mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Monsanto Company v Syngenta Seeds Pty Ltd [2006] FCA 228
Outcome: referred to
also Monsanto Company v Syngenta Seeds Pty Ltd [2006] FCA 228 at [8] [11] (per Finkelstein J) where his Honour described the criterion in relation to prospects as "... a claim that is worth investigating ...". At [9], he also said that "... in most cases an applicant for identity discovery must show some prospect of success in its proposed action".
Case: Wyeth v Secretary, Department of Health and Ageing (2009) 255 ALR 352
Outcome: cited
Wyeth v Secretary, Department of Health and Ageing (2009) 255 ALR 352 at [24] [29] (pp 355 356) Jacobson J described the test as being "... along the same lines as that which applies to a claim for interlocutory injunctive relief ". His Honour went on to say that consideration of that test was connected to the identification of the interests of justice. The Full Court's judgment in Hooper v Kirella Pty Ltd 96 FCR 1 is binding upon me. I think that what is required is more than a claim worth investigating. In my judgment, what is required is a claim that is within the jurisdiction of this Court and which is not so near to being hopeless as would reasonably and properly justify the claim being described as "merely speculative". The foreshadowed claim must have some prospect of succeeding. Success in this context requires a cause of action known to the law and a real (as opposed to fanciful) prospect that some remedy might be granted. If the foreshadowed proceedings would almost certainly be susceptible to an order for dismissal pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), then preliminary discovery would ordinarily not be ordered. This is the flavour of the remarks of Jacobson J in Wyeth 255 ALR 352 at [24] [29].
Case: Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250
Outcome: cited
Court has an important responsibility of safeguarding the interest of group members as a whole under s 33V(1). There is a danger that when a settlement is reached or a discontinuance is agreed, the interests of the actual parties to the proceedings may receive their paramount consideration while the impact on group members may not be fully or properly addressed. That is why in exercising the power under s 33V(1) to approve a settlement or discontinuance the Court must scrutinise with great care the way in which any order is formulated. In the decided cases the Courts have approached settlements with a keen eye to ensuring that the interests of group members are vouched safe: see eg Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258B-C per Branson J; McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 3C-E per Wilcox J; Courtney 122 FCR at 181 [45] per Sackville J and Vernon v Village Life Ltd [2009] FCA 516 at [64] - [68] per Jacobson J.
Case: Cameron v Goldtek Australia Pty Ltd (1997) 72 FCR 274
Outcome: cited
a party does not wish to continue proceedings but to reserve the right to bring them at a later stage, a discontinuance is an appropriate means of doing so. Under O 22 r 2(1)(a), (b), (c) and r 3 of the Federal Court Rules a party will be liable for the other parties' costs (unless they otherwise agree) by discontinuing as of right before the first directions hearing, or (if the matter proceeded by pleadings) before the pleadings have closed, or by consent of all the parties, if judgment has not been entered. However, under O 22 r 2(1)(d) a party may discontinue at any time with the leave of the Court. There is no usual order provided in the scheme of O 22 in respect of costs where a party discontinues with leave under O 22 r 2(1)(d). The applicants have sought leave under O 22 r 2(1)(d). The terms of O 22 r 2 should not be narrowly construed: Re Tieken: Reg v Tieken [1995] FCA 896 per Burchett, Tamberlin and Kiefel JJ; Cameron v Goldtek Australia Pty Ltd (1997) 72 FCR 274 at 279C per Moore J.
Case: Clark v ING Life Ltd [2007] FCA 1960
Outcome: followed
I observed in Clark v ING Life Ltd [2007] FCA 1960 at [16] it is not the function of the Court to make a prediction as to the outcome of a hypothetical case. Both parties urged on 30 April 2009 that the proceedings cease. At that time, the proceedings were treated by the parties as being under Pt IVA. I was not prepared to grant leave to discontinue on the scant evidence as it then stood or to exercise any power under s 33V(1). After the applicants indicated that they wished to discontinue, it was reasonable for both them and the State to have conducted themselves as they did. I am not satisfied that Mr Wotton acted unreasonably in bringing these proceedings in his own right. Mrs Wotton's position received no separate attention in any party's submissions. I am not in a position to conclude that she acted unreasonably. It is appropriate to treat Mrs Wotton's position cognately with that of her husband. This is because of her relationship to Mr Wotton, his circumstances as revealed in the evidence and the absence of any suggestion by the respondents that Mrs Wotton in her own right acted unreasonably. I am not satisfied that Mr Wotton had no reasonable prospect of obtaining an extension of time in respect of his own claims, given his involvement in the criminal proceedings, his subsequent conviction and incarceration. However, that issue has not yet been determined. The proceedings were more complicated than necessary. Because of the overlap of the foreshadowed representative proceedings and the misconceived joinder of the other respondents Mr and Mrs Wotton should bear some costs of those complications but not the costs of the whole proceedings.
Case: Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120
Outcome: cited
application for leave or special leave to appeal is not an appeal. Rather, it is a proceeding in which an applicant for such leave or special leave is "... no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court": United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30] per Gleeson CJ, McHugh and Gummow JJ, applying Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122-123 per Barwick CJ, Stephen, Mason and Jacobs JJ. In DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 248 [47] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: "An application for special leave "is not in the ordinary course of litigation" and, until the grant of special leave, "there are no proceedings inter partes before the Court ( Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122). Further, the disposition of a special leave application is not the determination of an appeal ( Attorney-General (Cth) v Finch [No 2] [1984] HCA 40 ; (1984) 155 CLR 107 at 115) . The result is that the refusal of an application for special leave does not produce a final judgment of this Court which forecloses the re-opening of the matter in an appropriate and, necessarily, very special case where the interests of justice so require."
Case: Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383
Outcome: cited
follows from what I have held, that s 33V of the Federal Court of Australia Act does not apply to the application to discontinue. In the event that this conclusion is incorrect, both parties accepted that it was possible to grant leave for the proceedings to be discontinued and an appropriate order made protecting the rights of persons who were intended to be group members from the consequences of allowing that discontinuance. The sources of power to make those orders would be either ss 22 and 23 or (if I were wrong about the proceedings not being made under Pt IVA) ss 33V(2) , 33Z (1)(g) and s 33ZF of the Federal Court of Australia Act . Each of those sections is sufficient to enable the Court to make a declaration protecting the rights of third parties, being those whom the applicants sought to claim were group members. None of those third parties has been heard or joined. They have had no opportunity to protect their interests. Ordinarily (leaving aside cases or statutes excluding the principles of natural justice or procedural fairness) no-one should have his or her rights affected or destroyed without an opportunity of being heard. This principle was illustrated in the great case of Cooper v Wandsworth Board of Works [1863] EngR 424 ; (1863) 14 CB(NS) 180 [143 ER 414] and remains applicable today: Taylor v Taylor [1979] HCA 38 ; (1978) 143 CLR 1 ; Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383 at 395 per Dixon CJ and Webb J.
Case: Cooper v Wandsworth Board of Works [1863] EngR 424 ; (1863) 14 CB(NS) 180
Outcome: discussed
follows from what I have held, that s 33V of the Federal Court of Australia Act does not apply to the application to discontinue. In the event that this conclusion is incorrect, both parties accepted that it was possible to grant leave for the proceedings to be discontinued and an appropriate order made protecting the rights of persons who were intended to be group members from the consequences of allowing that discontinuance. The sources of power to make those orders would be either ss 22 and 23 or (if I were wrong about the proceedings not being made under Pt IVA) ss 33V(2) , 33Z (1)(g) and s 33ZF of the Federal Court of Australia Act . Each of those sections is sufficient to enable the Court to make a declaration protecting the rights of third parties, being those whom the applicants sought to claim were group members. None of those third parties has been heard or joined. They have had no opportunity to protect their interests. Ordinarily (leaving aside cases or statutes excluding the principles of natural justice or procedural fairness) no-one should have his or her rights affected or destroyed without an opportunity of being heard. This principle was illustrated in the great case of Cooper v Wandsworth Board of Works [1863] EngR 424 ; (1863) 14 CB(NS) 180 [143 ER 414] and remains applicable today: Taylor v Taylor [1979] HCA 38 ; (1978) 143 CLR 1 ; Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383 at 395 per Dixon CJ and Webb J.
Case: Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168
Outcome: cited
group member is not a party to representative proceedings brought by another person: cf Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 ; (2002) 211 CLR 1 at 34 [50] per Gaudron, Gummow and Hayne JJ; see too at 21-22 [6] per Gleeson CJ (a case dealing with a similar legislative scheme under Pt 4A of the Supreme Court Act 1986 (Vic)); Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 179 [35] - [36] per Sackville J. But, s 33H(1)(b) and (c) required that one or more of the application or forms 129 or 167 specified the nature of the claims made by the group members and the questions of law or fact common to them. There was no claim made (as referred to in s 33C(1)(c)) by the group members in any of those documents for an allowance of further time to file an application under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act . Nor did any of those documents specify any question of law or fact common to the group members (referred to in s 33H(1)(c)) the subject of the application to allow further time to make the foreshadowed application under s 46PO(1). The Court has an important responsibility of safeguarding the interest of group members as a whole under s 33V(1). There is a danger that when a settlement is reached or a discontinuance is agreed, the interests of the actual parties to the proceedings may receive their paramount consideration while the impact on group members may not be fully or properly addressed. That is why in exercising the power under s 33V(1) to approve a settlement or discontinuance the Court must scrutinise with great care the way in which any order is formulated. In the decided cases the Courts have approached settlements with a keen eye to ensuring that the interests of group members are vouched safe: see eg Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258B-C per Branson J; McMullin v ICI Australia Operations Pty Ltd (1998) 84 FCR 1 at 3C-E per Wilcox J; Courtney 122 FCR at 181 [45] per Sackville J and Vernon v Village Life Ltd [2009] FCA 516 at [64] - [68] per Jacobson J. And, the power in s 33ZF(1) enables the Court to make any order that it thinks appropriate or necessary to ensure that justice is done in a proceeding under Pt IVA. Wilcox J described the extent of the power in s 33ZF(1) as being "the widest possible" in McMullin 84 FCR at 4C-D. In Courtney 122 FCR at 182-184 [47]-[54] esp at [52] Sackville J examined the scope of the power, and cautioned that s 33ZF(1) should not become a vehicle for rewriting the rest of Pt IVA. This provision, like all provisions conferring jurisdiction or granting powers to a court, should not be construed narrowly by making implications or imposing limitations which are not found in its express words: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226
Outcome: followed
application for leave or special leave to appeal is not an appeal. Rather, it is a proceeding in which an applicant for such leave or special leave is "... no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court": United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30] per Gleeson CJ, McHugh and Gummow JJ, applying Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122-123 per Barwick CJ, Stephen, Mason and Jacobs JJ. In DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 248 [47] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: "An application for special leave "is not in the ordinary course of litigation" and, until the grant of special leave, "there are no proceedings inter partes before the Court ( Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122). Further, the disposition of a special leave application is not the determination of an appeal ( Attorney-General (Cth) v Finch [No 2] [1984] HCA 40 ; (1984) 155 CLR 107 at 115) . The result is that the refusal of an application for special leave does not produce a final judgment of this Court which forecloses the re-opening of the matter in an appropriate and, necessarily, very special case where the interests of justice so require."
Case: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 234 CLR 52
Outcome: cited
Finn J pointed out in O'Neil v Mann [2000] FCA 1680 at [12] the rules do not provide expressly for the incidence of costs on the discontinuance of proceedings under O 22 r 2(1)(d) with the leave of the Court. The power to order costs in such a situation arises pursuant to s 43 of the Federal Court of Australia Act . That power is not conditioned by any predetermined rule: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 234 CLR 52 at 63 [26] - [27] , 65 [34] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30 at 42-43 [46] - [48] per myself, Finn J at 32 [1] and Besanko J at 51 [82] agreeing.
Case: Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516
Outcome: cited
fact that the Court might refuse an initial application to allow further time under s 46PO(2) would not preclude a further application, although it would be difficult to imagine that, in the ordinary course, any such further application would have any prospects of being granted unless some significant new matter had come to light since the earlier refusal. There is, of course, a distinction between an application for leave or special leave to appeal to a court and one to extend the time within which proceedings under s 46PO(2) might be brought. In the former case the parties' rights have been determined already by the judgment or order which is to be the subject of an appeal if leave or special leave were granted: cp Jackamarra v Krakouer [1998] HCA 27 ; (1998) 195 CLR 516 at 519-520 [3] - [4] per Brennan CJ and McHugh JJ. An order under s 46PO(2) allowing an extension of time in which to make an application under s 46PO(1) , if granted, entitles the affected person to have his or her allegation of unlawful discrimination heard and determined by the Court. If an extension of time is not allowed, then a respondent to the complaint before the Commission cannot be sued under s 46PO in respect of the alleged unlawful discrimination. Hence, unless and until, the Court allows further time under s 46PO(2) to make an application more than 28 days after the issue of a notice of termination, proceedings of the kind brought by the applicants here are in the nature of a mere application to the Court for permission to commence proceedings. That permission is given if the Court allows further time under s 46PO(2) to file a substantive application alleging unlawful discrimination by one or more respondents. If the Court does not allow further time under s 46PO(2) , there is no application made invoking the jurisdiction of the Court to hear and determine the allegation of unlawful discrimination within the meaning of s 46PO(1) notwithstanding the form of the initiating process or application filed. Thus, I am of opinion that the applicants have not made an application under s 46PO(1) at this time. Rather, they have made an application under s 46PO(2) seeking further time in which to bring proceedings under s 46PO(1). The jurisdiction that the application filed on 11 March 2009 invoked was confined to the issue in the last clause of s 46PO(2). That jurisdiction required the Court to hear and determine only whether the applicants should be allowed further time (beyond 28 days after 12 September 2007) in which to make an application alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Case: Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 ; (2002) 211 CLR 1
Outcome: applied
group member is not a party to representative proceedings brought by another person: cf Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27 ; (2002) 211 CLR 1 at 34 [50] per Gaudron, Gummow and Hayne JJ; see too at 21-22 [6] per Gleeson CJ (a case dealing with a similar legislative scheme under Pt 4A of the Supreme Court Act 1986 (Vic)); Courtney v Medtel Pty Ltd [2002] FCA 957 ; (2002) 122 FCR 168 at 179 [35] - [36] per Sackville J. But, s 33H(1)(b) and (c) required that one or more of the application or forms 129 or 167 specified the nature of the claims made by the group members and the questions of law or fact common to them. There was no claim made (as referred to in s 33C(1)(c)) by the group members in any of those documents for an allowance of further time to file an application under s 46PO(2) of the Human Rights and Equal Opportunity Commission Act . Nor did any of those documents specify any question of law or fact common to the group members (referred to in s 33H(1)(c)) the subject of the application to allow further time to make the foreshadowed application under s 46PO(1).
Case: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404
Outcome: applied
the power in s 33ZF(1) enables the Court to make any order that it thinks appropriate or necessary to ensure that justice is done in a proceeding under Pt IVA. Wilcox J described the extent of the power in s 33ZF(1) as being "the widest possible" in McMullin 84 FCR at 4C-D. In Courtney 122 FCR at 182-184 [47]-[54] esp at [52] Sackville J examined the scope of the power, and cautioned that s 33ZF(1) should not become a vehicle for rewriting the rest of Pt IVA. This provision, like all provisions conferring jurisdiction or granting powers to a court, should not be construed narrowly by making implications or imposing limitations which are not found in its express words: Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54 ; (1994) 181 CLR 404 at 421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Case: Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30
Outcome: cited
Finn J pointed out in O'Neil v Mann [2000] FCA 1680 at [12] the rules do not provide expressly for the incidence of costs on the discontinuance of proceedings under O 22 r 2(1)(d) with the leave of the Court. The power to order costs in such a situation arises pursuant to s 43 of the Federal Court of Australia Act . That power is not conditioned by any predetermined rule: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 ; (2007) 234 CLR 52 at 63 [26] - [27] , 65 [34] per Gleeson CJ, Gummow, Hayne and Crennan JJ; Probiotec Ltd v University of Melbourne [2008] FCAFC 5 ; (2008) 166 FCR 30 at 42-43 [46] - [48] per myself, Finn J at 32 [1] and Besanko J at 51 [82] agreeing.
Case: Re Tieken: Reg v Tieken [1995] FCA 896
Outcome: followed
a party does not wish to continue proceedings but to reserve the right to bring them at a later stage, a discontinuance is an appropriate means of doing so. Under O 22 r 2(1)(a), (b), (c) and r 3 of the Federal Court Rules a party will be liable for the other parties' costs (unless they otherwise agree) by discontinuing as of right before the first directions hearing, or (if the matter proceeded by pleadings) before the pleadings have closed, or by consent of all the parties, if judgment has not been entered. However, under O 22 r 2(1)(d) a party may discontinue at any time with the leave of the Court. There is no usual order provided in the scheme of O 22 in respect of costs where a party discontinues with leave under O 22 r 2(1)(d). The applicants have sought leave under O 22 r 2(1)(d). The terms of O 22 r 2 should not be narrowly construed: Re Tieken: Reg v Tieken [1995] FCA 896 per Burchett, Tamberlin and Kiefel JJ; Cameron v Goldtek Australia Pty Ltd (1997) 72 FCR 274 at 279C per Moore J.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1998) 198 CLR 511
Outcome: applied
State also relied on an argument that there were three separate complaints before the Commission that had been joined improperly in the proposed proceedings. I reject that argument. The issues were part of the one matter arising out of events on Palm Island in November 2004: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1998) 198 CLR 511 at 585-586 [139] - [142] , 587-588 [146]-[148] per Gummow and Hayne JJ with whom Gleeson CJ and Gaudron J agreed at 546 [25] and [20]. In addition, the State contended that the proceedings had been couched as representative proceedings for an ulterior purpose. It complained that the applicants' solicitors had claimed that they were acting on behalf of the group members in correspondence in order to achieve a settlement, after having stated that they wished to discontinue. The State contended that it may be inferred that the group proceedings were brought only for "some improper purpose" and are an abuse of court. It did not identify the allegedly improper purpose beyond these generalisations.