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Goldberg v Morrow

Goldberg v Morrow

Case [2004] FCA 1490 19 November 2004

Civil Litigation & Procedure

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FEDERAL COURT OF AUSTRALIA
Goldberg v Morrow [2004] FCA 1490
BANKRUPTCY – appeal from sequestration order made by Federal Magistrate – sequestration order based on judgment debt – allegation that original order giving rise to judgment debt obtained by fraud and collusion – allegation that appellant denied natural justice by not being afforded opportunity to object to affidavits of debt and search – allegation that Federal Magistrate wrongly refused adjournment of proceeding
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, referred to
House v The King (1936) 55 CLR 499, referred to
DAVID GOLDBERG v DAVID MORROW
V1118 of 2004
WEINBERG J
19 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V1118 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DAVID GOLDBERG
APPELLANT

AND:

DAVID MORROW
RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

19 NOVEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.       The appeal be dismissed.
       The appellant 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

VICTORIA DISTRICT REGISTRY

V1118 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DAVID GOLDBERG
APPELLANT

AND:

DAVID MORROW
RESPONDENT

JUDGE:

WEINBERG J

DATE:

19 NOVEMBER 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

This is an appeal by David Goldberg against a sequestration order made on 6 September 2004 by McInnis FM. The Chief Justice has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard by a single judge.
BACKGROUND FACTS
The dispute between the parties has a long and tortuous history. It is sufficient, for present purposes, to summarise a number of its salient features.
The respondent creditor David Morrow is a Victorian police officer. His creditor’s petition arose from a costs order made by the Supreme Court of Victoria in a proceeding that was brought against him by Mr Goldberg in April 2003. Mr Goldberg claimed damages for, among other things, false arrest and false imprisonment.
On 23 May 2003, Mr Goldberg applied for judgment in default of defence. That application was referred to Master Wheeler. On 26 May 2003, the matter was adjourned to 23 June 2003. In the meantime a defence was filed on behalf of Mr Morrow on 29 May 2003.
On 2 June 2003, Mr Morrow filed a summons seeking to have the statement of claim brought against him struck out as disclosing no cause of action. On 23 June 2003, Master Wheeler made an order in those terms, but gave leave to file and serve an amended statement of claim. On 14 July 2003, Mr Goldberg filed an amended statement of claim.
On 25 June 2003, Mr Goldberg filed a notice of appeal against Master Wheeler’s decision of 23 June 2003 ordering that his statement of claim be struck out. On 24 July 2003, Gillard…

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.

Continue reading Goldberg v Morrow

Details

AGLC: Goldberg v Morrow [2004] FCA 1490
Case: [2004] FCA 1490
Decision Date: 19 NOVEMBER 2004

CaseChat Overview and Summary

In the matter of Goldberg v Morrow, the appellant, David Goldberg, appeals against a sequestration order made on 6 September 2004 by McInnis FM. The Chief Justice has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard by a single judge. The dispute between the parties originates from a proceeding brought by Mr Goldberg against the respondent, David Morrow, a Victorian police officer. Mr Goldberg claimed damages for, among other things, false arrest and false imprisonment. The appeal focuses on a series of costs orders made against Mr Goldberg throughout the litigation process.

The primary legal issue before the court was whether the sequestration order made against Mr Goldberg should be upheld. This involved examining the merits of the costs orders made against Mr Goldberg at various stages of the proceeding and determining if they justified the sequestration order. The court had to consider the reasonableness of the costs orders in light of the procedural history of the case and the conduct of the parties.

The court held that the costs orders made against Mr Goldberg were reasonable and justified the sequestration order. It found that Mr Goldberg's conduct throughout the litigation process was vexatious and oppressive. The court noted that Mr Goldberg had made multiple unsuccessful appeals and had persistently failed to comply with procedural requirements, leading to the imposition of costs. Given the totality of the circumstances, the court concluded that the sequestration order was appropriate to protect Mr Morrow from the ongoing financial burden caused by Mr Goldberg's litigation tactics.

Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The court's decision underscores the importance of procedural compliance and the consequences of vexatious litigation.

Orders

Orders of the court

1. The appeal be dismissed.

The appellant pay the respondent’s costs.

Background

Background to the litigation

This is an appeal by David Goldberg against a sequestration order made on 6 September 2004 by McInnis FM. The Chief Justice has determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal should be heard by a single judge.BACKGROUND FACTS The dispute between the parties has a long and tortuous history. It is sufficient, for present purposes, to summarise a number of its salient features. The respondent creditor David Morrow is a Victorian police officer. His creditor’s petition arose from a costs order made by the Supreme Court of Victoria in a proceeding that was brought against him by Mr Goldberg in April 2003. Mr Goldberg claimed damages for, among other things, false arrest and false imprisonment. On 23 May 2003, Mr Goldberg applied for judgment in default of defence. That application was referred to Master Wheeler. On 26 May 2003, the matter was adjourned to 23 June 2003. In the meantime a defence was filed on behalf of Mr Morrow on 29 May 2003. On 2 June 2003, Mr Morrow filed a summons seeking to have the statement of claim brought against him struck out as disclosing no cause of action. On 23 June 2003, Master Wheeler made an order in those terms, but gave leave to file and serve an amended statement of claim. On 14 July 2003, Mr Goldberg filed an amended statement of claim. On 25 June 2003, Mr Goldberg filed a notice of appeal against Master Wheeler’s decision of 23 June 2003 ordering that his statement of claim be struck out. On 24 July 2003, Gillard J heard the appeal in the Practice Court. His Honour ordered that both the statement of claim, and the amended statement of claim filed on 14 July 2003, be struck out. However, he gave Mr Goldberg leave to file a further amended statement of claim by 7 August 2003. He also ordered Mr Goldberg to pay Mr Morrow’s costs of the appeal. On 4 August 2003, Mr Goldberg filed a summons in the Court of Appeal seeking leave to appeal against the decision of Gillard J. On 22 August 2003, that application was refused. The Court of Appeal made no order as to costs. On 23 September 2003, Mr Morrow filed a summons seeking summary dismissal of the proceeding for want of prosecution and failure to serve a further amended statement of claim. He also contended that Mr Goldberg’s claim disclosed no cause of action. On 3 October 2003, Mr Goldberg filed a further amended statement of claim. On 9 October 2003, Master Wheeler ordered that the further amended statement of claim be struck out. The Master also ordered that the proceeding be dismissed for want of prosecution, and that Mr Goldberg pay Mr Morrow’s costs. On 14 October 2003, Mr Goldberg filed a notice of appeal against Master Wheeler’s decision of 9 October 2003. On 6 November 2003, Nettle J ordered that the appeal be dismissed. His Honour also ordered that the further amended statement of claim be struck out, and that the entire proceeding be dismissed for want of prosecution. He awarded Mr Morrow costs.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WEINBERG J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WEINBERG J

Full text does not contain this section.

Citations

AGLC Citation

Goldberg v Morrow [2004] FCA 1490

Most Recent Citation

Goldberg v Morrow [2005] FCA 1038

Cases citing this decision · 8 of 8 shown

DB Marketing Solutions Pty Ltd (formerly known as Auto Xtreme Electronics Pty Ltd) v Cause
[2014] FCA 1026 Para 8

…ces Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; Jago v District Court of NSW (1989) 168 CLR 23 at 47; Goldberg v Morrow [2004] FCA 1490 at [36]; Trivett v Zoccoli [2002] WASCA 138. In this case the respondents submit that the Court ought grant an adjournment because, in summary: ·Ther…
Singh v Minister for Immigration and Border Protection
[2014] FCA 937 Para 28

…the exercise of judicial discretion: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5]; Goldberg v Morrow [2004] FCA 1490 at [36]. A decision involving the exercise of judicial discretion will be set aside by an appellate court only in circumstances where some error has be…
Gumbleton v Hewitt
[2012] NSWSC 575 Para 36

…rcise of the court's discretion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14; Goldberg v Morrow [2004] FCA 1490 at [36]. The exercise of the discretion miscarries where the refusal of an adjournment results in one of the parties being unable adequately to prese…
Singh v Deputy Commissioner of Taxation
[2011] FCA 889 Para 5

…ise of the Court’s discretion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14, Goldberg v Morrow [2004] FCA 1490 at [36]. The exercise of the discretion miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present…
Kerr v American Express Australia Ltd
[2009] FCA 1219 Para 10

…tory decision, it is a discretionary decision ( Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14, Goldberg v Morrow [2004] FCA 1490 at [36]). There is authority that the discretion in respect of ordering or refusing an adjournment miscarries where the refusal of an adjournment res…
Lennox v Amcor Limited trading as Amcor Cartonboard (No 2)
[2009] FCA 962 Para 11

…n of a judge to adjourn a hearing is not only an interlocutory decision, it is a discretionary decision ( Aon [2009] HCA 27 at [5], Goldberg v Morrow [2004] FCA 1490 at [36], Trivett v Zoccoli [2002] WASCA 138 ). Appeals against an exercise of discretion are governed by established principles: House v The King (19…
George v Fletcher
[2008] FCA 1848 Para 10

…In this respect I note similar findings of Weinberg J in Goldberg v Morrow [2004] FCA 1490 at [36].…
Goldberg v Morrow
[2005] FCA 1038 Para 2

…of legal proceedings in various courts since 2003. The history of the relevant proceedings has been summarised by Weinberg J in Goldberg v Morrow [2004] FCA 1490 at [13] – [18], [22], [27] and [28]. I gratefully incorporate those paragraphs into these reasons for judgment.…

View all 8 citing cases →

Cases cited in this decision · 3 of 3 shown

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam
[2003] HCA 6 Para 34

…d. He suffered no conceivable prejudice of any kind: see generally Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.…
House v R
[1936] HCA 40 Para 36

…Phipps’ FM’s decision. An attack upon the exercise of a discretion of this kind must establish error of the type identified in House v The King (1936) 55 CLR 499. Mr Goldberg could point to no error of that type.…
House v The King
63 WN 176 Para 36

…n appeal against Phipps’ FM’s decision. An attack upon the exercise of a discretion of this kind must establish error of the type identified in House v The King (1936) 55 CLR 499. Mr Goldberg could point to no error of that type.…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
1 mention (from Para 22)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 1)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V1118 OF 2004

BETWEEN:	DAVID GOLDBERG APPELLANT
AND:	DAVID MORROW RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	19 NOVEMBER 2004
WHERE MADE:	MELBOURNE

JUDGE:	WEINBERG J
DATE:	19 NOVEMBER 2004
PLACE:	MELBOURNE