeding without a solicitor for the purposes of resisting the notices of motion of the twelfth respondent, dated 12 November 2001; the sixth to eleventh respondents dated 4 December 2001; and the first to fifth respondents dated 4 December 2001 (“the dismissal motions”);

2. leave is granted for the applicant to be represented on the hearing of the dismissal motions by Mr Philip Hardcastle;

3. the notice of motion dated 24 July 2002 be otherwise dismissed; and

4. the applicant pay the respondents' costs of the hearing of the notice of motion dated 24 July 2002.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

EMMETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: EMMETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 169 OF 1999

BETWEEN:	CHECKED-OUT PTY LTD (ACN 071 965 798) FIRST APPLICANT PHILIP JULIAN HARDCASTLE SECOND APPLICANT
AND:	EAGLE EYE INSPECTIONS PTY LTD (ACN 084 722 234) FIRST RESPONDENT JOSEPH WILLIAMS SECOND RESPONDENT WAYNE THOMAS COOK THIRD RESPONDENT TIMOTHY BOLLINS FOURTH RESPONDENT DEBORAH JEAN WILLIAMS FIFTH RESPONDENT PETER ADAMS trading as PETER ADAMS, SOLICITORS & ATTORNEYS SIXTH RESPONDENT KATARINA MUC trading as G.H. HEALEY & CO. BLACKTOWN and BRUCE McCANN trading as B.E. McCANN & CO., SOLICITORS SEVENTH RESPONDENT MARK KELADA trading as MARK KELADA SOLICITORS EIGHTH RESPONDENT MICHAEL QUINN trading as QUINNS SOLICITORS NINTH RESPONDENT JOHN MICHAEL NOYCE and GREGORY LAURENCE MARTIN trading as NOYCE LAWYERS TENTH RESPONDENT HENRY GRECH trading as GRECH PARTNERS SOLICITORS ELEVENTH RESPONDENT GREGORY PETER GUY trading as GUY & ASSOCIATES SOLICITORS TWELTH RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	2 AUGUST 2002
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	2 AUGUST 2002
PLACE:	SYDNEY