mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Universal Music Australia v Cooper Pty Ltd [2005] FCA 972 ; (2005) 150 FCR 1
Outcome: referred to
Universal Music Australia v Cooper Pty Ltd [2005] FCA 972 ; (2005) 150 FCR 1 dealt with infringement of copyright. The principal claims were based on infringement of copyright by a website that facilitated the free downloading of certain sound recordings. The first respondent was the registered owner and operator of the website. It contained hyperlinks to thousands of sound recordings which were located on remote websites and downloaded directly from those websites to the computer of the Internet user. The music file was not sent to, downloaded on, transmitted through or saved to the first respondent's website. The second to fifth respondents hosted the website and were responsible for maintaining the connection to the Internet. They were unaware of the contents of the website and took no steps to inform themselves of that content. Tamberlin J held that the first respondent infringed copyright by authorising the infringing acts of Internet users who accessed the website and the owners or operators of the remote website from which the infringing recordings were downloaded. He permitted and approved the infringements and had sufficient control over his website to prevent the infringements (150 FCR 1 at [77] [102]). The second to fifth respondents infringed the copyright by authorising the infringing acts (150 FCR 1 at [103] [132]). They had an active role in relation to the website, were aware of the content of the website and had the power to prevent the infringing acts. Those findings were substantially upheld on appeal, although an employee of the Internet service provider was let out ( Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 particularly per Branson J at [28] [52], [61] [65] and Kenny J at [136] [165]).
Case: Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127
Outcome: referred to
The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )
Case: Croker v Commonwealth of Australia [2007] FCA 1593
Outcome: cited
support of the Application the Applicant has filed an Affidavit which annexes a Draft Notice of Appeal . But that Affidavit fails to comply with r 4(2). It is in inadmissible form but, more relevantly, it is more in the nature of a submission and challenges the factual conclusions made by the Refugee Review Tribunal which affirmed the decision not to grant a protection visa. But such deficiencies may presently be left to one side. Non-compliance with r 4(2) should not, as in other proceedings where an applicant has been unrepresented (e.g. Lawrance v The Commonwealth of Australia [2007] FCA 1524 at [26] ; Croker v Commonwealth of Australia [2007] FCA 1593 at [6] ), of itself necessarily impede a proper consideration of such merits as an application may present.
Case: Lawrance v The Commonwealth of Australia [2007] FCA 1524
Outcome: cited
support of the Application the Applicant has filed an Affidavit which annexes a Draft Notice of Appeal . But that Affidavit fails to comply with r 4(2). It is in inadmissible form but, more relevantly, it is more in the nature of a submission and challenges the factual conclusions made by the Refugee Review Tribunal which affirmed the decision not to grant a protection visa. But such deficiencies may presently be left to one side. Non-compliance with r 4(2) should not, as in other proceedings where an applicant has been unrepresented (e.g. Lawrance v The Commonwealth of Australia [2007] FCA 1524 at [26] ; Croker v Commonwealth of Australia [2007] FCA 1593 at [6] ), of itself necessarily impede a proper consideration of such merits as an application may present.
Case: MZXME v Minister for Immigration and Citizenship [2007] FCA 767
Outcome: cited
explanation is provided in the Applicant's Affidavit as to why any application for leave to appeal was not filed within the time prescribed. In such circumstances a proceeding may be dismissed: e.g. MZXME v Minister for Immigration and Citizenship [2007] FCA 767. Before any order is made pursuant to r 5(3) there must be a rational basis upon which any such order may be made.
Case: Nguyen v Pascoe [2006] FCA 719
Outcome: cited
the difference in language as between O 52 r 5(3) and O 52 r 15(2), namely the constraint in r 15(2) that the Court may give leave to file and serve a notice of appeal " at any time " where there are " special reasons ", principles relevant to the exercise of that discretion have been applied when considering r 5(3): SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725. Cowdroy J there stated: [21] The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 at 348 349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules. Compliance with O 52 r 5(2) was there dispensed with in circumstances where the application for leave to appeal was filed out of time by ten days. See also: Nguyen v Pascoe [2006] FCA 719 at [41] .
Case: Sochorova v Minister for Immigration and Citizenship [2009] FCA 555
Outcome: cited
in perhaps slightly different language, in Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 , Spender J set forth the terms of O 52 r 5(3) and expressed " the relevant test " as follows: THE RELEVANT TEST ... [38] The discretion to extend time conferred by that rule is given for the sole purpose of enabling justice to be done between the parties. [39] In Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 , McHugh J was concerned with the application of O 60 r 6 of the High Court Rules in respect of the applicant's application for an extension of time. McHugh J said, at 480: [Order 60 rule 6] provides that a court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. [40] There are two relevant matters concerning whether the Court should exercise its discretion to extend time. The first is whether a sufficient explanation for the delay has been forthcoming; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought be allowed to proceed. In SZMTC v Minister for Immigration and Citizenship [2009] FCA 162 at [5] Buchanan J referred to the language of " special reasons " in O 52 r 15 when considering an application for an extension of time in relation to an " ordinary appeal " and observed that " no lesser test should be employed when considering an application for an extension of time in which to seek leave to appeal ". Concurrence is expressed with the observations of both Spender J and Buchanan J.
Case: SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543
Outcome: cited
the present proceeding, however, neither the reasons for decision of the Federal Magistrate nor the proposed Notice of Appeal expose any basis upon which an appeal would have any prospects of success. Even if an order were to be made pursuant to O 52 r 5(3), leave to appeal would in any event be refused: see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543. Such a conclusion may be relied upon as a reason for an adverse exercise of the discretion conferred by O 52 r 5(3). Justice in such circumstances does not require a dispensation from compliance with O 52 r 5(2).
Case: SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725
Outcome: applied
the difference in language as between O 52 r 5(3) and O 52 r 15(2), namely the constraint in r 15(2) that the Court may give leave to file and serve a notice of appeal " at any time " where there are " special reasons ", principles relevant to the exercise of that discretion have been applied when considering r 5(3): SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725. Cowdroy J there stated: [21] The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 ; (1984) 3 FCR 344 at 348 349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules. Compliance with O 52 r 5(2) was there dispensed with in circumstances where the application for leave to appeal was filed out of time by ten days. See also: Nguyen v Pascoe [2006] FCA 719 at [41] .
Case: SZMTC v Minister for Immigration and Citizenship [2009] FCA 162
Outcome: applied
in perhaps slightly different language, in Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 , Spender J set forth the terms of O 52 r 5(3) and expressed " the relevant test " as follows: THE RELEVANT TEST ... [38] The discretion to extend time conferred by that rule is given for the sole purpose of enabling justice to be done between the parties. [39] In Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 , McHugh J was concerned with the application of O 60 r 6 of the High Court Rules in respect of the applicant's application for an extension of time. McHugh J said, at 480: [Order 60 rule 6] provides that a court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors &amp; Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. [40] There are two relevant matters concerning whether the Court should exercise its discretion to extend time. The first is whether a sufficient explanation for the delay has been forthcoming; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought be allowed to proceed. In SZMTC v Minister for Immigration and Citizenship [2009] FCA 162 at [5] Buchanan J referred to the language of " special reasons " in O 52 r 15 when considering an application for an extension of time in relation to an " ordinary appeal " and observed that " no lesser test should be employed when considering an application for an extension of time in which to seek leave to appeal ". Concurrence is expressed with the observations of both Spender J and Buchanan J.
Case: SZNFR v Minister for Immigration and Citizenship [2009] FMCA 408
Outcome: considered
before the Court is an Application for Leave to Appeal from a decision of the Federal Magistrates Court: SZNFR v Minister for Immigration and Citizenship [2009] FMCA 408. That Application seeks both leave to appeal and " an order that compliance with Order 52, subrule 5(2) be dispensed with ". Leave to appeal is required because the Federal Magistrate dismissed the application before that Court pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12 provides as follow: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed &#8212; dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed &#8212; adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory. The dismissal of an application pursuant to Rule 44.12(1)(a) is, accordingly, an interlocutory decision and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the 1976 Act) imposes the requirement to obtain leave before any appeal may be entertained. In addition, and as the Application itself recognises, the Application as filed in this Court was filed outside the time prescribed by O 52 r 5(2) of the Federal Court Rules 1979 (Cth). Rule 5 provides as follows: Time for filing application (1) This rule applies only to applications where an appeal from the judgment lies to the Court only with leave. (2) An application shall be filed within 21 days after: (a) the judgment was pronounced; or (b) a later date fixed for that purpose by the court or judge who pronounced the decision. (3) Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with.
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1
Outcome: cited
material before this Court includes the respondent's statement of facts and contentions before the Tribunal. This document at [27] advanced the contention that 'Great Bamboo Pty Ltd was not an eligible business because it was not a business in the necessary sense' . In support of this contention it made reference to Mason J's consideration in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 of the meaning of 'business' in a phrase such as 'carrying on a business' . There his Honour stated that in the context of the rating provisions of the Local Government Act 1919 (NSW) the phrase 'carrying on a business' denoted activities 'engaged in for the purpose of profit on a continuous and repetitive basis' (at 8-9). The respondent's statement of facts and contentions before the Tribunal argued that Mr Koosasi's business did not appear 'to have been carried out on an ongoing or repetitive basis' . At [28] the same document advanced the alternative contention that Great Bamboo was not an eligible business because it did not meet any of the requirements listed in the definition of 'eligible business' in s 134(10). In support of this contention the document made reference to the absence of evidence that Mr Koosasi had developed business links with the international market. It also noted that Great Bamboo had not created and was unlikely to create employment, that it had not introduced new or improved technology into Australia nor had it increased commercial activity or competitiveness in the Australian economy. At [39] of its written reasons for decision the Tribunal conflated the two submissions of the respondent identified above, noting: 'The respondent also submits that the business is not an "eligible" business as it has only completed four export transactions since its registration in January 2003 and such limited number could not be considered continuing or repetitive ... there is no evidence the company has developed links with international markets; and the company has not created employment; exports of wheat, flour and juice has not introduced any new or improved technology to Australia.' (a reference to authority omitted)
Case: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Outcome: referred to
18 September 2006, I delivered reasons for judgment in this proceeding and adjourned the matter to Monday 25 September 2006 for any argument as to the orders that should be made to give effect to my reasons: AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 at [251] . These reasons for decision are directed to the final orders that I have determined to make, having heard submissions from the applicant and the respondents yesterday. The issues that separated the parties narrowed considerably during the course of yesterday's hearing. The remaining differences relate to the form of declaratory relief that is appropriate and the costs orders that should be made. AWB submitted that, where I have determined that documents attract privilege, wholly or partly, the Court should make a declaration to that effect. On the other hand, AWB submitted that, where I have determined that documents over which AWB claimed privilege do not attract privilege or that any privilege has been waived, I should not make a declaration to that effect. It submitted that any such declaration was unnecessary and would lack utility. Senior Counsel for AWB said, from the bar table, that the documents in question were being produced to the Commission. The relevance of this is dubious, as it follows the delivery of my reasons for judgment and, presumably, anticipates that final orders will be made that give effect to those reasons. AWB also pointed out that the Commonwealth had not mounted any cross-claim for declaratory relief in its favour.
Case: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 
Outcome: followed
making of a declaration and the terms in which it should be framed are in the Court's discretion: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437-439 per Gibbs J; and Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 ( 'Ainsworth' ) at 581-582 and 596-597. As a matter of substance, the dispute that AWB submitted to the Court for its adjudication was whether legal professional privilege did, or did not, attach to the documents in AWB's further revised list of privileged documents dated 7 August 2006 (as supplemented by letters from AWB's solicitors to the Court dated 25 August 2006 and 5 September 2006). In my opinion, any declarations made by the Court should reflect the final outcome of this case with certainty and precision. Moreover, it is desirable that there should be an authoritative resolution of the dispute presented to the Court.
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: followed
making of a declaration and the terms in which it should be framed are in the Court's discretion: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 at 437-439 per Gibbs J; and Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 ( 'Ainsworth' ) at 581-582 and 596-597. As a matter of substance, the dispute that AWB submitted to the Court for its adjudication was whether legal professional privilege did, or did not, attach to the documents in AWB's further revised list of privileged documents dated 7 August 2006 (as supplemented by letters from AWB's solicitors to the Court dated 25 August 2006 and 5 September 2006). In my opinion, any declarations made by the Court should reflect the final outcome of this case with certainty and precision. Moreover, it is desirable that there should be an authoritative resolution of the dispute presented to the Court. I have concluded that the Court should make a declaration, reflecting my reasons for judgment, that legal professional privilege attaches to specified documents, and does not attach to other specified documents. Declaratory relief in this form is appropriate because it determines the legal controversy that was before the Court: see Ainsworth at 582 and 596-597; and Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. As AWB's application makes clear, the controversy includes the question whether the documents at issue are protected from production to the Commission by legal professional privilege. This controversy is only likely to be quelled, completely and finally, by making a declaration in the form I propose.
Case: Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: applied
have concluded that the Court should make a declaration, reflecting my reasons for judgment, that legal professional privilege attaches to specified documents, and does not attach to other specified documents. Declaratory relief in this form is appropriate because it determines the legal controversy that was before the Court: see Ainsworth at 582 and 596-597; and Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 355-356. As AWB's application makes clear, the controversy includes the question whether the documents at issue are protected from production to the Commission by legal professional privilege. This controversy is only likely to be quelled, completely and finally, by making a declaration in the form I propose.