McCarthy v McIntyre [2000] FCA 1250

McCarthy v McIntyre [2000] FCA 1250

The appeal failed because the trial judge made no reviewable error in refusing leave to reopen after judgment: the remitter was properly understood as requiring determination of omitted claims on the existing evidence, the appellant had adduced no evidence explaining why the proposed evidence had not been called at trial or earlier, reopening would substantially reagitate previously determined issues and prejudice the respondents, and the application had no merit. On the existing evidence the appellant could not establish, on the balance of probabilities, that finance for the Tropicana Transaction would not have been available from another source or that the alleged loss was caused by...

Jurisdiction
Australia
Judgment Date
08 September 2000
Procedural Posture
Appeal From a Single Judge of the Federal Court of Australia / Full Court Appeal From Orders Refusing Leave to Reopen and Adducing Additional Evidence on Remitter, and Dismissing the Remitted Claims
Outcome
Appeal dismissed with costs.
Legal Topics
['remitter' 'leave to Reopen' 'additional Evidence' 'misleading or Deceptive Conduct' 'third Party Reliance' 'causation' 'appellate Review of Discretion']
['practice and Procedure' 'trade Practices' 'fair Trading'] ['remitter' 'leave to Reopen' 'additional Evidence' 'misleading or Deceptive Conduct' 'third Party Reliance' 'causation' 'appellate Review of Discretion']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From a Single Judge of the Federal Court of Australia / Full Court Appeal From Orders Refusing Leave to Reopen and Adducing Additional Evidence on Remitter, and Dismissing the Remitted Claims

Legal Issues

  1. 1 ['Whether the trial judge erred in refusing the appellant leave to reopen his case and adduce additional evidence on the Remitted Claims.' "Whether the trial judge misunderstood the Full Court's remitter as requiring determination only on the evidence already before him." 'Whether reopening would involve substantial reagitation of previously litigated issues and prejudice to the respondents.' 'Whether, without additional evidence, the appellant could establish that Westpac would not have provided finance, that finance would not have been available from any other source, that the Tropicana Transaction would not have proceeded, and that the appellant suffered loss.' "Whether the appellant established a sufficient causal connection between Neville McIntyre's contravening conduct and the alleged loss on the third party reliance claim." 'Whether Auro Romano McIntyre and Nevitoro Investments Pty Limited could be liable if Neville McIntyre was not liable.']

Ratio Decidendi

The appeal failed because the trial judge made no reviewable error in refusing leave to reopen after judgment: the remitter was properly understood as requiring determination of omitted claims on the existing evidence, the appellant had adduced no evidence explaining why the proposed evidence had not been called at trial or earlier, reopening would substantially reagitate previously determined issues and prejudice the respondents, and the application had no merit. On the existing evidence the appellant could not establish, on the balance of probabilities, that finance for the Tropicana Transaction would not have been available from another source or that the alleged loss was caused by...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondents' costs."]