Voskuilen v Morisset Mega Market Pty Ltd

[2005] FCAFC 72

FEDERAL COURT OF AUSTRALIA

Voskuilen v Morisset Mega Market Pty Ltd [2005] FCAFC 72

HENRICUS GERARDUS VOSKUILEN v MORISSET MEGA MARKET PTY LTD

NSD 1967 of 2004

WILCOX, STONE and ALLSOP JJ
5 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1967 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HENRICUS GERARDUS VOSKUILEN APPELLANT
AND:	MORISSET MEGA MARKET PTY LTD RESPONDENT
JUDGE:	WILCOX, STONE and ALLSOP JJ
DATE OF ORDER:	5 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to Mr Peter Alexander Gargan to represent the appellant but limited to the matters that were raised before Justice Jacobson.

2.        The appeal be dismissed.

2.        The appellant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1967 of 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	HENRICUS GERARDUS VOSKUILEN APPELLANT
AND:	MORISSET MEGA MARKET PTY LTD RESPONDENT

JUDGE:	WILCOX, STONE and ALLSOP JJ
DATE:	5 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. This appeal is totally devoid of merit.  The appellant, Mr Voskuilen, has not been well served by having Mr Gargan appear as his agent, as he has done both before the primary judge, Jacobson J, and before us.  The main effect of Mr Gargan’s participation, it seems, has been to cause Mr Vosuilken to incur unnecessary liability for costs.  The matters raised by Mr Gargan are not fairly arguable. 

2. Three matters were dealt with by Jacobson J.  The second and third matters were not really pressed before us, although Mr Gargan did not explicitly resile from them.  In relation to those matters, we need say no more than that we agree with what Jacobson J said in paras 19 and 20 of his reasons for judgment.

3. As to the first submission, which relies upon s 118 of the Constitution of Commonwealth of Australia, that matter is dealt with by his Honour at paras 15 to 18 of his reasons for judgment.  We entirely agree with what his Honour said in those paragraphs, and we see no necessity to add to those reasons.

4. The appeal is dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            12 May 2005

Mr Peter Alexander Gargan appeared for the Appellant with leave of the Court.
Solicitor for the Respondent:	Mr M Zwar of David Landa Stewart Lawyers
Date of Hearing:	5 May 2005
Date of Judgment:	5 May 2005