Donkin v AGC (Advances) Ltd - [1995] FCA 696

CATCHWORDS

PROCEDURE - Application to reopen orders of a Full Court and order at first instance - new evidence relied upon - fraud not alleged - whether jurisdiction to reopen - whether exceptional circumstances - whether all parties given a fair opportunity to adduce evidence at the trial

Federal Court Rules 0.35 r.7

Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Charles Bright & Co Ltd v Sellar [1904] 1 KB 6
Chamberlain v Commissioner of Taxation (1991) 28 FCR 21
Flower v Lloyd [1877] 6 Ch D 296
Haig v Minister Administering the National Parks and Wildlife Act 1974 (1994) 85
LGERA 143
Monroe Schneider v Raberem [No 2] (1992) 32 FCR 234
Owens Bank Ltd v Bracco [1992] AC 443
Ex parte Tewkesbury (1898) 19 NSWR 440
Wentworth v Rogers (No 9) (1987) 8 NSWLR 393

COLIN JOHN DONKIN and HEATHER KAY DONKIN v AGC (ADVANCES) LTD
No. QG 107 of 1989

Black CJ, Davies and Whitlam JJ
30 August 1995
Melbourne
(Heard in Brisbane)

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
QUEENSLAND DISTRICT REGISTRY                  )   No. QG 107 of 1989
     )
GENERAL DIVISION     )

BETWEEN:COLIN JOHN DONKIN and
HEATHER KAY DONKIN

Applicants

AND:AGC (ADVANCES) LTD

Respondent

CORAM: Black CJ, Davies and Whitlam JJ.

DATE: 30 August 1995
PLACE: Melbourne
(Heard in Brisbane)

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The applications be dismissed.
2. The first-named applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA          )
QUEENSLAND DISTRICT REGISTRY                   )   No. QG 107 of 1989
GENERAL DIVISION                     )

BETWEEN:COLIN JOHN DONKIN and
HEATHER KAY DONKIN
Applicants

AND:AGC (ADVANCES) LTD
Respondent

COURT: Black CJ, Davies & Whitlam JJ

DATE:30 August 1995
PLACE:Melbourne (heard in Brisbane)

REASONS FOR JUDGMENT

BLACK CJ

On 9 August 1991 Beaumont J dismissed an application brought by Colin John Donkin and his wife, Heather Kay Donkin, against the respondent, AGC (Advances) Ltd ("AGC"). Mr and Mrs Donkin had sought damages from the respondent for losses they claimed to have suffered as a result of, amongst other things, the negligent failure of the respondent to advise them of the steps available to them to minimise the risks of an adverse fluctuation in the rate of exchange in connection with foreign currency borrowing transaction. Mr and Mrs Donkin then appealed to a Full Court of this Court which, in December 1991, dismissed their appeal. An application for special leave to appeal the High Court was subsequently filed but the application was not pursued and in April 1992 it was dismissed.

There are presently before this Full Court applications by Mr Donkin for an extension of time in which to appeal against the order made by Beaumont J in August 1991 dismissing his application and for "special leave" to bring an application to set aside the judgment of Beaumont J insofar as it relates to…

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: [1995] FCA 696
Decision Date: 30 Aug 1995

CaseChat Overview and Summary

This case involved an application by Colin John Donkin and Heather Kay Donkin to reopen the orders of a Full Court and an order at first instance, and to seek an extension of time to appeal against the orders. The applicants sought the orders on the basis of new evidence they claimed would have led to an opposite result. The legal issues the court had to decide were whether the court had jurisdiction to reopen the case in the absence of fraud and whether exceptional circumstances existed that warranted reopening the case. The court held that while it had jurisdiction to reopen a case in exceptional circumstances, the present case did not warrant such action. The court found that the applicants were not heard without fault on their part and that the evidence they sought to rely on was not new, as it was available at the time of the trial and appeal. The court further held that the trial was fair, and all parties were given a fair opportunity to adduce evidence. The court dismissed the applications and ordered the applicants to pay the respondent's costs.

Orders