mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: J &amp; M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261
Outcome: cited
The appellant's prospects of success on the appeal are a relevant consideration on any application for security: Dranichnikov at [20]. As Bowen CJ said in J &amp; M O'Brien Enterprises Pty Ltd v The Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, that is especially so in the case of an appeal, where the appellant has had his day in court. The matters the appellant wishes to raise on the appeal have already been decided against him. As appears from Dranichnikov at [23], that is a consideration pointing to the appropriateness of an order for security. The appellant's appeal is in my view without merit. There is nothing to suggest any error in the decision under appeal.
Case: Abbott v Minister for Lands [1895] AC 425
Outcome: considered
question as to whether ss 343 and 344 of the Land Act 1962 or ss 57 and 61 of the Land Act 1994 should be applied as imposing a requirement for ministerial approval of any lease and in fixing its term was, in argument, treated as dependent upon the nature of the entitlement derived by Mr Ludwick pursuant to s 361A. Broadly speaking counsel for Mr Ludwick submit that he obtained a right to a lease upon terms to be determined in accordance with the Land Act 1962. On that basis they submit that s 20(2)(c) of the State Interpretation Act applies so as to preserve such right. That section provides that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred thereunder. The State submits that Mr Ludwick has no accrued right to a lease but rather a "right arising from an Act" or a "right to take advantage of an enactment", such right being the right to take action in accordance with the law as it is at the time. In support of this argument the State relies upon a line of decisions commencing with Abbott v Minister for Lands [1895] AC 425 and ending with the decision of the Queensland Court of Appeal in Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203. I need only make brief comments concerning those cases. In Abbott the Judicial Committee of the Privy Council, on appeal from the Supreme Court of New South Wales, considered legislation which permitted any person to tender for the conditional purchase of unsold Crown land. Such a purchase would normally have been subject to a condition requiring three years of bona fide continuous residence prior to grant of the freehold title. However, where the purchaser already held fee simple land a purchase of adjoining land would not have been subject to the condition of residence. At some stage the relevant statute was amended to remove the advantage previously available to existing landholders. The question was whether or not a landholder could purchase adjoining land upon the previous, more favourable conditions. At 431, the Judicial Committee said: It may be, as Windeyer J. observes, that the power to take advantage of an enactment may without impropriety be termed a "right." But the question is whether it is a "right accrued" within the meaning of the enactment which has to be construed. Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words "obligations incurred or imposed". They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a "right accrued" within the meaning of the enactment.
Case: Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203
Outcome: cited
question as to whether ss 343 and 344 of the Land Act 1962 or ss 57 and 61 of the Land Act 1994 should be applied as imposing a requirement for ministerial approval of any lease and in fixing its term was, in argument, treated as dependent upon the nature of the entitlement derived by Mr Ludwick pursuant to s 361A. Broadly speaking counsel for Mr Ludwick submit that he obtained a right to a lease upon terms to be determined in accordance with the Land Act 1962. On that basis they submit that s 20(2)(c) of the State Interpretation Act applies so as to preserve such right. That section provides that the repeal or amendment of an Act does not affect a right, privilege or liability acquired, accrued or incurred thereunder. The State submits that Mr Ludwick has no accrued right to a lease but rather a "right arising from an Act" or a "right to take advantage of an enactment", such right being the right to take action in accordance with the law as it is at the time. In support of this argument the State relies upon a line of decisions commencing with Abbott v Minister for Lands [1895] AC 425 and ending with the decision of the Queensland Court of Appeal in Australand Corporation (Qld) Pty Ltd v Johnson [2008] 1 Qd R 203. I need only make brief comments concerning those cases. There is also a particularly useful summary of the question in Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291, per McPherson JA at 298 and per Fryberg J at 301-308. I was also referred to the decision of the Queensland Court of Appeal in Australand . That matter concerned a statutory right to avoid a contract for the purchase of a prescribe interest in a managed investment scheme where the invitation to subscribe had been issued in contravention of a provision of the Corporations Law (now repealed). The provision was repealed with effect from 1 July 1998. In certain cases, the transitional provisions continued the operation of the section until 1 July 2000. On 8 September 2003 the appellants purported to avoid their contracts pursuant to the section. At first instance the primary Judge held that such avoidance was of no effect. The Court of Appeal upheld that decision. I was particularly referred to a passage in the judgment of Keane JA at [113]-[117]. That passage offers a useful commentary on the cases to which I have referred but, with great respect, it does not seem to take the matter any further.
Case: Mathieson v Burton (1970) 124 CLR 1
Outcome: considered
Mathieson v Burton (1970) 124 CLR 1, the High Court was concerned with legislation which provided that following the death of a lessee of prescribed premises, a child of that lessee, over the age of 21 years, who was residing with the lessee immediately before his or her death, could, until grant of probate or letters of administration, continue to exercise the same rights of possession as the deceased lessee would have done had he or she lived. In 1968 the legislation was amended to narrow the class of protected person. The respondent to the appeal in the High Court was the daughter of a deceased lessee who had died in 1958. There had been no grant of probate or letters of administration. The daughter claimed the right to occupy the premises pursuant to the legislation in its unamended form. The High Court upheld her claim. In particular, at 23, Gibbs J said: In my opinion when the Act of 1968 was passed the respondent had an existing right to continue in possession of the subject premises. That right had arisen out of, and had been defined by, reference to, facts that had occurred before the Act of 1968 was passed. On behalf of the appellant it was submitted that the so-called right was in truth merely an immunity or protection from eviction which endured only so long as the statutory provision creating it remained in force. With all respect, this submission gives insufficient force to the words of s. 83A(1); that subsection purports to create and confer a right of the same kind as the lessee would have had if he had lived and I can see no justification for ignoring these words and refusing to recognize as a right that which the legislature has expressly described as such. It is true that the right was both personal and temporary it was not capable of assignment and endured only until representation of the estate of the deceased lessee should be granted or until a court of competent jurisdiction should make an order to putting the respondent out of possession ... However, to say ... that the right "is of a qualified, limited and transitory nature" is to define or explain the nature of the right but is not to deny its existence.
Case: Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291
Outcome: cited
is also a particularly useful summary of the question in Resort Management Services Ltd v Noosa Shire Council (1997) 2 Qd R 291, per McPherson JA at 298 and per Fryberg J at 301-308. I was also referred to the decision of the Queensland Court of Appeal in Australand . That matter concerned a statutory right to avoid a contract for the purchase of a prescribe interest in a managed investment scheme where the invitation to subscribe had been issued in contravention of a provision of the Corporations Law (now repealed). The provision was repealed with effect from 1 July 1998. In certain cases, the transitional provisions continued the operation of the section until 1 July 2000. On 8 September 2003 the appellants purported to avoid their contracts pursuant to the section. At first instance the primary Judge held that such avoidance was of no effect. The Court of Appeal upheld that decision. I was particularly referred to a passage in the judgment of Keane JA at [113]-[117]. That passage offers a useful commentary on the cases to which I have referred but, with great respect, it does not seem to take the matter any further.
Case: Chang v Laidley Shire Council (2007) 234 CLR 1
Outcome: considered
Chang v Laidley Shire Council (2007) 234 CLR 1, the High Court considered Queensland planning legislation which provided for compensation where a change in the relevant legislation caused a reduction in value of an interest in land. In considering the operation of s 20 of the State Interpretation Act, the High Court said at 34: Terms like "right", "interest", "title", "power", or "privilege" when used in the context of a general interpretation provision like s 20 are to be understood by reference to the statute that has been amended or repealed. They are terms that are not used "solely in any technical sense derived exclusively from property law or analytical jurisprudence" ... .
Case: Wik Peoples v State of Queensland [2000] FCA 1443
Outcome: cited
Co-Existence Agreement cast obligations upon the traditional owners to commence determination applications under the Act in respect of any or all parts of the ILUA area, according to the terms and conditions of the Co-Existence Agreement. Such an application is regarded as a conforming application for the purposes of that agreement. Prior to the parties entering into the Co-Existence Agreement, a claim group on behalf of the Wik and Wik Way Peoples commenced a native title determination before the National Native Title Tribunal on 24 March 1994 and proceedings QG6001 of 1998 were commenced in this Court by which a determination of native title rights and interests was sought. Determination application QUD6001 of 1998 came to be described as the main application. Three determinations of the subsistence of native title rights and interests have been made by the Court in relation to the land and waters the subject of the claim in the main application. The first determination was made by Justice Drummond on 3 October 2000 in respect of what was described as Part A of the determination application. Part A of the application was confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples ( Wik Peoples v State of Queensland [2000] FCA 1443). Part B of the application comprised the balance of the lands and waters of the claim area, which contained lands held under pastoral and mining titles. The parties to the main application negotiated, through mediation processes, a resolution of the Part B claim and on 13 October 2004, Justice Cooper made two determinations of the native title rights and interests of the Wik and Wik Way Peoples in respect of those lands and waters ( Wik Peoples v State of Queensland [2004] FCA 1306).
Case: Wik Peoples v State of Queensland [2004] FCA 1306
Outcome: cited
Co-Existence Agreement cast obligations upon the traditional owners to commence determination applications under the Act in respect of any or all parts of the ILUA area, according to the terms and conditions of the Co-Existence Agreement. Such an application is regarded as a conforming application for the purposes of that agreement. Prior to the parties entering into the Co-Existence Agreement, a claim group on behalf of the Wik and Wik Way Peoples commenced a native title determination before the National Native Title Tribunal on 24 March 1994 and proceedings QG6001 of 1998 were commenced in this Court by which a determination of native title rights and interests was sought. Determination application QUD6001 of 1998 came to be described as the main application. Three determinations of the subsistence of native title rights and interests have been made by the Court in relation to the land and waters the subject of the claim in the main application. The first determination was made by Justice Drummond on 3 October 2000 in respect of what was described as Part A of the determination application. Part A of the application was confined to lands that had always been unallocated Crown lands or lands that had only ever been subject to forms of title granted for the benefit of Aboriginal peoples ( Wik Peoples v State of Queensland [2000] FCA 1443). Part B of the application comprised the balance of the lands and waters of the claim area, which contained lands held under pastoral and mining titles. The parties to the main application negotiated, through mediation processes, a resolution of the Part B claim and on 13 October 2004, Justice Cooper made two determinations of the native title rights and interests of the Wik and Wik Way Peoples in respect of those lands and waters ( Wik Peoples v State of Queensland [2004] FCA 1306).
Case: Jess v Scott (1986) 12 FCR 187
Outcome: referred to
applicant sought to file a notice of appeal nearly three weeks after the time prescribed by the rules of court. He is required to establish special reasons for the extension within the principle stated by this Court in Jess v Scott (1986) 12 FCR 187 at 195. The applicant explained the reasons for the delay. He filed an affidavit and sought to supplement his explanations in court this afternoon. He told me that he had no money to pay legal fees and that he needed the assistance of a friend to prepare his notice of appeal. The exercise of the discretion to extend time is to take into account not only the reason for the delay but the question of whether the proposed appeal has sufficient prospects of success to warrant an extension of time.
Case: FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342
Outcome: cited
I note again that the Tribunal is vested with a discretion in s 42A(9) to reinstate applications 'if it considers it appropriate to do so'. That discretion is not unfettered, but must be exercised reasonably (Brennan CJ in Kruger v Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, cf Lord Greene in Wednesbury , Mason J in FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342 at 368, and, for an historical perspective to this issue, the cases discussed in M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd edn, Lawbook Co, 2004, pp 88-93. However in this case it is difficult to form any view other than that, in finding that: &#8226; the appellant had provided explanations as to its non-appearance which were without foundation (par 8), and which had turned out to be untrue (par 12) &#8226; the appellant appeared to be treating the AAT with indifference (par 8) &#8226; the reinstatement application did not address the merits of the case, which was one of the important issues before the Tribunal at the hearing (par 12) the Tribunal made findings which were open on the case before it. Certainly, the decision of the Tribunal to dismiss the application for reinstatement could not be described as so unreasonable that no reasonable authority could ever have come to it.
Case: Kruger v Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1
Outcome: cited
I note again that the Tribunal is vested with a discretion in s 42A(9) to reinstate applications 'if it considers it appropriate to do so'. That discretion is not unfettered, but must be exercised reasonably (Brennan CJ in Kruger v Commonwealth [1997] HCA 27 ; (1997) 190 CLR 1 at 36, cf Lord Greene in Wednesbury , Mason J in FAI Insurances Ltd v Winneke [1982] HCA 26 ; (1982) 151 CLR 342 at 368, and, for an historical perspective to this issue, the cases discussed in M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action, 3rd edn, Lawbook Co, 2004, pp 88-93. However in this case it is difficult to form any view other than that, in finding that: &#8226; the appellant had provided explanations as to its non-appearance which were without foundation (par 8), and which had turned out to be untrue (par 12) &#8226; the appellant appeared to be treating the AAT with indifference (par 8) &#8226; the reinstatement application did not address the merits of the case, which was one of the important issues before the Tribunal at the hearing (par 12) the Tribunal made findings which were open on the case before it. Certainly, the decision of the Tribunal to dismiss the application for reinstatement could not be described as so unreasonable that no reasonable authority could ever have come to it.
Case: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Outcome: cited
It also follows that the manner in which the litigation had been conducted by the appellant, including being taken by surprise at such a fundamental piece of evidence, was a factor which the Tribunal could reasonably take into account in finding that the appellant had treated the Tribunal with indifference (cf Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 per Wilcox and Gummow JJ and Sheikholeslami v Brungs [2006] FCA 933 per Tamberlin J at [15]-[17]). The Tribunal was, in my view, entitled to take this history into account in considering whether it was 'appropriate' to reinstate the application within the meaning of s 42A(9) AAT Act. In this respect I note comments of Professor D Pearce in his book, Administrative Appeals Tribunal , LexisNexis, Butterworths, 2003, p 122, cited by the Tribunal in its reasons for decision.
Case: Sheikholeslami v Brungs [2006] FCA 933
Outcome: cited
It also follows that the manner in which the litigation had been conducted by the appellant, including being taken by surprise at such a fundamental piece of evidence, was a factor which the Tribunal could reasonably take into account in finding that the appellant had treated the Tribunal with indifference (cf Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 per Wilcox and Gummow JJ and Sheikholeslami v Brungs [2006] FCA 933 per Tamberlin J at [15]-[17]). The Tribunal was, in my view, entitled to take this history into account in considering whether it was 'appropriate' to reinstate the application within the meaning of s 42A(9) AAT Act. In this respect I note comments of Professor D Pearce in his book, Administrative Appeals Tribunal , LexisNexis, Butterworths, 2003, p 122, cited by the Tribunal in its reasons for decision.
Case: QPSX Limited v Ericsson Australia Pty Ltd (No 3) [2005] FCA 933
Outcome: cited
minute of a proposed further amended statement of claim was filed by QPSX on 15 August 2006. In contemporaneous submissions it was described as containing a number of minor amendments to the amended statement of claim already before the Court. It is convenient to set out the proposed further amended statement of claim in outline. The summary that follows reproduces the summary of the amended statement of claim set out in QPSX Limited v Ericsson Australia Pty Ltd (No 3) [2005] FCA 933 with adjustments to reflect the proposed additional amendments. The summary outlines the allegations made by QPSX. For convenience it is presented in narrative form. It involves no finding of fact. QPSX, QPSX Communications and QPSX Europe each carry on business 'licensing and otherwise commercialising intellectual property'. That business is carried on in Australia and internationally by QPSX and QPSX Communications. QPSX Europe carries on its business outside Australia. The Ericsson parties and the Longreach parties are all involved in the manufacture and supply of communications products and services (pars 1 to 7). QPSX Communications is the registered patentee of patents in the United States of America, Australia, Canada and the United Kingdom. These are known as the QPSX Communications SAR Patents. QPSX Europe holds a patent in Germany, known as the QPSX Europe SAR Patent. Each of the patents relates to a method and apparatus for segmentation and reassembly technology. This involves the transmission of variable length messages on a network from a source to a destination in fixed length slots which include a header field and a message segment. Steps involved in the method are pleaded and registration dates and numbers of the various patents are particularised (par 8). Further patents are held by QPSX Communications in the USA, Australia, Canada, the UK and Germany (QP Patents). They involve a queuing protocol for a communications network for queued transmission of information in packets. The network composition is set out and particulars of the patents given (par 9). The method and apparatus which are the subjects of the SAR Patents and the protocol which is the subject of the QP Patents are integral parts of a Distributor Queue Dual Bus Technology which is also known as a Queued Packet and Synchronous Exchange Technology. This technology has been an integral part of the international telecommunications standard approved by the Institute of Electrical and Electronics Engineers for metropolitan area networks since 1988 (par 10). Another protocol known as Asynchronous Transfer Mode (ATM) is described as the networking standard for high speed, high capacity voice, data, video and graphics transmission. The method the subject of the SAR Patents is said to be a fundamental element of the ATM protocol and to be incorporated into the International ATM's Standards set by the International Telecommunications Union (par 11).
Case: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12
Outcome: referred to
grounds of appeal were dismissed by his Honour as attempts to propound factual errors and attempts 'to seek review of the Tribunal's decision on the merits' , and as being in conflict with the principle that there is no general obligation on a Tribunal to make enquiries, citing thereby Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ). Moreover his Honour pointed to the absence of any 'exceptional circumstances which would serve to require the Tribunal to make... enquiries... nor [are there] any such circumstances evident on the material before [the Tribunal], referring thereby to the well known observation of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. His Honour emphasised moreover the principle that the Tribunal is not obliged to accept an applicant's claims uncritically, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 (Beaumont J). Ultimately of course, a conclusion that an applicant's claims lack credibility is one falling to be made by the Tribunal, his Honour referring generally to the often cited authority of Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407.