mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Tervonen v Finland [2008] FCA 781
Outcome: followed
This was an argument which, it would appear, held some favour with His Honour Justice Gyles in Tervonen v Finland [2008] FCA 781. His Honour there observed: Warrant for arrest? [8] Tervonen puts authentication of the warrants in issue but also takes a point of substance. He contends (and contended before the Magistrate) that five of the eight warrants are for his arrest for pre-trial investigation purposes rather than for trial for the offences. He submits that there is a clear distinction in Finnish law between the two purposes. He submits that only a public prosecutor can bring a prosecution, the police powers being limited to the investigation stage. These submissions are not evidence, but have clearly flagged an issue. ... [20] It appears that Tervonen put a similar argument to Rares J in the proceeding challenging the validity of the s 16 notice -- see Tervonen [2007] FCA 1684 ; 98 ALD 589 at [33] [44]. Rares J decided that it was open to the Minister to form the relevant opinion but did not consider the correctness or otherwise of that opinion, the proceeding before him being a challenge on administrative law grounds. [21] In my opinion, it is tolerably clear in the present case that only the first three warrants would normally be regarded as being "for the arrest of the person for the offence", the other warrants being connected with coercive investigation. To borrow from Art 1 of the Treaty, it was only those warrants by which Tervonen had been charged by a competent authority with the relevant offences against the law of Finland, bearing in mind that an extradition treaty must be a treaty relating to the surrender of persons accused or convicted of offences (s 5). That conclusion is assisted by the failure of Finland to produce material to the Magistrate explaining the system as it applied to the issues in the case.
Case: Tervonen v Minister for Home Affairs [2008] FCA 872
Outcome: cited
In addition to these proceedings, there was also a proceeding commenced by Mr Tervonen seeking to review the further notice issued in November 2007. That proceeding has since been resolved: Tervonen v Minister for Home Affairs [2008] FCA 872. 7 On 21 April 2008 the Respondent Minister filed a Notice of Motion seeking the dismissal of the current proceeding. It is variously contended by the Respondent Minister that the proceeding should be dismissed by reason of res judicata or issue estoppel, or that the proceeding is " barred by reason of the doctrine [of] Anshun estoppel " or should be dismissed pursuant to O 20 r 5 of the Federal Court Rules . Abuse of process is also relied upon by the Minister.
Case: Walton v Gardiner [1992] HCA 12 , 177 CLR 378
Outcome: followed
A superior Court will not allow its processes to be used as an " instrument of injustice or unfairness ": Walton v Gardiner [1992] HCA 12 , 177 CLR 378. Mason CJ, Deane and Dawson JJ there summarised the position as follows (at 392 3): The inherent jurisdiction of a superior Court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. ... (citations omitted)
Case: Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 , 146 FCR 10
Outcome: followed
In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21. 31 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [38] [39], [2004] FCA 51 ; 146 FCR 10 at 17 18 Emmett, Conti and Selway JJ noted that Anshun estoppel has been applied to proceedings in the nature of review of administrative action " insofar as Anshun estoppel is aimed at avoiding abuse of process ". Their Honours further observed, however, that " there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding ": at [38]. Where the beneficiary of an Anshun estoppel, their Honours observed, " is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance ": at [39].
Case: Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404
Outcome: cited
Those findings were open on the evidence and are consistent with authority concerning the scope of the term 'scheme' ( Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 425, McHugh J; Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 383, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at 225, Gleason CJ and McHugh J [9], Gummow and Hayne JJ, 236 [43], Callinan J, 250 [85]). 63 The Tribunal identified that question as one of whether 'a reasonable person' would conclude that each taxpayer in entering into and carrying out the particular scheme had, as his or her 'most influential and prevailing or ruling purpose and thus [his or her] dominant purpose, the obtaining thereby of a tax benefit, in the statutory sense' ( Federal Commissioner of Taxation v Spotless Services Ltd (supra) at 423, per the Court (supra)). 64 In considering each of the eight factors so as to determine whether a reasonable person would conclude that each taxpayer acted according to the most influential, prevailing or ruling purpose in the sense required by s 177D, the Tribunal was influenced by these findings in relation to the eight factors. 65 As to factor (i) (see [57] of these reasons in each case), the applicants did not so much enter into a series of transactions as acquire a packaged solution from their solicitors. The instructions required that each applicant execute a series of pro-forma documents over the course of a number of days [54].
Case: Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359
Outcome: cited
Those findings were open on the evidence and are consistent with authority concerning the scope of the term 'scheme' ( Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34 ; (1996) 186 CLR 404 at 425, McHugh J; Federal Commissioner of Taxation v Peabody [1994] HCA 43 ; (1994) 181 CLR 359 at 383, Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Federal Commissioner of Taxation v Hart [2004] HCA 26 ; (2004) 217 CLR 216 at 225, Gleason CJ and McHugh J [9], Gummow and Hayne JJ, 236 [43], Callinan J, 250 [85]).
Case: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Outcome: cited
as Heydon JA noted even in personal injury litigation 'the ambush theory of life has been abandoned' (53 NSWLR at 128 [30]); see too Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] [162] per Allsop P, with whom Beazley and Campbell JJA agreed.
Case: Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7
Outcome: followed
I see it, each of the parties bears some responsibility for their joint failure to bring forward the true issue between them that required prompt identification and resolution. I pointed out during the course of argument that in commercial litigation of this character and, as indeed in other litigation in today's society, that approach is unacceptable for the reasons given by Allsop J in White v Overland [2001] FCA 1333 at [4] which were applied by Heydon JA with the endorsement of Mason P and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116 at 128 129 [28] [32] and by a Full Court of this Court in Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 at [72] per Finn, Emmett and Bennett JJ. In the last case, the Court said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ."
Case: New Zealand Shipping Co Limited v Satterthwaite &amp; Co Limited [1974] UKPC 1 ; [1975] AC 154
Outcome: cited
might have been expected, the bill of lading contains a " Himalaya " clause in the widest terms which is usual in such transactions. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ noted that courts have been ready to conclude in cases of a stevedore seeking the benefit of a Himalaya clause that the carrier was acting with the stevedore's authority. They referred to the judgment of Barwick CJ in Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231 at 241. His judgment was expressly approved in the last appeal to the Privy Council from the High Court of Australia: Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300 at 305. As Lord Wilberforce, delivering the judgment of a powerful board, said in The New York Star 144 CLR at 304, the significance of the majority decision of the Privy Council in New Zealand Shipping Co Limited v Satterthwaite &amp; Co Limited [1974] UKPC 1 ; [1975] AC 154 was: "...not so much in the establishment of any new legal principle, as in the finding that in the normal situation involving the employment of stevedores by carriers, accepted principles enable and require the stevedore to enjoy the benefit of contractual provisions in the bill of lading."
Case: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116
Outcome: discussed
I see it, each of the parties bears some responsibility for their joint failure to bring forward the true issue between them that required prompt identification and resolution. I pointed out during the course of argument that in commercial litigation of this character and, as indeed in other litigation in today's society, that approach is unacceptable for the reasons given by Allsop J in White v Overland [2001] FCA 1333 at [4] which were applied by Heydon JA with the endorsement of Mason P and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116 at 128 129 [28] [32] and by a Full Court of this Court in Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 at [72] per Finn, Emmett and Bennett JJ. In the last case, the Court said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ."
Case: Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231
Outcome: discussed
might have been expected, the bill of lading contains a " Himalaya " clause in the widest terms which is usual in such transactions. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ noted that courts have been ready to conclude in cases of a stevedore seeking the benefit of a Himalaya clause that the carrier was acting with the stevedore's authority. They referred to the judgment of Barwick CJ in Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231 at 241. His judgment was expressly approved in the last appeal to the Privy Council from the High Court of Australia: Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300 at 305. As Lord Wilberforce, delivering the judgment of a powerful board, said in The New York Star 144 CLR at 304, the significance of the majority decision of the Privy Council in New Zealand Shipping Co Limited v Satterthwaite &amp; Co Limited [1974] UKPC 1 ; [1975] AC 154 was: "...not so much in the establishment of any new legal principle, as in the finding that in the normal situation involving the employment of stevedores by carriers, accepted principles enable and require the stevedore to enjoy the benefit of contractual provisions in the bill of lading."
Case: Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300
Outcome: discussed
might have been expected, the bill of lading contains a " Himalaya " clause in the widest terms which is usual in such transactions. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ noted that courts have been ready to conclude in cases of a stevedore seeking the benefit of a Himalaya clause that the carrier was acting with the stevedore's authority. They referred to the judgment of Barwick CJ in Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231 at 241. His judgment was expressly approved in the last appeal to the Privy Council from the High Court of Australia: Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300 at 305. As Lord Wilberforce, delivering the judgment of a powerful board, said in The New York Star 144 CLR at 304, the significance of the majority decision of the Privy Council in New Zealand Shipping Co Limited v Satterthwaite &amp; Co Limited [1974] UKPC 1 ; [1975] AC 154 was: "...not so much in the establishment of any new legal principle, as in the finding that in the normal situation involving the employment of stevedores by carriers, accepted principles enable and require the stevedore to enjoy the benefit of contractual provisions in the bill of lading."
Case: Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361
Outcome: cited
as Heydon JA noted even in personal injury litigation 'the ambush theory of life has been abandoned' (53 NSWLR at 128 [30]); see too Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] [162] per Allsop P, with whom Beazley and Campbell JJA agreed.
Case: Toll (FGCT) Pty Ltd v Alphapharm Pty Limited [2004] HCA 52 ; (2004) 219 CLR 165
Outcome: discussed
might have been expected, the bill of lading contains a " Himalaya " clause in the widest terms which is usual in such transactions. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at 193 [79] , Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ noted that courts have been ready to conclude in cases of a stevedore seeking the benefit of a Himalaya clause that the carrier was acting with the stevedore's authority. They referred to the judgment of Barwick CJ in Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited [1978] HCA 8 ; (1978) 139 CLR 231 at 241. His judgment was expressly approved in the last appeal to the Privy Council from the High Court of Australia: Port Jackson Stevedoring Pty Limited v Salmond &amp; Spraggon (Australia) Pty Limited (" The New York Star ") (1980) 144 CLR 300 at 305. As Lord Wilberforce, delivering the judgment of a powerful board, said in The New York Star 144 CLR at 304, the significance of the majority decision of the Privy Council in New Zealand Shipping Co Limited v Satterthwaite &amp; Co Limited [1974] UKPC 1 ; [1975] AC 154 was: "...not so much in the establishment of any new legal principle, as in the finding that in the normal situation involving the employment of stevedores by carriers, accepted principles enable and require the stevedore to enjoy the benefit of contractual provisions in the bill of lading."
Case: White v Overland [2001] FCA 1333
Outcome: followed
I see it, each of the parties bears some responsibility for their joint failure to bring forward the true issue between them that required prompt identification and resolution. I pointed out during the course of argument that in commercial litigation of this character and, as indeed in other litigation in today's society, that approach is unacceptable for the reasons given by Allsop J in White v Overland [2001] FCA 1333 at [4] which were applied by Heydon JA with the endorsement of Mason P and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116 at 128 129 [28] [32] and by a Full Court of this Court in Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 at [72] per Finn, Emmett and Bennett JJ. In the last case, the Court said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ."
Case: Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623
Outcome: cited
Allegations of bias impact on the integrity of the Tribunal, and should be carefully and fully considered. Undoubtedly an adjournment would have been necessary if the evidence was accepted. However, while the Federal Magistrates Court has an exceptionally busy case load, there was no indication by his Honour of case management issues impacting on the exercise of his discretion: see, eg, Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. There was no suggestion that if an adjournment were granted the first respondent would be prejudiced in the conventional way other than as to costs, although there is a public interest in hearing refugee matters expeditiously: see Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625 , 628-29; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 , 395-96; and SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499 at [29] .
Case: Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 , 395-96
Outcome: cited
Allegations of bias impact on the integrity of the Tribunal, and should be carefully and fully considered. Undoubtedly an adjournment would have been necessary if the evidence was accepted. However, while the Federal Magistrates Court has an exceptionally busy case load, there was no indication by his Honour of case management issues impacting on the exercise of his discretion: see, eg, Black Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623. There was no suggestion that if an adjournment were granted the first respondent would be prejudiced in the conventional way other than as to costs, although there is a public interest in hearing refugee matters expeditiously: see Sali v SPC Ltd [1993] HCA 47 ; (1993) 116 ALR 625 , 628-29; Bloch v Bloch [1981] HCA 56 ; (1981) 180 CLR 390 , 395-96; and SZKMS v Minister for Immigration and Multicultural Affairs (2008) FCA 499 at [29] .