Elsehaly, S. & Anor v Mitchell, D.R. & Ors [1988] FCA 417

Elsehaly, S. & Anor v Mitchell, D.R. & Ors [1988] FCA 417

Since the foreshadowed counter-claim concerns separate alleged wrongdoing and does not necessarily require concurrent hearing, the main claim should proceed separately, with any counter-claim to be brought as a separate proceeding.

Parties
Applicant: Shaab Elsehaly; Applicant: Hassanat Elsehaly; First Respondent: Desmond Roy Mitchell; Second Respondent: Wayne Michael McCrae; Third Respondent: Kenneth Noel Penfold; Fourth Respondent: Oak Brand Pty Ltd; Fifth Respondent: Taylor Holdings Pty Ltd
Jurisdiction
Australia
Judgment Date
08 July 1988
Procedural Posture
General Division, Federal Court of Australia / Interlocutory Orders Prior to Trial
Outcome
Counter-claim to be excluded from these proceedings and any such claim to be made separately; interlocutory orders for witness statements exchange and trial setting; costs in the proceedings.

Case Brief

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Parties

Shaab Elsehaly

Applicant

Hassanat Elsehaly

Applicant

Desmond Roy Mitchell

First Respondent

Wayne Michael McCrae

Second Respondent

Kenneth Noel Penfold

Third Respondent

Oak Brand Pty Ltd

Fourth Respondent

Taylor Holdings Pty Ltd

Fifth Respondent

Procedural Posture

General Division, Federal Court of Australia / Interlocutory Orders Prior to Trial

Legal Issues

  1. 1 Whether the foreshadowed counter-claim by respondents should be allowed in these proceedings or directed to be brought separately.

Ratio Decidendi

Since the foreshadowed counter-claim concerns separate alleged wrongdoing and does not necessarily require concurrent hearing, the main claim should proceed separately, with any counter-claim to be brought as a separate proceeding.

Court Disposition

Counter-claim to be excluded from these proceedings and any such claim to be made separately; interlocutory orders for witness statements exchange and trial setting; costs in the proceedings.

Orders

  • Foreshadowed counter-claim not be made in these proceedings but be subject of a separate proceeding.
  • Parties exchange on 27 July 1988 copies of statements of witnesses they propose to call at trial.