mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Optiz (1945) 70 CLR 141
Outcome: cited
relation to s 39B(1A) of the Judiciary Act , the Court has jurisdiction if, relevantly, there is a "matter" "arising under" a law made by the Parliament: s 39B(1A)(c). This test is satisfied only if "the right or duty in question in the matter owes its existence to federal law or depends on federal law for its enforcement": R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett v Optiz (1945) 70 CLR 141 at 154 (Latham CJ), and Felton v Mulligan (1971) 124 CLR 367 at 388 (Windeyer J). The Guidelines' lack of statutory status means that a dispute as to whether Mr O'Neill applied them correctly, or accorded procedural fairness before making his decision, does not give rise to any such matter. The submissions of the applicants (respondents to the motion) Their Honours noted (at [78]) that while a decision, in order to be susceptible to review under the AD(JR) Act must be either expressly or by implication authorised or required by an enactment, requirement or authority is not alone sufficient. The further stipulation that the decision must be "of an administrative character" meant that there must be an affecting of legal rights and obligations. Their Honours said (at [80]): Do legal rights or duties owe in an immediate sense their existence to the decision or depend upon the presence of the decision for their enforcement [cf R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett at 154] ? To adapt what was said by Lehane J in Lewins [ ANU v Lewins at 103], does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute? [ General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473 ; (1993) 45 FCR 164 at 169]. Mr O'Neill's decision does not derive from the ITAA a capacity to affect legal rights and obligations. Nor do legal rights (of the Commissioner) or duties (of the applicants) in relation to the production of Documents 226 to 238 "owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement": Tang at [80]. It is O 33 r 12 and the general law that give the Commissioner procedural rights and impose on the applicants procedural obligations.
Case: R v Inland Revenue Commissioner; Ex parte Preston [1984] UKHL 5 ; [1985] AC 835
Outcome: cited
need not recount in further detail the claims of estoppel, unfairness and waiver. In relation to "substantive unfairness", the applicants cite R v Inland Revenue Commissioner; Ex parte Preston [1984] UKHL 5 ; [1985] AC 835 at 866 7 (Templeman LJ) (for the principle that judicial review may be warranted where a commissioner's decision is unfair and amounting to a breach of contract or breach of representation, and therefore within the ambit of an abuse of power). They acknowledge the note of caution in relation to this principle that was sounded by Lehane J in Daihatsu Australia Pty Ltd v Deputy Commissioner of Taxation (2001) 182 ALR 239 (" Daihatsu ") at [51] (that note of caution being that such a principle has not been the subject of extended consideration by Australian courts), but say that at the trial, they will submit that the principles of administrative law in Australia are developing to take account of a form of doctrine of substantive unfairness of the kind described by Lord Templeman. REASONING Order 20 of the FCRs and s 31A of the FCA Act
Case: Scharer v State of New South Wales [2001] NSWCA 360 ; (2001) 53 NSWLR 299
Outcome: cited
[18], the Chief Justice referred to Scharer v State of New South Wales [2001] NSWCA 360 ; (2001) 53 NSWLR 299 , in which Davies A-JA said (at 313) that under the AD(JR) Act: The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient. The right to require production of Documents 226 to 238 is given by O 33 r 12 which applies to any party to any proceeding before this Court. The same can be said of other procedural rights given by the FCRs directly, or of the right given by them to apply for a procedural benefit of one kind or another, such as the right to apply for leave to issue a subpoena or the right to apply for an order for discovery. Gleeson CJ held that the termination of Ms Tang's candidature occurred under the general law and under the terms and conditions on which the University was willing to enter into a relationship with her, and added (at [23]): The power to formulate those terms and conditions, to decide to enter into the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act , but the decision to end the relationship was not given legal force or effect by that Act. Mr O'Neill's decision was one step antecedent to the decision (by a different officer) to give the notice to produce. Mr O'Neill's decision to exclude Documents 226 to 238 from the scope of the concession can be usefully compared to a decision provided for by the Griffith University's policy that a candidate had been guilty of academic misconduct. Such a decision would have gained nothing in terms of susceptibility to judicial review by reason of its being distinct from the decision to exclude a student; likewise, Mr O'Neill's decision to allow access to Documents 226 to 238 vis-a-vis the decision to give the notice to produce them in the appeal proceedings.
Case: Swain v Hillman [2001] 1 All ER 91
Outcome: followed
do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133] [134], [158] [162]; ED &amp; F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8] . The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England , that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
Case: Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1
Outcome: followed
do not propose to add greatly to the discussion of the meaning and effect of s 31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions "no real prospect of succeeding" and "no real prospect of successfully defending" require attention to be given to real, as opposed to "fanciful" or "merely arguable" prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133] [134], [158] [162]; ED &amp; F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8] . The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England , that the "no reasonable prospects of success" test requires the court to determine whether there are "real" as opposed to "fanciful" prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] QCA 227 ; [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression "reasonable prospects of success" as it occurred in s 198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 ; (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
Case: Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157
Outcome: cited
while s 31A of the FCA Act (mutatis mutandis, s 17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s 31A of the FCA Act and s 17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18] - [28] . The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975 ; MG Distribution Pty Ltd v Khan [2006] FMCA 666 ; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36 ; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 ; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 701 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688 ; Alphapharm Pty Ltd v Merck &amp; Co Inc [2006] FCA 1227 ; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 ; (2006) 150 IR 471 ; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 ; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 ; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 ; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s 31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
Case: Applecross Pte Ltd v Lim [2009] FCA 1102
Outcome: cited
when considering whether an Applicant has made out a " prima facie case ", the kind of evidence adduced need only be " in proportion to the nature of such an interlocutory issue ": WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476 per Beaumont J. As the requirement is imposed at the outset of proceedings, it does not require the kind of scrutiny that would occur (for example) in a submission of " no case to answer " following the closure of an applicant's case at trial: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387 (" Merpro ") at 390. It may be appropriate to draw inferences more readily in favour of an applicant, bearing in mind that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a " prima facie case ": Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 (" Vetter Trittler ") at 110 per French J, citing Merpro . This " threshold requirement " of a " prima facie case ... is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed ": Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206 at [4] per Moore J, applying Vetter Trittler. But " [a]ctual evidence rather than mere allegations are required ": Applecross Pte Ltd v Lim [2009] FCA 1102 at [6] per McKerracher J.
Case: Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206
Outcome: cited
when considering whether an Applicant has made out a " prima facie case ", the kind of evidence adduced need only be " in proportion to the nature of such an interlocutory issue ": WSGAL Pty Ltd v Trade Practices Commission [1992] FCA 510 ; (1992) 39 FCR 472 at 476 per Beaumont J. As the requirement is imposed at the outset of proceedings, it does not require the kind of scrutiny that would occur (for example) in a submission of " no case to answer " following the closure of an applicant's case at trial: Merpro Montassa Ltd v Conoco Speciality Productions Inc [1991] FCA 70 ; (1991) 28 FCR 387 (" Merpro ") at 390. It may be appropriate to draw inferences more readily in favour of an applicant, bearing in mind that the applicant will not have had the advantage of discovery, subpoena and other procedural aids to the making out of a " prima facie case ": Western Australia v Vetter Trittler Pty Ltd (In liq) (Receiver and Manager Appointed) (1991) 30 FCR 102 (" Vetter Trittler ") at 110 per French J, citing Merpro . This " threshold requirement " of a " prima facie case ... is met where material is placed before the Court from which inferences are open which, if translated into findings of fact, would support the relief claimed ": Australian Competition and Consumer Commission v European City Guide SL [2009] FCA 1206 at [4] per Moore J, applying Vetter Trittler. But " [a]ctual evidence rather than mere allegations are required ": Applecross Pte Ltd v Lim [2009] FCA 1102 at [6] per McKerracher J.
Case: Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217
Outcome: referred to
compliance with O 8 r 3(2) the Court retains a discretion as to whether leave should be granted to serve a respondent outside Australia. So much follows from the use of the term " may ". It has thus been observed that "... the power given by O 8 r 3(2) is clearly a discretionary power ": West v TWG Services Ltd [2009] FCA 1052 at [10] . His Honour Justice Gray was there satisfied that the requirements of O 8 r 3(2) had been satisfied but nevertheless concluded as follows: [61] This being the case, my view is that I should refuse the leave sought to serve the amended application and the amended statement of claim on the respondent in England. To serve those documents in their present form would be to visit upon the respondent a proceeding in Australia involving a significant number of claims, with only a small number of those claims justifying the grant of leave for such service. Although technically the proceeding as a whole might fall within O 8 r 2 of the Federal Court Rules , because of the presence of the small number of claims, this is not enough to persuade me to exercise the discretion to permit service out of the jurisdiction in respect of the whole proceeding. To do so would be to allow the tail to wag the dog. See also: Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222 to 223. The ambit of those considerations relevant to the exercise of the discretion may, however, be open to some debate and differences of opinion: e.g. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 , 154 FCR 425.
Case: Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365
Outcome: cited
should also be noted that if a " prima facie case " for relief has been made out in respect to one cause of action, it is immaterial that a " prima facie case " for relief has not been made out in respect to another cause of action: Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 373 per Lindgren J. See also: Trade Practices Commission v The Gillette Company (No 1) [1993] FCA 496 ; (1993) 45 FCR 366 at 371 per Burchett J. This was, of course, the issue that divided the Full Court in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153, 130 FCR 317.
Case: H 1976 Nominees Pty Ltd v Galli (1979) 30 ALR 18
Outcome: cited
in respect to such allegations, it is considered, include such matters as: (i) the imprecision in allegations expressed in such broad terms as " [d]uring the 1980s and 1990s " &#8212; especially in circumstances where some of the " Particulars " provided do not give further content as to when such conduct is said to have occurred, but some of those " Particulars " (it must be recognised) do provide greater certainty; (ii) the fact that some of the matters set forth in Schedule B do not seem relevant to any representation being made as to any " future matter "; (iii) the lack of any precision in the manner in which it is said the First Respondent " [r]esolved to hold itself free to conduct itself on a basis inconsistent with " understandings said to have been reached and uncertainty as to whether such allegations seek to place reliance upon s 51A or perhaps s 52 ; (iv) the fact that the " Particulars " of the representation said to be set forth in Schedule D are more appropriate to be expressed as statements of " material facts " rather than as " Particulars "; and (v) the fact that the " Particulars " provided in Schedules E and F are more appropriate to be expressed as statements of " material facts " rather than as " Particulars " &#8212; but, more relevantly, to the extent that the representations there set forth are said to be " implied " &#8212; the absence of any basis upon which any such implication is said to arise. The existing pleading, it is considered, remains fundamentally deficient &#8212; even when recognition is given to the fact that it has been drafted in advance of (for example) discovery. If the Amended Statement of Claim remains in its present form, it would be open to one or other of the Respondents to (for example) deny or not admit a material fact. The purpose to be served by the provision of " Particulars ", it is to be recalled, is fundamentally different to the requirement to plead " material facts ": H 1976 Nominees Pty Ltd v Galli [1979] FCA 74 ; (1979) 30 ALR 181 at 186 to 187; Sides Engineering Pty Ltd v Energetech Australia Pty Ltd [2005] FCA 1672 at [6] to [7]. There is no requirement that a Respondent plead to a matter set forth in " Particulars ". To endorse at the outset a course whereby the issues are not clearly joined as between the protagonists is not a course which should be encouraged.
Case: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 , 154 FCR 425
Outcome: referred to
compliance with O 8 r 3(2) the Court retains a discretion as to whether leave should be granted to serve a respondent outside Australia. So much follows from the use of the term " may ". It has thus been observed that "... the power given by O 8 r 3(2) is clearly a discretionary power ": West v TWG Services Ltd [2009] FCA 1052 at [10] . His Honour Justice Gray was there satisfied that the requirements of O 8 r 3(2) had been satisfied but nevertheless concluded as follows: [61] This being the case, my view is that I should refuse the leave sought to serve the amended application and the amended statement of claim on the respondent in England. To serve those documents in their present form would be to visit upon the respondent a proceeding in Australia involving a significant number of claims, with only a small number of those claims justifying the grant of leave for such service. Although technically the proceeding as a whole might fall within O 8 r 2 of the Federal Court Rules , because of the presence of the small number of claims, this is not enough to persuade me to exercise the discretion to permit service out of the jurisdiction in respect of the whole proceeding. To do so would be to allow the tail to wag the dog. See also: Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217 at 222 to 223. The ambit of those considerations relevant to the exercise of the discretion may, however, be open to some debate and differences of opinion: e.g. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 , 154 FCR 425.