mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Rivera v Minister for Justice and Customs [2006] FCA 1784
Outcome: referred to
On 31 August 2006 the Minister made the surrender determination pursuant to s 22 of Extradition Act ('the surrender decision'). By application filed on 6 September 2007 pursuant to s 39B of the Judiciary Act , the applicant applied to this Court in relation to the surrender decision. Moore J dismissed the application on 21 December 2006: see Rivera v Minister for Justice and Customs [2006] FCA 1784. The applicant appealed from the decision of Moore J to the Full Court of this Court. Such appeal was dismissed on 9 August 2007: see Rivera v Minister for Justice and Customs [2007] FCAFC 123. 10 The applicant submitted that the decision which he was challenging was not the surrender decision under s 22 of the Extradition Act which had already been the subject of challenge before Moore J, the Full Federal Court and the High Court. Rather, his challenge is made to the Minister's decision to proceed to execute the surrender warrant before the applicant's communication with the UN Committee has been determined and while the applicant's ongoing litigation remains unresolved. 11 The applicant submitted that Article 3 of the Torture Convention entitles him to remain in Australia pending the determination of the UN. Article 3 provides: 1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. 12 The applicant also relies upon Article 22(1) of the Torture Convention which provides: A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. and Article 22(5)(b) of the Torture Convention which provides that the committee shall not consider a communication from a person unless it is satisfied that: The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.
Case: Vasiljkovic v The Commonwealth of Australia (2006) 227 CLR 614
Outcome: considered
The applicant submits that Chapter III of the Australian Constitution provides a foundation for his legitimate expectation that he would be permitted to conduct outstanding litigation before the execution of the surrender warrant. He relies upon the dissenting judgment of Kirby J in Vasiljkovic v The Commonwealth of Australia and Others (2006) 237 CLR 614 especially at [157]-[159] and submits that the act of the Executive arm of government in executing the warrant for surrender interferes with the role of the Judiciary. The applicant further submits that it is immaterial to his legitimate expectation arising under Chapter III of the Constitution that his communication to the UN Committee was made subsequent to the surrender decision. 31 Whilst the applicant relied upon the observations of Kirby J in Vasiljkovic 237 CLR 614 it is clear that his Honour's observations that the Judiciary prevails over the Executive in extradition matters were pivotal to his dissenting judgment. The majority in the High Court held that Part II of the Extradition Act (which incorporates ss 12 to 27 inclusive) is a valid exercise of the power of the Commonwealth.
Case: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10
Outcome: distinguished
The Minister submits that the applicant is estopped from now seeking to raise his communication to the UN Committee by the doctrine of res judicata, since it was not raised before Moore J as a ground to challenge the Minister's decision, and relies upon Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602 and Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 242 ; (2004) 146 FCR 10 at [36] - [54] . The applicant submits that he could not have lodged his communication with the UN prior to the delivery of his Honour's judgment, since he was required by Article 22(5)(b) of the Torture Convention to first 'exhaust all available domestic remedies' . 33 Since the hearing and delivery of Moore J's decision occurred prior to the applicant making his communication to the UN Committee, the issue could not properly belong 'to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation' , as referred to in Wong [2004] FCAFC 242 ; 146 FCR 10. Accordingly, the doctrine of issue estoppel and res judicata does not apply in relation to the issue of the applicant's communication to the UN before the Full Court hearing the appeal from Moore J's decision. The Court considers that the applicant is not estopped from raising such issue in this application.
Case: Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559
Outcome: cited
In my opinion orders giving effect to the proposed replacements of the various liquidators, administrators and trustees can and should be made. In relation to the application under the Trustees Act I regard that application as falling within the accrued jurisdiction of the Court by reason of the close connection between the Creditors' Trusts and the Deeds of Company Arrangement to which they related. The replacement of the trustees arises out of the same set of events as has given rise to the application for the appointment of new liquidators and deed administrators. Although the term "the Court" in s 77 of the Trustees Act is defined as the Supreme Court of Western Australia, this Court may exercise the jurisdiction as part of its federal jurisdiction in accordance with Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 ; (2001) 204 CLR 559. 59 I do not consider it necessary to make the various declarations of vacancy which were sought in the originating applications. Moreover, in my opinion, the text of the letters proposed to be sent to the creditors should not be framed so as to give the appearance that any of the liquidators, administrators or trustees has been removed by order of the Court. 60 So far as the costs are concerned, I have had regard to the submissions of the plaintiffs that they should be treated as costs in the liquidations, deed administrations and trusteeships affected by these orders. It was submitted that the reorganisation should be regarded as an incident of the administrations and should, in effect, be part of their overhead costs. I do not accept that submission. In my opinion it is quite inappropriate that costs flowing from a voluntary restructuring of the firm whose members have assumed these various offices should effectively be visited upon creditors. I can see no reasonable basis upon which the orders sought could properly be made. The costs orders will be refused and I will make orders to make it clear that these costs are not recoverable out of the assets of the companies or trusts affected by them. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 6 November 2007 Counsel for the Plaintiffs: Mr JE Scovell Solicitor for the Plaintiffs: Lavan Legal Date of Hearing: 23 October 2007 Date of Orders: Date of Publication of Reasons: 31 October 2007 and 6 November 2007 6 November 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1687.html
Case: Ian Charles Francis and Michael Patrick Joseph Ryan as Trustees of The West Australian Shed Commercial Pty Ltd Creditors Trust Deed and West Australian Shed Co Pty ltd Creditors Trust Deed [2003] WASC 39
Outcome: cited
The ASIC guideline notes that it is usual for the deed of company arrangement to be effectuated and to terminate after creditors' claims against the company have been removed in that way. When the deed of company arrangement terminates, the company ceases to be externally administered, the directors regain full control and it is no longer required to use the endorsement "subject to deed of company arrangement" on its public documents: see s 450E(2) of the Act. The relevant ASIC guideline is entitled 'External administration: Deeds of company arrangement involving a creditors' trust A Guide for registered liquidators appointed under Part 5.3A '. The guide is numbered Regulatory Guide 82 and was published in May 2005. The regulatory guide is quoted as an explanation of the creditors' trust in Ford's Principles of Corporations Law , (Butterworths) Part VII Chapter 26 at [26.200]. Creditors' trusts have been helpfully discussed in Heaver-Wren T, "DOCA Termination through Creditors' Trust Deeds" (2004) 12 Insolv LJ 117-120; see also McKenzie R, "Creditors' Trusts and the ASIC Guidelines" (2005) 17(3) Australian Insolvency Journal 4-6; Proudman D, "Some Issues Surrounding Creditors' Trust Deeds Parts 1 and 2 " (2005) 6 INSLB 1-5 and 31-34. The mechanism has been touched on in the Supreme Court decisions: Ian Charles Francis and Michael Patrick Joseph Ryan as Trustees of The West Australian Shed Commercial Pty Ltd Creditors Trust Deed and West Australian Shed Co Pty Ltd Creditors Trust Deed [2003] WASC 39 (Pullin J); Open Telecommunications Ltd (Subject to Deed of Company Arrangement) [2003] NSWSC 1198 (Hamilton J) and Rupert Co v Chameleon Mining (2006) 24 ACLC 635 (Austin J).
Case: In the matter of The Bonang Gold Mining Company, Limited (1893) 14 LR (NSW) Eq 262
Outcome: cited
On the question of the costs of the application, the plaintiffs submitted that the costs incurred in bringing it were properly incurred in winding up the companies. The liquidators of the companies, it was submitted, should be indemnified from the assets of the companies for the costs incurred in bringing the application on their behalf: In the matter of The Bonang Gold Mining Company, Limited (1893) 14 LR (NSW) Eq 262 and Re Mendarma Pty Ltd (In liq) (No 2) (2007) 61 ACSR 601.
Case: Re McGrath and Anor (as liqs of HIH Insurance Ltd (in liq)) (2005) 54 ACSR 55
Outcome: cited
It was submitted that pursuant to s 502 of the Act the Court may fill a vacancy in the office of a liquidator where such a vacancy exists. Reference was made to the judgment of Barrett J in Re McGrath and Anor (as liqs of HIH Insurance Ltd (in liq)) (2005) 54 ACSR 55 in which it was held that the Court can make a prospective order appointing a liquidator contingent upon a vacancy being created by the liquidator's resignation. Re Application of Vouris (2004) 49 ACSR 543 was also cited.
Case: Re Memdarma Pty Ltd (In liq) (No 2) (2007) 61 ACSR 601 
Outcome: cited
On the question of the costs of the application, the plaintiffs submitted that the costs incurred in bringing it were properly incurred in winding up the companies. The liquidators of the companies, it was submitted, should be indemnified from the assets of the companies for the costs incurred in bringing the application on their behalf: In the matter of The Bonang Gold Mining Company, Limited (1893) 14 LR (NSW) Eq 262 and Re Mendarma Pty Ltd (In liq) (No 2) (2007) 61 ACSR 601.
Case: Universal Holidays Pty Ltd v Tseng [2008] FCA 1011
Outcome: referred to
Universal Holidays Pty Ltd v Tseng [2008] FCA 1011 , Lander J dismissed an application by Mr Garrett to be joined in the cross-claim in the proceeding as the sole trustee of the Garrett Family Trust. The sole issue upon that application was whether in fact the Garrett Family Trust, of which Mr Garrett claimed to be a trustee, had ever existed. After a detailed consideration of the evidence Lander J concluded relevantly that there is not, and never has been, a separate entity called the Garrett Family Trust of which Mr Garrett was one of the trustees: [121]. His Honour held that the expression "the Garrett Family Trust" when used in certain "transactional documents" was a reference to the Andrew Garrett Family Trust which was then the only relevant trust in existence. The application was accordingly dismissed. Mr Garrett sought leave to appeal against the orders of Lander J dismissing his application. That application was refused by Lander J on 8 September 2008. In dismissing the application for leave Lander J observed that Mr Garrett was in effect seeking to re-litigate before the Full Court on different terms and on different evidence than the application which has previously been before him: Garrett v Macks [2008] FCA 1419 at [26] .
Case: Garrett v Macks [2008] FCA 1419
Outcome: referred to
Garrett sought leave to appeal against the orders of Lander J dismissing his application. That application was refused by Lander J on 8 September 2008. In dismissing the application for leave Lander J observed that Mr Garrett was in effect seeking to re-litigate before the Full Court on different terms and on different evidence than the application which has previously been before him: Garrett v Macks [2008] FCA 1419 at [26] .
Case: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564
Outcome: cited
relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have a 'real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties. The person seeking relief must have a "real interest": Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582.
Case: Forster v Jododex Australia Aust Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421
Outcome: cited
person seeking the declaration must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 per Gibbs J at 437; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [8] .
Case: Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085
Outcome: cited
person seeking the declaration must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought: Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 per Gibbs J at 437; Australian Competition and Consumer Commission v Admiral Mechanical Services Pty Ltd [2007] FCA 1085 at [8] .
Case: Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440
Outcome: cited
case is not "real", for this purpose, when the issue to be determined is divorced from the facts to which it relates. A general declaration "in air", which is unrelated to specific facts, may not resolve the dispute between the parties: Martin v Taylor [2000] FCA 1002. Nor is the case "real" if by granting a declaration the Court will be acting in an advisory way and will not be quelling an existing controversy or establishing any immediate right, duty or liability between the parties: Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394.
Case: Bass v Permanent Trustee Company Ltd [1999] HCA 9 ; (1999) 198 CLR 334
Outcome: cited
Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 198 CLR 334 at 356 [48] the majority observed that one crucial difference between an advisory opinion and a declaratory judgment was the fact that an advisory opinion is not based on a concrete situation and does not amount to a binding decision raising a res judicata between parties. They then adopted, with apparent approval, what is found in Zamir &amp; Woolf, 'The Declaratory Judgment', (1993) 2 nd Ed where it was emphasised that where the dispute is divorced from the facts it is considered hypothetical and not suitable for judicial resolution by way of declaration or otherwise. In my opinion such is the situation here. The declarations sought are not directed to a resolution of the complex factual matters adverted to by Mr Garrett in his correspondence addressed to Fosters Group Ltd although in a very limited way they may relate to them. The affidavit does not clarify the interest which is said to be the subject of the declarations sought. Furthermore the application filed by Mr Garrett does not name any respondents.
Case: Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166
Outcome: cited
The status of the applicant as an advocate for environmental protection is said not to be a sufficient reason to deny Gunns its costs. Support for this argument is found in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171 per Burchett J, where his Honour states, in similar circumstances to the present case: If a body is set up to pursue causes, which its founders consider to be in the public interest, ... it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs. This proposition was also quoted with apparent approval by the Full Court in Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 5) [1998] FCA 432 ; (1998) 84 FCR 186 at 188.
Case: Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55
Outcome: referred to
There is no need to revisit the arguments made in support of these propositions as they are adequately set out in Gunns' submissions above, save to say that the Minister also rejects the contention that because the proceeding was brought in the public interest this is reason enough to depart from the usual order. The Minister says there is no general rule that costs will not be awarded in a case that raises matters of public interest: see, Oshlack per Gaudron and Gummow JJ at 98-100. The Minister points to the case of Save the Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2007) 230 ALR 411, a case in which an application was brought to challenge decisions of the responsible Minister made under the EPBC Act, and where the Full Court said at 413 that "there is no special costs regime applicable to 'public interest' litigation". That case refers to the case of South West Forest Defence Foundation v Department of Conservation and Land Management (No 2) [1998] HCA 35 ; (1998) 154 ALR 411 at 412 per Kirby J in support of the proposition that there is no special costs regime applicable to public interest litigation. Further, the Full Court in Save the Ridge at 413 quotes with approval the comments of the Full Court of the Supreme Court of Western Australia in Buddhist Society of Western Australia (Inc) v Shire of Serpentine-Jarrahdale [1999] WASCA 55 per Kennedy, Wallwork and Murray JJ who said at [11]: In our opinion great care must be taken with the concept of public interest litigation that it does not become an umbrella for the exercise of discretion with respect to costs in an unprincipled, haphazard and unjudicial manner ... The passage was also quoted with approval by Weinberg J in Mees v Kemp (No 2) [2004] FCA 549 at [19] .
Case: Donald Campbell &amp; Co Ltd v Pollak [1927] AC 732 
Outcome: followed
In Donald Campbell &amp; Co Ltd v Pollak [1927] AC 732 the House of Lords examined the Court of Appeal's discretion to award costs, framed in similar terms to the Federal Court Act, by s 5 of the Judicature Act 1890 (UK). In that case Viscount Cave LC said at 811-812 (Viscount Dunedin, Lord Phillimore and Lord Carson agreeing): A successful defendant ... has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; ... and the Court has an absolute and unfettered discretion to award or not to award them. This discretion like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. 6 More recently, that statement of principle was followed in Ruddock v Vadarlis (No. 2) [2001] FCA 1865 ; (2001) 115 FCR 229 by Black CJ and French J at 234. That principle has been re-stated many times, for example, in Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534 Dawson J said at 557: Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell &amp; Co v Pollak ... Further support for that proposition is found in Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 where McHugh J (in dissent) said at 96: Although the statutory discretion is broadly stated, it is not unqualified. It clearly cannot be exercised capriciously. Importantly, the discretion must be exercised judicially in accordance with established principle and factors directly connected with the litigation ... ... By far the most important factor which courts have viewed as guiding the exercise of the costs discretion is the result of the litigation.
Case: Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 5) [1998] FCA 432 ; (1998) 84 FCR 186
Outcome: cited
The status of the applicant as an advocate for environmental protection is said not to be a sufficient reason to deny Gunns its costs. Support for this argument is found in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171 per Burchett J, where his Honour states, in similar circumstances to the present case: If a body is set up to pursue causes, which its founders consider to be in the public interest, ... it does not follow that those proceeded against should be deprived of the ordinary protection of a right to an order in respect of their costs. This proposition was also quoted with apparent approval by the Full Court in Friends of Hinchinbrook Society Inc v Minister for the Environment (No. 5) [1998] FCA 432 ; (1998) 84 FCR 186 at 188.