Lahood v Bank of Western Australia Ltd (No 3)

In this case, the appellant, Mr Lahood, appealed against the making of a sequestration order against him by the Federal Magistrates Court. The appellant argued that the primary judge miscarried in her discretion in denying his request for an adjournment of the hearing of the creditor’s petition brought by the second respondent, Bank of Western Australia Ltd. The court had to decide on the principles governing the admission of further evidence on appeal, particularly in relation to the cogency of the evidence, and the discretionary power of the appellate court in correcting error in the primary judge’s exercise of discretion.

The Full Court held that the power to receive further evidence on appeal is a remedial power that must be exercised judicially, consistently with proper judicial process and in the interests of justice. However, the distinction between original and appellate jurisdiction should not be obliterated. The court must be cautious not to allow the main arena for the settlement of disputes to move from the court of first instance to the appellate court. In this case, the Full Court found that the primary judge did not miscarry in her discretion in denying the adjournment because the evidence tendered by the appellant was not cogent enough to warrant an adjournment. Furthermore, the Full Court held that the appellant’s repeated non-compliance with directions and the adjournments already granted were factors that the primary judge was entitled to take into account in denying the adjournment.

The appeal was dismissed, and the appellant was ordered to pay the second respondent’s costs, including reserved costs. The costs were to be taxed and paid out of the bankrupt estate in accordance with the Bankruptcy Act.