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Sims v Thomas

Sims v Thomas

Case [2016] FCCA 1752 15 July 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v THOMAS

[2016] FCCA 1752

Catchwords:
PRACTICE AND PROCEDURE – Interim application for summary dismissal of substantive application – whether jurisdiction – whether no reasonable prospect of success – whether scandalous or an abuse of process – whether seeking to re-litigate matters previously decided – whether leave to re-plead.

COSTS – Indemnity costs – whether indemnity costs to be awarded.

Legislation:
Acts Interpretation Act 1901 (Cth), s.15C
Corporations Act 2001 (Cth), ss.181, 182, 184, 1315, 1337B, 1337C, 1317D, 1317E, 1317H, 1317HA, 1317J, 1337B, 1337C, 1337D, 1337E, 1317J
Competition and Consumer Act 2010 (Cth)
Crimes Act 1914 (Cth), s.4AAA
Criminal Code Act 1995 (Cth)
Director of Public Prosecutions Act 1983 (Cth), s.9
Fair Work Act 2009 (Cth), s.678
Federal Circuit Court of Australia Act 1999 (Cth), ss.8, 10, 14, 17A, 18, 53, 79
Federal Circuit Court Rules 2001 (Cth), rr.13.10, 15.29
Federal Court Rules 2011 (Cth), r.16.01
Legal Profession Act 2008 (WA)
Trade Practices Act 1974 (Cth), pt.IV, div.1, ss.51, 52, 82

Cases cited:
Alfaro v Crown Commercial Cleaning Pty Ltd & Anor [2012] FMCA 478

Arturi v Zupps Motors Pty Ltd (1980) 49 FLR 283; (1980) 33 ALR 243

Australian Securities and Investments Commission v Neolido Holdings Pty Ltd & Ors [2006] QCA 266

Beck & Anor v Spalla & Anor [2005] FCAFC 82; (2005) 142 FCR 555; (2005) 223 ALR 21
Belmont Finance Corporation Ltd v Williams Furniture [1979] Ch 250; [1978] 3 WLR 712; [1979] 1 All ER 118

Boral Besser Masonry Limited v Australian Competition and Consumer
Commission [2003] HCA 5; (2003) 215 CLR 374; (2003) 77 ALJR 623; (2003) 195 ALR 609
C2C Investments Pty Ltd, in the matter of C2C Investments Pty Ltd v Leigh (No. 3) [2012] FCA 680
Cass v Kingston Capital Ltd [2010] FMCA 762
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Colgate-Palmolive Company & Anor v Cussons Pty Limited (1993) 46 FCR 225; (1993) 118 ALR 248; (1993) 28 IPR 561
Dorotea Pty Ltd v Vancleve Pty Ltd (1987) 75 ALR 629

Ejueyitsi v Bond University [2012] FMCA 872
Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No. 2) (1987) 16 FCR 410; (1987) 75 ALR 271

Fencott v Muller (1983) 152 CLR 570; (1983) 57 ALJR 317; (1983) 46 ALR 41

Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd & Ors (1988) 81 ALR 397

Genovese v BGC Construction Pty Ltd (No. 2) [2007] FMCA 601
Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; (2000) 104 FCR 564
Manolakis v Carter [2008] FCAFC 183
McPherson v Kerr, Ex Parte Lewis (1893) 19 VLR 23
Miller v Commonwealth Director of Public Prosecutions [2005] FCA 482; (2005) 142 FCR 394
Moorgate Tobacco Company Limited v Philip Morris Limited & Anor (1980) 145 CLR 457; (1980) 54 ALJR 479; (1980) 31 ALR 161
Nirta & Ors v The Queen

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 Sims v Thomas

Details

AGLC: Sims v Thomas [2016] FCCA 1752
Case: [2016] FCCA 1752
Decision Date: 15 July 2016

CaseChat Overview and Summary

This matter concerned an application by the respondent, Mr Thomas, for summary dismissal of the applicant's, Ms Sims', substantive application. The application for summary dismissal was brought before Judge Antoni Lucev of the Supreme Court of Western Australia.

The primary legal issues before the Court were whether Ms Sims' substantive application had no reasonable prospect of success, whether it was scandalous or an abuse of process, and whether it sought to re-litigate matters that had already been determined by the Court. The Court was also required to consider whether Ms Sims should be granted leave to re-plead her case.

Judge Lucev found that Ms Sims' application was an abuse of process and an attempt to re-litigate issues that had been definitively decided in prior proceedings. His Honour noted that the applicant had been afforded ample opportunity to present her case and that the current application lacked any reasonable prospect of success. Consequently, the Court dismissed the substantive application and refused leave to re-plead. The Court also ordered that Ms Sims pay Mr Thomas's costs on an indemnity basis.

Orders