FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GENOVESE v BGC CONSTRUCTION PTY LTD | [2006] FMCA 1507 |
| PRACTICE AND PROCEDURE – BANKRUPTCY – Application for transfer to Federal Court – factors to be considered – question of general importance – costs and convenience of hearing and determination – interests of administration of justice – application refused. |
| Federal Magistrates Act 1999 (Cth), ss.39(1),(2),(3) and (6) Federal Magistrates Court Rules 2001 (Cth), rr.1.03(1) and 8.02(2) and (4)(a)-(d) Federal Court Act 1976 (Cth), ss.24(1)(a) and (d), 25(1A) |
| Baumer v R (1988) 166 CLR 51 MZXJR v The Minister for Immigration [2006] FMCA 652 Noble v Cotton (1830) Dowling’s Proceedings of the Supreme Court, Vol 34 |
| Applicant: | HERCOLE PIETRO GENOVESE |
| Respondent: | BGC CONSTRUCTION PTY LTD |
| File Number: | PEG121 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 18 and 19 September 2006 |
| Date of Last Submission: | 19 September 2006 |
| Delivered at: | Perth |
| Delivered on: | 19 September 2006 |
REPRESENTATION
| Applicant: | Mr Genovese appeared for himself |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | Hotchkin Hanly |
ORDERS
Application dismissed.
Costs in the sum of $705.00 payable by the applicant to the respondent with 42 days to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG121 of 2006
| HERCOLE PIETRO GENOVESE |
Applicant
And
| BGC CONSTRUCTION PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript and further amended)
This is an application made by the applicant on 14 September 2006 for transfer to the Federal Court of the proceedings in this matter.
The matter was listed before me yesterday for mention and in conjunction with a directions hearing in this matter. The directions hearing related to applications by the respondent concerning submissions, cross-examination and the admissibility of affidavit evidence.
The parties agreed that the application for transfer to the Federal Court ought be dealt with prior to dealing with those other interlocutory matters. I heard argument on the application following an adjournment which I granted to allow the applicant more time than he indicated he needed to prepare such submissions as were necessary (given his self-explanatory affidavit in support of the application).
The substantive application in this…
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- Case
- [2006] FMCA 1507
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the County Court had correctly applied the principles of causation and negligence, and whether there was a palpable and overriding error in the County Court's decision. The applicant argued that the County Court had failed to properly consider the evidence regarding the respondent's breach of duty of care, and that this constituted a significant error warranting an appeal.
The court found that the County Court had adequately considered the evidence and correctly applied the relevant legal principles. The court held that the County Court's assessment of the evidence and its conclusions regarding causation and negligence were not so palpably and overwhelmingly wrong as to justify an appeal. The court further determined that there was no overriding error in the County Court's decision, and thus dismissed the application for leave to appeal. In light of this outcome, the court ordered that the costs of the application in the sum of $705.00 be paid by the applicant to the respondent within 42 days.
Orders
Orders of the court
1.
Application dismissed.
2.
Costs in the sum of $705.00 payable by the applicant to the respondent with 42 days to pay.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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