mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Northern Territory of Australia v Alyawarr, Kaytetye, Waranungu, Wakaya Native Title Claim Group [2005] FCAFC 135
Outcome: referred to
I have no reason not to follow those decisions, and I do so. They were commented upon with apparent approval by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Waranungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ( Alyawarr FC ) at [193]-[195]. 890 Proof of occupation is a question of fact. So much is now clear: see Alyawarr FC at [196]. There may therefore be matters of degree to be assessed, more so in relation to s 47B. Evidence to prove occupation of the particular land administration area may not be confined to what happens or has happened on that area. The particular administration area may, in a practical sense, be part of a wider area which the claimant group (or some of them) utilise in a way which amounts to occupation of that total area including the particular land administration area. At the other end of the scale, occupation need not involve intensive use of all parts of the particular land administration area. Use of parts of it, whether by residence, visits, use of roads, activities, or in other ways, may reveal occupation of that area even though not every piece of that area has been the subject of such elements. Evidence going to proof of connection may therefore be relevant to proof of particular occupation, but a finding of connection will not necessarily lead to a finding of contemporary occupation at the time of the application. 891 I do not accept that occupation may be simply 'rights based'. In the case of s 47A, the existence of the relevant grant and its terms may be very significant evidence going to occupation. Very little more may be required to take the additional step of being satisfied about occupation. In the case of s 47B, there is unlikely to be such an instrument. Underlying s 47B is that, in particular circumstances where native title rights and interests existed or would exist but for extinguishment, extinguishment is to be disregarded. On its face, it does not equate the existence of those rights and interests with occupation. Section 47B(1)(c) is intended to add a further qualifying condition to its operation. Consequently, the fact of there being (if there were) native title rights and interests over a claim area including an area to which s 47B might apply would not, in my view, of itself establish occupation. Occupancy involves more than that. Of course, depending upon the relative sizes of the claim area and of the area to which s 47B might apply, the evidence going to establish native title rights and interests may also prove occupation in particular circumstances.
Case: Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 ; (2000) 109 FCR 178
Outcome: cited
In view of that conclusion, the further submissions of the Territory focusing upon the definition of 'statutory authority', as being 'in relation to the Crown in right of the Commonwealth, a State or a Territory', do not need to be addressed. Those words have also led to certain decisions of the Court which have taken the view that certain municipal corporations are not 'statutory corporations' as defined: see Bodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 ; (2000) 109 FCR 178 at 191-192; Daniel [541]. 927 I note that the definition of 'public work' in s 253 of the NT Act extends to certain works carried out 'on behalf of the Crown, or a local government body or other statutory authority of the Crown'. The consequence of my conclusion on this issue does not therefore affect the significance of the public works carried out by the DCC. 928 I have indicated above why I have not fully addressed the arguments concerning extinguishment. There are many other matters of principle which have been the subject of submissions, and which have then flowed into the very thorough submissions applying the relevant provisions of the NT Act to the facts as they exist or are said to exist. Where the line was to be drawn between those issues of principlewhich could be addressed discretely from factual matters is obviously debatable. I have erred on the side of conservatism or caution.
Case: Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425
Outcome: referred to
AFANT, in addition to adopting the Territory's submission on extinguishment, made submissions about tidal waters in the claim area. It contends that the public right to fish and to navigate in tidal waters, discussed in Yarmirr at [60] and [94], meant that the first applicants could no longer properly maintain a right to exclude from the tidal waters all but those exercising those public rights. Whether such a claimed right may be available is a matter of doubt: see the High Court in Ward at [388]; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 ; Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457; Alyawarr FC . As I am not making a determination of native title rights and interests, I do not have to finally determine the issue.
Case: Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457
Outcome: referred to
AFANT, in addition to adopting the Territory's submission on extinguishment, made submissions about tidal waters in the claim area. It contends that the public right to fish and to navigate in tidal waters, discussed in Yarmirr at [60] and [94], meant that the first applicants could no longer properly maintain a right to exclude from the tidal waters all but those exercising those public rights. Whether such a claimed right may be available is a matter of doubt: see the High Court in Ward at [388]; Gumana v Northern Territory of Australia (No 2) [2005] FCA 1425 ; Gumana v Northern Territory of Australia [2005] FCA 50 ; (2005) 141 FCR 457; Alyawarr FC . As I am not making a determination of native title rights and interests, I do not have to finally determine the issue.
Case: Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543
Outcome: followed
has been well established that an applicant for leave to appeal has no election available to decide who shall hear the application, either a single judge or a Full Court. That is a matter for the judge before whom the motion comes for determination to decide. In Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 the Full Court said at 554: "... it is open to the applicant to ask the Court or judge before whom the matter is listed to consider referring it to a Full Court or a single judge (as the case may be). It is then for the judge or the Full Court before whom the matter is listed to consider whether the matter is more appropriately dealt with in the manner suggested by the applicant. ..."
Case: Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269
Outcome: followed
Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 Drummond J (with whom Cooper and Dowsett JJ agreed) quoted this passage and went on to say: " That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application." See also Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v WAKX [2005] FCA 227 at [25] - [33] .
Case: Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v WAKX [2005] FCA 227
Outcome: cited
Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 Drummond J (with whom Cooper and Dowsett JJ agreed) quoted this passage and went on to say: " That, in my opinion, is a clear statement that there is in truth no election available to a litigant to determine which is the forum in which an application of the present kind will be held. As their Honours say, the litigant can request that the matter be heard either by a single judge or by a Full Court. But it is for the Court to determine, having regard to considerations such as the importance of the issue raised and the efficient deployment of judicial resources and other matters, which forum will in fact be constituted to deal with the application." See also Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs v WAKX [2005] FCA 227 at [25] - [33] .
Case: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
am mindful of the observation of the majority of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 177 that: "... appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure." It is clear from the judgment of the High Court that in order for leave to appeal to be granted in respect of a matter of practice and procedure it must be established that not only is there an error of principle in the reasoning of the primary judge but also that the decision appealed from must work a substantial injustice to one of the parties if it is not reviewed. In the present case no error of principle is disclosed in the order made by the primary judge. Further, his decision does not work an injustice, whether substantial or otherwise, to the applicant. The primary judge has made no decision in relation to the disposition of the respondent's motion. The applicant will have every opportunity to respond to the matters raised by the respondent at the hearing of the motion. All that has happened is that preliminary steps have been taken by the primary judge to enable the parties to file and exchange contentions of fact and law which will facilitate the disposition of the hearing of the respondent's notice of motion. It was for these reasons that I dismissed the application for leave to appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 18 September 2009 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: S Bond Solicitor for the Respondent: Schetzer Brott &amp; Appel Date of Hearing: 17 September 2009 Date of Judgment: 17 September 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1061.html
Case: Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681
Outcome: referred to
The Court's power to order security for costs is found in s 56 of the Federal Court of Australia Act 1976 (Cth). As Hely J said in Croker v Deputy Registrar of the High Court of Australia [2003] FCA 681 at [2] : 'It is clear from s 56 of the Federal Court of Australia Act 1976 (Cth)...and from Order 52 Rule 20 of the Federal Court Rules , that a single judge of the Court has power to order the provision of security for the costs of an appeal, even though the appeal itself is to be heard before a Full Court.'
Case: Fletcher and Others v Commissioner of Taxation (1992) 37 FCR 288
Outcome: followed
My only concern about the grant of an order for security for costs is that it may shut out an impecunious litigant from advancing a case; see Fletcher and Others v Commissioner of Taxation (1992) 37 FCR 288 (' Fletcher '). Although it must be borne in mind that on appeal that issue may be less significant given that the appellant has already had the benefit of a judgment of a court; see Fletcher at 290. 16 Mr Upton has not asserted that he is impecunious, but only that he is unable to provide security for "$25 000 or any like sum". In any event, my view that his appeal does not have a good chance of success outweighs the consideration that an order for security for costs may stifle the appeal. 17 I consider it is appropriate to order Mr Upton to provide security for Tasmanian Perpetual Trustees' costs of the appeal given the poor prospect of the appeal being successful.
Case: Sun World International Inc v Registrar, Plant Breeder's Rights (unreported, Marshall J, 8 December 1997)
Outcome: referred to
Delay in applying for an order for security for costs can be a factor against the making of an order; see, for example, Sun World International Inc v Registrar, Plant Breeder's Rights (unreported, Marshall J, 8 December 1997). However, in the current matter, Tasmanian Perpetual Trustees applied to the Court promptly for security for costs, some three and a half weeks after the filing of the notice of appeal and before any further step had been taken in the proceeding or further costs incurred. This aspect of Mr Upton's resistance to an order for security for costs is unfounded. 11 A factor weighing against the making of an order for security for costs is that such an order would stifle the litigation. An allied factor is the circumstance that the impecuniosity of the person from whom security is sought has been caused by the conduct of the person seeking such security. Mr Upton relied on those factors in resisting an order for security for costs. 12 An order for security for costs in the sum of $25 000 would stifle the litigation as Mr Upton is unable to satisfy an award in that amount or any "like amount". That is a factor to be weighed in his favour in considering the application.
Case: Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 1231
Outcome: applied
The discretion to award security for costs is wide but must be exercised judicially; see Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited [2001] FCA 1231 at [14] . 8 Mr Upton contended that security for costs should not be ordered in his appeal because: &#8226; he is unable to provide security for $25 000 or any like sum because of the conduct of Tasmanian Perpetual Trustees; &#8226; an order for security for costs and staying the appeal would stifle his appeal and lead to a sequestration order being made against him and to his other creditors being disadvantaged; and &#8226; Tasmanian Perpetual Trustees did not request him to provide security for costs before applying to the Court. Further, Tasmanian Perpetual Trustees did not apply to the Court for more than 21 days after the appeal was filed and applied prior to a notice of appearance in the appeal being filed. 9 Mr Upton also took issue with the estimate of Tasmanian Perpetual Trustees that the appeal would consume three days' hearing time.
Case: Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 , 90 ALD 632
Outcome: cited
Tribunal is not required to provide the Appellants with an indication of its tentative or provisional views based upon the material before it ( F Hoffman-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock; Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641) and thereby afford a party a further opportunity to supplement the evidence previously relied upon. Neither is it required to itself request " more information " to supplement a deficiency in the factual merits of the Appellants' case. Nor is it required to request " more information " in respect to claims rejected by reason of other facts.
Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: applied
some faulty or irrational finding of fact does not establish an error of law, let alone jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed) there observed at 356 (emphasis in original): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference &#8212; in other words, the particular inference is reasonably open &#8212; even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place. Findings which are apparently inconsistent may, however, serve to sound a " warning note " such that a decision may be more carefully scrutinised: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 , 84 FCR 411. Black CJ, von Doussa and Carr JJ there observed: [25] ... although want of logic in drawing an inference will not of itself constitute error of law, it may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn. Likewise, want of logic might in some cases also sound a warning note to put one on inquiry whether there was only a purported, and not a real, exercise of the functions entrusted to the decision-maker. But where different conclusions are reasonably open on the facts, it is the Tribunal that is entrusted with the task of making those findings of fact which it considers appropriate: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 , 197 CLR 611. Gummow J there observed: [137] ... where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. See also Gleeson CJ and Toohey J at [39] to [46], 197 CLR at 626 to 628. A finding that is a crucial step in the ultimate conclusion reached by a Tribunal for which there is no evidence may, however, constitute jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] , [2003] FCAFC 231 ; 77 ALD 402 at 407 per Mansfield, Selway and Bennett JJ, citing Australian Broadcasting Tribunal v Bond , supra . " [O]ne illogical aspect of fact finding in a wider scheme of factual analysis " may not expose jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265 at [11] , [2006] FCA 265 ; 90 ALD 614 at 618 per Allsop J.
Case: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498
Outcome: cited
in the absence of an order pursuant to O 43, however, it should be noted that s 43 of the Federal Court of Australia Act 1976 (Cth) confers adequate power to make an order against the father. In Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 at 192 to 193 Mason CJ and Deane J observed: For our part, we consider it appropriate to recognize a general category of case in which an order for costs should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or man of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costs should be made against the non-party if the interests of justice require that it be made. See also: Manton International Pty Ltd (In Liquidation) v Deputy Commissioner of Taxation [2006] FCAFC 76 at [10] per Tamberlin, Weinberg and Allsop JJ; Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498 at [20] to [21] per Collier J. Even had an order not been made pursuant to O 43, an order would nevertheless have been made that the father pay the costs of the appeal . The father had filed the Notice of Appeal ostensibly as " guardian " and sought to advance a case which, if successful, would have been of benefit to his children and perhaps himself.
Case: Ex parte Davis (1901) 1 SR (NSW) 187
Outcome: cited
the event that the Appeal was to be dismissed, the Respondent Minister sought an order that the father pay the costs of the Appeal . The appointment of the father as a tutor avoids any difficulties that may otherwise have arisen in making such an order. Indeed, it has been said that " [t]he object of appointing a next friend is really to secure the defendant in respect of his costs if he should succeed ...": Ex parte Davis (1901) 1 SR (NSW) 187 at 189 per Darley CJ.
Case: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 , 173 ALR 362
Outcome: cited
some circumstances, a requirement may be imposed upon an administrative decision-maker to make further inquiries or to secure " more information ". One of the first judges of this Court to recognise that such circumstances may arise was Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47 ; (1985) 6 FCR 155 at 169 to 170. See also Luu v Renevier (1989) 91 ALR 39. But in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589 at [214] , [2000] FCA 589 ; 173 ALR 362 at 417, Wilcox J also recognised that: It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
Case: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480, 190 ALR 543
Outcome: applied
The review process ", it may be accepted, " is inquisitorial rather than adversarial ": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58] , [2004] FCAFC 263 ; 144 FCR 1 at 18 per Black CJ, French and Selway JJ. And s 427(1)(d) of the Migration Act 1958 (Cth) confers a discretionary power upon the Tribunal to " require the Secretary to arrange for the making of any investigation ...". But that section does not impose any general duty to inquire: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim [2000] HCA 50 at [12] to [14] [2000] HCA 50 ; , 175 ALR 209 at 212 to 213. See also Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [86] [2001] FCA 274 ; , 106 FCR 426 at 445; Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480 at [26], 190 ALR 543 at 553 to 554; S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [21] .
Case: F Hoffman-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295
Outcome: cited
Tribunal is not required to provide the Appellants with an indication of its tentative or provisional views based upon the material before it ( F Hoffman-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock; Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] , [2006] FCA 375 ; 90 ALD 632 at 641) and thereby afford a party a further opportunity to supplement the evidence previously relied upon. Neither is it required to itself request " more information " to supplement a deficiency in the factual merits of the Appellants' case. Nor is it required to request " more information " in respect to claims rejected by reason of other facts.