mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435
Outcome: referred to
In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 ; Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 ; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441). In Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 Burchett J observed at 4,186: In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. Such observations were adopted by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399.
Case: Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: referred to
In considering an application for leave to appeal from an interlocutory judgment the Court is required to consider whether the decision sought to be appealed from is attended with sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong (see Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 ; Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 ; Cadence Asset Management Pty Ltd and Others v Concept Sports Ltd and Others (2006) 58 ACSR 435 at 440-441). In Sharp &amp; Anor v Deputy Federal Commissioner of Taxation &amp; Ors (1988) 88 ATC 4184 Burchett J observed at 4,186: In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. Such observations were adopted by the Full Court in Decor Corporation Pty Ltd and Another v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 399.
Case: Doyle v Chief of General Staff (1982) 42 ALR 283
Outcome: followed
The Court is satisfied that in respect of its delay Triad has 'rested on its rights' (per Fisher J in Doyle v Chief of General Staff (1982) 42 ALR 283 at 287). Accordingly the Court finds that the explanation for the delay in seeking leave to appeal is not satisfactorily explained. 80 Mr Kerr has been provided with funding by TFI and Mr Bax to meet the costs of the recovery action against Triad and Cordato for monies owing to BGR. Costs of the proceedings have been itemised at $675,188.05. On 18 July 2007 the Registry provided a Preliminary Notice of Taxation in the amount of $529,450. 81 Mr Bax has testified that he provided $77,004.59 towards the liquidator's costs in respect of recovery actions taken by Gadens on behalf of the liquidator.
Case: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Outcome: referred to
Triad submits that the objective intention of the Court is to be gleaned from its reasons for judgment. Even if the primary Judge considered that the challenged order correctly reflected his intention, the objective test prevails: see Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944 at 951-954; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 at [25] - [27] . An application to vary an order of the Court to give effect to that Court's intention is within the ambit of the slip rule: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391.
Case: Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944
Outcome: referred to
Triad submits that the objective intention of the Court is to be gleaned from its reasons for judgment. Even if the primary Judge considered that the challenged order correctly reflected his intention, the objective test prevails: see Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944 at 951-954; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 at [25] - [27] . An application to vary an order of the Court to give effect to that Court's intention is within the ambit of the slip rule: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391.
Case: Hughes v National Trustees Executors &amp; Agency Co. of Australasia Ltd [1978] VR 257
Outcome: followed
The interests of all parties are to be considered when determining whether 'special reasons' exist as referred to in O 52 r 15(2) of the Rules. Such interests include the interest of obtaining finality in litigation. In Hughes v National Trustees Executors &amp; Agency Co. of Australasia Ltd [1978] VR 257 McInerney J said at 262-263: The object of the rule is to give the Court a discretion to extend the time with the view to the avoidance of an injustice... One object of fixing times under the rules is to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations. A successful litigant has an interest in knowing that a claim against him has been determined and that he is no longer 'at risk'...
Case: Jones v Dunkel and Another (1959) 101 CLR 298
Outcome: followed
As the Court is satisfied that Mr Gulson was fully aware of the effect of the primary Judge's first reasons, Triad's submissions claiming that its instruction of new solicitors contributed to Triad's delay in filing the notice of appeal can be discarded. For the same reason, Mr Quigley's claimed ignorance of the primary Judge's orders is immaterial. Further, the absence of any evidence from Triad's former lawyers entitles the Court to draw the inference that their evidence would not have assisted Triad's application: see Jones v Dunkel and Another (1959) 101 CLR 298.
Case: Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629
Outcome: referred to
Triad submits that the objective intention of the Court is to be gleaned from its reasons for judgment. Even if the primary Judge considered that the challenged order correctly reflected his intention, the objective test prevails: see Gikas and Others v Papanayiotou and Another [1977] 2 NSWLR 944 at 951-954; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629 at [25] - [27] . An application to vary an order of the Court to give effect to that Court's intention is within the ambit of the slip rule: see Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 at 391.
Case: Parker v The Queen [2002] FCAFC 133
Outcome: followed
The applicant refers to the authorities of Parker v The Queen [2002] FCAFC 133 , Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349, and Jess v Scott and Others (1986) 12 FCR 187 , each of which refer to the principles to be considered when dealing with an application under O 52 r 15(2) of the Rules for extension of time. Such rule provides: (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 64 Order 52 Rule 15(2) of the Rules requires the applicant to demonstrate that 'special reasons' exist justifying the grant of leave to extend time in which to appeal. The Court must consider whether there has been a satisfactory explanation for the delay; whether there is prejudice to any other party; and whether the grounds for appeal satisfy the Court that there are prospects of success: see Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 349; Parker v The Queen [2002] FCAFC 133 ; Jess v Scott and Others (1986) 12 FCR 187. The Court will consider each of the above hereunder.
Case: Savage v Cranstoun (Trustee) [2001] FCA 1789
Outcome: followed
The Court is not satisfied that grounds have been advanced 'to suggest that any appeal would enjoy any prospects of success' : see Savage v Cranstoun (Trustee) [2001] FCA 1789 per Spender J at [22]. The orders made by the primary Judge are beneficial to all parties, and the combined effect of his Honour's orders implemented a scheme to address the oppression caused by Triad. In these circumstances the applicant has not demonstrated any prospect of success in the appeal: see Jeffers v R [1993] HCA 11 ; [1993] 112 ALR 85 at 86.
Case: The Commissioner of Stamp Duties for the State of New South Wales v Bone and Others (1976) 135 CLR 223
Outcome: referred to
Grounds 1, 2 and 13 of the draft notice of appeal raise the question whether the Court has power under s 233 of the Corporations Act 2001 (Cth) to extinguish a debt owed by the company to another person. Triad submits that these grounds raise a constitutional issue, namely whether s 233 allows for the acquisition of property otherwise than on just terms as required by s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (Cth) ('the Constitution '). Triad seeks to argue that the debt owed by BGR to Triad for consultancy fees was Triad's asset which could only be extinguished or released by agreement for valuable consideration or under seal: see The Commissioner of Stamp Duties for the State of New South Wales v Bone and Others (1976) 135 CLR 223 at 229. In the absence of any agreement between the parties, Triad did not surrender its claim.
Case: The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1
Outcome: considered
Insofar as s 51(xxxi) of the Constitution is relied upon as a ground of appeal, the Court refers to The Commonwealth of Australia v WMC Resources Limited [1998] HCA 8 ; (1998) 194 CLR 1 where Gaudron J said at [79]: If a law modifies or extinguishes a statutory right which has no basis in the general law in circumstances in which some person obtains some consequential advantage or benefit in relation to property, that law may and, ordinarily, will effect an acquisition. 88 In the present case there was no acquisition of property resulting from the operation of a Commonwealth law. Rather, the extinguishment of Triad's right to consultancy fees (even if such extinguishment could be categorised as an acquisition) resulted from a court order. Accordingly the Court considers that this ground of appeal would not have any prospects of success.
Case: The Food Improvers Pty Ltd and Anor v BGR Corporation Pty Ltd and Ors (No 4) [2007] FCA 220
Outcome: considered
On 28 February 2007 the primary Judge delivered reasons ('the second reasons') which related to the hearing on 19 February 2007, particularly in relation to Order 6: see The Food Improvers Pty Ltd and Anor v BGR Corporation Pty Ltd and Ors (No 4) [2007] FCA 220. As to the adoption of Order 6, his Honour said at [9]: I also made an order that the resolution of the directors of BGR made on 22 February 2006 declaring and effecting payment of the interim dividend, which I found to be oppressive, be set aside and substituted a resolution which sought to give effect to what was proposed in option B. I was of opinion that it would be too cumbersome to order meetings of BGR or its directors to take the procedural steps necessary to implement and vote for the resolution.
Case: The Food Improvers Pty Limited and Anor v BGR Corporation Pty Ltd and Ors (No 6) [2007] FCA 1812
Outcome: considered
On 22 November 2007 the primary Judge delivered his written reasons in respect of the slip rule application: see The Food Improvers Pty Limited and Anor v BGR Corporation Pty Ltd and Ors (No 6) [2007] FCA 1812 ('the slip rule reasons'). In such reasons his Honour considered Options A and B and observed at [20]: By informally agreeing to distribution in accordance with Option B the parties were adopting a position that neither wished to assert their full legal rights to be paid under Option A... Since Mr Gulson was positively asserting there was no such entitlement, I found that he had indicated that he and Triad did not wish to receive those consultancy fees ( Food Improvers (No 3) [2007] FCA 97 at [269] ). That finding was inevitable given the joint rejection of distributing in accordance with Option A.
Case: AWB Limited v Cole [2006] FCA 571
Outcome: referred to
In AWB Limited v Cole [2006] FCA 571 (' AWB v Cole '), I determined a claim for legal professional privilege over a document that AWB Limited ('AWB') inadvertently produced to the Commission of Inquiry ('the Commission') that is being conducted by the Honourable Terence Rhoderic Hudson Cole AO RFD QC ('the Commissioner'). The present proceeding, which was instituted by AWB on 30 May 2006, relates to claims for legal professional privilege over a large number of documents. 2 I have two notices of motion before me. Under the first motion, AWB seeks the continuation of an interim injunction (which Kenny J granted on 20 June 2006) until the hearing and determination of the proceeding or further order of the Court. By the second notice of motion, the Commonwealth seeks to have certain preliminary questions determined pursuant to O 29 r 2 of the Federal Court Rules prior to any trial of the issues of legal professional privilege that are raised by the proceeding. 3 The Commonwealth has informed the Court that it will consent to the continuation of the injunction pending the final determination of this proceeding if it is unsuccessful on its notice of motion. The Commonwealth also said that it would consent to the continuation of the injunction pending the determination of its notice of motion. The Commissioner has indicated that he will abide any order of the Court, save as to costs. The Commonwealth therefore submitted that there is no present controversy as to the continuation of the injunction until the determination of this proceeding.
Case: Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 38 The courts have repeatedly warned of the dangers that attend the trial of separate or preliminary questions. In Tepko at 55 [168]-[170], Kirby and Callinan JJ said that the attraction of trials of separate questions are often more chimerical than real; savings in time and expense can prove illusory and the process can generate other problems such as interlocutory appeals and consequent delays. Their Honours concluded that single issue trials should only be embarked upon when their utility, economy and fairness to the parties are beyond question: at 55 [170]. In Direct Factory Outlets , Sackville J said, quite correctly, that the dangers of separate trials are well illustrated by the numerous cases in which the process has miscarried. In Save the Ridge at 103 [15], Black CJ and Moore J said that the O 29 procedure is one that should be adopted with caution as it can be fraught with difficulties. In Tallglen at 141-142, Giles CJ said that the ordering of separate trials must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of the order was intended to avoid. Similar statements can be found in this Court: see eg Novartis Corp Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013 at [7] per Stone J.
Case: Souflett Beheer v AWB Limited [2004] FCA 518
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 37 On the other hand, an issue will not generally speaking be 'ripe' for separate determination if it is simply one of two or more alternative ways in which an applicant frames its case, and its determination would leave other significant issues unresolved: Reading at 498 [8]; and Souflett Beheer at [20].
Case: Kockums AB v Commonwealth [2002] FCAFC 138
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142.
Case: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14
Outcome: cited
The legal principles that govern the exercise of the Court's discretion under this rule have been discussed in a number of recent cases, and are well established: see Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 (' Bass' ) at 355-359; Tepko Pty Ltd v Water Board [2001] HCA 19 ; (2001) 206 CLR 1 (' Tepko' ) at 55; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 (' Reading' ) at 497-500 [7]-[11]; Direct Factory Outlets Homebush Pty Ltd v Property Council of Australia [2005] FCA 1002 ( 'Direct Factory Outlets' ) at [2]-[4]; Souflett Beheer v AWB Limited [2004] FCA 518 ( 'Souflett Beheer' ) at [19]-[20]; Kockums AB v Commonwealth [2002] FCAFC 138 at [38] - [41] ; SmithKline Beecham (Aust) Pty Ltd v Chipman [2002] FCA 674 (' SmithKline' ) at [35]-[39]; SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd [2006] FCA 14 (' Diageo' ) at [22]-[27]; Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97 ( 'Save the Ridge' ) at 103-104 [15]-[17]; Rainsford v Victoria [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford' ) at 291-294 36-44; Director of Fisheries (NT) v Arnhem Land Aboriginal Land Trust [2001] FCA 98 ; (2001) 109 FCR 488 ( 'Director of Fisheries' ) at 521 [139] and 526-527 [163]; and Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 (' Tallglen' ) at 141-142. 29 The starting point must be that, as a general rule, all issues of fact and law should be determined at the one time: Reading at 497 [7]; Tallglen at 141-142; and Diageo at [23].