mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 ; (2007) 241 ALR 88
Outcome: cited
The detail of Fig Tree's submissions as to why no such discovery should be ordered appears at para 61 of its outline. Again, the exigencies of the moment do not conveniently admit of setting that out in full. It seems to me that discovery should not be ordered in respect of this category because: 1. no arguable basis for the discovery of such documents as an aid to construction has been made out; and 2. in relation to the repudiation controversy the test an objective one - what the conduct would convey to a reasonable person in the position of the other party : Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 ; (2007) 241 ALR 88 at para 44. 44 Having regard to what is there said, the arguments advanced on behalf of Prime as to the relevance of the documents in this particular category are not persuasive. This aspect of the application fails. 45 Fig Tree has arrogated to itself the ability, without Court order, to mask out portions of discovered documents. Mr Tomlinson, in exhibits to his affidavit has given examples of what has been done in this regard. There are many documents indeed which have been masked out. How the masking out was done is explained in an affidavit of Ms Freyling, a solicitor in the employ of Minter Ellison, the solicitors for Fig Tree. She and two others, respectively described as a graduate and a research clerk (each presumably, therefore, not a solicitor), were involved in a process of masking out. Sometimes in cases thought to be doubtful, advice was taken from a more senior practitioner within the firm. Ms Freyling swears, and it is worth recording that she was not cross examined in this regard, that some 90 to 95 per cent of masking out was on the basis of "relevance" with the balance being privilege.
Case: Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242
Outcome: cited
In Kyocera Mita Australia Pty Ltd v Mitronics Corporation Pty Ltd [2005] FCA 242 , Stone J dismissed an application for an order which would have required a defendant to provide a list which specifically identified each document in respect of which a claim for privilege was advanced. Her Honour observed at paragraph 13: I do not propose to make the order sought by Kyocera. The categories have been identified not by description of the legal privilege that is claimed but by description of the documents themselves. The discovery has been verified by affidavit. In the circumstances, I am of the view that the costs involved in a matter that has been going for such a long period of time as this far outweigh any benefit from identifying and describing the documents individually in the way Kyocera seeks. 41 While the practice adopted by Fig Tree may not, at least to some, be an exemplar of perfection, it adequately recites in paras 1 to 3 of Pt 2 of Sch 1, the grounds upon which privilege is claimed in those parts of the documents in Pt 1 of Sch 1. A solicitor has certified that list. The observations made by Stone J seem to me to be apposite in the circumstances of this case. In particular, I am not satisfied that the costs of striving for any further precision at this stage of the proceedings are warranted. This aspect of Prime's notice of motion fails. 42 There has been discovery of certain documents falling into this category. What is controversial is whether there should be discovery of: Correspondence passing between Fig Tree and SCV which relate to the coming into existence of the assignment agreement between them, ie, an agreement which was made on 30 May 2007, much as the correspondence, which has flowed between solicitors on this subject.
Case: Menkens v Wintour [2007] 2 Qd R 40
Outcome: cited
I respectfully agree. As in Gray , Fig Tree did not obtain the agreement of Prime to the masking of portions of its discovered documents, nor did it seek relief from the Court from its prima facie obligations to allow full inspection of its discovered documents. Should that practice now, nonetheless, be authorised by the Court? I share with Mackenzie J, whose concern is evidenced in Menkens v Wintour [2007]) 2 QdR 40, the view that it is salutary to keep in mind another passage from McLelland CJ in Telstra, in which his Honour emphasises a need for caution in exercising a discretion to allow parts of a document to be concealed. As the Chief Judge stated in that case: There is a serious risk that too assiduous a marking of documents on the ground of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the grounds of alleged irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified. 56 It is submitted that there is no utility demonstrated in requiring the provision for inspection of complete documents; I respectfully disagree. I have already voiced agreement with concerns voiced by Mackenzie J and made reference to a risk that I apprehend is present. 57 It may very well be that in relation to many of those 2005 documents that this particular risk, presently apprehended, proves to be unfounded. If so, though, that will be wisdom of hindsight. At present, it seems to me that Prime has been presented, in a way the nature and extent of which it is not possible, on the materials to hand, fully to judge, with, at least, some and probably many documents which have about them a quality of sterility and depravation of context so far as their meaning is concerned. There is, in my opinion, forensic utility in the ordinary position prevailing. That Fig Tree may incur further expense in the provision of unmasked copies is a consideration, but it is outweighed by the considerations that I have mentioned. 58 A concern also that I have is that, at this stage, one ought not encourage what I regard as a practice which is irregular. Irregular, in the sense that no Court order and, for that matter, no prior agreement was sought. I am concerned also, though, that Fig Tree should not be deprived of just claims of privilege in respect of its discovered documents. I therefore propose to order that such of the masked documents as are subject to a claim for privilege be excluded from production, save for that Fig Tree must produce the documents which it has discovered in its lists. I reserve liberty to apply in respect of any dispute as to the validity of a claim for privilege. Subject, though, to that, I propose to order that unmasked copies of Fig Tree's discovered documents be produced for inspection.
Case: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425
Outcome: cited
An allegation of bias raises a serious issue and must be founded on facts sufficient to give rise to the inference: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. Smith FM relied upon the decision in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 in which the High Court held that the apprehended bias must be determined by an objective standard of a fair minded lay observer. Applying such test Smith FM was unable to conclude that any bias existed as claimed. The Court considers that Smith FM was entitled to make the finding above on the evidence before him.
Case: SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: followed
It follows that the appeal must be dismissed. The Court notes that consistent with the High Court's decision in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162, the Refugee Review Tribunal should be joined as a second respondent. 24 The first respondent seeks an order that its costs be paid in the sum of $2400. As this quantum is in the range of costs which is realistic, the Court will make such order. I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 8 November 2006 Counsel for the Respondent: S Kaur- Bains Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 8 November 2006 Date of Judgment: 8 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1470.html
Case: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
Outcome: referred to
An allegation of bias raises a serious issue and must be founded on facts sufficient to give rise to the inference: see SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749. Smith FM relied upon the decision in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 in which the High Court held that the apprehended bias must be determined by an objective standard of a fair minded lay observer. Applying such test Smith FM was unable to conclude that any bias existed as claimed. The Court considers that Smith FM was entitled to make the finding above on the evidence before him.
Case: Re Australian Wealth Management Pty Ltd [2005] FCA 311
Outcome: followed
should also be noted that all relevant parties, save for any purchasers from placees, appear to me to have been served with notice of the proceeding, although not in a formal sense of being made parties. It seems to me that would be going too far to directly involve such possible purchasers. The notice which is going to be given to ASIC, the Australian Stock Exchange and to the persons who would have sold to those purchasers does seem to me to give a reasonable possibility of the word getting out to any purchasers substantial enough to be interested in pursuing any remedies. I referred earlier to a proviso. That proviso appears in a decision of Hely J in Re Australian Wealth Management Pty Ltd [2005] FCA 311. It gives liberty for a party, who claims to have suffered substantial injustice by reason of the orders, to apply to vary or discharge them within a limited period. That is a prudent proviso in matters dealt with ex parte and there are no other parties albeit that many of the people concerned have notice of the proceeding. I will simply make orders in accordance with the short minutes of order which I have initialled and placed with the papers. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 24 August 2007 Counsel for the Plaintiffs: Mr T Bathurst QC Solicitor for the Plaintiffs: Allens Arthur Robinson Date of Hearing: 15 August 2007 Date of Judgment: 15 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1316.html
Case: Re Bounty Industries Ltd [2007] FCA 956
Outcome: cited
orders sought to be made will be made pursuant to s 1322(4) and therefore subsection (6) is applicable and provides a barrier to the making of orders subject to the satisfaction of the Court as to the matters there listed. Counsel has referred me to a number of authorities as to the application of these provisions which establish that the provisions are remedial and are meant to have regard to the substantive effect of what is done and, in certain circumstances, may involve balancing interests which are affected ( Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398; Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581; Re Westpac Banking Corp (2004) 53 ACSR 288; Re Wave Capital Limited (2003) 47 ACSR 418; and Re Bounty Industries Ltd [2007] FCA 956).
Case: Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581
Outcome: cited
orders sought to be made will be made pursuant to s 1322(4) and therefore subsection (6) is applicable and provides a barrier to the making of orders subject to the satisfaction of the Court as to the matters there listed. Counsel has referred me to a number of authorities as to the application of these provisions which establish that the provisions are remedial and are meant to have regard to the substantive effect of what is done and, in certain circumstances, may involve balancing interests which are affected ( Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398; Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581; Re Westpac Banking Corp (2004) 53 ACSR 288; Re Wave Capital Limited (2003) 47 ACSR 418; and Re Bounty Industries Ltd [2007] FCA 956).
Case: Re Wave Capital Limited (2003) 47 ACSR 418
Outcome: cited
orders sought to be made will be made pursuant to s 1322(4) and therefore subsection (6) is applicable and provides a barrier to the making of orders subject to the satisfaction of the Court as to the matters there listed. Counsel has referred me to a number of authorities as to the application of these provisions which establish that the provisions are remedial and are meant to have regard to the substantive effect of what is done and, in certain circumstances, may involve balancing interests which are affected ( Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398; Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581; Re Westpac Banking Corp (2004) 53 ACSR 288; Re Wave Capital Limited (2003) 47 ACSR 418; and Re Bounty Industries Ltd [2007] FCA 956).
Case: Re Westpac Banking Corp (2004) 53 ACSR 288
Outcome: cited
orders sought to be made will be made pursuant to s 1322(4) and therefore subsection (6) is applicable and provides a barrier to the making of orders subject to the satisfaction of the Court as to the matters there listed. Counsel has referred me to a number of authorities as to the application of these provisions which establish that the provisions are remedial and are meant to have regard to the substantive effect of what is done and, in certain circumstances, may involve balancing interests which are affected ( Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398; Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581; Re Westpac Banking Corp (2004) 53 ACSR 288; Re Wave Capital Limited (2003) 47 ACSR 418; and Re Bounty Industries Ltd [2007] FCA 956).
Case: Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398
Outcome: cited
orders sought to be made will be made pursuant to s 1322(4) and therefore subsection (6) is applicable and provides a barrier to the making of orders subject to the satisfaction of the Court as to the matters there listed. Counsel has referred me to a number of authorities as to the application of these provisions which establish that the provisions are remedial and are meant to have regard to the substantive effect of what is done and, in certain circumstances, may involve balancing interests which are affected ( Super John Pty Ltd v Futuris Rural Pty Ltd (1999) 32 ACSR 398; Re Insurance Australia Group Ltd [2003] FCA 581 ; (2003) 128 FCR 581; Re Westpac Banking Corp (2004) 53 ACSR 288; Re Wave Capital Limited (2003) 47 ACSR 418; and Re Bounty Industries Ltd [2007] FCA 956).
Case: BRGAG OF 2008 v Minister for Immigration and Citizenship [2008] FMCA 722
Outcome: related
The appellant appeals to this Court from a decision of Jarret FM dated 5 June 2008 ( BRGAG OF 2008 v Minister for Immigration and Citizenship [2008] FMCA 722). In that case his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 29 January 2008. The Tribunal had affirmed a decision of a delegate of the Minister dated 16 October 2008 wherein the delegate refused the grant of a protection (class XA) visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act). 2 The appellant is a citizen of the Republic of Indonesia. He arrived in Australia on 26 August 2007 and applied for a protection (class XA) visa on 20 September 2007. The appellant claims that he is at risk of being persecuted by the Indonesian authorities. 3 The appellant claims that prior to 1998 he had a very close relationship with the Soeharto government. He claims that after 1998 he fell out of favour with the new Indonesian government because of that relationship.
Case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Outcome: cited
In relation to the third ground of appeal, his Honour noted that the Tribunal considered the claims of the appellant relating to being beaten by police, imprisoned for one month and the possibility of further prosecution, and that the Tribunal found that these claims were unsubstantiated. As the appellant did not attend the Tribunal hearing, the Tribunal was unable to consider any additional facts relating to the assertions of the appellant. To the extent that the appellant seeks to re-agitate the facts before the Tribunal, this is not the role of the Court: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] . 23 I do not consider the grounds of appeal substantiated. In my view the appropriate order is that the appeal be dismissed, with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 18 November 2008 The Appellant appeared in person. Solicitor for the First Respondent: Mr S Maycock of Clayton Utz Solicitor for the Second Respondent: The Second Respondents did not appear Date of Hearing: 18 November 2008 Date of Judgment: 18 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1733.html
Case: S157/2002 v Commonwealth (2003) 211 CLR 476
Outcome: cited
The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476. In this case I do not consider that the appellant has established either jurisdictional error in the decision of the Tribunal, or appellable error in the decision of the learned Federal Magistrate. 20 In relation to the first ground of appeal it is clear from the decision record of the Tribunal that the Tribunal did consider the appellant's claims and whether the appellant had a well founded fear of persecution. As the appellant did not attend the Tribunal hearing or submit any further material the Tribunal was unable to consider further information. It is not for the Tribunal to make a case for the appellant rather it is for the applicant before the Tribunal to make his or her case for consideration by the Tribunal. 21 In relation to the second ground of appeal I consider that there is little to distinguish this ground from the first ground of appeal to the extent that the appellant submits that the Tribunal did not give proper consideration to his case. I have nothing to add to my conclusion in relation to the first ground of appeal.
Case: Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCA 60
Outcome: referred to
In Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCA 60 I have ordered that the application be summarily dismissed against all respondents. Put shortly, I found that the Statement of Claim was, first, offensive, embarrassing and disclosed no reasonable cause of action and, second, the causes of action relied upon were in any event doomed to failure because they sought to impeach a consent order of a superior court of record without first having that order set aside. 2 The respondents have sought to be heard on the question of costs. They now seek an order that costs be awarded in their favour on a solicitor and client basis.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727
Outcome: cited
The jurisdiction of the Court to order costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). The section provides a broad and ample power which ought not be read down otherwise than in accordance with accepted principle. The discretion so conferred is informed by the ordinary practice of this Court that an unsuccessful party usually will be required to pay the costs of the successful party on a party and party basis. That practice, as was indicated in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 141 ALR 727 at 729 and 732-733, is not departed from unless the justice of the particular case so requires or some special or unusual feature arises.
Case: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Outcome: cited
The courts in quite some number of cases have indicated types or categories of case in which the award of costs on a basis other than party and party may appropriately be ordered: see e.g. Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. However, they have emphasised that the categories are not closed and that, even though circumstances may exist which are capable of warranting a more generous costs order than on a party and party basis, this does not compel that such an order be made: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685 at 687-688. For present purposes it is unnecessary to consider the case law in any detail. I am content in this matter to adopt the observations of Gray J (with whom the other members of the court agreed) in Hamod v New South Wales (2002) 188 ALR 659 at [20]: "Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs."
Case: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685
Outcome: cited
The courts in quite some number of cases have indicated types or categories of case in which the award of costs on a basis other than party and party may appropriately be ordered: see e.g. Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 232-234. However, they have emphasised that the categories are not closed and that, even though circumstances may exist which are capable of warranting a more generous costs order than on a party and party basis, this does not compel that such an order be made: Yates Property Corporation Pty Ltd v Boland (No 2) (1997) 147 ALR 685 at 687-688. For present purposes it is unnecessary to consider the case law in any detail. I am content in this matter to adopt the observations of Gray J (with whom the other members of the court agreed) in Hamod v New South Wales (2002) 188 ALR 659 at [20]: "Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs."