mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267
Outcome: cited
which impose the general onus upon a respondent as to the legality of detention include: The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227, where Evatt J said that the duty of the Court was to see if any legal ground is made out to justify detention; Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267 at 278, where Sheppard J left the question open; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237. In the present case no order, writ or document evidencing the basis for the detention has been provided.
Case: Omar v Harvey (unreported, Circuit Court of Appeals, Tatel, Brown and Edwards JJ, 9 February 2007)
Outcome: considered
is a useful discussion of relevant principles in Omar v Harvey , in which the Court held that where the habeas petitioner, who was an American citizen, sought a preliminary injunction to enjoin his transfer from a detainee camp in the custody of the Criminal Court of Iraq, there should be a preliminary injunction. The Court decided it had jurisdiction to entertain the petition and considered Omar's challenge to his detention justiciable. The Court applied the principle in, previously established in Abu-Ali , that the doctrines of Act of State, separation of powers and political questions, although important considerations, did not extinguish the fundamental right of a citizen to challenge the detention alleged to be at the behest of the United States Executive. On appeal, the Circuit Court of Appeals upheld the original decision, and also relied on the decision of the Supreme Court in Hamdan v Rumsfeld 126 US 2749 (2006) as making it abundantly clear that Mr Omar's challenge to his detention was justiciable: Omar v Harvey (unreported, Circuit Court of Appeals, Tatel, Brown and Edwards JJ, 9 February 2007). Mr Omar had been held under the control of the United States authorities for over a year allegedly without legal process and with no meaningful access to legal counsel.
Case: Oppenheimer v Cattermole [1976] AC 249
Outcome: cited
Steyn (at 1101) and Lord Hope (at 1108) made similar remarks, with the latter emphasising "grave ... infringement[s] of human rights" as an exception to the Act of State doctrine: see also Oppenheimer v Cattermole [1976] AC 249 at 278 per Lord Cross of Chelsea.
Case: Petrotimor v The Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354
Outcome: considered
recently, the Full Court of the Federal Court of Australia applied the Act of State doctrine in Petrotimor v The Commonwealth of Australia [2003] FCAFC 3 ; (2003) 126 FCR 354 and concluded that due to the fact that the applicant's claims required a determination of the validity of a concession granted by the Portuguese Government, and because this issue raised a matter of delicacy in international dealings between Australia and Portugal, the Court should refrain from deciding the question of territorial boundaries. That issue was held not to be justiciable. There was therefore "no matter" for adjudication by the Court and consequently the Court lacked jurisdiction. In the judgment of Beaumont J at 423-449, there is a comprehensive and helpful review of the principal authorities concerning the Act of State doctrine both in Australia and overseas.
Case: Potter v Broken Hill Co Pty Ltd [1906] HCA 88 ; (1906) 3 CLR 479
Outcome: considered
Australian jurisprudence is relevant to the development of the Act of State doctrine in Australia. In Potter v Broken Hill Co Pty Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495, Griffith CJ accepted the description of the Act of State doctrine by Fuller CJ of the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250 as correctly stating Australian law. In that case, Fuller CJ said at 252: 'Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.'
Case: R v Governor of Metropolitan Gaol; Ex parte Di Mardo [1963] VR 61
Outcome: cited
support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State [2002] EWCA Civ. 1598 at [66] (and cases cited therein); The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227 per Evatt J; Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237, and 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Home Secretary [1942] AC 824. See also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed., 2004) at 777-779. Cases which impose the general onus upon a respondent as to the legality of detention include: The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227, where Evatt J said that the duty of the Court was to see if any legal ground is made out to justify detention; Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267 at 278, where Sheppard J left the question open; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237. In the present case no order, writ or document evidencing the basis for the detention has been provided.
Case: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74
Outcome: cited
fundamental principle of English law is that no member of the executive can interfere with the liberty of a British subject, except on the condition that the legality of the interference is established as lawful before a court of justice: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 at 110 per Lord Scarman. This principle is deeply embedded in the common law. It applies in war as in peace: see Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206 at 244. The writ of habeas corpus was described by Supreme Court Justice Brennan in Fay v Moia (1963) 372 US 391 at 400, quoting Lord Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 609, in these terms: 'It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement.'
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162
Outcome: considered
for Mr Hicks submits that the Australian government owes a 'duty' of protection which, although not enforceable as a legally binding duty, has the effect of preventing the Government from making a decision on the basis that Mr Hicks ought to be prosecuted in the United States, because to do so would be inconsistent with that protection. This diplomatic protective duty is said to arise as a counterpart to the duty of allegiance which a citizen owes to Australia. In support of this submission, reference is made to the observation by Gummow J in Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48 ; (2002) 212 CLR 162 at 198 concerning the protection of the laws of Australia as being the counterpart of an allegiance owed by a resident: see also Hersch Lauterpacht (ed.), Oppenheim's International Law: Volume One Peace (5 th ed., 1937) at 546; and Edwin Borchard, The Diplomatic Protection of Citizens Abroad or The Law of International Claims (1919) at 29. If the laws of Australia are designed to protect the citizen, then it is at least arguable that when s 61 refers to the maintenance of the 'laws of the Commonwealth', such 'laws' include the protective function. Section 61 is also subject to the constraints imposed by Chapter III. Counsel for Mr Hicks argues that this 'diplomatic duty' of protection cannot be enforced as of right at the instance of Mr Hicks but, nevertheless, says that its existence has the consequence that, in the present circumstances, the respondents cannot take into account a consideration which is inconsistent with the 'duty'. He says that it would be irrelevant in the exercise of their discretion for the respondents to take into account the desirability of Mr Hicks being subject to prosecution, or give weight to the further consideration that Mr Hicks could not be prosecuted in Australia. Such a course, he submits, would be inconsistent with the counterpart 'duty' of protection arising as a consequence of the allegiance referred to in Te and Joyce.
Case: Regina v Governor of Brixton Prison; Ex parte Ashan [1969] 2 QB 222
Outcome: cited
support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State [2002] EWCA Civ. 1598 at [66] (and cases cited therein); The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227 per Evatt J; Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237, and 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Home Secretary [1942] AC 824. See also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed., 2004) at 777-779. Cases which impose the general onus upon a respondent as to the legality of detention include: The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227, where Evatt J said that the duty of the Court was to see if any legal ground is made out to justify detention; Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267 at 278, where Sheppard J left the question open; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237. In the present case no order, writ or document evidencing the basis for the detention has been provided.
Case: Secretary of State for Home Affairs v O'Brien [1923] AC 603
Outcome: cited
fundamental principle of English law is that no member of the executive can interfere with the liberty of a British subject, except on the condition that the legality of the interference is established as lawful before a court of justice: R v Home Secretary, Ex parte Khawaja [1984] 1 AC 74 at 110 per Lord Scarman. This principle is deeply embedded in the common law. It applies in war as in peace: see Liversidge v Anderson [1941] UKHL 1 ; [1942] AC 206 at 244. The writ of habeas corpus was described by Supreme Court Justice Brennan in Fay v Moia (1963) 372 US 391 at 400, quoting Lord Birkenhead in Secretary of State for Home Affairs v O'Brien [1923] AC 603 at 609, in these terms: 'It is a writ antecedent to statutes, and throwing its roots deep into the genius of our common law... It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift remedy in all cases of illegal restraint or confinement.'
Case: The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221
Outcome: cited
support the proposition that in habeas corpus applications, the detaining party bears the onus of showing the lawfulness of that detention: Abbasi v Secretary of State [2002] EWCA Civ. 1598 at [66] (and cases cited therein); The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227 per Evatt J; Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237, and 248; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and, regarding the need for evidence, Greene v Home Secretary [1942] AC 824. See also Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed., 2004) at 777-779. Cases which impose the general onus upon a respondent as to the legality of detention include: The King v Carter; Ex parte Kisch [1934] HCA 50 ; (1934) 52 CLR 221 at 227, where Evatt J said that the duty of the Court was to see if any legal ground is made out to justify detention; Naumovska v Minister for Immigration and Ethnic Affairs (1982) 60 FLR 267 at 278, where Sheppard J left the question open; R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62; and Regina v Governor of Brixton Prison; Ex parte Ashan (1969) 2 QB 222 at 233, 237. In the present case no order, writ or document evidencing the basis for the detention has been provided.
Case: Underhill v Hernandez (1897) 168 US 250
Outcome: considered
Australian jurisprudence is relevant to the development of the Act of State doctrine in Australia. In Potter v Broken Hill Co Pty Ltd [1906] HCA 88 ; (1906) 3 CLR 479 at 495, Griffith CJ accepted the description of the Act of State doctrine by Fuller CJ of the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250 as correctly stating Australian law. In that case, Fuller CJ said at 252: 'Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.'
Case: JH Lever &amp; Co Pty Ltd v Maniotis (2005) 215 ALR 773
Outcome: cited
In my opinion, the proper approach under O 22 r 2(1)(d) is to take the view that it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. I am of opinion that Mrs Clark's application for leave to discontinue is not an acknowledgement by her of likely defeat. Nor is there a basis on which it can be said that on any objective view of the case, she would have failed against Adept: see the discussion by Finn J in O'Neill v Mann [2000] FCA 1680 [11]-[13] and JH Lever &amp; Co Pty Ltd v Maniotis (2005) 215 ALR 773 at 774-775 [3]-[4] per Mansfield J. In the appeal in the latter case, Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 , Finn, Emmett and Bennett JJ, said at [74]: 'There is no absolute rule with respect to the exercise of the power to award costs that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [40] . A successful party may be ordered to bear the costs of the unsuccessful party. There may be prima facie rules that a successful party is entitled to costs or that a successful party should receive its costs unless good reason is shown to the contrary (at [35]) but that is subject to the "myriad circumstances" in the institution and conduct of litigation.' They also said: 'Usually the circumstances in which a successful party is denied all or part of its costs have to do with the conduct of proceedings.' However, in that case the resolution was made by the Court rather than by a withdrawal of the proceedings from the field of litigation.
Case: Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7
Outcome: distinguished
In my opinion, the proper approach under O 22 r 2(1)(d) is to take the view that it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. I am of opinion that Mrs Clark's application for leave to discontinue is not an acknowledgement by her of likely defeat. Nor is there a basis on which it can be said that on any objective view of the case, she would have failed against Adept: see the discussion by Finn J in O'Neill v Mann [2000] FCA 1680 [11]-[13] and JH Lever &amp; Co Pty Ltd v Maniotis (2005) 215 ALR 773 at 774-775 [3]-[4] per Mansfield J. In the appeal in the latter case, Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 , Finn, Emmett and Bennett JJ, said at [74]: 'There is no absolute rule with respect to the exercise of the power to award costs that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [40] . A successful party may be ordered to bear the costs of the unsuccessful party. There may be prima facie rules that a successful party is entitled to costs or that a successful party should receive its costs unless good reason is shown to the contrary (at [35]) but that is subject to the "myriad circumstances" in the institution and conduct of litigation.' They also said: 'Usually the circumstances in which a successful party is denied all or part of its costs have to do with the conduct of proceedings.' However, in that case the resolution was made by the Court rather than by a withdrawal of the proceedings from the field of litigation.
Case: O'Neill v Mann [2000] FCA 1680
Outcome: applied
In my opinion, the proper approach under O 22 r 2(1)(d) is to take the view that it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. I am of opinion that Mrs Clark's application for leave to discontinue is not an acknowledgement by her of likely defeat. Nor is there a basis on which it can be said that on any objective view of the case, she would have failed against Adept: see the discussion by Finn J in O'Neill v Mann [2000] FCA 1680 [11]-[13] and JH Lever &amp; Co Pty Ltd v Maniotis (2005) 215 ALR 773 at 774-775 [3]-[4] per Mansfield J. In the appeal in the latter case, Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 , Finn, Emmett and Bennett JJ, said at [74]: 'There is no absolute rule with respect to the exercise of the power to award costs that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [40] . A successful party may be ordered to bear the costs of the unsuccessful party. There may be prima facie rules that a successful party is entitled to costs or that a successful party should receive its costs unless good reason is shown to the contrary (at [35]) but that is subject to the "myriad circumstances" in the institution and conduct of litigation.' They also said: 'Usually the circumstances in which a successful party is denied all or part of its costs have to do with the conduct of proceedings.' However, in that case the resolution was made by the Court rather than by a withdrawal of the proceedings from the field of litigation. 20 In Smith v Airservices Australia [2005] FCA 997 ; (2005) 146 FCR 37 at 47-50 [36] - [49] Stone J examined a number of cases in which the principles had been explored. She noted that Finn J had said in O'Neill [2000] FCA 1680 at [13] that while there is an underlying policy that a party who discontinues proceedings is to be held liable for the costs of the other parties unless the Court otherwise orders, the reasons for, and circumstances of, discontinuance are so various that the policy cannot safely be said to have hardened into a usual rule. Finn J had observed that this was different to the usual rule which exists where there has been a determination of a claim on its merits.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: cited
In my opinion, the proper approach under O 22 r 2(1)(d) is to take the view that it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. I am of opinion that Mrs Clark's application for leave to discontinue is not an acknowledgement by her of likely defeat. Nor is there a basis on which it can be said that on any objective view of the case, she would have failed against Adept: see the discussion by Finn J in O'Neill v Mann [2000] FCA 1680 [11]-[13] and JH Lever &amp; Co Pty Ltd v Maniotis (2005) 215 ALR 773 at 774-775 [3]-[4] per Mansfield J. In the appeal in the latter case, Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 , Finn, Emmett and Bennett JJ, said at [74]: 'There is no absolute rule with respect to the exercise of the power to award costs that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at [40] . A successful party may be ordered to bear the costs of the unsuccessful party. There may be prima facie rules that a successful party is entitled to costs or that a successful party should receive its costs unless good reason is shown to the contrary (at [35]) but that is subject to the "myriad circumstances" in the institution and conduct of litigation.' They also said: 'Usually the circumstances in which a successful party is denied all or part of its costs have to do with the conduct of proceedings.' However, in that case the resolution was made by the Court rather than by a withdrawal of the proceedings from the field of litigation. 18 It is inappropriate to read provisions such as s 43(2) of the Act, which confer jurisdiction or grant powers to a court, by making conditions or imposing limitations which are not to be found in the words used: The Owners of The Ship ' Shin Kobi Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ. 19 Of course, the discretion must be exercised judicially. Parties should be encouraged to engage in sensible attempts to resolve disputes having regard to all the circumstances of the case at the time at which resolution is proposed. The purpose of an order for costs is not solely to compensate one party at the expense of the other: Oshlack 193 CLR at 89 [43]. Where there is no delinquency or misconduct on the part of the party seeking to discontinue in a situation such as the present, and there has been no determination of the proceedings on the merits, it is not usually appropriate for the Court to engage in predicting the outcome or assigning responsibility for the conduct of the proceedings in a way which attributes blameworthiness, unless there is a solid foundation for doing so.