mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Henry v Henry (1996) 185 CLR 571
Outcome: referred to
The joint judgment identified a number of circumstances in which it may be appropriate to make orders restraining the commencement or continuation of proceedings in other courts (or arbitral bodies). These include the following: &#8226; where the other proceedings interfere with or have a tendency to interfere with proceedings pending in the court ( CSR, at 392; National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209 , at 230-233, per Gummow J); &#8226; where the institution or continuation of the other proceedings involves unconscionable conduct or the unconscionable exercise of legal rights ( CSR, at 392); &#8226; where the other proceedings are, according to the principles of equity, vexatious or oppressive ( CSR, at 393), for example where a second proceeding is commenced in a court, and an action is pending in another court with respect to the matters in issue ( Henry v Henry (1996) 185 CLR 571 , at 590-591, per Dawson, Gaudron, McHugh and Gummow JJ); and &#8226; where the bringing of proceedings with respect to one claim is properly to be seen as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct ( CSR, at 394). The joint judgment emphasised, however, that the power is not to be confined by reference to the example found in the decided cases. Rather, it is a power the limits of which are to be determined by the dictates of ' equity and good conscience ' ( CSR, at 394).
Case: National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209
Outcome: referred to
The joint judgment identified a number of circumstances in which it may be appropriate to make orders restraining the commencement or continuation of proceedings in other courts (or arbitral bodies). These include the following: &#8226; where the other proceedings interfere with or have a tendency to interfere with proceedings pending in the court ( CSR, at 392; National Mutual Holdings Pty Ltd v The Century Corporation (1989) 22 FCR 209 , at 230-233, per Gummow J); &#8226; where the institution or continuation of the other proceedings involves unconscionable conduct or the unconscionable exercise of legal rights ( CSR, at 392); &#8226; where the other proceedings are, according to the principles of equity, vexatious or oppressive ( CSR, at 393), for example where a second proceeding is commenced in a court, and an action is pending in another court with respect to the matters in issue ( Henry v Henry (1996) 185 CLR 571 , at 590-591, per Dawson, Gaudron, McHugh and Gummow JJ); and &#8226; where the bringing of proceedings with respect to one claim is properly to be seen as an election either not to proceed on another claim or not to proceed in another jurisdiction, thus giving rise to an estoppel by conduct ( CSR, at 394). The joint judgment emphasised, however, that the power is not to be confined by reference to the example found in the decided cases. Rather, it is a power the limits of which are to be determined by the dictates of ' equity and good conscience ' ( CSR, at 394).
Case: Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26
Outcome: referred to
By instituting proceedings in the AIRC the day after withdrawing its interlocutory application, Sydney Ferries seeks to achieve, in substance, the same result in the AIRC that it failed to achieve in this Court. It is true, as Mr Goot points out, that there are differences between s 494 and 496 of the Workplace Relations Act and that the differences are not confined to the nature of the decision-making body that exercises the relevant powers. (One example is that an order under s 494(5) of the Workplace Relations Act can be made only by the persons identified in s 494(2) , while an order made under s 496 must be complied with by any person to whom the order is expressed to apply, including a union registered solely under State law: s 496(10) ; Transport Workers' Union of New South Wales v Australian Industrial Relations Commission [2008] FCAFC 26 , at [25], [36], per Gray and North JJ.) Nonetheless, in order to discharge its functions, the AIRC must address and make a determination on the proper construction of the statutory expression ' industrial action ' and its application to the circumstances of the present case. That is precisely one of the points that was argued before this Court on the application for injunctive relief that was withdrawn by Sydney Ferries.
Case: Fekala Pty Ltd v Cenbond Pty Ltd [2001] NSWSC 340
Outcome: distinguished
the respondent argued that, consistent with the decision of the Supreme Court of New South Wales in Fekala Pty Ltd v Cenbond Pty Ltd [2001] NSWSC 340 , an order for costs ought to be made in the respondent's favour. In that case, the Court was concerned with two interlocutory applications relating to an order under s 441D(2) of the Corporations Act . Section 441D operates to protect a company's property during an administration. Section 441D allows an administrator to apply to the Court for an order that a chargee or receiver or other person not perform specified functions or exercise specified powers during the course of the administration: s 441D of the Corporations Act . The section allows the Court to restrain a secured creditor from realising on the creditor's security. In Fekala Pty Ltd v Cenbond Pty Ltd [2001] NSWSC 340 , the Court was asked to make an order under s 441D where the administrators had had considerable time to put forward some firm proposal in relation to a payment due to the secured creditor and even at the time of the hearing could only put forward a speculative proposal. The administrators were not in a position to give any undertaking as to damages. The trial judge, Young J, made the order under s 441D only because he thought there was some chance that the secured creditors would benefit by the order being made. He made it a condition of the order, without saying why, that the administrators pay the costs of the application. It seems to me that that case is no authority for any general proposition that when a court makes an order under s 444F , the court should award the chargee or the owner or lessor of property its costs. Justice Young did not say that. He merely made it a condition of the order that the costs be paid. In my opinion, that case is not authority for the proposition advanced by the respondent. Next the respondent contended that, if the applicants had applied to the Court for relief under the Law of Property Act 2000 (NT), the Court could have made an order for costs in favour of the respondent. The applicants did initially include in their application a claim for relief under that Act but that was abandoned very early in the hearing. The matter did not proceed under that Act. It seems to me irrelevant what powers the Law of Property Act 2000 (NT) gives to the Court in relation to costs for applications under that Act.
Case: Hayes v Gunbola Pty Ltd (1986) 4 BPR 9247 
Outcome: cited
it was put that there is a presumption that where a party seeks an order for relief from forfeiture that the party seeking relief ought to pay the lessor's costs. In support of that contention the respondent relied on Hayes v Gunbola Pty Ltd (1986) 4 BPR 9247. That was a case for relief from forfeiture under s 128 of the Conveyancing Act 1919 (NSW) in which the trial judge (Young J) was of the opinion that, in the exercise of the Court's discretion relief should be granted. His Honour addressed the question of costs and said "it is abundantly clear that as the price of getting relief against forfeiture the plaintiff must pay the lessor's reasonable costs": Hayes v Gunbola Pty Ltd 4 BPR 9247 at 9255. His Honour referred to Howard v Fanshawe [1895] 2 Ch D 581 at 592 where he said the ordinary order was that the plaintiff must bear the costs of the action except where those costs have been increased by the defendant resisting the claim and those costs must be borne by the defendant. He also referred to Langley v Foster (1909) 10 SR (NSW) 54 at 62 where Simpson CJ in Eq said: ... prima facie one of the terms imposed should be the payment of all costs, for the plaintiff's own breach of his agreement has given rise to the litigation ... this is not a hard and fast rule, for, if it were, a lessor might always oppose relief being granted knowing he would always get his costs from the lessee. If the court thinks the lessor ought not have opposed in toto the grant of relief from forfeiture, the court may make the lessor pay the costs so far as they have been increased by the lessor resisting the claim to relief on any terms ... But the court may make, and has in one case at any rate made, the lessee pay all the costs, notwithstanding the lessor contested his claim to relief at all: Quilter v Mapleson [1882] 9 QB 672. It is a question for the court's discretion in each case.
Case: Howard v Fanshawe [1895] 2 Ch D 581 
Outcome: cited
was a case for relief from forfeiture under s 128 of the Conveyancing Act 1919 (NSW) in which the trial judge (Young J) was of the opinion that, in the exercise of the Court's discretion relief should be granted. His Honour addressed the question of costs and said "it is abundantly clear that as the price of getting relief against forfeiture the plaintiff must pay the lessor's reasonable costs": Hayes v Gunbola Pty Ltd 4 BPR 9247 at 9255. His Honour referred to Howard v Fanshawe [1895] 2 Ch D 581 at 592 where he said the ordinary order was that the plaintiff must bear the costs of the action except where those costs have been increased by the defendant resisting the claim and those costs must be borne by the defendant. He also referred to Langley v Foster (1909) 10 SR (NSW) 54 at 62 where Simpson CJ in Eq said: ... prima facie one of the terms imposed should be the payment of all costs, for the plaintiff's own breach of his agreement has given rise to the litigation ... this is not a hard and fast rule, for, if it were, a lessor might always oppose relief being granted knowing he would always get his costs from the lessee. If the court thinks the lessor ought not have opposed in toto the grant of relief from forfeiture, the court may make the lessor pay the costs so far as they have been increased by the lessor resisting the claim to relief on any terms ... But the court may make, and has in one case at any rate made, the lessee pay all the costs, notwithstanding the lessor contested his claim to relief at all: Quilter v Mapleson [1882] 9 QB 672. It is a question for the court's discretion in each case.
Case: Langley v Foster (1909) 10 SR (NSW) 54
Outcome: cited
was a case for relief from forfeiture under s 128 of the Conveyancing Act 1919 (NSW) in which the trial judge (Young J) was of the opinion that, in the exercise of the Court's discretion relief should be granted. His Honour addressed the question of costs and said "it is abundantly clear that as the price of getting relief against forfeiture the plaintiff must pay the lessor's reasonable costs": Hayes v Gunbola Pty Ltd 4 BPR 9247 at 9255. His Honour referred to Howard v Fanshawe [1895] 2 Ch D 581 at 592 where he said the ordinary order was that the plaintiff must bear the costs of the action except where those costs have been increased by the defendant resisting the claim and those costs must be borne by the defendant. He also referred to Langley v Foster (1909) 10 SR (NSW) 54 at 62 where Simpson CJ in Eq said: ... prima facie one of the terms imposed should be the payment of all costs, for the plaintiff's own breach of his agreement has given rise to the litigation ... this is not a hard and fast rule, for, if it were, a lessor might always oppose relief being granted knowing he would always get his costs from the lessee. If the court thinks the lessor ought not have opposed in toto the grant of relief from forfeiture, the court may make the lessor pay the costs so far as they have been increased by the lessor resisting the claim to relief on any terms ... But the court may make, and has in one case at any rate made, the lessee pay all the costs, notwithstanding the lessor contested his claim to relief at all: Quilter v Mapleson [1882] 9 QB 672. It is a question for the court's discretion in each case.
Case: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 
Outcome: cited
purpose of an order for costs is to compensate the party in whose favour the costs order is made for the costs of the proceeding. The orders for costs are not an indemnity but are designed to compensate the party in whose favour the order for costs is made in part for the costs of the proceeding. The purpose of an order for costs is not to punish the party against whom the order for costs is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 543, 563 and 567; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 96.
Case: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72
Outcome: cited
purpose of an order for costs is to compensate the party in whose favour the costs order is made for the costs of the proceeding. The orders for costs are not an indemnity but are designed to compensate the party in whose favour the order for costs is made in part for the costs of the proceeding. The purpose of an order for costs is not to punish the party against whom the order for costs is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 at 543, 563 and 567; Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 96.
Case: Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510
Outcome: cited
While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that: &#8226; the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259, and &#8226; if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36] , Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510.
Case: Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
In the absence of particularisation it is difficult to deal with this ground of appeal. Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors. With respect to legal errors, other than the failure of Driver FM to deal with one of the appellant's grounds before his Honour - with which I have already dealt in this judgment - no legal errors are demonstrated by the appellant. Third ground of appeal
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
A number of these grounds were not raised before Driver FM. Although as a general proposition the appellant must demonstrate that it is expedient and in the interests of justice that new grounds of appeal be raised - O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 - I am prepared to consider them in this appeal.
Case: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80
Outcome: cited
While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that: &#8226; the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259, and &#8226; if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36] , Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510.
Case: Januzi v Secretary of State for the Home Department [2006] UKHL 5 ; [2006] 2 AC 426
Outcome: cited
The principles articulated by the Full Court in Randhawa 52 FCR 437 were recently affirmed by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. In that case at pages 638-639 Gummow, Hayne and Crennan JJ agreed with the reasoning of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5 ; [2006] 2 AC 426 where his Lordship said: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason (at [7]).
Case: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: cited
While the appellant may feel that insufficient weight was ascribed to evidence which he considered important, it is clear that: &#8226; the weight given by the Tribunal to evidence before it, both oral and written evidence, is a matter for the Tribunal in its role as the arbiter of fact: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259, and &#8226; if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36] , Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510. 36 As I noted earlier in this judgment, weight given by the Tribunal to evidence before it is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang [1996] HCA 6 ; 185 CLR 259. This includes a finding by the Tribunal that documentation upon which the claimant relies is fabricated (see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 per McHugh J at 67).
Case: NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76
Outcome: cited
In the absence of particularisation it is difficult to deal with this ground of appeal. Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quinn [1990] HCA 21 ; (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors. With respect to legal errors, other than the failure of Driver FM to deal with one of the appellant's grounds before his Honour - with which I have already dealt in this judgment - no legal errors are demonstrated by the appellant. Third ground of appeal
Case: NAHI v MIMIA [2004] FCAFC 10
Outcome: cited
In the absence of particularisation this ground of appeal cannot be substantiated. In any event, the Court cannot engage in review of the merits of the appellant's claims: NAHI v MIMIA [2004] FCAFC 10 at [10] . Fifth ground of appeal 35 It is clear that, notwithstanding the claim of the appellant, the Tribunal did consider his claims concerning his position arising from his Shi'a background, and the potential danger to the appellant should he return to Pakistan, and made findings adverse to the appellant with respect to these claims. As I indicated earlier in this judgment, the Court cannot engage in review of the merits of the appellant's claims: NAHI v MIMIA [2004] FCAFC 10 at [10] . Tenth ground of appeal
Case: O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310
Outcome: cited
A number of these grounds were not raised before Driver FM. Although as a general proposition the appellant must demonstrate that it is expedient and in the interests of justice that new grounds of appeal be raised - O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7 - I am prepared to consider them in this appeal.
Case: QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281
Outcome: considered
This is clearly of concern. Failure by a court of first instance to consider a claim clearly raised by a litigant can give rise to a miscarriage of justice. So, for example, in the High Court decision QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd (1996) 70 ALJR 281 on appeal from the Court of Appeal of New South Wales, Gaudron, McHugh and Gummow JJ held that, in circumstances where a ground of cross-appeal was plainly arguable, and the judgment of the court below gave no indication that it had considered that ground (and, if it did, the reasons given by the court could not be regarded as proper reasons for rejecting that ground), there had been a miscarriage of justice calling for the intervention of the High Court. In those circumstances the High Court ordered that that the matter be remitted for re-determination to the Court of Appeal. 14 At the hearing before me, Mr Foreman submitted that, in relation to the issue of relocation as claimed by the appellant before the Federal Magistrate: &#8226; the appellant had no prospect of success &#8226; in any event, the issue of relocation was not relevant in the context of this appeal because the appellant had, as found by the Tribunal, actually relocated from his village over ten years ago. Accordingly this is not a case where either the Tribunal, or the Court on judicial review, is required to consider whether relocation within Pakistan is a feasible option for the appellant. 15 In this case, I consider that this error of the Federal Magistrate is not a reason to allow the appeal from his Honour's decision or to remit the case to the Federal Magistrate for re-hearing. I take this view because I accept the submission of Mr Foreman that the appellant had no prospect of success in relation to this ground of judicial review before his Honour. To use the terminology of the High Court decision in QBE 70 ALJR 281, this ground of review was not "plainly arguable" in light of the findings of the Tribunal with respect to relocation of the appellant elsewhere in Pakistan.
Case: Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407
Outcome: cited
As I noted earlier in this judgment, weight given by the Tribunal to evidence before it is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang [1996] HCA 6 ; 185 CLR 259. This includes a finding by the Tribunal that documentation upon which the claimant relies is fabricated (see Re Minister for Immigration and Multicultural Affairs: ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 per McHugh J at 67).