mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Burger King Corporation v Hungry Jack's Pty Limited [2001] NSWCA 187
Outcome: cited
In my opinion, there is a serious question to be tried at a final hearing as to whether Exact (and through it ESA) have breached an implied obligation of good faith to cooperate in achieving the contractual objects found in the Distributorship Agreement. The principle embodied in this implied obligation was stated by the NSW Court of Appeal in Burger King Corporation v Hungry Jack's Pty Limited [2001] NSWCA 187 at [169] and following. The obligation includes an implied covenant not to prevent the performance of the contract or to withhold its benefits. 28 By keeping the Distributorship Agreement on foot and thereby obliging Hume to perform its obligations to locate and service customers, whilst at the same time asserting a right to entice those customers away from Hume, Exact appears to be acting in breach of its implied obligation. This is a sufficient basis to warrant the grant of interlocutory injunctive relief subject to considerations of the balance of convenience. 29 An alternative basis available at this stage of the proceedings is that the information about customers supplied by Hume through the portal is given to Exact for a limited purpose and is otherwise confidential. Exact's assertion that it is entitled to use this information to target Hume's customers during the course of the existing Distributorship Agreement seems to me to raise a serious question of misuse of the information.
Case: Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1
Outcome: cited
ESA also placed some store on the choice of law clause in Article 27 of the Distributorship Agreement. It was submitted for ESA that the exclusive jurisdiction clause found in Article 27 would point strongly against the grant of leave to serve Exact outside the jurisdiction. Leave has not yet been granted, but ESA argues at this stage that there are strong prospects that it will be refused when that application is heard. In my view, this argument fails to have regard to the decision of the Full Court in Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 24 25. The claims which Hume makes against Exact include claims under the Trade Practices Act which do not ordinarily fall within the purview of this type of clause.
Case: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533
Outcome: followed
In deciding the issue of serious question, I do not need to consider the strength of such a question, because this decision will not effectively resolve the final hearing; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533; Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557. Nor does the entire agreement clause in Article 25 of the Distributorship Agreement persuade me that there is no serious question to go to a final hearing; see for example, Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478 at [82] [83].
Case: Lawson Hill Estate Pty Ltd Tovegold Pty Ltd (2004) 214 ALR 478
Outcome: cited
In deciding the issue of serious question, I do not need to consider the strength of such a question, because this decision will not effectively resolve the final hearing; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533; Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557. Nor does the entire agreement clause in Article 25 of the Distributorship Agreement persuade me that there is no serious question to go to a final hearing; see for example, Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478 at [82] [83].
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia No 3 [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: cited
There was debate about the form of any interlocutory relief. Counsel for Hume relied upon Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia No 3 [1998] HCA 30 ; (1998) 195 CLR 1 at [33] for the proposition that relief in wide terms should be granted, and said that this should extend to mandatory injunctive relief if necessary. However, it seems to me that the proper exercise of my discretion is that interlocutory injunctive relief should be limited to the prevention of enticement of Hume's customers. This can be stated in sufficiently clear terms to prevent the actions which ESA has sought to achieve, in particular at the 18 October 2006 marketing event. The precise steps which ESA must take to comply with the injunction will be up to it, but clearly enough ESA and Mr Urand should be restrained from soliciting the business of Hume's existing customers in the manner sought to be achieved by ESA. 37 I will make orders in terms of paragraphs 2(a)(A) and 2(a)(B) of the notice of motion. The terms "Relevant Person" and "Distributorship Agreement" will be defined as set out in the notice of motion. I do not consider that any of the other orders sought in paragraphs 2 and 3 of the notice of motion should be made. 38 The orders that I will make are upon the applicants by their counsel giving the usual undertaking as to damages. I will order the second and fourth respondents to pay the costs of the applicants of the day of 13 October 2006. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson J. Associate: Dated: 16 October 2006 Counsel for the Applicants: S J Burchett Solicitor for the Applicants: Home Wilkinson Lowry Lawyers Counsel for the Second and Fourth Respondents: R Horsley Solicitor for the Second and Fourth Respondents: DTA Lawyers Date of Hearing: 13 October 2006 Date of Judgment: 16 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1439.html
Case: Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557
Outcome: followed
In deciding the issue of serious question, I do not need to consider the strength of such a question, because this decision will not effectively resolve the final hearing; Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533; Walker v ANZ Banking Group Ltd (No 2) (2001) 39 ACSR 557. Nor does the entire agreement clause in Article 25 of the Distributorship Agreement persuade me that there is no serious question to go to a final hearing; see for example, Lawson Hill Estate Pty Ltd v Tovegold Pty Ltd (2004) 214 ALR 478 at [82] [83].
Case: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 
Outcome: cited
The respondents accepted that the making of an order under O 62 r 3 is exceptional. There must be a reason consistent with the dictates of justice to depart from the usual rule: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297. In determining whether it would be in the interests of justice to make such an order, regard must be had to at least the following matters. First, whether there has been any fault on the party seeking an order under O 62 r 3. Secondly, whether it would be fair, in all the circumstances, to require a party in whose favour an order for costs has been made in relation to an interlocutory application to await the hearing of the principal proceeding. Thirdly, the conduct of the party against whom the order for costs has been made and, in particular, whether that party has been guilty of delay such as to cause a significant postponement of the final determination of the proceeding. Fourthly, where the costs relate to amendments to pleadings, whether the party against whom the order is sought has also been unable to articulate its claim or its defence in accordance with its obligations under the pleading rules, which has put the opposing party to significant costs. The rule should not be used to punish a party to the litigation. Costs orders are made to compensate, not to punish: Latoudis v Casey (1990) 170 CLR 534. See also Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ; Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422 at 426.
Case: Latoudis v Casey (1990) 170 CLR 534 
Outcome: cited
The respondents accepted that the making of an order under O 62 r 3 is exceptional. There must be a reason consistent with the dictates of justice to depart from the usual rule: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297. In determining whether it would be in the interests of justice to make such an order, regard must be had to at least the following matters. First, whether there has been any fault on the party seeking an order under O 62 r 3. Secondly, whether it would be fair, in all the circumstances, to require a party in whose favour an order for costs has been made in relation to an interlocutory application to await the hearing of the principal proceeding. Thirdly, the conduct of the party against whom the order for costs has been made and, in particular, whether that party has been guilty of delay such as to cause a significant postponement of the final determination of the proceeding. Fourthly, where the costs relate to amendments to pleadings, whether the party against whom the order is sought has also been unable to articulate its claim or its defence in accordance with its obligations under the pleading rules, which has put the opposing party to significant costs. The rule should not be used to punish a party to the litigation. Costs orders are made to compensate, not to punish: Latoudis v Casey (1990) 170 CLR 534. See also Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ; Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422 at 426.
Case: Ohn v Walton (1995) 36 NSWLR 77
Outcome: cited
The respondents accepted that the making of an order under O 62 r 3 is exceptional. There must be a reason consistent with the dictates of justice to depart from the usual rule: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297. In determining whether it would be in the interests of justice to make such an order, regard must be had to at least the following matters. First, whether there has been any fault on the party seeking an order under O 62 r 3. Secondly, whether it would be fair, in all the circumstances, to require a party in whose favour an order for costs has been made in relation to an interlocutory application to await the hearing of the principal proceeding. Thirdly, the conduct of the party against whom the order for costs has been made and, in particular, whether that party has been guilty of delay such as to cause a significant postponement of the final determination of the proceeding. Fourthly, where the costs relate to amendments to pleadings, whether the party against whom the order is sought has also been unable to articulate its claim or its defence in accordance with its obligations under the pleading rules, which has put the opposing party to significant costs. The rule should not be used to punish a party to the litigation. Costs orders are made to compensate, not to punish: Latoudis v Casey (1990) 170 CLR 534. See also Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ; Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422 at 426.
Case: Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422
Outcome: cited
The respondents accepted that the making of an order under O 62 r 3 is exceptional. There must be a reason consistent with the dictates of justice to depart from the usual rule: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297. In determining whether it would be in the interests of justice to make such an order, regard must be had to at least the following matters. First, whether there has been any fault on the party seeking an order under O 62 r 3. Secondly, whether it would be fair, in all the circumstances, to require a party in whose favour an order for costs has been made in relation to an interlocutory application to await the hearing of the principal proceeding. Thirdly, the conduct of the party against whom the order for costs has been made and, in particular, whether that party has been guilty of delay such as to cause a significant postponement of the final determination of the proceeding. Fourthly, where the costs relate to amendments to pleadings, whether the party against whom the order is sought has also been unable to articulate its claim or its defence in accordance with its obligations under the pleading rules, which has put the opposing party to significant costs. The rule should not be used to punish a party to the litigation. Costs orders are made to compensate, not to punish: Latoudis v Casey (1990) 170 CLR 534. See also Ohn v Walton (1995) 36 NSWLR 77 at 79 per Gleeson CJ; Kingscote District Council v Kangaroo Island Eco Action Inc (No 2) (1996) 67 SASR 422 at 426.
Case: All Services Australia Pty Ltd v Telstra Corporation Ltd [2000] FCA 375 ; (2000) 171 ALR 330
Outcome: considered
In All Services Australia Pty Ltd v Telstra Corporation Ltd [2000] FCA 375 ; (2000) 171 ALR 330 , the Court was concerned with a claim under s 52 of the Trade Practices Act 1974 (Cth). The applicant had difficulty in particularising the applicant's case and was ordered to pay the respondent's costs thrown away in relation to applications to amend its pleading. The applicant also sought to strike out the respondent's defence. 37 His Honour referred to the dicta of Kiefel J in All Services Australia Pty Ltd v Telstra Corporation [2000] FCA 375 ; 171 ALR 330 and said at 595: [I]t is not the fact of delay which is relevant but its effect upon the proceeding and the position in which the other party is then placed. Here, the respondents have been put to significant expense which, as the costs orders indicate, has been expense which they are entitled to recover from the applicants. 38 In this case it is right, as the respondents contend, that the applicant has taken nearly four years to articulate its statement of claim in its final form (if the fourth further amended statement of claim is its final form) for reasons which are not entirely apparent. A significant problem for the applicant in its pleading has been the applicant's inability to express its claim tightly. From time to time, the looseness of expression by the applicant in its pleading has caused the applicant significant embarrassment. 39 However, the thrust of the applicant's case against the respondents has not significantly changed and the respondents have been on notice since the proceeding was commenced of that claim. 40 The respondents filed their first defence in response to the applicant's statement of claim on 31 October 2005. It filed a further defence on 23 January 2006. The respondents have not been called upon to amend its pleadings whilst the applicant has sought to put its pleading in order. In those circumstances, the respondents have not been put to the considerable costs associated with having to re-plead the matter from time to time. 41 The respondents' costs have been occasioned by needing to have considered the various proposed amendments and the hearings of the applications to amend the statement of claim. They will recover those costs in due course whatever the result of the principal proceeding.
Case: Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732 ; (2000) 191 ALR 579 
Outcome: considered
In Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732 ; (2000) 191 ALR 579 , Mansfield J considered an application under this rule. In the proceeding before him, three separate versions of the statement of claim had been struck out and other proposed statements of claim withdrawn. Considerable time had elapsed before a satisfactory version of the statement of claim had been settled upon.
Case: Australian Securities and Investments Commission v Mining Projects Group Limited (No 3) [2008] FCA 952
Outcome: cited
There is no evidence that the respondents will suffer any serious disadvantage by not recovering their costs until the principal proceeding is determined. On the other hand, if the order were to be made, both parties would be put to the added expense of considering bills of costs in relation to the separate orders for costs to which reference has already been made. The applicant would need to find funds to pay those costs in advance of the hearing of the principal proceeding. It is desirable that the principal proceeding go forward as soon as possible because the principal proceeding raises important issues which need to be determined. Furthermore, this is not a proceeding where final judgment is "far away" and thus the eventuality of payment is remote: Australian Securities and Investments Commission v Mining Projects Group Limited (No 3) [2008] FCA 952 at [24] per Gordon J and the cases cited therein. 44 On balance, I do not think that this matter calls for an order under O 62 r 3. I think, on balance, the parties would be better served by proceeding with the action rather than being delayed or distracted by the taxation of costs of interlocutory proceedings. 45 There will be no order under O 62 r 3.
Case: SZMYG v Minister for Immigration &amp; Anor (No 2) [2009] FMCA 503
Outcome: approved
25 June 2009, the Federal Magistrates Court dismissed the application for judicial review: see SZMYG v Minister for Immigration &amp; Anor (No 2) [2009] FMCA 503. It is from that decision that the Appellant appeals to this Court. There are three grounds of appeal. They are: (1) The tribunal member failed to consider carefully in relation to allegations of domestic violence and in relation to China's one child policy. (2) I was denied procedural fairness in connection with the making of the decision. (3) The tribunal does not amount to a proper basis for review in judicial review proceedings then [sic]. I shall consider each of these grounds of appeal in turn. Ground 1 does not, in terms, specify a ground of administrative law error, much less a failure on the part of the Federal Magistrates Court to find such an error. It is important to appreciate that in matters such as the present, the Court does not exercise original jurisdiction. There is a need for an Appellant to demonstrate error of law in the decision of the Federal Magistrates Court. I accept, though, that in respect of a person such as the Appellant, who is representing herself, and particularly in a case touching upon a claim for a protection visa, that a benign construction ought to be given to grounds of appeal, subject, of course, to ensuring that procedural fairness is given to the Minister, as active respondent, in meeting a ground so construed.
Case: SZMYG v Minister for Immigration [2009] FMCA 52
Outcome: considered
Federal Magistrates Court dealt with the question of whether there was any error, in the administrative law error sense, in respect of the factual conclusions reached by the Tribunal initially in an interlocutory judgment: SZYMG v Minister for Immigration [2009] FMCA 52. The court found no such error. Having considered that question afresh out of an abundance of caution, having regard to a benign construction of ground 1, I can see no error in the pre-emptory way in which the Federal Magistrates Court dealt with this subject. That is because the conclusions which the Tribunal reached were reasonably open. It is nothing to the point that others may have reached different views. It is especially nothing to the point that judicial officers may have reached different views, for that would impermissibly intrude into functions consigned under our law to officers of the executive branch. However, then, one approaches ground 1, there is no merit in it. As to ground 2, there is an absence of particularity as to how procedural fairness was denied to the Appellant in the proceedings before the Tribunal, much less how there was any error on the part of the Federal Magistrates Court in dealing with such an issue. That court found there was no actual or apprehended bias evidenced in respect of the Tribunal proceedings. The only evidence of the course of proceedings before the Tribunal is to be found in the comprehensive recitation in the Tribunal's reasons of those proceedings. On behalf of the Minister, it was very properly put forward that if there were evidence of a failure to afford a hearing which was a meaningful hearing, a breach of s 425 of the Migration Act might be demonstrated. The difficulty is there is no such breach evidenced. Further, there is no evidence of any hectoring or overly rigorous inquisition, such as might give pause for thought as to whether an apprehension of bias arose in respect of the member constituting the Tribunal, on the basis that nothing that an Appellant could say or do would change a preconception held by a Tribunal member.
Case: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190
Outcome: applied
very properly, the Minister's counsel, in effect, posed against the Minister whether what lay behind the allegation of a want of procedural fairness was non-compliance with a mandatory requirement found in s 424A of the Migration Act . It is evident, though, that the Tribunal did comply with that section and, indeed, perhaps went further than the strictness of that section would require having regard to what is expressed by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 at [18] as in relation to the concept of "information". No error in that regard arises. Even if one regards the ground as embracing, as a procedural fairness ground could, a failure to afford an opportunity to be heard, it is self evident that the Appellant was given such an opportunity and took advantage of it. I therefore dismiss ground 2. Ground 3 is not, with respect to the Appellant, a meaningful ground of appeal, even approaching it in the benign way I have earlier described. At best it might be said, in my opinion, that the Tribunal had not truly considered the Appellant's visa application and that the Federal Magistrates Court should have so held. I have already decided, though, for reasons earlier given, that a meaningful opportunity was extended and that the Tribunal did comprehensively engage with the basis ultimately put forward by the Appellant for her protection visa application. I therefore dismiss ground 3.