L. Grollo & Co Pty Ltd v Hammond, Theo and Ors [1977] FCA 30

CATCHWORDS

Federal Court of Australia - Jurisdiction - Transitional Provisions ~ Transfer of proceedings in Australian Industrial Court - Whether hearing cf proceedings hac commenced - Meaning of "proceedings" - Federal Court

of Australia (Consequential Provisions) Act 1976, s.4.

Jurisdiction to set aside order ~ Finality of orders ~ Whether different considerations apply to interlocutory

orders - Whether exception if order made on incorrect facts -—

Whether order should be varied.

L. Grollo & Co. Pty. Limited v. Theo Hsmmond & Ors. ice) VG. No. 38 of 1977

Before Bowen, ©.J., Nimmo and Keely JJ.

Melbourne 14th June, 1977

IN THE FEDERAL COURT OF AUSTRALIA }VICTORIA DISTRICT REGISTRY } VG No. 38 of 1977

GENERAL DIVISION )

CORAM: BOWEN C.J., NIMMO and KEELY JJ

44th June, 977

L. GROLLO & CO. PTY. LTD. v. THEO HAMMOND and

JUDGMENT.

This is an appeal against a decision of Smithers J. given on 23rd March 1977. On 23rd July 1976 proceedings were commenced by L. Grollo & Co. Pty. Ltd., the plaintiff, against Theo Hammond and Igor Osidacz and Theo Hammond & Partners (A Firm) and The Royal Australian Institute of Architects, the defendants, by writ issued out of the Australian Industrial Court with a statement of claim endorsed thereon. By its statement of claim. the plaintiff stated that the action was brought under the Trade Practices Act 1974. It set forth descriptions of the parties and various allegations relating to the engagement, by the plainviff, of the first, second and thira defendants as architects to advise it in relation to a tender and later a contract for the construction of certain houses in Darwin to be undertaken by the plaintiff and

a company named Wincope (Australia) Pty. Ltd. It further

set forth the purported entry into an agreement in writing dated 25th March 1976 between these parties. It alleged that this agreement was in restraint of trade and was contrary to section 45 of the Trade Practices Act 1974. It included allegations regarding certain architects' fees which had been rendered. Some of these fees had been paid - a figure of $39,936-20 was mentioned. Some fees, which had been rendered, were outstanding and were in dispute - a figure of $202,034-61 was mentioned The Plaintiff claimed, inter alia, a declaration that the agreement was void; a declaration that the plaintiff was not indebted in the sum of $202,034-61; an order that the thirdnamed defendant repay to the plaintiff the sum of $39,936-20; and, an order varying the said agreement. It contained also a claim for damages and other relief.