mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425
Outcome: cited
Order 20, rule 2 contemplates that a proceeding may be stayed or dismissed generally in circumstances where the court is satisfied that the proceeding discloses no reasonable cause of action; the proceeding is frivolous or vexatious; or the proceeding is an abuse of the process of the court. In reaching the relevant state of satisfaction, the court will examine the claims and allegations of the applicant to determine whether the contentions are so clearly untenable that they cannot possibly succeed in the sense contemplated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 recognising that the principles stated by the Chief Justice ought not to be given 'canonical force' ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437, per Gleason CJ, Gummow, Hayne and Crennan JJ) and the test to be applied by the court is whether the court can be satisfied of a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way' ( Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 575-6 [57] per Gaudron, McHugh, Gummow and Hayne JJ) in determining whether the issues in the proceeding should be decided 'in a summary way' .
Case: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552
Outcome: cited
Order 20, rule 2 contemplates that a proceeding may be stayed or dismissed generally in circumstances where the court is satisfied that the proceeding discloses no reasonable cause of action; the proceeding is frivolous or vexatious; or the proceeding is an abuse of the process of the court. In reaching the relevant state of satisfaction, the court will examine the claims and allegations of the applicant to determine whether the contentions are so clearly untenable that they cannot possibly succeed in the sense contemplated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 at 130 recognising that the principles stated by the Chief Justice ought not to be given 'canonical force' ( Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 437, per Gleason CJ, Gummow, Hayne and Crennan JJ) and the test to be applied by the court is whether the court can be satisfied of a 'high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way' ( Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552 at 575-6 [57] per Gaudron, McHugh, Gummow and Hayne JJ) in determining whether the issues in the proceeding should be decided 'in a summary way' .
Case: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Outcome: cited
Having regard to all of those matters, it seems to me that no arguable error on the part of her Honour has been identified in the making of an order pursuant to s 31A of the Act in dismissing the proceedings. Perhaps the test in determining a reasonable prospect of successful prosecution of a proceeding is whether there is a demonstrated 'real (as opposed to fanciful) issue of fact to be decided' ( Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 , per Rares J [31] [48]). However, the 'real issue of fact' must be framed within a comprehensible cause of action (in respect of which the applicant has standing) so that findings of fact in favour of the applicant give rise to a recognised remedy . 65 Accordingly, the application before me for an extension of time in which to file and serve a notice of appeal from the judgment of her Honour Justice Collier given on 7 and 11 December 2006 must be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 23 February 2007 Counsel for the Applicant: Applicant - Self Represented Solicitor for the Applicant: Applicant - Self Represented Counsel for the Respondents: Mr C D Coulsen Solicitor for the Respondents: Whittle Lawyers Date of Hearing: 6 February 2007 Date of Judgment: 23 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/195.html
Case: Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13
Outcome: cited
On 16 January 2006 I delivered judgment discharging the examination summons and quashing the decision made by ASIC on 3 August 2005. ASIC and Highstoke were directed to pay the costs of the judicial review proceedings. Costs were reserved until today on the application to discharge the summons. The parties were given an opportunity to make submissions as to the costs in the Examination Proceedings Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd [2007] FCA 13. 6 Hayes Knight seeks an order that ASIC pay two-thirds of its costs in the Examination Proceedings from 8 February 2006, which was the date upon which ASIC intervened. Its submissions were, in substance, as set out at par 15, listing circumstances which it said weighed heavily in favour of an order that ASIC pay two-thirds of its costs in relation to the constitutional matter: '(a) ASIC's charter, under s 1(2) of the Australian Securities and Investments Commission Act 2001 (Cth), is to duly and properly administer the laws conferring functions and powers on it; (b) this proceeding, and WAD 281 of 2005 , arose as a result of ASIC having improperly exercised the powers conferred on it; (c) ASIC elected to intervene in this proceeding under s 1330(1) of the [Corporations Act], and by virtue of s 1330(2) of the [Corporations Act] is taken to be a party with all the duties and liabilities of a party; (d) the interpretation of the [Corporations Act] is a matter of public importance and as ASIC is charged with administering the legislation, it was appropriate for ASIC to intervene under s 1330(1) of the [Corporations Act]. However, parliament has seen fit to impose on ASIC, by s 1330(2) of the [Corporations Act], the usual liabilities of a party (including costs) as a consequence of intervening under s 1330(1) of the [Corporations Act]; (e) ASIC aggressively defended its position generally. In this regard: (i) the Respondents' first submissions on the constitutional matter dated 4 April 2006 set out the legal argument on the constitutional matter in 8 paragraphs (at [16] to [23]; (ii) ASIC's submissions filed on 2 May 2006 raised detailed arguments concerning the construction of s 596A of the [Corporations Act], as well as detailed arguments on the constitutional validity of the proposed examination; and (iii) ASIC filed supplementary submissions on 18 May 2006; (f) ASIC contentions have been held to be incorrect; (g) ASIC's involvement in this proceeding caused the Respondent to incur substantial, additional costs in responding to ASIC's submissions and additional hearing time; and (h) the Respondents were entirely successful' 7 Highstoke, seeking to spread the burden of the costs in the Examination Proceedings, submits that ASIC and itself should be ordered to pay them, in effect, jointly and severally. It submits that if there is any differentiation to be drawn then ASIC should bear two-fifths of the costs and Highstoke three-fifths. Highstoke, in effect, accepts that any costs order, as against ASIC, should apply to costs incurred after 8 February 2006, the date of ASIC's intervention.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363
Outcome: cited
Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 386 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 (7 April 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2006] FCA 386 EVIDENCE hearsay market research reports whether received as proof of truth of contents whether discretion under s 136 of Evidence Act should be exercised Evidence Act 1995 (Cth) ss 9 , 60 , 77 , 136 Lee v The Queen [1998] HCA 60 ; (1998) 195 CLR 594 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 cited Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 cited Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 378, 382 applied Ligertwood, Australian Evidence , 4 th ed, 2004, at 495 Australian Law Reform Commission Report 102 at 7.96, 10.147 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (NO 3) NO. VID 555 OF 2005 HEEREY J 7 APRIL 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 7 APRIL 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The documents produced by the applicant's witnesses referred to in these reasons are not received as proof of the truth of their contents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 7 APRIL 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 31 To the extent that the documents express opinions of the authors about consumer behaviour I think they are inadmissible, or alternatively would be rejected under s 135 , for the reasons given in my ruling on Dr Gibbs' evidence: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363. If Dr Gibbs' direct opinion evidence is not admissible, still less could hearsay opinions of the same kind be received.
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
There is a question as to whether leave should be granted to amend the notice of appeal. As was observed by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , at page 7: "To say that an appeal is by way of re-hearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice, that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. " 9 To permit these amendments to the notice of appeal would have about it, in my opinion, a tendency to reduce the proceedings in the Federal Magistrates Court to "little more than a preliminary skirmish". 10 If it were the case that on examination, a ground of additional challenge had about it, even arguably, the likelihood that the proceedings in the Refugee Review Tribunal had completely miscarried at law, then of course the amendment of a notice of appeal would be readily granted. I do not see that any of the bases additionally advanced in the Applicant's submissions, have about them that quality in the circumstances of this particular case. I therefore do not propose, insofar as one might infer a request to amend the notice of appeal from the way in which the written submission has been cast, to allow such amendment. Instead I propose to consider, in more detail, the merits of the grounds of appeal as identified in the notice of appeal.
Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: distinguished
Ground 4 is more particular. It alleges that the Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by a Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. That case deals with the application of what is known as the "Internal Protection Principle". More particularly, it addresses whether a person who has a well-founded fear of persecution in one region of his or her country of nationality can nonetheless reasonably avail himself or herself of protection within another region of that country. On behalf of the Minister it has been submitted that the principles discussed in that case only arise where there has been a finding that the protection visa applicant has a well-founded fear of persecution. 13 If there is no finding of a well-founded fear of persecution, questions of relocation and of the application of an internal protection principle do not arise. The Appellant's difficulty in this case in relation to ground 4 is that there is a finding by the Tribunal that he does not have a well-founded fear of persecution. In turn, that finding of the Tribunal is a finding that seems, to me, to be one that was reasonably open to the Tribunal to make. That seems to have been the view of the Federal Magistrate and I see no error in that view. In the absence of that foundation, ground 4 must necessarily fail. 14 Ground 5 is in these terms: The Federal Magistrate failed to take into consideration that the tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. 15 My reading of the Federal Magistrate's decision is that the Magistrate considered in detail the approach that the Tribunal had taken to the appellant's claim for a protection visa. The conclusion reached by the Federal Magistrate was that the Tribunal did consider the appellant's situation in relation to the claim he advanced for a protection visa. The Magistrate correctly apprehended that the Tribunal had accepted some aspects of the Appellant's claims and rejected others on the basis of credibility. The Magistrate noted that the Tribunal accepted that the Appellant had been subject to physical harassment in 2003. As was appropriate, though, the Magistrate conceded to the Tribunal the role of making value judgments on the merits. 16 It is apparent to me that the merits of the Appellant's claim for a protection visa were considered by the Refugee Review Tribunal. So much was also apparent to the Federal Magistrate. I see no error in the Magistrate's conclusion that the Tribunal had dealt with the Appellant's claim for protection visa on the merits. It is important for the courts, in exercising a judicial review and even more so an appellate jurisdiction, to adopt a principled restraint in the interference with value judgments by administrative tribunals on factual matters. Ground 5 necessarily fails.
Case: Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202 ; (1988) 81 ALR 397
Outcome: cited
Counsel for the respondents also pointed to some evidence to the effect that related proceedings are being funded by two gentlemen, Mr Brooks and Mr James as material that suggests that the proceedings have been brought for an ulterior purpose. She submitted that, for this additional reason, indemnity costs based upon the principle in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd [1988] FCA 202 ; (1988) 81 ALR 397 should be ordered and should be ordered in respect of the whole proceedings. 8 It seems to me that more evidence would be required if I were to accept that these proceedings had been brought for an ulterior or extraneous purpose. I am not prepared to order indemnity costs on this basis. However, in my view, the proceedings could have, and should have, been resolved before today along the lines of the solution which was ultimately imposed by me earlier today. That solution had, in substance, been offered by the respondents on 4 December 2008. Indeed, much of what was offered on 4 December 2008 had been previously offered. 9 In those circumstances, I am of the view that the respondents are entitled to indemnity costs as and from 5 December 2008.
Case: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Outcome: cited
before and after the use of the word "speculative" the Tribunal identified for itself the correct test for a well-founded fear of persecution: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429. I agree with the Federal Magistrate that the Tribunal's reasons, considered as a whole, show that the Tribunal posed for itself the correct test. The second ground of appeal, even if successful, would not mean that the Tribunal had committed jurisdictional error. The question of State protection did not arise in this case because the Tribunal found that the appellants' fear of persecution was not well-founded. That being the case, the question of State protection did not arise. Even if it did, however, in my opinion, the ground has not been made out. Whilst the Tribunal found that rape remained a serious problem in South Africa, the Tribunal raised with the appellants the proposition that they would be able to receive protection from the authorities if they were to return to South Africa. In the end result, it is not entirely clear whether the Tribunal made a decision of that kind but, in my opinion, they were not bound to do so having regard to the conclusion that the appellants' fear of persecution was not well-founded. Insofar as the Tribunal considered the question of State protection, no error has been demonstrated. That disposes of the two grounds.
Case: Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 
Outcome: cited
Tribunal's reasons must be read fairly and in their context: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271, 291. The Tribunal's use of the word "speculative" was not intended, on a fair reading of the Tribunal's decision, to erect a test for a claim for a well-founded fear of persecution other than that contained in the Refugees Convention. The Tribunal said that the fundamental question for it "is whether there is a real chance of Convention-related harm occurring to the applicants in the reasonably (sic) future." It then addressed the second and third appellants' fear of being raped in South Africa. It is clear that the Tribunal posed for itself the appropriate test, notwithstanding that the Tribunal answered it by saying that the claim was speculative. That is made even clearer by what the Tribunal said after making that finding. It said, "... the Tribunal is not satisfied that those factors, without more, mean that there is a real chance that they would be raped." Other matters were referred to in the appellants' written and oral submissions. In those submissions, the appellants contended that the Tribunal should have found that the second and third appellants' claims of fear of rape were well-founded. The Tribunal found that rape was a serious problem in South Africa. However, the ultimate finding as to whether or not the second and third appellants' fears were well-founded was a matter for the Tribunal. This Court is not entitled to embark upon a merits review: Wu Shan Liang [1996] HCA 6 ; 185 CLR 259 at 272. In the appellants' written submissions, the appellants suggested that the Tribunal failed to assess the second and third appellants as members of a particular social group in considering their claims of fear of rape. The Tribunal did assess their claims on the footing that they were females and beautiful young Indian women. No other particular social group was propounded by the appellants. In that regard, the Tribunal assessed their claims appropriately. In any event, the Tribunal found that their claims of fear of rape were not well-founded. During the hearing, the appellants' counsel contended that the Tribunal had fallen into error by saying that it was "no systematic ill-treatment of Indians by 'black' South Africans". It was put to counsel that the appellants' notice of appeal did not make such a claim. Nor did the appellants' application to the Federal Magistrates Court make such a claim. The Court adjourned for a short time to enable the appellants' counsel to consider whether to apply to amend the notice of appeal to include a further ground. On resumption, the appellants' counsel said no such application would be made. Presumably, in doing so, the appellants had regard to s 91R of the Migration Act 1958 (Cth).
Case: Australian Telecommunications Corporation v Lambroglon (1990) 12 AAR 515
Outcome: followed
In Australian Telecommunications Corporation v Lambroglon (1990) 12 AAR 515 at 519 Ryan J indicated that because O 53 was not qualified in any way by reference to the other Rules, it should in the first instance determine the practice and procedure applicable to appeals from the AAT. The parties made no submission to the contrary. 13 Indeed, the second respondent stressed that the Court should apply O 53 in its terms, rather than direct that the venue of the hearing of the appeal be changed to the Victoria District Registry under s 48 of the Federal Court of Australia Act 1976 (Cth), or under O 30 r 6(1), or that the proceeding be transferred to that Registry under O 10 r 1(2)(f), having regard to the definition of the "proper place" in O 1 r 4 of the Rules.
Case: Hadid v Lenfest Communications Inc (1996) 70 FCR 403
Outcome: considered
In Hadid v Lenfest Communications Inc (1996) 70 FCR 403, Hill J at 407 pointed out that, for the purposes of enlivening the Court's power to control access to certain documentation under s 50 of the Federal Court of Australia Act 1976 (Cth), the "hearing of a proceeding" could extend to a directions hearing or an interlocutory process. See also E v Australian Red Cross Society (1991) 27 FCR 310. That view is reflected in, and consistent with, the definition of "hearing" in O1 r 4 of the Rules, namely that "hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers". Order 10, referring to the Court's powers at a directions hearing, apparently uses the term "hearing" in r 1(2)(c) in a somewhat more confined sense as a hearing in which the Court proposes to perform an adjudicative function (not necessarily a final adjudication). Order 30 r 1(2)(a) uses the term "trial" to include any interlocutory hearing. In Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, Hunt J at 434-436 regarded an appeal "after a trial or a hearing on the merits" as including to an appeal from an interlocutory hearing. A similar conclusion was reached by Anderson J in Melbourne &amp; Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 475-477.