mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Granitgard Proprietary Limited v Termicide Pest Control Proprietary Limited [2008] FCA 865
Outcome: cited
application is made at a time when both the case for Granitgard and the case for the Respondent, hereafter Termicide, have each closed. Submissions in the case are yet to be made and, obviously enough, judgment has not yet been given. The proceedings were commenced on 19 September 2007. In February last year, a trial was fixed to commence on 23 June. Interlocutory directions were made, which required Granitgard to file its evidence in chief by 18 April 2008, in anticipation of the trial then occurring in June. On 10 June, Granitgard made application for the trial dates to be vacated. That proved necessary, in light of a proposal which Granitgard had made to amend its statement of claim. That application was successful: see Granitgard Proprietary Limited v Termicide Pest Control Proprietary Limited [2008] FCA 865 (Collier J). A sequel to the successful application by Granitgard for the adjournment of the trial was the making of further and revised directions in respect of the provision of evidence-in-chief by the parties. Granitgard, materially, was directed to file further affidavits-in-chief, if any, by 29 August 2008. That was in anticipation of a trial of two weeks duration, commencing 20 October 2008. The trial commenced at that time, but it did not finish within the time allocated. That allocation was made on the basis of submissions made by counsel as to its anticipated length. In the course of what proved to be the original tranche of the hearing, Granitgard closed its case on 27 October 2008. The trial finally concluded, as far as evidence was concerned, at that point, with the closing of the Termicide's case on 4 December 2008. Provision was then made for the making of submissions, initially in writing and then orally. Oral submissions were appointed to commence on 10 February 2009.
Case: Hawthorn Glen Pty Ltd (ACN 004 061 214) v Aconex Pty Ltd (ACN 091 376 091) (No 1) [2007] FCA 2010
Outcome: applied
far as the interests of justice are concerned, there is another consideration which is relevant in the context of this particular litigation. It was articulated by Goldberg J in Hawthorn Glen Pty Ltd (ACN 004 061 214) v Aconex Pty Ltd (ACN 091 376 091) (No 1) [2007] FCA 2010 at para 48 in these terms: The interests of justice require that commercial litigation of the type in this proceeding should be conducted expeditiously and that parties should only be able, after judgment has been reserved, to re-visit tactical decisions they have made in exceptional circumstances where injustice might otherwise result. No such exceptional circumstances exist in the present case. There needs to be a finality to the process of litigation and a limit on the number of times a party can re-visit issues which have arisen in the course of a trial and have been addressed. Unsurprisingly, Termicide points to this passage as supporting an exercise of discretion so as to refuse to permit Granitgard to reopen its case. There is no doubt that this particular proceeding is aptly described as "commercial litigation". It is a suit between competitors in a marketplace. It has been both at its interlocutory stages, and in the course of the trial to date, very closely contested indeed. There is no doubt that there are particular commercial interests at stake in terms of the interests in deriving profit from the conduct of business as between Granitgard and Termicide. Mr Gabriel's evidence as foreshadowed is not evidence which it could be described as available with the exercise of due diligence to Granitgard at any stage prior to the closing of its case or, for that matter, the closing of Termicide's case. One way of describing Granitgard's access to Mr Gabriel is that it is the product of what one might term a whistle blower, an anonymous whistle blower. Whether or not that whistle is nothing more than idle puffery, or perhaps a venting of spleen on the part of the disgruntled, is something that does not arise for consideration on the present application, otherwise than as a contingency which would fall for assessment, so far as Mr Gabriel's credibility is concerned, in the event that leave is granted to reopen Granitgard's case so as to permit him to be called.
Case: Inspector General in Bankruptcy v Bradshaw [2006] FCA 22
Outcome: applied
Inspector General in Bankruptcy v Bradshaw [2006] FCA 22 at para 24, Kenny J, with respect, offers a very helpful summary of circumstances in which a court will permit further evidence to be given. Her Honour lists four categories in which she opines that, broadly speaking, a court may grant leave to reopen. Her Honour is careful to note that these classes or categories are not exhaustive and overlap. The four classes that her Honour identifies by reference to authority are: (a) fresh evidence; (b) inadvertent error; (c) mistaken apprehension of the facts; and (d) mistaken apprehension of the law. As her Honour notes in para 24: In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to reopen.
Case: Olivaylle Pty Limited v Flottweg GMBH &amp; Co KGAA (No 3) [2008] FCA 572 ; (2008) 76 IPR 152
Outcome: considered
example of a case where leave to reopen was granted to a party, notwithstanding a deliberate tactical decision on the part of that party's representatives, initially, not to call the witness concerned, is to be found in an interlocutory judgment delivered by me in Olivaylle Pty Limited v Flottweg GMBH &amp; Co KGAA (No 3) [2008] FCA 572 at paras 19 27 (which is presently the subject of a reserved judgment in respect of the substantive issues). In the course of my reasons for judgment in that interlocutory application, I gained assistance from two judgments of the South Australian Supreme Court. I shall not refer in detail to those judgments, as they are reproduced in the interlocutory judgment which I delivered in Olivaylle . Those particular cases demonstrate, though, the extent of the discretion and the singularity of circumstance which may give rise to an exercise of a discretion to reopen, even in circumstances where a judgment has been delivered but an order has not yet been perfected.
Case: R v Liddy (2002) 81 SASR 22
Outcome: applied
behalf of Granitgard, it is submitted that Mr Baverstock's evidence, if admitted, upon leave to re-open, would amount to an admission by conduct. Reliance in this regard is placed on statements of principle collected in R v Liddy (2002) 81 SASR 22 at 90 - 92; see also Cross on Evidence at para 33435. Mr Baverstock's foreshadowed evidence is rather more tangential than Mr Gabriel's foreshadowed evidence. Nonetheless, it seems to me that it is not evidence that in any way could be described as reasonably available, or available at all, to Granitgard prior to the last adjournment of the trial. Further, it does have, particularly having regard to the intensity of contest between the parties, some probative value if accepted. I propose also to grant leave to Granitgard to re-open the proceeding so as to call Mr Baverstock. The terms of that grant of leave are that I am disposed to permit Granitgard to call Mr Gabriel to give evidence as contained in his affidavit, subject to such objections, if any, as may be made to it upon the tender of that affidavit. So far as Mr Baverstock is concerned, I am disposed to grant leave to Granitgard to re-open to call from him evidence as contained or, at least, as summarised in the affidavit of Ms O'Neill from which I have quoted.
Case: Smith v The New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256
Outcome: cited
there is a jurisdiction to permit a party to reopen its case, so as to adduce further evidence, even after a statement has been made to the court that the party's case in evidence has closed is not in doubt: see, for example, Smith v The New South Wales Bar Association [1992] HCA 36 ; (1992) 176 CLR 256 at 266 to 267.
Case: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Outcome: considered
useful starting point, in the context of an application such as this, is a passage which appears in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478: The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place, but there is not, in my opinion, any hard and fast rule which requires the court to reject an application where the decision not call the witness in the party's case was a deliberate one. Of course that does not mean that that is not a very relevant consideration. It is. Where, for instance, a decision was based on tactical grounds it may be difficult to resist the conclusion that the interests of justice were better served by the rejection of the application. But even in that circumstance there may be cases in which it is felt that the client whose application it is should not have to suffer for his or her counsel's deliberate decision. Where the decision is not made for tactical reasons and is based on a mistaken apprehension of the law or the facts the case is more appropriately to be considered as one in which the application has resulted from an error by counsel.
Case: Australian Competition and Consumer Commission v Qantas Airways Ltd [2003] FCA 907
Outcome: referred to
I have indicated above that in the case of some of the categories, there is a case for deciding that discovery should await the filing of evidence by the University on particular issues. The course of requiring evidence prior to discovery is not novel: see, for example, Australian Competition and Consumer Commission v Qantas Airways Ltd [2003] FCA 907 esp at [4]. As Gyles J there observed, experience shows that the filing of affidavits often brings to light many documents. I appreciate that this may prove to be an exceptional case in this respect and that it is conceivable that it would be appropriate for the University to be granted leave to file further affidavits after discovery has taken place. 81 Another possible course is to give the parties a further opportunity to consider the category descriptions in the light of what I have said, especially at [37]ff above. ResMed will have to give discovery at some stage and it may be preferable that this take place now rather than later. 82 In the course of the hearing, counsel for the University suggested two variations to the categories of documents to be discovered at this stage. The first was to limit the documents sought in categories 4, 6 and 8 to those created before 31 December 1998 (category 5 is already limited in this respect). The second was to limit the documents sought in categories 4, 6 and 8 by reference to the first in the series of Mirage Masks alone (being the "original" Mirage Mask referred to in para 14(i)(A) of the FASOC). (Counsel also announced that category 15(a) is no longer pressed.)
Case: Aban v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 385 ; (1991) 31 FCR 93
Outcome: cited
A delegation is not revoked when the office of the delegator passes to a new holder ( Aban v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 385 ; (1991) 31 FCR 93 at 98 per Morling, Jenkinson and Heerey JJ). The effect of a delegation is to confer upon the delegate an authority which he or she must exercise in accordance with the requirement of the statute but with his or her own independent discretion. It is not a relationship of principal and agent ( Kelly v Watson (1985) 10 FCR 305 at 318 per Neaves J). In Kelly Neaves J was considering whether a delegation continued to have operative effect notwithstanding the vacation of office of a particular permanent head who had executed the instrument of delegation. Justice Neaves was of the view (at 318) that clear and unambiguous language would be required before construing a statute to produce the result that the delegation ceased to operate when a delegator ceased to hold office (see also Johnson v Veterans' Review Board (2002) 71 ALD 16 at [31] [32] per Mansfield J). There is nothing in the Act or the SS Administration Act to suggest that the relevant delegations should cease with the holding of office of the delegator.
Case: Brown v West [1990] HCA 7 ; (1990) 169 CLR 195
Outcome: applied
The misstatement of the identity of the contracting party or of the employer of Mr Ptok and Ms Dean, as a mistake in naming the source of the power to enter into the Lim Activity Agreements, does not affect the validity of those agreements ( Brown v West [1990] HCA 7 ; (1990) 169 CLR 195 at 203). 38 Mr Lim also seems to contend that, whether or not the employees of WorkDirections Australia were exercising a power available as delegates of the Secretary, they were not entitled to sign without stating that it was on behalf of or as delegated by the Secretary. In this regard, Mr Lim contends that, while delegates may make decisions without revealing the source of their power, they cannot enter into agreements without indicating that they are doing so as delegates. Mr Lim says that his agreements were with a private contractor and that the Act has no application. Rather, he says, the Lim Activity Agreements are commercial contracts to which the common law applies. In a subsequent submission, Mr Lim stated that the failure to include any reference to the Secretary in the Lim Activity Agreements constitutes an ' operative mistake of law ', thereby rendering the agreements void. 39 Each Lim Activity Agreement states that it is ' an Activity Agreement under the Social Security Act 1991 '. Each states that it refers to activities necessary to receive income support payments from Centrelink. Mr Lim could not have believed that the Lim Activity Agreements were private arrangements. He could have been under no misapprehension that the agreements were under the Act and had consequences under the Act.
Case: Johnson v Veterans' Review Board (2002) 71 ALD 16
Outcome: cited
A delegation is not revoked when the office of the delegator passes to a new holder ( Aban v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 385 ; (1991) 31 FCR 93 at 98 per Morling, Jenkinson and Heerey JJ). The effect of a delegation is to confer upon the delegate an authority which he or she must exercise in accordance with the requirement of the statute but with his or her own independent discretion. It is not a relationship of principal and agent ( Kelly v Watson (1985) 10 FCR 305 at 318 per Neaves J). In Kelly Neaves J was considering whether a delegation continued to have operative effect notwithstanding the vacation of office of a particular permanent head who had executed the instrument of delegation. Justice Neaves was of the view (at 318) that clear and unambiguous language would be required before construing a statute to produce the result that the delegation ceased to operate when a delegator ceased to hold office (see also Johnson v Veterans' Review Board (2002) 71 ALD 16 at [31] [32] per Mansfield J). There is nothing in the Act or the SS Administration Act to suggest that the relevant delegations should cease with the holding of office of the delegator.
Case: Kelly v Watson (1985) 10 FCR 305
Outcome: referred to
A delegation is not revoked when the office of the delegator passes to a new holder ( Aban v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 385 ; (1991) 31 FCR 93 at 98 per Morling, Jenkinson and Heerey JJ). The effect of a delegation is to confer upon the delegate an authority which he or she must exercise in accordance with the requirement of the statute but with his or her own independent discretion. It is not a relationship of principal and agent ( Kelly v Watson (1985) 10 FCR 305 at 318 per Neaves J). In Kelly Neaves J was considering whether a delegation continued to have operative effect notwithstanding the vacation of office of a particular permanent head who had executed the instrument of delegation. Justice Neaves was of the view (at 318) that clear and unambiguous language would be required before construing a statute to produce the result that the delegation ceased to operate when a delegator ceased to hold office (see also Johnson v Veterans' Review Board (2002) 71 ALD 16 at [31] [32] per Mansfield J). There is nothing in the Act or the SS Administration Act to suggest that the relevant delegations should cease with the holding of office of the delegator.
Case: Luan v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 72
Outcome: cited
As was the case for the Departmental Officer in Luan v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 72 , an employee of WorkDirections Australia could only exercise the power to sign an agreement that resulted in Centrelink payments if delegated by the Secretary to do so. The Lim Activity Agreements are written agreements in a form approved by the Secretary. That approved form provides not for the signature of the Secretary but for the signature of the Employment Service Provider/Customer Service Adviser. This was the format of the Lim Activity Agreements. 41 The fact that the agreements were signed by employees of WorkDirections Australia, as delegates of the Secretary, does not preclude the agreements being between the Secretary and Mr Lim, despite the fact that the WorkDirections Australia employees did not indicate the source of power to enter into the agreements. Nor does it otherwise preclude the agreements being Newstart Activity Agreements within s 605(4). 42 The Lim Activity Agreements are agreements between the person (Mr Lim) and the Secretary for the purposes of ss 605(4) and 624 of the Act.
Case: Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498
Outcome: cited
The applicant has filed a notice of appeal, appealing against the judgment and orders made by Jessup J. In due course that appeal will proceed to an appellate hearing subject to any other orders that might be made in the usual course of the preparation of an appeal. The general principle which is applied in the Court is that an appeal does not operate as a stay unless the Court or a Judge otherwise orders. Whether or not such a stay should be granted depends upon whether the Court or a Judge thinks in all the circumstances that the matter is an appropriate case for the grant of a stay. See, for example, Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498. 7 The application for the stay is made in respect of all the orders made by Jessup J but, as I understand it, particularly in respect of order number 4. In respect of the first three orders there is not, so far as the applicant is concerned, anything to stay which might impact upon her. 8 The first order is that, to the extent not previously dealt with by the Court, the applicant's motion is dismissed. There is no point in staying that order if the applicant is dissatisfied with that order. The proper process is to appeal against it and that she has done.
Case: Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Outcome: followed
approach to be followed in considering this application is well-settled. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714, Street CJ described the question as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. There is no principle to be enunciated other than the necessity of applying the specific considerations stated in the cross-vesting legislation; the primary amongst them being the pursuit of the interests of justice. Rogers A-JA, with whom Kirby P agreed, said at 727 that the only "lodestar" that a judge may steer by is what to do in the interests of justice. His Honour observed that it is inapt to speak in terms of onus. Rogers A-JA also referred, at 729, to the expense and inconvenience which must be taken into account in determining which court is the more appropriate. His Honour also observed, at 725, that it is important to give full effect to the imaginative and detailed code laid down by the cross-vesting legislation for ensuring that throughout Australia, disputes are dealt with by the one court and that be the court which is most appropriate for the particular dispute. In BHP Billiton Limited v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 , Gleeson CJ, McHugh and Heydon JJ observed, at [7], that the criterion for transfer established in section 5 is that it is in the interests of justice that the proceedings be determined in the other court. Their Honours, at [13], referred, with apparent approval, to the remarks of Street CJ in Bankinvest . Their Honours also went on to say, at [14], that the exercise is not one of determining whether the particular court's jurisdiction has been regularly invoked; rather, the court hearing such an application is required to ensure that cases are heard in the forum dictated by the interests of justice. A scheme has been established for the shareholder claims to be the subject of the representative action which has now been brought in the WA Supreme Court. It is in the interests of justice that account be taken of the scheme and the need to avoid unnecessary duplication of the costs. Moreover, as their Honours observed in BHP Billiton v Schultz , the interests of justice are wider than those of the parties to the proceedings and, here, it is important to take into account the interests of the creditors generally. It cannot be in the interests of the creditors of SOG to have two related proceedings running in two separate jurisdictions. The observations made by Rogers A-JA in Bankinvest also support this factor as a relevant one to take into account in determining the interests of justice.
Case: BHP Billiton Limited v Schultz [2004] HCA 61 ; (2004) 221 CLR 400
Outcome: followed
BHP Billiton Limited v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 , Gleeson CJ, McHugh and Heydon JJ observed, at [7], that the criterion for transfer established in section 5 is that it is in the interests of justice that the proceedings be determined in the other court. Their Honours, at [13], referred, with apparent approval, to the remarks of Street CJ in Bankinvest . Their Honours also went on to say, at [14], that the exercise is not one of determining whether the particular court's jurisdiction has been regularly invoked; rather, the court hearing such an application is required to ensure that cases are heard in the forum dictated by the interests of justice. A scheme has been established for the shareholder claims to be the subject of the representative action which has now been brought in the WA Supreme Court. It is in the interests of justice that account be taken of the scheme and the need to avoid unnecessary duplication of the costs. Moreover, as their Honours observed in BHP Billiton v Schultz , the interests of justice are wider than those of the parties to the proceedings and, here, it is important to take into account the interests of the creditors generally. It cannot be in the interests of the creditors of SOG to have two related proceedings running in two separate jurisdictions. The observations made by Rogers A-JA in Bankinvest also support this factor as a relevant one to take into account in determining the interests of justice.