Hammer v Sunman [1999] FCA 1570

FEDERAL COURT OF AUSTRALIA

Hammer v Sunman [1999] FCA 1570

PRACTICE AND PROCEDURE – application for reopening judgment – whether judgment should have addressed a case not made at trial – whether new case available on pleadings – whether applicants had proper opportunity fully to litigate claims against respondent – whether findings made in judgment could not have been anticipated – whether findings made in judgment provided clear foundation for new case – whether prejudice to respondent Federal Court of Australia Act 1976 (Cth) s 22 Federal Court Rules O 35 r 7(1) Hyster Australia Pty Ltd v Anti‑Dumping Authority (1993) 41 FCR 259 applied De L v Director‑General, NSW Department of Community Services (1997) 190 CLR 207 referred to State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 cited Autodesk Inc v Dyason (1993) 176 CLR 300 cited Australian Fisheries Management Authority v PW Adams Pty Ltd (1996) 145 ALR 345 cited AB v Federal Commissioner of Taxation (1998) 98 ATC 5100 cited Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 discussed Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 discussed Dare v Pulham (1982) 148 CLR 658 referred to Pask v Owen [1987] 2 Qd R 421 referred to

ANDREW HAMMER, JOSEPH HAMMER AND JOLAN FULOP v

ANTHONY SUNMAN

NG 259 OF 1996 LEHANE J 11 NOVEMBER 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 259 OF 1996

BETWEEN: ANDREW HAMMER, JOSEPH HAMMER AND

JOLAN FULOP

Applicants

AND: ANTHONY SUNMAN

Respondent

JUDGE: LEHANE J

DATE OF ORDER: 11 NOVEMBER 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicants' motion filed on 17 September 1999 be dismissed. 2. The applicants pay the respondent's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.