mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 , 97 ALD 721
Outcome: considered
Appeals from decisions of the Tribunal to this Court are confined to " a question of law " and are to be filed within 28 days: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and (2A)(a). Prima facie the rule is that proceedings commenced outside the prescribed 28 day period ought not to be entertained: Jeilles v Secretary, Department of Employment &amp; Workplace Relations [2007] FCA 1590 at [9] . There is, however, a discretion to extend that time. The principles relevant to that discretion have been conveniently set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and those principles have since been repeatedly applied in a variety of contexts in which an extension of time is sought: eg, Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [47] [48], [2007] FCA 1449 ; 97 ALD 721 at 730; SZGCA v Minister for Immigration &amp; Citizenship [2008] FCA 224 at [4] .
Case: Comcare v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441
Outcome: followed
One consideration relevant to an application for an extension of time is whether an explanation has been provided as to why an appeal was not filed within time. Although it is to be expected that an acceptable explanation will normally be given, there is no rule that such an explanation is an essential precondition to the granting of an extension of time: Comcare v A'Hearn [1993] FCA 498 ; (1993) 45 FCR 441 at 444 per Black CJ, Gray and Burchett JJ. In the present proceeding the Applicant explained to this Court that he was provided with a copy of the decision of the Tribunal in late January 2008 and thereafter he was given the " run around " when he attempted to get the " paperwork " necessary to be completed for the purposes of an appeal. Of some concern is the apparent difficulty that the Applicant experienced when seeking to obtain advice in respect to the Tribunal's decision and his difficulty in obtaining access to a draft notice of appeal . 20 In such circumstances, the mere expiration of time as between being notified of the Tribunal decision and the filing of the Application in April 2008 would not of itself have precluded an extension being granted. On his account, the Applicant attempted to pursue his right of appeal but was not provided with the necessary advice or information so as to enable an appeal to be filed. No prejudice was claimed by the Respondent should an extension be granted.
Case: Dunning v Secretary, Department of Family &amp; Community Services [1999] FCA 1605 , 57 ALD 577
Outcome: considered
Section 12(1) thus provides that the " exceptional circumstances relief payment " sought by the Applicant was " not payable ". Given the terms of s 12(1) the Tribunal was " bound " to make the decision that it did: cf Dunning v Secretary, Department of Family &amp; Community Services [1999] FCA 1605 at [10] , [1999] FCA 1605 ; 57 ALD 577 at 579, per Merkel, Goldberg and Weinberg JJ. See also: Re Cobon and Department of Family and Community Services [2001] AATA 549.
Case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Outcome: followed
Appeals from decisions of the Tribunal to this Court are confined to " a question of law " and are to be filed within 28 days: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and (2A)(a). Prima facie the rule is that proceedings commenced outside the prescribed 28 day period ought not to be entertained: Jeilles v Secretary, Department of Employment &amp; Workplace Relations [2007] FCA 1590 at [9] . There is, however, a discretion to extend that time. The principles relevant to that discretion have been conveniently set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and those principles have since been repeatedly applied in a variety of contexts in which an extension of time is sought: eg, Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [47] [48], [2007] FCA 1449 ; 97 ALD 721 at 730; SZGCA v Minister for Immigration &amp; Citizenship [2008] FCA 224 at [4] . 21 In the context of the present Application , it is considered that the principal consideration relevant to an adverse exercise of the discretion to extend time is an assessment as to whether the Applicant has an arguable case. The " obvious strength or weakness " of an applicant's case is of relevance to the exercise of the discretion: Lucic v Nolan (1982) 45 ALR 411 at 417 per Fitzgerald J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. Although in many cases it may neither be appropriate nor practicable to attempt a full investigation of the merits of an appeal when considering whether an extension of time should be granted, the present proceeding is one in which the merits of the decision of the Administrative Appeals Tribunal can readily be assessed.
Case: Jeilles v Secretary, Department of Employment &amp; Workplace Relations [2007] FCA 1590
Outcome: followed
Appeals from decisions of the Tribunal to this Court are confined to " a question of law " and are to be filed within 28 days: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and (2A)(a). Prima facie the rule is that proceedings commenced outside the prescribed 28 day period ought not to be entertained: Jeilles v Secretary, Department of Employment &amp; Workplace Relations [2007] FCA 1590 at [9] . There is, however, a discretion to extend that time. The principles relevant to that discretion have been conveniently set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and those principles have since been repeatedly applied in a variety of contexts in which an extension of time is sought: eg, Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [47] [48], [2007] FCA 1449 ; 97 ALD 721 at 730; SZGCA v Minister for Immigration &amp; Citizenship [2008] FCA 224 at [4] .
Case: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903
Outcome: followed
Order 35A, r 3(1)(a) provides as follows: Orders on default (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant... The discretion conferred by r 3(1)(a) is unconfined and it has been said to be undesirable to attempt any exhaustive statement of the circumstances in which the power will be exercised: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [25] . It is, however, a power to be exercised " cautiously ": Lawson v NSW Minister for Land &amp; Water Conservation [2007] FCA 8 at [22] .
Case: Lawson v NSW Minister for Land &amp; Water Conservation [2007] FCA 8
Outcome: followed
Order 35A, r 3(1)(a) provides as follows: Orders on default (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant... The discretion conferred by r 3(1)(a) is unconfined and it has been said to be undesirable to attempt any exhaustive statement of the circumstances in which the power will be exercised: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903 at [25] . It is, however, a power to be exercised " cautiously ": Lawson v NSW Minister for Land &amp; Water Conservation [2007] FCA 8 at [22] .
Case: Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520 ; (1990) 27 FCR 388
Outcome: considered
At least two factors militated against dismissing the proceeding on 2 June 2008. First, the failure of the unrepresented Applicant to appear was only the second occasion that the matter had been before the Court. No Notice of Motion had been filed seeking such an order, although the Respondent Secretary had apparently caused a letter to be forwarded to the Applicant foreshadowing that the dismissal of the proceeding may be sought. Second, given the Applicant's request to appear by telephone hookup, it would have been a manifestly harsh exercise of discretion to summarily terminate his proceeding at such an early stage in circumstances where it was apparent that he did wish to be heard -- even if only by way of telephone. There was certainly no " history of non-compliance ": Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520 ; (1990) 27 FCR 388 at 396). 8 On 2 June 2008 the proceeding was stood over for hearing to today. Prior to that date the Registry of this Court notified the Applicant of the orders made on 2 June 2008, including giving notification that the hearing was to take place at 10.15am on 11 July 2008. The Applicant appeared in person today and gave an unsworn account as to the facts leading up to the filing of his Application in April 2008. The solicitor appearing for the Respondent Secretary was content for his factual account to be given in that informal manner. 9 Today a further application was made on behalf of the Secretary to again amend the name of the Respondent. The name as provided on 2 June 2008 was incorrect and the correct name is " Secretary, Department of Families, Community Services and Indigenous Affairs ". An order further amending the name of the Respondent should be made. The Applicant did not oppose that amendment being made provided -- as he put it -- the person responsible for the decision had his " head on the chopping block ".
Case: Lockett v Military Rehabilitation &amp; Compensation Commission [2006] FCA 946
Outcome: followed
That conclusion, it is considered, is manifestly correct and any appeal would have no prospects of success. An extension of time is not appropriate in such circumstances: Lockett v Military Rehabilitation &amp; Compensation Commission [2006] FCA 946 ; Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 at [18] [20], 76 ALD 773 per Merkel J.
Case: Lucic v Nolan (1982) 45 ALR 411
Outcome: followed
In the context of the present Application , it is considered that the principal consideration relevant to an adverse exercise of the discretion to extend time is an assessment as to whether the Applicant has an arguable case. The " obvious strength or weakness " of an applicant's case is of relevance to the exercise of the discretion: Lucic v Nolan (1982) 45 ALR 411 at 417 per Fitzgerald J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 349. Although in many cases it may neither be appropriate nor practicable to attempt a full investigation of the merits of an appeal when considering whether an extension of time should be granted, the present proceeding is one in which the merits of the decision of the Administrative Appeals Tribunal can readily be assessed.
Case: Re Cobon and Department of Family and Community Services [2001] AATA 549
Outcome: considered
Section 12(1) thus provides that the " exceptional circumstances relief payment " sought by the Applicant was " not payable ". Given the terms of s 12(1) the Tribunal was " bound " to make the decision that it did: cf Dunning v Secretary, Department of Family &amp; Community Services [1999] FCA 1605 at [10] , [1999] FCA 1605 ; 57 ALD 577 at 579, per Merkel, Goldberg and Weinberg JJ. See also: Re Cobon and Department of Family and Community Services [2001] AATA 549.
Case: Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 , 76 ALD 773
Outcome: followed
That conclusion, it is considered, is manifestly correct and any appeal would have no prospects of success. An extension of time is not appropriate in such circumstances: Lockett v Military Rehabilitation &amp; Compensation Commission [2006] FCA 946 ; Riverside Nursing Care Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 1065 at [18] [20], 76 ALD 773 per Merkel J.
Case: SZGCA v Minister for Immigration &amp; Citizenship [2008] FCA 224
Outcome: considered
Appeals from decisions of the Tribunal to this Court are confined to " a question of law " and are to be filed within 28 days: Administrative Appeals Tribunal Act 1975 (Cth), s 44(1) and (2A)(a). Prima facie the rule is that proceedings commenced outside the prescribed 28 day period ought not to be entertained: Jeilles v Secretary, Department of Employment &amp; Workplace Relations [2007] FCA 1590 at [9] . There is, however, a discretion to extend that time. The principles relevant to that discretion have been conveniently set forth by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 and those principles have since been repeatedly applied in a variety of contexts in which an extension of time is sought: eg, Bahonko v Nurses Board of Victoria (No 4) [2007] FCA 1449 at [47] [48], [2007] FCA 1449 ; 97 ALD 721 at 730; SZGCA v Minister for Immigration &amp; Citizenship [2008] FCA 224 at [4] .
Case: TNT Skypack International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 19 ATR 1067 , 82 ALR 175
Outcome: followed
In any event, and as submitted on behalf of the Respondent Secretary, the decision of the Administrative Appeals Tribunal was a decision affirming a decision refusing such a payment. The jurisdiction of the Tribunal which was being entertained was a jurisdiction to review a decision of the Social Security Appeals Tribunal: Social Security (Administration) Act 1999 (Cth), s 179. And the only decision of the Social Security Appeals Tribunal was a decision in respect to an " exceptional circumstances relief payment ". The jurisdiction of this Court conferred by s 44 of the 1975 Act is again confined to entertaining an appeal " on a question of law, from any decision of the Tribunal ". Confined to the decision as made by the Administrative Appeals Tribunal, no question of law arises such as to warrant an extension of time being granted in respect to that decision. The jurisdiction conferred by s 44, it should be recalled, is more narrow than a jurisdiction to entertain an appeal from a decision " involving a question of law ": TNT Skypack International (Aust) Pty Ltd v Commissioner of Taxation [1988] FCA 119 ; (1988) 19 ATR 1067 , 82 ALR 175. 27 Given the lack of any prospects of success on appeal, consideration need not be given to such other factors as may otherwise have been relevant to the exercise of the discretion, including the failure to identify -- or, at the very least, attempt to identify -- the " question of law " which the Applicant wished to have resolved on appeal. 28 Even had an extension of time been granted, an appeal would have been dismissed.
Case: Brookfield v Yevad Products Pty Ltd [2002] FCA 1376
Outcome: cited
Prime highlights rightly, in my respectful submission, that the fact that it has prepared a supplementary list does not, in any way, lead to a conclusion that one should not regard the presumption of conclusivity as still present. In this regard it points to observations made by inter alia Branson J in Brookfield v Yevad Products Pty Ltd [2002] FCA 1376. In turn, those particular submissions are contested by Fig Tree. 14 O 15, r 8 of the Federal Court Rules provides as follows: Order for particular discovery Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party. 15 I emphasise in the terms of O 15 r 8 the words "grounds for a belief" and "may be or may have been". It is true that one does not lightly go behind a discovery affidavit. Prima facie, such an affidavit is conclusive, but that prima facie position may be displaced in the circumstances described in O 15 r 8. Even if displaced, there remains a discretion to exercise. Would it, for example, be unduly oppressive to order the filing of a further affidavit having regard to the potential utility to the party complaining of the document or category of documents? More generally, is it in the interests of justice so to order?
Case: Chanel Ltd v F.W. Woolworth and Co Ltd (1981) 1 WLR 485
Outcome: cited
And later and by reference to a judgment of Buckley LJ in Chanel Ltd v F.W. Woolworth and Co Ltd (1981) 1 WLR 485: An order or undertaking to the court expressed to be until further order by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown. 33 The explanation was, he said, that it was not an attempt to modify the contract implicit in the order or undertaking. It was an application in accordance with the contract and, as such, the exercise of an express right reserved by the contract to the party bound by the terms of the order or undertaking. Prime developed at some length a submission that, having seen the manuals which are presently confidential exhibits, there was nothing confidential about them. Fig Tree, at some length, contested this. The consent orders incorporated an agreed position in respect of the manuals. Liberty to apply was reserved to work out questions concerning the operation of those orders. I do not read the reservation of liberty to apply as a reservation of or an invitation to raise questions concerning the confidentiality of the manuals. 34 It is quite apparent from the material read before me that the orders made by consent in November last year obviated, for reasons which were thought good at the time, any contest concerning an issue in relation to the confidentiality of such documents. I see no reason not to hold Prime to its bargain concerning the status of those manuals. Particularly that is so having regard to the relative proximity of the hearing of the application to the date of trial and the length of time which has elapsed since November last year. It also seems to me that there will not be any unjust inhibition of Prime's forensic position if the present position with respect to those manuals is maintained.
Case: Fylas Pty Ltd and Vynal Pty Ltd (1992) 2 Qd R 593
Outcome: cited
The orders made on 28 November 2007 envisaged liberty to apply. There is a very helpful passage in respect of the position which obtains in relation to orders which have been made by consent in the judgment of McPherson J in his then capacity as Senior Puisne Judge of the Supreme Court of Queensland in Fylas Pty Ltd and Vynal Pty Ltd (1992) 2 Qd R 593 at 599 and also 601. The whole passage is too lengthy conveniently to set out in reasons delivered ex tempore. I do, though, highlight the following observations made by his Honour by reference to authority: The position is more complex where the order is made or the undertaking is given in consequence of an agreement between the parties or as an element in such an agreement. For a long time the rule has been that, "The contract of the parties is not the less a contract, and subject to the incidence of a contract because there is superadded the command of a Judge."
Case: Gray and Associated Book Publishers (Aust) Pty Limited [2002] FCA 1045
Outcome: cited
In Gray and Associated Book Publishers Aust Pty Limited [2002] FCA 1045 , 23 August 2002, one aspect of an interlocutory controversy before Branson J was self indulged masking out seemingly, in that case, on the basis of an asserted private right of confidentiality. Her Honour observed at para 9: The rules of the Federal Court provide no basis for "a claim of irrelevance" in respect of a portion of a document that falls within the terms of an order for discovery. However, it is clear that the power of the court to order that a discovered document be produced for inspection by another party is a discretionary power (see order 15, rule 11). Further, order, 15 rule 5 relevant provides "the court shall not make an order under this order for the filing or service of any list of documents or affidavit or other documents or for the production of any document, unless satisfied that the orders are necessary at the time when the order is made." What is "necessary" within the meaning of order 15, rule 5 is that which is reasonably necessary in the interests of a fair trial and of the fair disposition of the case (Trade Practices Commission v CC (NSW) Pty Limited (1995) 58 FCR 426 at 436-437 Lindgren J). 49 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.
Case: Interchase Corporation Ltd in Liquidation v Grosvenor Hill Qld (Pty Ltd) No 2 (1999) 1 Qd R 163
Outcome: cited
The rules require a description to be adequate so as to: ...facilitate the production of a particular document for which the privilege has been claimed in the event, for example, of a cessor of the privilege (though for example publication dehors the proceedings) or should the court production upon a ruling that the privilege does not in fact attach : Interchase Corporation Ltd in Liquidation v Grosvenor Hill Qld (Pty Ltd) No 2 (1999) 1 QR 163 at 170. 39 A party seeking disclosure is not entitled to have such a description as would enable the formation of a prima facie view as to the correctness of the claim of privilege.