Legal Research
Cases
TAG Pacific Limited v McSweeney

TAG Pacific Limited v McSweeney

Case [1992] FCA 191 16 April 1992

No judgment structure available for this case.

Type to search within this case.

Re: TAG PACIFIC LIMITED and TOIKAN HOLDINGS PTY LTD (formerly KELSO PTY LTD)
And: BRIAN ALBERT McSWEENEY and BRUCE WILLIAM PHILLIPS
No. N G38 of 1990
FED No. 191
Practice and Procedure
(1992) 106 ALR 651
(1992) 34 FCR 438

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Practice and Procedure - action for damages for misleading and deceptive conduct - order for trial of the question of liability separately from and before the question of quantum of damage - judgment given for the applicant for damages to be assessed - appeal from judgment on question of liability - whether judgment is interlocutory or final.

Federal Court Act s.24

Federal Court Rules Order 29

Town v. Australian Telecommunications Commission (1983) 67 FLR 48

Carr v. Finance Corporation of Australia Limited (1980-1981) 147 CLR 246

Computer Edge Pty. Ltd. v. Apple Computer Inc. (1984) 54 ALR 767

White v. Brunton (1984) QBD 570

Bozson v. Altrincham Urban District Council (1903) 1 KB 547

Dunstan v. Simmie and Co. Pty. Ltd. (1978) VR 669

HEARING

MELBOURNE (heard in SYDNEY)

#DATE 16:4:1992

Counsel for the applicants: Mr S.D. Robb

Solicitors for the applicants: Rosenblum and Associates

Counsel for the respondents: Mr P. Blackburn-Hart

Solicitors for the respondents: Tress Cocks and Maddox

ORDER

THE COURT ORDERS that:

1. The respondents' application for leave to appeal against the judgment given herein on 28 February 1992 be dismissed;

2. The costs of the application for leave to appeal be reserved;

3. The applicants' application for leave to tax their costs awarded by order on 27 March 1992 be dismissed with no order for costs.

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

JUDGE1

This is an application by the respondents for leave to appeal from a decision given in these proceedings on 28 February 1992. The application for leave to appeal was filed on 6 March 1992 and was initially supported by a short affidavit. Subsequently, on 3 April 1992, a further affidavit was filed annexing a draft notice of appeal.

BACKGROUND

These proceedings involve a claim for damages against the respondents for misleading and deceptive conduct and for breach of duty. The matter was listed for trial for a period of 5 days commencing on 22 July 1991 but at the commencement of the hearing counsel for the applicant raised a number of questions relating to the conduct of the trial and in particular he expressed concern as to the availability of sufficient time to hear all of the evidence. The question as to whether the trial should be split into two parts, one dealing with liability and the other with damages, was canvassed in some detail.
Senior counsel for the respondents indicated (Ts. p 4) that his clients took the view that it would be appropriate that the issue of liability be determined first and separately from the question of damages. The applicants' preferred position was…

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 TAG Pacific Limited v McSweeney

Details

AGLC: TAG Pacific Limited v McSweeney [1992] FCA 191
Case: [1992] FCA 191
Decision Date: 16 APRIL 1992

CaseChat Overview and Summary

TAG Pacific Limited sought damages from McSweeney for misleading and deceptive conduct. The Federal Court was tasked with determining the nature of the judgment that allowed for an appeal, as well as the appropriateness of the applicant's request to tax their costs. The primary legal issue was whether the judgment given for damages to be assessed was a final judgment, permitting an immediate appeal, or an interlocutory one, which would not allow such an appeal. The court also had to consider the applicants' request for costs taxation.

The court ruled that the judgment given for damages to be assessed was a final judgment. It found that the judgment was final because it determined the liability of the respondents and directed them to pay damages. The court held that the judgment was not interlocutory, as it did not merely set a framework for determining the amount of damages but instead concluded the issue of liability. The court also dismissed the applicants' request to tax their costs, stating that it was not appropriate to grant such an order at that stage.

The court ordered that the respondents' application for leave to appeal against the judgment be dismissed. It also dismissed the applicants' request to tax their costs, with no order for costs. The court's decision was based on the principle that a judgment which determines liability for damages is final, allowing for an immediate appeal. The applicants' request to tax their costs was denied as it was not the appropriate time to grant such an order.

Orders

Orders of the court

THE COURT ORDERS that:

1. The respondents' application for leave to appeal against the judgment given herein on 28 February 1992 be dismissed;

2. The costs of the application for leave to appeal be reserved;

3. The applicants' application for leave to tax their costs awarded by order on 27 March 1992 be dismissed with no order for costs.

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.

Citations

AGLC Citation

TAG Pacific Limited v McSweeney [1992] FCA 191

Most Recent Citation

Landsal P/L & Ors. v. REI Building Society, now The Co-operative Building Society of South Australia [1993] FCA 171 ((1993) 113 ALR 643; (1993) 41 FCR 421)

Cases citing this decision · 17 of 17 shown

Monash Health v Singh
[2023] FCAFC 166 Para 31

…Pty Ltd v JAI Products Pty Ltd [2014] FCA 448, Tracey J made the following observations (at [9]): In TAG Pacific Limited v McSweeney [1992] FCA 168; (1992) 34 FCR 438 Olney J held that, in a split trial in which questions relating to liability are ordered to be determined as preliminary questions, orders finally de…
King v Melbourne Vicentre Swimming Club Inc
[2020] FCA 1639 Para 7

…onour expressed the view (at [9]): I am not persuaded that the applicants require leave to appeal. In TAG Pacific Limited v McSweeney [1992] FCA 168; (1992) 34 FCR 438 Olney J held that, in a split trial in which questions relating to liability are ordered to be determined as preliminary questions, orders finally de…
Homart Pharmaceuticals Pty Ltd v Careline Australia Pty Ltd
[2018] FCAFC 105 Para 12

…In TAG Pacific Ltd v McSweeney [1992] FCA 191; (1992) 34 FCR 438 (“ Tag Pacific ”), Olney J distinguished Computer Edge , finding that leave to appeal was not required where the Court had exercised its power to try the issue of liability before and separately from the issue of the quantum of damages. At 444, his…
Presiding Member of the Southern Joint Development Assessment Panel v DCSC Pty Ltd
[2018] WASC 145 Para 13

…redmeyer in Hipwell also observed that the decision of Olney J in TAG Pacific Ltd v McSweeney [28] supported the view that he had expressed.[29] [28] TAG Pacific Ltd v McSweeney (1991) 34 FCR 438. [29] State Government Insurance Commission v Hipwell (Unreported, WASC, Library No 940292, 17 June 1994) 9.…
Friends of Leadbeater's Possum Inc v VicForests (No 2)
[2018] FCA 532 Para 17

…appeal from those orders was required. His Honour referred to an earlier decision of Olney J in TAG Pacific Limited & Anor v McSweeney, BA & Anor [1992] FCA 191; 34 FCR 438, which was to similar effect.…
Oliver Hume South East Queensland Pty Ltd v Investa Residential Group Pty Ltd
[2017] FCAFC 141 Para 6

…of s 24(1A): Anying Group Pty Ltd v Wang [2012] FCA 702 at [8]. There is also a line of authorities, commencing with Tag Pacific Pty Ltd v McSweeney (1992) 34 FCR 438 in which it has been held that a judgment determining issues of liability in advance of issues of quantum is not interlocutory. The correctness of th…
Oates v Matrix Group Ltd (in liquidation) (Trustee)
[2017] FCA 809 Para 7

…erated Union of Workers (WA) Branch v J-Corp Pty Ltd ... These decisions, of course, bind single judges of this Court; cf TAG Pacific Ltd v McSweeney (1992) 34 FCR 438. We agree.…
Australian Competition and Consumer Commission v Valve Corporation (No 4)
[2016] FCA 382 Para 4

…ired. If it were not required, then an oral leave hearing would add yet another layer of costs for the parties: see Tag Pacific Limited v McSweeney (1992) 34 FCR 438.…
Qube Ports Pty Ltd v McMaster
[2016] FCA 59 Para 11

…re generates a right of appeal for which leave is not necessary. The two cases most directly relied upon were TAG Pacific Limited v McSweeney (1992) 34 FCR 438 (Olney J) (“ TAG Pacific ”) and Damorgold Pty Ltd v J.A.I. Products Pty Ltd [2014] FCA 448 (Tracey J) (“ Damorgold ”).…
SNF (Australia) Pty Ltd v Ciba Specialty Chemicals Water Treatments Ltd
[2015] FCA 787

…Chemicals Water Treatments Ltd [2011] FCA 794 Damorgold Pty Ltd v JAI Products Pty Ltd [2014] FCA 448 TAG Pacific Ltd v McSweeney (1992) 34 FCR 438 Camberwell v Camberwell Shopping Centre Pty Ltd [1994] VR 163 Major Engineering Pty Ltd v Timelink Pacific Pty Ltd [2007] VSCA 228 Brouwer v Titan Corporation Ltd (1997)…
Oswal v Apache Corporation (No 4)
[2014] FCA 1291

…230 North East Equity Pty Ltd v Proud Nominees Pty Ltd (2012) 285 ALR 217 Siminton v Australian Prudential Regulation Authority [2008] FCAFC 90 Tag Pacific Ltd v McSweeney (1992) 34 FCR 438 Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 Yates Property Corporation Pty Ltd v Boland (1998) 89 FCR 78 Date of…
Damorgold Pty Ltd v JAI Products Pty Ltd
[2014] FCA 448 Para 9

…I am not persuaded that the applicants require leave to appeal. In TAG Pacific Limited v McSweeney (1992) 34 FCR 438 Olney J held that, in a split trial in which questions relating to liability are ordered to be determined as preliminary questions, orders finally determining those questions are not to be treated as…
Pierson's Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3)
[2010] FMCA 250 Para 3

…An order is final if it finally determines the rights of the parties in a principal cause pending between them.[20] [17] TAG Pacific Ltd v McSweeney (1992) 34 FCR 438 (“ TAG Pacific ”); White v Brunton [1984] QB 570. [18] TAG Pacific ; Camberwell City Council v Camberwell Shopping Centre Pty Ltd [1994] 1 VR 163 at…
Polyaire Pty Ltd v K-Aire Pty Ltd (No 4)
[2007] SASC 36 Para 17

…he orders which determine liability have been held to be final orders: HEST Australia Ltd v McInerney (1998) 71 SASR 526; TAG Pacific Ltd v McSweeney (1992) 34 FCR 438. It seems to me that a number of the orders made on 5 March 2003 are final orders although it is true that some of the orders made on that day and on…
EIBHLIN Margaret Campbell as Administrator of the Estate of Colin Charles Campbell (Dec) v RGC Mineral Sands Ltd
[2001] WASCA 395

…CLR 161 Stephenson v Human Rights & Equal Opportunity Commission & St Vincents Hospital Ltd (1996) 68 FCR 290 Tag Pacific Ltd & Anor McSweeney & Anor (1992) 106 ALR 651 The State of South Australia v Tanner & Ors (1989) 166 CLR 161 White v Brunton [1984] 1 QB 570 Willis v The Commonwealth (1946) 73 CLR 105…
Mercantile Mutual Insurance (Australia) Limited v Hans Juergen Edmund Schigulski No. SCGRG 93/302 Judgment No. 4015 Number of Pages 4 Practice and Procedure Appeal
[1993] SASC 4015

…from decision as to liability - Appeal not instituted until after judgment as to damages - whether appeal is out of time. TAG Pacific Ltd v McSweeney (1992) 106 ALR 651 and White v Brunton (1984) 1 QB 570, discussed.…
Landsal Pty Ltd (In liq) v REI Building Society
[1993] FCA 171

…TAG Pacific Ltd. v. McSweeney (1992) 106 ALR 651…

View all 17 citing cases →

Cases cited in this decision · 8 of 8 shown

Computer Edge Pty Ltd v Apple Computer Inc
[1984] HCA 47

…Computer Edge Pty. Ltd. v. Apple Computer Inc. (1984) 54 ALR 767…
Town, Meredyth v Australian Telecommunications Commission
[1983] FCA 54

…Town v. Australian Telecommunications Commission (1983) 67 FLR 48…
Carr v Finance Corporation of Australia Ltd (No 1)
[1981] HCA 20

…Carr v. Finance Corporation of Australia Limited (1980-1981) 147 CLR 246…
Licul v Corney
[1976] HCA 6

…ther a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 50 ALJR 439, at p 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open…
Hall v Nominal Defendant
[1966] HCA 36

…se of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant (1966) 117 CLR 423, at p 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismiss…
Bozson v Altrincham Urban District Council
(1903) 1 KB 547

…Bozson v. Altrincham Urban District Council (1903) 1 KB 547…
White v Brunton
(1984) 1 QB 570

…White v. Brunton (1984) QBD 570…
White v Brunton
(1984) QBD 570

…White v. Brunton (1984) QBD 570…

Legislation cited in this decision · 4

Fair Trading Act 1987 (WA)
1 mention
Federal Commissioner of Taxation v Rickard
1 mention
Supreme Court Act 1981 c.54
1 mention
Trade Practices Act 1974 (Cth)
1 mention