L. Grollo & Co Pty Ltd v Hammond, Theo - [1977] FCA 30

CATCHWOEDS

Federal Court of P-ustraTia

- Jurisdictlon -

Transitional Frovisions

- Transfer of

proceedings m

Australian Industriai Court

- Whether heering

cf proceeJings

ha?

cornericed

- Nearling of

- Federal

Courr;

of Australia (Consequentlal Provisions) Act

1976, s.4.

Jurisdiction to se% aside order

- Finality gf

orders - Whether different consideraticns apply to interlocutory

orders - Whether exceptlon

i f order made on incorrecr. facts

Whether order should be varied.

G r o l l o & Co. Pty. Limited v. The0

Hsmon3 & Ors.

VG. No. W o f 1977

Before Bowen,

C.J., Nimmo and Keeiy

JJ.

Melbourne 14th TJcxxe, 1977

, , -

IN THE FEDERAL COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VG No. 30 of 1977

DIVISION

GENERAL

CORAM:

BOWEN C.J., NIMMO and KEELY JJ

14th June,

1977

L. GROLLO & CO. FTY. LTD. v. THE0 IPXMOKD and kirm) and THZ ROYAL AUSTFtALIK< IIETiTU'TE OF

fiC9iTECTS

JUDGMENT.

This is an appeal against a decision of Smithers J.

given on 23rC PIarch

1977.

On 23rd July

1976 proceedings were

comenced by

L. Grollo & Co. Ptp. Ltd., the plaintiff, against The0 Hanunond

and Igor Osidacz ard The0 Hammond

& Partners (A Plrm) and The

Royal Australian Institute

of Architects, the deiendants, by

writ issued out

of the Australian Industrial Court with

statement of claim endorsed thereon.

Ey its statement

of claim. the plain-ciff stated that

the action was brought under

the Trade Eactices Act 1974. It

set forth descriptlons

of the perties and various allegations

relating to the engagement, by the p h m - c i f f , of the flrst,

second w-.d

tkira defendmts as architects to advise it in

relation to 2 t?nder and later

a contract for the constructicn of

certain houses ir~

Darwin to

be urdertaken by %he plaintiff and

a company nmec! Wlncope (Austmlla) Pty. Ltd. It further

- 2 -

set forth the purported entry into

an agreement in writing

dated 25th March

1976 between these parties. It alleged that

this agreement was

in restraint of trade and was contrary to

section 45 of the Trade Practices Act

1974. It included

allegations regarding certain architects'

fees which had been

rendered. Some

of these fees had been paid

- a figure cf

$39,936-20

was mentioned. Some fees, which had been rendered, were

outstanding and were

in dispute - a figure of

$202,034-61 was mentioned

The Plaintiff clalmed, inter alia,

a declaratlon that the

agreement was void;

a declaration that the plaintiff was

not indebted

in the sum of

$202,034-61; an order that the

thirdnamed defendant repay to the plaintiff the sum cf

$39,936-22;

and, an order varying the said agreement. It contained also

claim for damages and other relief.

Summonses were issued by the defendants seeking

to have the statement of claim struck out

on the ground that no

cause of action was disclosed and that the statement of claim was

embarrassing, and

on other grounds.

The summonses came

on…

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 L. Grollo & Co Pty Ltd v Hammond, Theo

Details

AGLC: L. Grollo & Co Pty Ltd v Hammond, Theo [1977] FCA 30
Case: [1977] FCA 30
Decision Date: 14 Jun 1977

CaseChat Overview and Summary

The case of L. Grollo & Co Pty Ltd v. Hammond, Theo and Others involves an appeal against a decision made by Smithers J. on 23 March 1977. The plaintiff, L. Grollo & Co. Pty. Ltd., had commenced proceedings against Theo Hammond, Igor Osidacz, Theo Hammond & Partners (A Firm), and The Royal Australian Institute of Architects, alleging restraint of trade contrary to section 45 of the Trade Practices Act 1974. The plaintiff sought various orders, including a declaration that an agreement was void, repayment of certain fees, and an order varying the agreement. Smithers J. struck out certain paragraphs of the statement of claim and ordered that preliminary questions of law be dealt with separately. The plaintiff was dissatisfied with the outcome and sought to appeal, arguing that the order should be recalled, negated, or varied, and that certain issues should be tried separately with a jury.

The appeal before the Full Court of the Federal Court of Australia focused on two main issues: whether the Federal Court had jurisdiction over the proceedings and whether the trial judge had the power to recall or vary his order of 1 November 1976. The Court first examined the jurisdictional issue, interpreting the Federal Court of Australia (Consequential Provisions) Act 1976 to determine whether the proceedings were transferred to the Federal Court. The Court concluded that the hearing of the proceedings had commenced before the Australian Industrial Court, and thus, the jurisdiction remained with that court, leading to the dismissal of the appeal for lack of jurisdiction.

On the substantive issue, the Court considered whether the trial judge had the power to recall or vary his order of 1 November 1976. The Court held that once an order is perfected, it cannot be set aside except on appeal, and the plaintiff's arguments for varying the order were not persuasive. The Court found no error in the trial judge's refusal to vary the order and dismissed the appeal. The Court also decided to admit certain fresh evidence related to an agreement but declined to accept other evidence. Finally, the Court ordered the appellant to pay the respondents' costs.

Orders