Legal Research
Cases
NEC Information Systems Australia Pty Ltd v Iveson

NEC Information Systems Australia Pty Ltd v Iveson

Link copied

Case Copied 12 June 1992 36 min read

Contents

On this page

Re: NEC INFORMATION SYSTEMS AUSTRALIA PTY LIMITED
And: FRANK IVESON LOCKHART; JAN MARK POZDENA; AMICRON COMPUTER SERVICES PTY
LIMITED (RECEIVER AND MANAGER APPOINTED)(IN PROVISIONAL LIQUIDATION); GREGORY
PAUL KELLY; BARRY RAYMOND COOK and FRANK OTTO FISCHL
No. N G572 of 1990
FED No. 414
Federal Jurisdiction
(1992) 108 ALR 561
(1992) 36 FCR 258

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Lockhart(1) and Gummow(1) JJ.

CATCHWORDS

Federal Jurisdiction - cross vesting scheme - appeals - meaning of "special federal matter" - jurisdiction of State or Territory Supreme Courts to hear proceedings which involve a "special federal matter" - whether "a proceeding by way of an appeal" includes an application for leave to appeal - construction of a request by the Attorney-General to transfer "the proceeding".

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - ss. 3, 4, 6, 7.

HEARING

MELBOURNE

#DATE 12:6:1992

Counsel for Applicant : M.A. Pembroke

Solicitors for Applicant : Hunt and Hunt

Counsel for First and Second
Respondents and First and : J.M. Spender QC
Second Cross-Claimants D.J. Hammerschlag

Solicitors for First and
Second Respondents and First and Freehill, Hollingdale
Second Cross-Respondents : and Page

Counsel for First, Second and
Third Cross-Respondents : S.J. Rushton

Solicitors for First, Second
and Third Cross Respondents : Clayton Utz

Solicitor-General as
Intervener on behalf of the : K. Mason QC
State of New South Wales : L.S. Katz

Solicitor for State of New : Crown Solicitor,
South Wales : New South Wales

ORDER

THE COURT ORDERS THAT:

1. The questions raised by the Special Case be answered as follows:

Question 1 Whether following the order of Rogers C.J., Comm. Div. on 21 September 1990, the Federal Court of Australia had exclusive jurisdiction in the matter, including the pending application by the applicant for leave to appeal from the decision of Giles J. given on 8 August 1990 in the Supreme Court of New South Wales.

Answer Following the order of Rogers C.J., Comm. Div.

of the Supreme Court of New South Wales of 21 September 1990 the Federal Court of Australia had exclusive jurisdiction in the matter except for the pending application by the applicant for leave to appeal from the decision of Giles J. given on 8 August 1990 in the Supreme Court of New South Wales and the appeal then lodged therefrom following the grant of leave to appeal.

Question 2 If the Federal Court of Australia did not have

exclusive jurisdiction in the circumstances, whether the decision and orders of the Supreme Court of New South Wales, Court of Appeal, given on 19 April 1991, give rise to a res judicata, which is conclusive and binding on the first, second and third respondents, preventing them from raising the same issues again in these proceedings in the Federal Court of Australia.

Answer It is not necessary to answer this question.

Question 3 If the Federal Court of Australia did have

exclusive jurisdiction in the circumstances:

(a) Whether the decision of…

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.

Keep reading for free

Create a free CaseChat account to read NEC Information Systems Australia Pty Ltd v Iveson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1992] FCA 414
Decision Date: 12 JUNE 1992

CaseChat Overview and Summary

NEC Information Systems Australia Pty Ltd v Iveson involved a dispute concerning the interpretation and application of the cross vesting scheme under Australian federal jurisdiction. The case was heard in the Federal Court of Australia, which was asked to determine whether the State or Territory Supreme Courts had the jurisdiction to hear proceedings that involve a "special federal matter." Specifically, the court had to decide if "a proceeding by way of an appeal" included an application for leave to appeal, and how to construe a request by the Attorney-General to transfer "the proceeding."

The court was required to resolve several legal issues, including whether the Federal Court of Australia had exclusive jurisdiction in the matter following an order made by Rogers C.J., Comm. Div. of the Supreme Court of New South Wales on 21 September 1990. Another key issue was whether the decision and orders of the Supreme Court of New South Wales, Court of Appeal, given on 19 April 1991, created a res judicata that would be conclusive and binding on the respondents, thereby preventing them from raising the same issues again in the Federal Court of Australia. Additionally, the court needed to determine if the decision of Giles J. given on 8 August 1990 was deemed to be a decision of the Federal Court of Australia, whether it was res judicata between the parties, or if it created an issue estoppel, and if the Federal Court of Australia should grant leave to file and serve a notice of appeal from the decision of Giles J.

The Federal Court of Australia held that, following the order of Rogers C.J., Comm. Div. of 21 September 1990, it had exclusive jurisdiction in the matter, except for the pending application by the applicant for leave to appeal from the decision of Giles J. given on 8 August 1990 in the Supreme Court of New South Wales and the appeal then lodged therefrom following the grant of leave to appeal. The court concluded that it was not necessary to answer the other questions posed, and ordered that the first and second respondents, Frank Iveson Lockhart and Jan Mark Pozdena, pay the costs of the applicant and of all cross-respondents to the Special Case. No order was made as to the costs of the State of New South Wales.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The questions raised by the Special Case be answered as follows:

Question 1 Whether following the order of Rogers C.J., Comm. Div. on 21 September 1990, the Federal Court of Australia had exclusive jurisdiction in the matter, including the pending application by the applicant for leave to appeal from the decision of Giles J. given on 8 August 1990 in the Supreme Court of New South Wales.

Answer Following the order of Rogers C.J., Comm. Div.

of the Supreme Court of New South Wales of 21 September 1990 the Federal Court of Australia had exclusive jurisdiction in the matter except for the pending application by the applicant for leave to appeal from the decision of Giles J. given on 8 August 1990 in the Supreme Court of New South Wales and the appeal then lodged therefrom following the grant of leave to appeal.

Question 2 If the Federal Court of Australia did not have

exclusive jurisdiction in the circumstances, whether the decision and orders of the Supreme Court of New South Wales, Court of Appeal, given on 19 April 1991, give rise to a res judicata, which is conclusive and binding on the first, second and third respondents, preventing them from raising the same issues again in these proceedings in the Federal Court of Australia.

Answer It is not necessary to answer this question.

Question 3 If the Federal Court of Australia did have

exclusive jurisdiction in the circumstances:

(a) Whether the decision of Giles J. given on 8 August 1990 is deemed to be a decision of the Federal Court of Australia and whether that decision is res judicata between the parties or alternatively created an issue estoppel between the parties.

(b) Whether the Federal Court of Australia should give leave to file and serve a notice of appeal pursuant to Order 52, Rule 15(2) and hear an appeal from the decision of Giles J. instanter.

Answer It is not necessary to answer this question.

2. The first and second respondents, Frank Iveson Lockhart and Jan Mark Pozdena, pay the costs of the applicant and of all cross-respondents to the Special Case.

3. There be no order as to costs of the State of New South Wales.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.