mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655
Outcome: referred to
would follow these observations even if, as the applicant submits, they were not essential to the decision. They represent considered remarks of the Full Court and, moreover, in my respectful opinion they are correct. A 'decision' includes doing an act or thing (s 474(3)(g)) and a 'privative clause decision' includes a proposed decision ( WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655 per French J at [70] (' WAJZ '). The applicant referred to the decision of Al-Kateb in this context, but in my opinion there is nothing in that case which suggests that the question of reasonable practicability is a jurisdictional fact. It is true that certain Justices of the High Court considered what was encompassed by the phrase 'reasonable practicability'; Gummow J at 608 [121]; Hayne J at 639 [227]; Callinan J at 658-662 [290]-[299] but the Court did not address the question of whether reasonable practicability was a jurisdictional fact. Although his Honour was concerned with different questions to those arising before me, in my respectful opinion the High Court's treatment of the phrase was accurately summarised by French J in WAJZ at [83]-[85]. Although the question of reasonable practicability is not a jurisdictional fact, the proposed removal of the applicant from Australia can be challenged on the other grounds which constitute jurisdictional error: WAJZ per French J (at [70]). I do not think that there can be any doubt that a circumstance relevant to the question of reasonable practicability is the applicant's physical and mental condition. The difficulty for the applicant is that a jurisdictional error of the relevant type is not pleaded in paragraphs 21, 22 and 23 of the statement of claim. Those paragraphs proceed on the assumption that it is sufficient to allege that as a matter of fact it is not reasonably practicable to remove the applicant from Australia. For the reasons I have given, that is not sufficient. It is convenient if I state my conclusions to this point. Paragraphs 21, 22 and 23 must be struck out because the removal of the applicant from Australia is a privative clause decision and the paragraphs do not disclose an arguable case of jurisdictional error of the relevant type. It seems to me that it follows from the terms of s 474 that the removal of the applicant from Australia is not to be the subject of an injunction whether the claim is based on the allegation that removal is beyond power or on an alleged breach of a duty of care. It follows that the claim for an injunction based on an anticipated breach of a duty of care (paragraph 20(e)) cannot succeed. It must also follow that the somewhat novel claim (as far as I can see) in paragraph 24 cannot succeed. Furthermore, the claim for relief involving an injunction restraining the second respondent from removing the applicant from Australia (the second injunction) cannot succeed and the interlocutory injunction must be discharged.
Case: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170
Outcome: referred to
For reasons set out below, I propose to grant a stay with liberty to apply. A stay is an interlocutory order and a court must remain in control of its own interlocutory orders: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 178. 118 There are two matters which have troubled me in exercising my jurisdiction to grant a stay. The first is the ordinary vicissitudes of litigation in another country. It may therefore be that, despite the views of Mr Smith, the US District Court will decline to apply the Trade Practices Act . If that were to occur, it may be appropriate to lift the stay. There may be other circumstances existing in the litigation in the United States which would also make it appropriate to consider such an application. 119 The second is that, in my view, Smurfit is in clear breach of the Agreement in two respects. First, it has refused to submit to the jurisdiction of New South Wales by filing an appearance in this proceeding. On any view, it was bound to do so.
Case: Apscore International Pty Ltd v Grand Canyon Technologies Pty Ltd [1996] FCA 1089
Outcome: referred to
I also accept that it is entirely possible that at the final hearing the alleged representations will add little if anything to the claim for breach of contract: see Apscore International Pty Ltd v Grand Canyon Technologies Pty Ltd [1996] FCA 1089. 54 However, the short answer to these submissions is to be found in Dr Bell's concession that the trade practices claim is not colourable. It follows from this that the Court has subject matter jurisdiction over the trade practices claim which has more than a trivial connection with the overall controversy. That is sufficient to warrant the grant of leave under O 8 r 3. The motion to set aside service thus ought to be refused. 55 Whether there ought to be a stay depends upon the answers to the remaining questions.
Case: Aggeliki Charis Compania Maritima SA v Pagnan SpA ("the Angelic Grace") [1995] 1 Lloyd's Rep 87
Outcome: referred to
The fifth issue is, whether in the event that Smurfit is unsuccessful on its motion, I ought to grant Armacel's motion for an anti-suit injunction. The principal question which arises under this issue is the stage that the US District Court proceeding has reached and whether to restrain it: ...would be not only invidious but the reverse of comity: Aggeliki Charis Compania Maritima SA v Pagnan SpA ("the Angelic Grace") [1995] 1 Lloyd's Rep 87 at 95. 18 In early 2004 a representative of Smurfit made contact with Armacel in an email requesting information about Armacel's technology. At that time, Mr Frank Matich of Armacel was in discussion with a number of other American companies that were interested in licensing the technology. 19 The background to Armacel's discussions with potential American licensees appears to be that in late 2003 it won an award from an American association as technology innovator of the year in the United States. Details were published in various magazines and journals, as a result of which Armacel received enquiries from countries in North and South America for the exploitation of the technology.
Case: Aiton Aust Pty Ltd v Transfield Pty Ltd (1999) 153 FCR 236
Outcome: referred to
Second, Smurfit is in breach of the Agreement to attempt to mediate the dispute in Sydney. In my view, that was an agreement to embark upon a process of dispute resolution and is enforceable as such: Aiton Aust Pty Ltd v Transfield Pty Ltd (1999) 153 FCR 236 at [59]. I accept that the Agreement does not nominate a particular person to be the mediator, nor does it establish the machinery for the appointment of such a person. However, the better view in this case is that if the parties cannot agree the identity of a mediator, the Court can do so with the assistance of its powers under s 53A of the Federal Court Act 1976 (Cth) and O 72 of the Federal Court Rules : see Booker Industries Proprietary Limited v Wilson Parking (Qld) Proprietary Limited [1982] HCA 53 ; (1982) 149 CLR 600 at 614-615.
Case: Blair v Curran (1939) 62 CLR 464
Outcome: referred to
The first requirement draws attention to the need to identify with precision the issue which was necessarily decided in the earlier proceeding to see whether it is identical with an issue sought to be raised in the later proceeding: Blair v Curran (1939) 62 CLR 464 at 531; Makhoul v Barnes (1995) 60 FCR 572 at 579. 59 The observations of Dixon J in Blair v Curran at 531 make it plain that the question which is the subject of the first requirement may be one of fact or law.
Case: Booker Industries Proprietary Limited v Wilson Parking (Qld) Proprietary Limited [1982] HCA 53 ; (1982) 149 CLR 600
Outcome: referred to
Second, Smurfit is in breach of the Agreement to attempt to mediate the dispute in Sydney. In my view, that was an agreement to embark upon a process of dispute resolution and is enforceable as such: Aiton Aust Pty Ltd v Transfield Pty Ltd (1999) 153 FCR 236 at [59]. I accept that the Agreement does not nominate a particular person to be the mediator, nor does it establish the machinery for the appointment of such a person. However, the better view in this case is that if the parties cannot agree the identity of a mediator, the Court can do so with the assistance of its powers under s 53A of the Federal Court Act 1976 (Cth) and O 72 of the Federal Court Rules : see Booker Industries Proprietary Limited v Wilson Parking (Qld) Proprietary Limited [1982] HCA 53 ; (1982) 149 CLR 600 at 614-615.
Case: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 
Outcome: referred to
In an application to set aside service under O 9 r 7, the Court conducts, by way of a re-hearing, a review of the original decision to grant leave to serve the originating process out of the jurisdiction: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317. 44 The rehearing is conducted on the basis that the respondent should have the opportunity to put before the Court any additional material which may suggest that leave ought not to have been granted under O 8 r 3: Bray at [53]; Clough v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 at [12] .
Case: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Outcome: referred to
Nevertheless, I am satisfied that the Trade Practice Act claim is not "colourable" in the sense referred to in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. Ultimately, Dr Bell conceded that this was so.
Case: Carl Zeiss Stiftung v Rayner &amp; Keeler Ltd (No 2) [1967] 1 AC 853 
Outcome: referred to
The High Court has adopted the formulation of Lord Guest in Carl Zeiss Stiftung v Rayner &amp; Keeler Ltd (No 2) [1967] 1 AC 853 at 935, of three requirements for the creation of an issue estoppel: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363 at [21] . The requirements are: first, that the same question has been decided; second, that the decision was final; and third, that it was in proceedings between the same parties or their privies.
Case: Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996) 
Outcome: referred to
The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].
Case: Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374
Outcome: referred to
Plainly, the fact that the United States proceedings were first in point of time is a relevant consideration. Moreover, for the reasons referred to by Lord Woolf in Messier Dowty at [34]-[42], I do not consider that I should approach the question with an adverse pre-disposition to the claim for negative declaratory relief: Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374 at [42] [43]. This issue in the US District Court is not hypothetical. Our courts should be slow to criticise the approach of the foreign court to the question of negative declaratory relief. It must be a matter of discretion in all the circumstances. Moreover, the US District Court has held that it does have jurisdiction and no point was raised in the Pennsylvania proceeding about negative declaratory relief.
Case: Clough v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 
Outcome: referred to
The rehearing is conducted on the basis that the respondent should have the opportunity to put before the Court any additional material which may suggest that leave ought not to have been granted under O 8 r 3: Bray at [53]; Clough v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 at [12] . 45 The onus remains on an applicant to satisfy the Court in light of the additional materials, facts and arguments that leave ought to have been granted: Voth at 564; Clough at [12]. 46 The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].
Case: Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47
Outcome: referred to
It is true that a distinction exists between choice of law and submission to the jurisdiction so that the mere choice of New South Wales law does not automatically point toward submission to that jurisdiction: eg Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47 at 49.
Case: Desert Sun Loan Corp v Hill [1996] 2 All ER 847 
Outcome: referred to
The need for caution in the application of the doctrine of issue estoppel is well established, especially where the estoppel is said to arise from a judgment of a foreign court, and in an interlocutory context: The Sennar (HL) at 500; Castillon v P&amp;O Ports at [55]; Desert Sun Loan Corp v Hill [1996] 2 All ER 847 at 858. 64 Nevertheless, in Desert Sun Loan , Evans LJ stated at 858 that an issue estoppel can arise from an interlocutory judgment of a foreign court on a procedural issue where there has been an express submission of the procedural or jurisdictional issue to the foreign court and the specific issue of fact has been raised and decided by that court.
Case: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 
Outcome: referred to
I accept that at a final hearing, reliance upon these representations may not be made out having regard to the "entire agreement" clause contained in cl 21.1 of the Agreement: Leda Holdings Pty Limited v Oraka Pty Limited (1997) ATPR 41-601 at [40,517] [40,518]; see also Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131 ; [(2005) 220 ALR 211 at [75] - [76] , [81]; and see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at [35] .
Case: FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 
Outcome: referred to
Whether a jurisdiction clause is an exclusive jurisdiction clause is a question of construction of the particular contract, having regard to the relevant surrounding circumstances as far as is permissible: FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 126. 85 The principles to be applied in determining the contractual intention of the parties were stated by Giles CJ Comm Div in FAI at 126-127. The absence of the word "exclusive" is not determinative. Other language in the jurisdiction clause and the overall nature and effect of the contract are to be considered. 88 However, cl 21.3.1 falls to be construed against the background that this was a contract made between business people negotiating at arms' length who must be presumed to have intended some certainty as to where their disputes would be litigated. The relevant courts, ie the courts of New South Wales or, subject to what I say below, the Federal Court, would have jurisdiction by reason of the choice of law clause. The parties agreed to mediate in Sydney. It is therefore difficult to see why they would not have intended that all their disputes be resolved in New South Wales: Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 at 591-592, cited in FAI at 121-122 and 127.
Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 
Outcome: referred to
The effect of Smurfit's submission on the first issue is that, no prima facie case having been established under the Trade Practices Act , the claim for breach of contract does not fall within the accrued jurisdiction of the Court under the principles stated in Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 608-609. 11 The second issue is whether the decision of the US District Court was final and conclusive and "on the merits", so as to give rise to an issue estoppel precluding Armacel from contending that cl 21.3.1 is an exclusive jurisdiction clause. 12 The third issue is the proper construction of cl 21.3.1. That is to say, the question is whether that clause provides for the exclusive jurisdiction of New South Wales. Also falling within this issue is the subsidiary question of whether a submission to the jurisdiction of New South Wales is a submission to the jurisdiction of the New South Wales Registry of the Federal Court. Senior Counsel for Smurfit submits that it is not. This issue only arises if Armacel is not bound by an issue estoppel . 50 Nor am I satisfied that the Trade Practices Act claims are "trivial or insubstantial" in their relationship to the overall controversy: Fencott v Muller at 609; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 597-599. 93 Nevertheless, in certain circumstances the Federal Court picks up the laws of the States under s 79 of the Judiciary Act 1903 (Cth) in the exercise of federal jurisdiction: John Robertson &amp; Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 95. Thus, a matter heard in the New South Wales Registry of the Federal Court would pick up the rules of State law, at least in those instances in which the laws of New South Wales apply generally eg to matters of procedure. The federal jurisdiction also includes accrued jurisdiction over non-federal matters as referred to in Fencott v Muller . In addition, the Federal Court has jurisdiction in associated matters under s 32 of the Federal Court Act .
Case: Henry v Henry (1996) 185 CLR 571
Outcome: applied
Alternatively, Smurfit seeks a stay of this proceeding on the ground that the Federal Court is a clearly inappropriate forum in accordance with the principles stated by the High Court in Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571. 13 The fourth issue, which only arises if I am satisfied that the jurisdiction of New South Wales is non-exclusive and that Armacel is not bound by an issue estoppel, is whether this Court is a clearly inappropriate forum, ie. whether this proceeding is vexatious or oppressive in the strict sense: Voth at 564-565; Henry v Henry at 587, 591-592. 95 It is prima facie vexatious and oppressive to commence a proceeding in an Australian court if another action is already pending between the same parties, raising the same issues in another country. The existence of simultaneous proceedings with respect to the same controversy is a highly relevant consideration but it does not necessarily follow that there should be a stay of the Australian proceedings: Henry v Henry at 591-592; CSR v Cigna at 389ff . 96 The test to be applied is whether having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense: CSR v Cigna at 401. The considerations include which forum can provide more effectively for complete resolution of the matters in controversy, which proceeding was commenced first and the stage that each of the proceedings has reached: Henry v Henry at 592. 123 The problems which arise if the same controversy is to be litigated in different countries which have jurisdiction with respect to the same matter are such that, prima facie , the continuation of one or other of them must be seen as vexatious or oppressive in the sense stated in Voth : see Henry v Henry at 591.
Case: John Robertson &amp; Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65
Outcome: referred to
Nevertheless, in certain circumstances the Federal Court picks up the laws of the States under s 79 of the Judiciary Act 1903 (Cth) in the exercise of federal jurisdiction: John Robertson &amp; Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 95. Thus, a matter heard in the New South Wales Registry of the Federal Court would pick up the rules of State law, at least in those instances in which the laws of New South Wales apply generally eg to matters of procedure. The federal jurisdiction also includes accrued jurisdiction over non-federal matters as referred to in Fencott v Muller . In addition, the Federal Court has jurisdiction in associated matters under s 32 of the Federal Court Act .
Case: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 
Outcome: applied
Nor am I satisfied that the Trade Practices Act claims are "trivial or insubstantial" in their relationship to the overall controversy: Fencott v Muller at 609; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 597-599.
Case: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363 
Outcome: referred to
The High Court has adopted the formulation of Lord Guest in Carl Zeiss Stiftung v Rayner &amp; Keeler Ltd (No 2) [1967] 1 AC 853 at 935, of three requirements for the creation of an issue estoppel: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363 at [21] . The requirements are: first, that the same question has been decided; second, that the decision was final; and third, that it was in proceedings between the same parties or their privies.
Case: Leda Holdings Pty Limited v Oraka Pty Limited (1997) ATPR 41-601
Outcome: referred to
I accept that at a final hearing, reliance upon these representations may not be made out having regard to the "entire agreement" clause contained in cl 21.1 of the Agreement: Leda Holdings Pty Limited v Oraka Pty Limited (1997) ATPR 41-601 at [40,517] [40,518]; see also Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131 ; [(2005) 220 ALR 211 at [75] - [76] , [81]; and see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at [35] .
Case: Makhoul v Barnes (1995) 60 FCR 572 
Outcome: referred to
The first requirement draws attention to the need to identify with precision the issue which was necessarily decided in the earlier proceeding to see whether it is identical with an issue sought to be raised in the later proceeding: Blair v Curran (1939) 62 CLR 464 at 531; Makhoul v Barnes (1995) 60 FCR 572 at 579.