mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491
Outcome: cited
In Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491 at 496: 'An applicant's inability to obtain favourable legal advice is not a ground for extending the time for seeking mandamus or the ancillary writ of certiorari. Upon the expiry of the time for the issue of a constitutional writ against a decision or judgment, the respondent has a vested right to retain the judgment or decision. Its rights should not be dependant on whether the applicant can at some future time obtain a favourable legal opinion that he or she has an arguable case. In addition, the efficacy of public acts, decisions and judgments cannot be the hostage of an applicant's search for favourable legal advice.' 63 Although those remarks were addressed specifically in relation to the time limits for obtaining prerogative relief under the High Court Rules, the observations have wider applicability in relation to public acts and are germane to the facts of this case.
Case: Joseph v Health Insurance Commission [2005] FCA 1042
Outcome: cited
Delay and acquiescence have been described as defences available to a respondent in relation to relief sought by way of certiorari in the sense that a court may, in the exercise of its discretion, refuse relief on those grounds. In assessing whether there has been an unwarranted delay, such as would equate with a limitation defence, it is significant that s 106L(3) of the Act provides that the Committee is to deliver its final report to the respondent no earlier than one month after the date that a copy of its final report is delivered to the person under review. This period equates with the prescribed period for bringing an application for review under the ADJR Act and is an indication of legislative intent as to the time within which applications for review of the Committee's final report should be brought (see the observations of Branson J in Joseph v Health Insurance Commission [2005] FCA 1042 at [6] ). 65 When assessed by reference to that one month period, a delay of 14 months, in all the circumstances of this case, amounts to an unwarranted delay which would, in the exercise of the Court's discretion, lead to the refusal of relief. The proposed respondents have, in my view, a good defence, and I would, therefore, decline to order that they be joined as parties to the application. 66 The applicant's application is, accordingly, dismissed with costs. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 18 May 2006 Counsel for the Applicant: Ms F E Johnson Solicitor for the Applicant: Butcher Paull &amp; Calder Counsel for the Respondent: Mr S Barbaro Solicitor for the Respondent: Minter Ellison Date of Hearing: 13 December 2005 Date of Judgment: 18 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/589.html
Case: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581
Outcome: followed
The principles applicable to this application have been discussed by Lindgren J in Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 and Re NuSep Ltd [2007] FCA 613. Applying those principles, I am satisfied that there is a discretion to make an order to regularise the present situation and I am satisfied that, subject to the question of substantial injustice, the inadvertent nature of the irregularity and the short time span involved favour grant of the relief sought.
Case: Re NuSep Ltd [2007] FCA 613
Outcome: followed
The principles applicable to this application have been discussed by Lindgren J in Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581 and Re NuSep Ltd [2007] FCA 613. Applying those principles, I am satisfied that there is a discretion to make an order to regularise the present situation and I am satisfied that, subject to the question of substantial injustice, the inadvertent nature of the irregularity and the short time span involved favour grant of the relief sought.
Case: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88
Outcome: referred to
As I understand it, both parties were agreed that the answer to this dilemma is found in the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. 55 In VEAL , the High Court considered the Tribunal's obligation to reveal information provided to it by the Department. Two Eritrean nationals arrived in Australia and applied for protection visas. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused their applications. They applied to the Refugee Review Tribunal for reviews of those decisions. The Department received a letter from a third party (who gave his name and address) which made allegations against the male applicant. The author of the letter asked that the information be kept secret. The Department sent the letter to the Tribunal. The Tribunal dismissed the applications for review and affirmed the delegate's decisions. It did not tell the applicants of the letter or of the allegations made in it. The Tribunal said that it placed no weight on the information contained in the letter. The Tribunal considered that it was in the public interest that the matter be regarded as non-disclosable information for the purpose of s 424A(3)(c) of the Act , and made a direction under s 440(1) of the Act that the content of the letter not be published or disclosed. 58 The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor's report. A decision-maker's obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592.
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Outcome: referred to
The decision in VEAL suggests that in this case the Minister was obliged to disclose to the applicant the substance of the information in the Parole Board reports. The Minister sought to meet the difficulty caused by the fact that he had not done so by submitting that the obligation did not arise in this case because the information in the Parole Board reports was either information from the applicant, or was information which was not adverse to the applicant or was information he already had from other sources. The other sources identified by the applicant were a report of Mr Sowerbutts dated 29 August 2006 and Ms Beevor's report. A decision-maker's obligation of disclosure where the common law rules of procedural fairness apply has been discussed in a number of cases. I need go no further than refer to the two well-known decisions of Kioa v West (supra) at 628-629 per Brennan J; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 588-592.
Case: Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1
Outcome: referred to
A person who is facing the cancellation of his or her visa under s 501(2) must be accorded procedural fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1; Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.
Case: Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: referred to
A person who is facing the cancellation of his or her visa under s 501(2) must be accorded procedural fairness: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1; Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212.
Case: Refugee Review Tribunal, Re; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82
Outcome: referred to
In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 (" Aala ") an applicant who claimed he was a refugee and therefore entitled to a protection visa was told by the Refugee Review Tribunal that it had read all the papers from previous applications and Federal Court proceedings. Relying on that statement the applicant gave no further evidence. The Tribunal rejected the application for review on the basis of a finding that the applicant's claim for refugee status was concocted. In fact, the Tribunal did not have certain unsworn statements by the applicant dealing with those matters and which had been submitted to the Federal Court. The High Court held that the Tribunal had acted in breach of the rules of natural justice and constitutional writs were issued. Each member of the Court was of the view that the Tribunal had misled, albeit innocently, the applicant and that that had caused him to conduct his case in a different way from how he would otherwise have conducted his case. In other words, it was concluded that had the applicant known the correct position he would have put additional material before the Tribunal: Gleeson CJ at 88-89 [3]-[4], Gaudron and Gummow JJ at 113-114 [70], McHugh J at 122 [103], Kirby J at 130 [128], Callinan J at 152-153 [206]-[209], [211]. It is not necessary to refer to the Court's discussion of the submission made in that case that relief should be refused because the presentation of additional material would have made no difference to the result. 68 This case is similar to Aala and Muin in that an applicant would have conducted his case differently in the sense that he would have presented more information, which cannot be said to be irrelevant, but for the conduct of, or representation by, the decision-maker. Where it differs is at a factual level in that in this type of case it will often be difficult to prove as a matter of fact that the applicant would have conducted his case differently. However, I am satisfied of that fact in the particular circumstances of this case and therefore the applicant has established a breach of the rules of procedural fairness on this ground.
Case: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82
Outcome: referred to
Court is entitled to decline to grant relief to a party in an application under the Act, even if an error has been identified: see Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82. As the decision of Ms Shipway to extend the time in which Ms Bitton could lodge her ultimately unsuccessful objection did not affect any substantive right of Mr Young, it appears to be futile to grant any remedy to Mr Young. It is unnecessary to form any conclusive view on this issue because of the Court's view about the lack of utility in extending the time for Mr Young to commence this proceeding. Decision on extension The Court refuses to extend the time within which Mr Young's application may be made to it. I do not consider that it would be proper in all the circumstances for the Court to exercise its discretion in favour of Mr Young. Mr Young has shown no acceptable explanation for the delay in commencing the proceeding. The reality is that the extension of time granted by Ms Shipway had no continuing relevance for Mr Young until the Tribunal required him, in October 2008, to provide evidence concerning care arrangements in 2007. More importantly, the decision to extend time for Ms Bitton to object did not prejudice Mr Young because her objection was rejected. Ms Bitton had an entitlement to seek a merits review in the Tribunal and would have done so in response to an adverse decision of the Child Support Registrar whether made on 3 August 2007 or at some later date. An obligation cast on Mr Young by the Tribunal to provide evidence dealing with an extended period of time is not a sufficient basis upon which to revisit an administrative decision which otherwise has no practical consequences. It does not matter that there is little prejudice to the respondents. A quashing of the extension of time decision made on 3 August 2007 cannot effect the reality that Ms Bitton's objection was dismissed and that she has an entitlement to a review in the Tribunal. It is inappropriate to delay that review any longer.
Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Outcome: applied
Senior Counsel for Nylex submitted that the test which I should apply in determining the present application is that which was discussed and explained in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. Senior Counsel for Gardena did not disagree with this submission. 17 In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd 208 CLR 199 , a majority of the High Court held that, where an interlocutory injunction is sought (inter alia) in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought. Their Honours who comprised the majority made clear that the final relief sought need not be injunctive in nature. See [8] to [21] (pp 216 220) (per Gleeson CJ); [59] to [61] (pp 231 232) (per Gaudron J); and [86] to [92] (pp 239 242); [98] to [100] (pp 244 246); and [105] (p 248) (per Gummow and Hayne JJ). At [10] (p 216), Gleeson CJ also specifically cited with approval Spry, The Principles of Equitable Remedies , 5 th edn, 1997 (pp 446 456).
Case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 
Outcome: applied
In his Reasons for Judgment, at [13] (p 218), Gleeson CJ expressly approved the following passage from the Reasons for Judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 19 At [11] to [14] above I have summarised Gardena's claims for final relief. At [15] above I have described the claim for interlocutory relief with which these Reasons deal. 20 Gardena's interlocutory application is founded solely upon Gardena's contractual rights embodied in the Distribution Agreement. Some evidence was led concerning the misrepresentation case but no specific interlocutory relief was sought in respect of that case. Thus, the interlocutory injunction is sought in aid of Gardena's contractual rights. These rights are legal in character. 26 In light of the concessions which I have noted at [23] above, Nylex's submissions in the application before me were directed to the remaining questions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; 161 CLR 148 , namely, whether Gardena had shown that: (a) it will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (b) the balance of convenience favoured the granting of an injunction. 27 The first of these matters involves an assessment by the Court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted (see the discussion of this aspect in Spry, The Principles of Equitable Remedies , 7 th edn, 2007 at pp 383 389; at pp 397 399; and at pp 457 462). 28 The second of these matters requires the Court to exercise a discretion.
Case: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 
Outcome: cited
Nylex faintly argued that each of the Distribution Agreement and the Licence Agreement contained an implied term to the effect that neither party would terminate that agreement part way through the Australian summer season (ie after 1 October in any given year and before 31 March in the next year). This argument was not developed by Nylex. It was not at all clear to me how such an argument would ultimately be put. I think that Nylex will have considerable difficulty persuading the trial judge of the merits of such an argument (if it is seriously pressed at the trial). The postulated implied term is not likely to satisfy all the elements of the test approved by the High Court in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 345 347 (per Mason J) and at 403 404 (per Brennan J). At the very least, it seems to me that the postulated implied term would contradict the terms of Clause 11.1 of the Distribution Agreement and the terms of Clause 7.2 of the Licence Agreement which clauses are, of course, express terms of the relevant contracts. I do not need to decide this point for the purposes of the application with which these Reasons deal and I refrain from doing so. 44 By letter dated 15 November 2007 sent by Nylex to Gardena Germany, Mr Peter George, who is the Executive Chairman of Nylex, acknowledged receipt of both Notices of Termination. In that letter, he also said: I wish you well with your integration projects and look forward to our continuing distribution of GARDENA products up to the end of next year. 45 The terms of that letter were such as to lead the recipient of it to believe that the terminations effected by the Notices of Termination were accepted by Nylex and that Nylex would approach the last year of its distribution arrangements with Gardena (viz 2008) in good faith, with goodwill and in accordance with its contractual obligations under the Distribution Agreement.
Case: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Outcome: applied
Because the expiry of the Distribution Agreement is only weeks away and because the final hearing of these proceedings will not be listed before 31 December 2008, the injunction sought by Gardena, although interlocutory in form, will have the effect of finally determining Gardena's claim for permanent injunctive relief in respect of the breach of contract constituted by Nylex's sale of competing products. For this reason, I propose to approach Gardena's claim for interlocutory relief by evaluating the strength of its claims for final relief based on that breach of contract. I do so for the purpose of ascertaining where the balance of convenience lies. I have in mind and intend to apply the statement of principle made by McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536A D. 22 The breach of contract in respect of which a prima facie case (or serious question) is required to be demonstrated is that breach which is constituted by Nylex's conduct in marketing and selling in Australia and New Zealand non-Gardena sourced products in competition with Gardena products. 23 As I have already mentioned, Senior Counsel for Nylex conceded that there was a serious question to be tried or prima facie case in respect of that cause of action. In oral submissions he went further and conceded that Nylex had breached the Distribution Agreement by distributing and selling Nylex branded garden and domestic irrigation products in Australia and New Zealand. That conduct had been undertaken deliberately. Nylex appreciated that it was breaching the Distribution Agreement when it engaged in the conduct about which complaint is made and plainly intended to do so.
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: applied
In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 at [65] and [66] (pp 41 43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5 th edn, 1997, at pp 402 403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. 33 Nylex had been the distributor of Gardena products in Australia and New Zealand for some years before 1990. In 1990 formal agreements were entered into. 34 By a further formal agreement styled Sole Distribution Agreement ( the Distribution Agreement ) executed on or about 10 June 1999, Gardena and Nylex entered into the current distribution arrangement. At around about the same time, those companies also entered into a Licence Agreement ( the Licence Agreement ). The Licence Agreement was intended to operate in harmony with and for the same period of time as the Distribution Agreement.