Hogan v Riley & Ors - [2008] FMCA 794

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOGAN v RILEY & ORS

[2008] FMCA 794

INDUSTRIAL LAW – Interlocutory orders – joinder of party.

Building and Construction Industry Improvement Act 2005 (Cth), s.57
Federal Court Rules , Order 6 (2), (8)
Federal Magistrates Act 1999 (Cth), ss.3, 3 (2), 42, 43, 43 (2)(b)
Federal Magistrates Court Rules 2001 (Cth), Rules 1.03, 11.01, 11.02, 16, 16.05 (3)
Workplace Relations Act 1996 (Cth) ss.767 (3)(b), 769, 769 (1)

Granada Tavern v Smith [2008] FCA 646
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60
News Limited v the Australian Rugby League (1996) 64 FCR 410
Pegang Mining Company Limited v Choong Sam [1969] 2 MLJ 52
Richardson v Trautwein (1942) 65 CLR 585
Wentworth v Woollahra Municipal Council (NSW CA 31^st March 1983, unreported)

M. Allars, “Perfected judgments and inherently angelical administrative decisions: The powers of courts and administrators to reopen or consider their decisions,” (2001) 21 Australian Bar Review 50
K. Handley, Spencer Bower, Turner and Handley: The Doctrine of Res Judicata, (Third Edition) (London: Butterworths, 1996)
Words and Phrases Judicially Defined, 4th edition, Volume 1

Applicant:

GERARD JOSEPH JOHN HOGAN

First Respondent:

MICHAEL RILEY

Second Respondent:

WAYNE CLARK

Third Respondent:

BRENDAN BYATT

Fourth Respondent:

IQON PTY LTD

File Number:

CAG 57 of 2007

Judgment of:

Neville FM

Hearing date:

30 May 2008

Date of Last Submission:

30 May 2008

Delivered at:

Canberra

Delivered on:

5 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms McDonald

Solicitors for the Applicant:

Australian Government Solicitor

Counsel for the First, Third and Fourth Respondents:

Mr McCarthy

Solicitors for the First, Third and Fourth Respondents:

Macphillamy’s Lawyers

Second Respondent:

Ms McMahon on behalf of Mr Clark

ORDERS

Mr Wayne Clark be joined as a respondent.
The current hearing dates of 26 and 27 June 2008 be vacated and the matter re-listed for final hearing on 24 and 25 September 2008.
Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave.
The applicant file and serve any further affidavits upon which he intends to rely by close of business on 30 July 2008.
The respondents file and serve any further affidavits upon which they intend to rely by close of business on 13 August 2008.
The applicant file and serve any affidavits in reply by close of business on 27 August 2008.
All parties file and serve a case outline and minute of orders sought by 10 September 2008.
The applicant is to pay the costs of all of the respondents for the 8^thand 30^th of May 2008 in relation to the application to have Mr Clark joined as a respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 57 of 2007

GERARD JOSEPH JOHN HOGAN

Applicant

And

MICHAEL RILEY

First Respondent

WAYNE CLARK

Second Respondent

BRENDAN BYATT

Third Respondent

IQON PTY LIMITED

Fourth Respondent

REASONS FOR JUDGMENT

Introduction

Proceedings have been commenced in this court seeking relief…

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 Hogan v Riley & Ors

Details

AGLC: Hogan v Riley & Ors [2008] FMCA 794
Case: [2008] FMCA 794
Decision Date: 5 June 2008

CaseChat Overview and Summary

The matter of Hogan v Riley & Ors was heard in the Federal Court of Australia. The applicant, Mr Hogan, sought to join Mr Wayne Clark as a respondent and to relist the final hearing dates. Additionally, the applicant made various procedural applications regarding the conduct of the hearing, including the use of affidavit evidence and the timing of further affidavits and case outlines. The respondents, Riley and others, opposed the application to join Mr Clark and contested the procedural applications.

The primary legal issues before the court were whether Mr Clark should be joined as a respondent and how the procedural aspects of the hearing should be managed. The court needed to consider the relevance of Mr Clark to the proceedings and whether his inclusion was necessary for a just determination of the case. Furthermore, the court had to decide on the appropriate use of affidavit evidence and the timing of further submissions by the parties.

The court found that Mr Clark should indeed be joined as a respondent due to his significant involvement in the matters at hand. The court also ruled that the use of affidavit evidence was appropriate for the initial stages of the hearing, with oral evidence only permitted with leave. The court set out detailed timelines for the filing and serving of affidavits and case outlines, aiming to ensure an efficient and fair hearing process. The costs associated with the application to join Mr Clark were to be borne by the applicant.

In conclusion, the court ordered that Mr Wayne Clark be joined as a respondent, relisted the hearing dates, and provided specific directions for the conduct of the hearing, including the use of affidavits and the timing of further submissions. The applicant was also ordered to pay the costs of the respondents for certain dates in relation to the application to join Mr Clark.

Orders

Orders of the court

Mr Wayne Clark be joined as a respondent.

The current hearing dates of 26 and 27 June 2008 be vacated and the matter re-listed for final hearing on 24 and 25 September 2008.

Evidence in chief at the hearing be by way of affidavit. Oral evidence in chief will only be permitted by leave.

The applicant file and serve any further affidavits upon which he intends to rely by close of business on 30 July 2008.

The respondents file and serve any further affidavits upon which they intend to rely by close of business on 13 August 2008.

The applicant file and serve any affidavits in reply by close of business on 27 August 2008.

All parties file and serve a case outline and minute of orders sought by 10 September 2008.

The applicant is to pay the costs of all of the respondents for the 8th and 30th of May 2008 in relation to the application to have Mr Clark joined as a respondent.

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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