mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Outcome: cited
far as the law permits and is practicable, however, fairness should govern the disposition of costs: compare Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 at [5] per as Finkelstein and Gordon JJ. The critical factor in support of a departure from the usual order as to costs is that the applicant has failed in respect of his allegations concerning events after the crane incident on 21 February 2006 and following, which turned on additional and different evidence to the earlier events. These allegations were that: (1) on 21 February 2006, Mr Mates telephoned the office of the crane company and said that its crew were not to work on the project at Mount Street; (2) on 21 February 2006, Mr Mates telephoned the Union's offices or a representative of the Union and instructed the person he contacted to instruct Maurie Hill (the Union organiser responsible for mobile cranes in Victoria (FEDFA division)) to ring Sergi Cranes and other crane operators to warn them off working at the Mount Street site; and (3) on 22 February 2006 and following, Mr Mates organised a picket line at the Mount Street site. The applicant further alleged that the Union and/or Mr Mates had contravened s 38 of the Act in that Mr Mates' alleged conduct on 21 February 2006 and in organising a picket line at the Mount Street site between 22 February 2006 and 3 March 2006 constituted "building industrial action" within the meaning of paragraphs (b) and (c) of the definition in s 36(1) of the Building and Construction Industry Improvement Act . Plainly enough, some significant amount of time and effort was devoted to that part of the applicant's unsuccessful case, although it is difficult to quantify this precisely. In all the circumstances, it would be reasonable to deprive the applicant of a percentage of his trial costs. Having regard to these circumstances, I consider that it would be fair and just to deprive the applicant of 40 per cent of his trial costs. It would be inappropriate to order the applicant to pay any portion of the respondents' costs.
Case: Butler v Johnston (1984) 4 FCR 83
Outcome: cited
submissions made on behalf of Woodside Energy identified, as its principal argument, the proposition that the hedging expenses which it incurred are, for the purposes of s 24 of the PRRT Act, 'expenses payable, by [Woodside Energy] in relation to the sale' of petroleum recovered from the production licence area. The Commissioner, it was said, contended for a narrow meaning of the words 'in relation to' limiting the expenses under s 24 to costs such as delivery, commissions and cargo insurance. Woodside Energy argued that the words 'in relation to' and 'in carrying on or providing the operation facilities and other things comprising the project' should be construed having regard to the policy and objects of the legislation. It submitted that the term 'in relation to' requires a consideration of economic and commercial factors as well as physical and temporal factors. Reference was made to Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294 at 306 and PMT Partners Pty Ltd ( In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 330-331. The width of the phrase 'in carrying on or providing the operations, facilities and other things comprising the project' is also to be determined having regard to the policy and objects of the legislation and will require a consideration of economic and commercial factors.
Case: Hatfield v Health Insurance Commission (1987) 15 FCR 487
Outcome: cited
submissions made on behalf of Woodside Energy identified, as its principal argument, the proposition that the hedging expenses which it incurred are, for the purposes of s 24 of the PRRT Act, 'expenses payable, by [Woodside Energy] in relation to the sale' of petroleum recovered from the production licence area. The Commissioner, it was said, contended for a narrow meaning of the words 'in relation to' limiting the expenses under s 24 to costs such as delivery, commissions and cargo insurance. Woodside Energy argued that the words 'in relation to' and 'in carrying on or providing the operation facilities and other things comprising the project' should be construed having regard to the policy and objects of the legislation. It submitted that the term 'in relation to' requires a consideration of economic and commercial factors as well as physical and temporal factors. Reference was made to Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294 at 306 and PMT Partners Pty Ltd ( In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 330-331. The width of the phrase 'in carrying on or providing the operations, facilities and other things comprising the project' is also to be determined having regard to the policy and objects of the legislation and will require a consideration of economic and commercial factors.
Case: Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294
Outcome: cited
submissions made on behalf of Woodside Energy identified, as its principal argument, the proposition that the hedging expenses which it incurred are, for the purposes of s 24 of the PRRT Act, 'expenses payable, by [Woodside Energy] in relation to the sale' of petroleum recovered from the production licence area. The Commissioner, it was said, contended for a narrow meaning of the words 'in relation to' limiting the expenses under s 24 to costs such as delivery, commissions and cargo insurance. Woodside Energy argued that the words 'in relation to' and 'in carrying on or providing the operation facilities and other things comprising the project' should be construed having regard to the policy and objects of the legislation. It submitted that the term 'in relation to' requires a consideration of economic and commercial factors as well as physical and temporal factors. Reference was made to Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294 at 306 and PMT Partners Pty Ltd ( In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 330-331. The width of the phrase 'in carrying on or providing the operations, facilities and other things comprising the project' is also to be determined having regard to the policy and objects of the legislation and will require a consideration of economic and commercial factors.
Case: PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301
Outcome: cited
submissions made on behalf of Woodside Energy identified, as its principal argument, the proposition that the hedging expenses which it incurred are, for the purposes of s 24 of the PRRT Act, 'expenses payable, by [Woodside Energy] in relation to the sale' of petroleum recovered from the production licence area. The Commissioner, it was said, contended for a narrow meaning of the words 'in relation to' limiting the expenses under s 24 to costs such as delivery, commissions and cargo insurance. Woodside Energy argued that the words 'in relation to' and 'in carrying on or providing the operation facilities and other things comprising the project' should be construed having regard to the policy and objects of the legislation. It submitted that the term 'in relation to' requires a consideration of economic and commercial factors as well as physical and temporal factors. Reference was made to Butler v Johnston (1984) 4 FCR 83 at 87; Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491; Robe River Mining Co Pty Ltd v Commissioner of Taxation (1988) 19 FCR 294 at 306 and PMT Partners Pty Ltd ( In liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 at 330-331. The width of the phrase 'in carrying on or providing the operations, facilities and other things comprising the project' is also to be determined having regard to the policy and objects of the legislation and will require a consideration of economic and commercial factors.
Case: Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511
Outcome: cited
it was submitted that Professor Garnaut's evidence was relevant to understand the mischief which the PRRTA Act was intended to remedy. Evidence of that kind was said to have been relied upon in Re Dr Ken Michael AM; Ex parte Epic Energy (WA) Nominees Pty Ltd (2002) 25 WAR 511 at [107] and Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at [665] . The evidence of the two experts was said to be informative and of assistance to the Court in coming to a conclusion whether the hedging losses are covered by the words 'in relation to' and in understanding what constitutes 'carrying on or providing the operations, facilities and other things comprising the project'. In summary it was said that Professor Garnaut's evidence demonstrates the economic and commercial reality of treating the hedge expenses as being in relation to the sale of petroleum or in carrying on the relevant operations.
Case: Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434
Outcome: cited
accounting treatment which Woodside Energy adopted and Professor Walker's evidence were said to provide useful assistance in confirming the existence of the necessary connection between the sale of petroleum and the payment of hedge expenses, although of course the accounting treatment would not be determinative of the issue. BHP Billiton Petroleum (Bass Strait) Pty Ltd v Commissioner of Taxation [2002] FCAFC 433 ; (2002) 126 FCR 119 was cited in which Hill and Heerey JJ said (at [68]): '... it is clear even in the context of s 51(1) where a jurisprudential analysis prevails over a commercial view, that accounting and business practice will not always be irrelevant and may indeed provide useful assistance to the Court: Coles Myer Finance Ltd v Commissioner of Taxation (Cth) [1993] HCA 29 ; (1993) 176 CLR 640 at 666...' Reliance was also placed on Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434 at 443-445 in which a Full Court held that accounting evidence is often relevant and indeed highly significant in resolving issues which arise under the Income Tax Assessment Act. See also Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181 at 189. In the ultimate issue question, Woodside Energy pointed to the abolition of the ultimate issue inadmissibility rule of common law by s 80 of the Evidence Act 1995 (Cth).
Case: Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181
Outcome: cited
accounting treatment which Woodside Energy adopted and Professor Walker's evidence were said to provide useful assistance in confirming the existence of the necessary connection between the sale of petroleum and the payment of hedge expenses, although of course the accounting treatment would not be determinative of the issue. BHP Billiton Petroleum (Bass Strait) Pty Ltd v Commissioner of Taxation [2002] FCAFC 433 ; (2002) 126 FCR 119 was cited in which Hill and Heerey JJ said (at [68]): '... it is clear even in the context of s 51(1) where a jurisprudential analysis prevails over a commercial view, that accounting and business practice will not always be irrelevant and may indeed provide useful assistance to the Court: Coles Myer Finance Ltd v Commissioner of Taxation (Cth) [1993] HCA 29 ; (1993) 176 CLR 640 at 666...' Reliance was also placed on Commissioner of Taxation v Citibank Ltd (1993) 44 FCR 434 at 443-445 in which a Full Court held that accounting evidence is often relevant and indeed highly significant in resolving issues which arise under the Income Tax Assessment Act. See also Hooker Rex Pty Limited v Federal Commissioner of Taxation (1998) 79 ALR 181 at 189. In the ultimate issue question, Woodside Energy pointed to the abolition of the ultimate issue inadmissibility rule of common law by s 80 of the Evidence Act 1995 (Cth).
Case: Commissioner of Taxation v Murray (1990) 21 FCR 436
Outcome: cited
reply, the Commissioner referred to the rejection by the Full Court of evidence of irrelevant extrinsic material in Commissioner of Taxation v Murray (1990) 21 FCR 436. The principal provisions relating to relevance in the Evidence Act are ss 55 and 56 . Section 55(1) provides: 'The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.' Section 56 provides: '(1) Except as otherwise provided by this Act evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.' The admissibility of opinion evidence is governed by Pt 3.3. Section 76 provides, inter alia: '(1) Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.' This is subject to qualifications found in the Act, and in particular s 79 which provides: 'If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.' As to the ultimate issue, s 80 provides: 'Evidence of an opinion is not inadmissible only because it is about: (a) a fact in issue or an ultimate issue; or (b) a matter of common knowledge.'
Case: Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177
Outcome: distinguished
The parties proceeded on the basis that, as the application to the Federal Magistrates Court was determined summarily as an abuse of process, it is an interlocutory judgment: see Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177; SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402 at [48] ; MZWHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 491 ; Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at [8] - [15] ; SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798. The nature of the present application, being an application for leave to appeal, appears to recognise that position: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA). By way of contrast, an appeal lies as of right from a final decision of the Federal Magistrates Court: see s 24(1)(d) of the FCA. 4 The respondent submitted that the applicant's application for leave to appeal was out of time as O 52 r 10(2A)(b) allows seven days to file the application from the date judgment was pronounced. That Rule applies only where leave to appeal is sought from an interlocutory judgment of the Federal Court. The time for filing an application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court is set out in O 52 r 5(2), which allows 21 days. Consequently, this application (if it is properly an application for leave to appeal), having been made on 13 October 2006, was made in time. 5 In my view, leave to appeal the Federal Magistrate's decision is not required as I think the decision of Raphael FM was a final decision. 7 The differences stem from the application of two decisions of the High Court to the different circumstances of each case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41 ; (1980) 147 CLR 35 and Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177. In SYWB [2006] FCA 402 at [33] , Lander J suggested that those two decisions may not sit readily together. 8 In the more recent case of Re Luck [2003] HCA 70 ; 78 ALJR 177 at 179, the High Court (McHugh ACJ, Gummow and Heydon JJ) said: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexations or an abuse of the process of the court or does not disclose a reasonable cause of action." The High Court was concerned with whether summary dismissal in that circumstance would finally determine the rights of the parties. In that case, Ms Luck had been refused leave to serve a writ and statement of claim that appeared to be an abuse of the process of the Court or a frivolous or vexatious proceeding. It was concluded that her rights had not been finally determined because she retained the right to issue proper proceedings.
Case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41 ; (1980) 147 CLR 35
Outcome: applied
The differences stem from the application of two decisions of the High Court to the different circumstances of each case: Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41 ; (1980) 147 CLR 35 and Re Luck [2003] HCA 70 ; (2003) 78 ALJR 177. In SYWB [2006] FCA 402 at [33] , Lander J suggested that those two decisions may not sit readily together. 9 But their Honours did not seek to qualify or explain what had earlier been said in Anshun [1980] HCA 41 ; 147 CLR 35, and the unequivocal statement at page 179 does not specifically refer to decisions such as in this case, where the applicant's application to review the decision of the RRT for the second time sought to go behind an already final judgment which had finally determined his rights. 10 Anshun [1980] HCA 41 ; 147 CLR 35 recognises that different results flow, depending on the grounds on which a proceeding is deemed to be an abuse of process. At 38, Gibbs J said: "There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata ..." The Court held in Anshun [1980] HCA 41 ; 147 CLR 35 that summary dismissal in the latter circumstances did finally determine the rights of the parties and so should be considered a final, rather than interlocutory, judgment. 11 In this matter, the applicant seeks to challenge afresh a decision that he has already unsuccessfully challenged in the Federal Magistrates Court and in this Court. His application for special leave to appeal is still before the High Court. The decision of Raphael FM, that the fresh application was an abuse of process, was based upon the application of the principles in Anshun [1980] HCA 41 ; 147 CLR 35. In my view it was therefore a final judgment. I consider that it finally determined the applicant's rights, as he has now (subject to the present proceeding before this Court) no right to further challenge the RRT decision, except by pursuing his earlier application for special leave to appeal to the High Court. 12 Accordingly, strictly speaking, in my view leave to appeal from the decision of Raphael FM was not necessary. 13 In the result, my view on that issue does not matter. If leave to appeal were necessary, I would refuse it for the reasons set out below. If leave to appeal were not necessary, I would dismiss the appeal for the same reasons.
Case: Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292
Outcome: cited
That reservation was in effect at the time of the decision in Cabal . There is no suggestion that it has been withdrawn and the parties accept that the reservation is still in force. After considering the Covenant and Australia's obligations in the light of the reservation and the Act in some detail, Gray J concluded (at [28]) that the Act has a clear meaning which cannot be changed simply because one State has changed the manner in which it deals with prisoners awaiting trial. His Honour also held that, even if the actions of one state were such as to place Australia in breach of its international obligations, that would not change the meaning of the Act. Neither the Act nor the Administration Act impose any obligation on the NSW correctional authorities to accord Mr Rivera, or any other prisoner, segregation from convicted persons. Even if Mr Rivera's imprisonment at Parklea were a contravention of Australia's obligations under the Covenant, it would be of no assistance to him. The terms of the Covenant form no part of the law of Australia ( Dietrich v R [1992] HCA 57 ; (1992) 177 CLR 292 per Mason CJ and McHugh J at 305; per Brennan J at 321; per Dawson J at 348; per Toohey J at 359-360).
Case: Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478
Outcome: cited
Habeas corpus is not available to remedy perceived inadequacies in the conditions of custody. Habeas corpus is not available to impeach collaterally the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity (Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480 per Deane J; Re Stanbridge's Application (1996) 70 ALJR 640 at 642-3 per Kirby J).
Case: Re Stanbridge's Application (1996) 70 ALJR 640
Outcome: cited
Habeas corpus is not available to remedy perceived inadequacies in the conditions of custody. Habeas corpus is not available to impeach collaterally the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity (Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman [1994] HCA 36 ; (1994) 123 ALR 478 at 480 per Deane J; Re Stanbridge's Application (1996) 70 ALJR 640 at 642-3 per Kirby J).
Case: Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382
Outcome: followed
has also drawn my attention to the observations made by Lee J in Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382. At 388, his Honour said that, in many cases, there will be a public interest in ensuring that all errant entities are identified and dealt with. This is particularly the case where the subject matter of the contraventions is serious and involves matters of the kind in play here, that is to say, the safety of workers on mine sites.
Case: SZHUC v Minister for Immigration &amp; Multicultural Affairs [2006] FMCA 460
Outcome: related
this matter an extension of time is sought for filing a notice of appeal from the decision of Scarlett FM made on 17 March 2006 ( SZHUC v Minister for Immigration &amp; Multicultural Affairs [2006] FMCA 460). Both the applicant and his solicitor have given evidence that the applicant gave prompt instructions to appeal which were not complied with by the solicitor, solely because of his default due to what he claims was distraction at the time caused by external events which I need not go into. Whilst the position revealed is quite unsatisfactory and has led to an unacceptable delay, I am not prepared, in this case, to penalise the applicant because of the default of his solicitor. To say he has the right to sue his solicitor is of no comfort in a case of this kind. It is necessary, however, to also show there is a proper basis for an appeal. In the course of argument, I have indicated that a number of the proposed grounds will not be allowed. Some meet Full Court authority head on. That is the case in respect of proposed grounds 3 and 4. Ground 5 was not put before the learned Federal Magistrate and should not be permitted on appeal. Ground 6 is contrary to the statute.