mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Slack v Bottoms English Solicitors [2002] FCA 1445
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494
Outcome: cited
substantive defect in a bankruptcy notice may result in its invalidity. In Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 Mason CJ, Wilson, Brennan and Gaudron JJ reviewed the authorities and concluded at 79 to 80 (citations omitted): The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice ... In such cases the notice is a nullity whether or not the debtor in fact is misled ... If the amount specified in a bankruptcy notice is in fact due and payment is claimed in accordance with the judgment, the essential requirements of s. 41(2)(a)(i) &#8212; the only requirements presently relevant &#8212; are met. Understatement of the amount due, whether it be an understatement of the judgment debt or of interest payable thereon, will thus constitute a defect which is substantive rather than formal only if the understatement is objectively capable of misleading the debtor as to what is necessary for compliance with the notice. It may be that, in a given case, understatement is capable of misleading the judgment debtor particularly if the notice is capable of producing uncertainty as to whether the debtor is required to pay the amount in fact due or the amount specified in the notice. In such a case uncertainty arises, not merely from the understatement, but from the understatement in the context of the particular bankruptcy notice. No such uncertainty arises if it is clear that payment of the amount specified in the notice will constitute compliance with the notice. It is " the capacity of the bankruptcy notice to mislead the debtor to whom the notice is directed that matters, not some hypothetical debtor ": Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494 at 500 per Lockhart J.
Case: Yang v Mead [2009] FMCA 636
Outcome: affirmed
proceeding NSD 774/2009 the Appellant, Ms Yang, appeals against a decision of a Federal Magistrate delivered on 15 July 2009: Yang v Mead [2009] FMCA 636. In proceeding NSD 775/2009 the Appellant, Ms Mead, appeals against a decision of the same Magistrate delivered on the same date: Mead v Mead [2009] FMCA 637. The Federal Magistrate was not satisfied that Ms Yang " had a counter-claim, set-off or cross demand that came within s.40(1)(g) of the Act that should be determined ": [2009] FMCA 636 at [19] . The Notice of Appeal as filed in this Court by Ms Yang has much in common with the Notice of Appeal as filed by Ms Mead in her own appeal. Again the same approach has been pursued of attempting to discern in any of the purported " Grounds of Appeal " whether there is any error in the reasons for decision of the Federal Magistrate or whether Ms Yang has any " counter-claim, set-off or cross demand " which has not hitherto been addressed. None can be discerned. Whatever may have been the difficulties confronting Ms Yang when before the Federal Magistrates Court, no such difficulties were claimed in this Court. Her appeal was presented on her behalf by Ms Mead.
Case: SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814
Outcome: cited
1 December 2008, for reasons which I then published, I made a number of orders directed to the granting to the appellant of leave to appeal against the judgment of the Federal Magistrates Court given on 12 November 2007: see SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814. Leave to appeal was granted on one ground only, namely "the Federal Magistrates Court erred in concluding that no jurisdictional error was apparent in the Refugee Review Tribunal's (the Tribunal) decision in that the Tribunal had erred by having regard to the conduct of the appellant in Australia when determining her application for a protection visa. In so doing, the Tribunal failed to comply with the stipulation made in s 91R(3) of the Migration Act 1958 (Cth) (Migration Act) that such conduct must be disregarded". The Appellant subsequently filed and served a notice of appeal specifying that nominated ground of appeal. The background to the Appellant's application for a protection visa together with the course of subsequent proceedings in the Refugee Review Tribunal, in the Federal Magistrates Court and in this Court are set out in my reasons for judgment in respect of the leave to appeal application. These reasons for judgment should be read in conjunction with the reasons for judgment which I gave in respect of that leave to appeal application.
Case: SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 170 FCR 515
Outcome: cited
the time when I granted leave to appeal there was a basis for apprehending by analogy as between the circumstances of the Appellant's case and those in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 170 FCR 515 that an arguable case for the granting of leave to appeal existed. An application for special leave to appeal by the Minister in SZJGV was then pending in the High Court of Australia. In the interval which has passed between 1 December 2008 and today the High Court has, in respect of SZJGV , granted special leave to appeal to the Minister, heard the appeal and, on 30 September 2009, determined the appeal: see Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595. The High Court, by majority, allowed the Minister's appeal in SZJGV . In so doing, the High Court reversed the result before a Full Court of this Court which had provided the foundation for a conception that the present Appellant had an arguable case for a grant of leave to appeal.
Case: Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595
Outcome: applied
the time when I granted leave to appeal there was a basis for apprehending by analogy as between the circumstances of the Appellant's case and those in SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 170 FCR 515 that an arguable case for the granting of leave to appeal existed. An application for special leave to appeal by the Minister in SZJGV was then pending in the High Court of Australia. In the interval which has passed between 1 December 2008 and today the High Court has, in respect of SZJGV , granted special leave to appeal to the Minister, heard the appeal and, on 30 September 2009, determined the appeal: see Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595. The High Court, by majority, allowed the Minister's appeal in SZJGV . In so doing, the High Court reversed the result before a Full Court of this Court which had provided the foundation for a conception that the present Appellant had an arguable case for a grant of leave to appeal.
Case: Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157
Outcome: cited
In these circumstances the Court of its own motion listed the matter for a directions hearing on 9 April 2008. At that directions hearing the Court directed the parties to file and serve submissions in relation to the disposition of the application pursuant to s 190F(6) of the Native Title Act on or before 7 May 2008. Subsequent to this date and in light of the Full Court's decision in the matter of Gudjala People # 2 v Native Title Registrar [2008] FCAFC 157 delivered on 27 August 2008, parties were invited by the Court to file and serve any further submissions prior to the hearing of the application. 5 On 21 May 2008 the applicant filed submissions in relation to all the Collard applications currently before the Court today ('the Collard Submissions') pursuant to the Order of the Court made on 9 April 2008. 6 The effect of the Collard submissions across the applications appears to be to the effect that the Court should not dismiss them under s 190F(6) of the Native Title Act because they are likely to be withdrawn in exchange for some form of recognition by the South West Aboriginal Land and Sea Council. It is not said in what way that is to be achieved or the terms in which it might be achieved. Somehow, it is said, it would recognise the status of Mr and Mrs Collard who are the Applicants.
Case: Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273
Outcome: cited
Whether an award for costs is apportioned between the parties is a matter for judicial discretion: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course of litigation costs follow the event; that is, unless special circumstances exist to order otherwise, the successful party should be reimbursed its costs of the litigation: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134 at 48-136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273 at 274; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194 at [2] .
Case: Cretazzo v Lombardi (1975) 13 SASR 4
Outcome: cited
When apportioning costs, however, a Court should be mindful not to discourage litigants from canvassing all material issues for fear of an adverse costs order: Cretazzo v Lombardi (1975) 13 SASR 4 at 12. Equally, litigants should not be rewarded for the injudicious pursuit of issues without substance. 13 In this case, I consider it appropriate to apportion the costs to some extent. Having regard to the authorities and the submissions of the parties summarised above at [5]-[9], I find that it is appropriate to reduce the costs award by 10%. 14 Accordingly, the order is that the respondents pay 90% of the costs of the applicant in these proceedings. I direct the parties to liaise with my associate to arrange further directions in the matter after Austal's application for leave to appeal or, if leave is granted, Austal's appeal from the orders made on 20 July 2007, is determined. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 10 August 2007 Counsel for the Applicant: Mr C. Dimitriadis Solicitor for the Applicant: Spruson &amp; Ferguson Lawyers Counsel for the Respondent: Dr L. Duncan Solicitor for the Respondent: Griffith Hack Date of Judgment: 10 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1141.html
Case: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261
Outcome: cited
Whether an award for costs is apportioned between the parties is a matter for judicial discretion: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course of litigation costs follow the event; that is, unless special circumstances exist to order otherwise, the successful party should be reimbursed its costs of the litigation: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134 at 48-136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273 at 274; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194 at [2] .
Case: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134
Outcome: cited
Whether an award for costs is apportioned between the parties is a matter for judicial discretion: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course of litigation costs follow the event; that is, unless special circumstances exist to order otherwise, the successful party should be reimbursed its costs of the litigation: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134 at 48-136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273 at 274; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194 at [2] .
Case: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Outcome: cited
Although courts have in the past been inclined to take a broad approach by looking at the substance of the overall outcome and have been reluctant to exercise discretion to apportion costs according to parties' success or failure on particular issues (see Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201 at 208), recent authorities accept that in complex commercial matters, and particularly in patent suits where there are numerous issues, the discretion may be exercised to apportion costs concomitant with the parties' respective success or failure on certain issues: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 at 7; and see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] .
Case: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6
Outcome: cited
Although courts have in the past been inclined to take a broad approach by looking at the substance of the overall outcome and have been reluctant to exercise discretion to apportion costs according to parties' success or failure on particular issues (see Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201 at 208), recent authorities accept that in complex commercial matters, and particularly in patent suits where there are numerous issues, the discretion may be exercised to apportion costs concomitant with the parties' respective success or failure on certain issues: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 at 7; and see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] .
Case: TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194
Outcome: cited
Whether an award for costs is apportioned between the parties is a matter for judicial discretion: s 43(2) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course of litigation costs follow the event; that is, unless special circumstances exist to order otherwise, the successful party should be reimbursed its costs of the litigation: Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 48-134 at 48-136; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 at 271; Beecham Group PLC v Colgate-Palmolive Pty Ltd (2005) 66 IPR 273 at 274; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 3) [2005] FCAFC 194 at [2] .
Case: Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201
Outcome: cited
Although courts have in the past been inclined to take a broad approach by looking at the substance of the overall outcome and have been reluctant to exercise discretion to apportion costs according to parties' success or failure on particular issues (see Trade Practices Commission v Nicholas Enterprises Pty Limited (No 3) (1979) 28 ALR 201 at 208), recent authorities accept that in complex commercial matters, and particularly in patent suits where there are numerous issues, the discretion may be exercised to apportion costs concomitant with the parties' respective success or failure on certain issues: JMVB Enterprises (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6 at 7; and see James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [34] .
Case: Re Refugee Tribunal Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982
Outcome: cited
Even assuming that that is the basis of challenge it faces the difficulty that there is not a scintilla of evidence of actual bias on the part of the Tribunal and neither is there to be found in the Tribunal's reasons anything which would give rise to the objective possibility of bias, having regard to what was said by the High Court in respect of such a challenge in Re Refugee Tribunal Ex Parte H [2001] HCA 28 ; (2001) 75 ALJR 982 at 983, para 5. Thus, however one approaches ground 3, whether from a perspective of a challenge to credibility findings or from the perspective of a repetition of a bias challenge, there is no merit in that ground. 15 Ground 4 is not, in terms a ground of jurisdictional error, although in fairness and having regard to the reference in the ground to the Magistrate's conclusion at para 24 of this reasons for judgment, I take that ground to be a repetition of the allegation that the Tribunal breached s 425 of the Migration Act and that the learned Magistrate erred in not so finding. There was certainly a development of argument in the Appellant's oral submissions that there had been a breach of s 425 , although as was, with respect, correctly submitted on behalf of the Minister, there was an absence of particularity in the basis of challenge as developed in those oral submissions. 16 In the notice of appeal, para 4, the Appellant alleges, or at least states, that he does not know why the Magistrate (I infer) could not listen to the recording tapes of the Tribunal's hearing. He makes reference to his absence of financial resources and consequent inability to afford the fee in respect of obtaining the transcript of the Tribunal's hearing. It was not, though, for the Magistrate of his own motion to obtain such a transcript.
Case: SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 81 ALJR 515
Outcome: cited
It is worth repeating, lest the Appellant think that I differ from the Federal Magistrate in this regard, that the Tribunal was not obliged to disclose to him under s 425 its mental processes or to give a running commentary on what it thought about the evidence that he was giving. The authority to which the Federal Magistrate makes reference, SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 81 ALJR 515 at 523, para 48, binds me as much as it did the Federal Magistrate in this regard. 19 Overall there is undoubtedly a feeling of disappointment on the part of the Appellant that his claimed basis for his protection visa was not upheld. However, and it is a significant "however," as I have already stated it is not the role of a court on a judicial review proceeding to revisit merits and much less is it the role of this Court. The bases of challenge which are set out in the notice of appeal are not, in my opinion, made out. That is so whether one regards the challenge made in ground 3 as a challenge to credibility findings on the basis of illogicality or irrationality or whether one regards that ground as a repetition of the bias ground that was advanced before the Federal Magistrate. 20 For these reasons, then, the appeal in my opinion must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 12 August 2008 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 5 August 2008 Date of Judgment: 5 August 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1202.html
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: cited
after I made those orders and handed down the reasons for judgment, Mr Priestley made an application in each case pursuant to O 52 r 10 of the Federal Court Rules . He made no submissions as to why leave should be granted other than to repeat the fact that he invoked O 52 r 10 as was, he said, his right. In applying the test set out for the grant of leave to appeal in D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , I have concluded that neither decision was attended with sufficient doubt to warrant a grant of leave to appeal. Further, no substantial injustice would be done if leave to appeal were not granted, even assuming that the decisions were wrong. To the extent that it is relevant, the respondents say that, in each case, if the matters were to go to hearing, the same evidence would be adduced on their part although perhaps in a different form. This, however, is not conclusive of the matter.
Case: Priestley v Godwin [2008] FCA 1179
Outcome: cited
I formed the above view and informed the parties, Mr Priestley, in effect, sought leave to reopen his applications for leave to appeal in order to raise further matters as to why leave should be granted. He raised matters that were the subject of previous decisions by me in relation to the alleged invalidity of s 31A of the Federal Court Act and O 20 r 5 of the Federal Court Rules ( Priestley v Godwin (No 3) [2008] FCA 1529 ; (2008) 172 FCR 139) and in relation to the applicability of the Human Rights Act 2004 (ACT) ( Priestley v Godwin (No 2) [2008] FCA 1453 ; (2008) 171 FCR 493). He also raised allegations, unsupported by evidence, of what he termed bias and jurisdictional error. I dealt with Mr Priestley's allegations of bias in Priestley v Godwin [2008] FCA 1179. Those allegations were also the subject of an application to the High Court and were described by French CJ as ' not tenable ' ( Priestley v Godwin (Parliamentary Service Merit Protection Commissioner) [2008] HCA 59 ; (2008) 251 ALR 612 at [31] ).