mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214
Outcome: cited
I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380.
Case: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345
Outcome: cited
I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380.
Case: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380
Outcome: cited
I have indicated at [2(a)], Spirits seeks an order for discovery 'pursuant to O 15A r 8 or otherwise '. I do not regard this alternative basis as, in substance and effect, a request for third party discovery pursuant to O 15A r 8 of the Federal Court Rules . It is a totally discrete basis founded on s 23 of the Federal Court Act ; wide enough to cover orders requiring the discovery, production and inspection of documents: Commonwealth v Northern Land Council (1991) 30 FCR 1 per Black CJ, Gummow and French JJ; see also Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 ; at the same time, accepting that the Court has a general power under s 23 to prevent the abuse or frustration of its processes in relation to matters coming within its jurisdiction ( Hunter v Leahy [1999] FCA 1075 ; (1999) 91 FCR 214) or where it is otherwise necessary to protect the integrity of the processes of the Court: CSR Ltd v CIGNA Insurance Australia Ltd [1997] HCA 33 ; (1997) 189 CLR 345 at 391 392; Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380.
Case: Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391
Outcome: referred to
and FGUP submitted that an order for third party discovery ought not to be granted against a foreign entity which is not a party to the proceeding and is not otherwise subject to the jurisdiction of the Court. They point out that there is ample authority in the context of applications for leave to serve subpoenas outside the jurisdiction for the proposition that such leave should not be granted in respect of a non-party foreign entity 'except in the most exceptional circumstances': Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 at [12] per Allsop J. See also Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454; Aetna Pacific Securities v Hong Kong Bank of Australia Ltd (20 April 1993, Supreme Court of New South Wales, Giles J, unreported). The cases suggest, they submit, that this will particularly be the case where (as here) the foreign jurisdiction in question is a civil law jurisdiction: Arhill . Underlying this principle is the view that service of an order upon a foreign entity demanding that it do something in Australia on pain of punishment in proceedings to which it has not submitted is an invasion of the foreign territory's sovereignty: Stemcor . In addition, such a subpoena, even if it is served, is not capable of enforcement: Stemcor . The position, they submit, is no different in principle in the case of an order for third party discovery pursuant to O 15A r 8; the order compels production of documents, disobedience of it would give rise to contempt, and leave is required in order to serve it outside the jurisdiction: See O 8 r 3. Compare Arhill . None of the cases included in Spirits' list of authorities, they observe, involved the making of an order for third party discovery against a foreign entity.
Case: Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454
Outcome: referred to
and FGUP submitted that an order for third party discovery ought not to be granted against a foreign entity which is not a party to the proceeding and is not otherwise subject to the jurisdiction of the Court. They point out that there is ample authority in the context of applications for leave to serve subpoenas outside the jurisdiction for the proposition that such leave should not be granted in respect of a non-party foreign entity 'except in the most exceptional circumstances': Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 at [12] per Allsop J. See also Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454; Aetna Pacific Securities v Hong Kong Bank of Australia Ltd (20 April 1993, Supreme Court of New South Wales, Giles J, unreported). The cases suggest, they submit, that this will particularly be the case where (as here) the foreign jurisdiction in question is a civil law jurisdiction: Arhill . Underlying this principle is the view that service of an order upon a foreign entity demanding that it do something in Australia on pain of punishment in proceedings to which it has not submitted is an invasion of the foreign territory's sovereignty: Stemcor . In addition, such a subpoena, even if it is served, is not capable of enforcement: Stemcor . The position, they submit, is no different in principle in the case of an order for third party discovery pursuant to O 15A r 8; the order compels production of documents, disobedience of it would give rise to contempt, and leave is required in order to serve it outside the jurisdiction: See O 8 r 3. Compare Arhill . None of the cases included in Spirits' list of authorities, they observe, involved the making of an order for third party discovery against a foreign entity.
Case: Aetna Pacific Securities v Hong Kong Bank of Australia Ltd (20 April 1993, Supreme Court of New South Wales, Giles J, unreported)
Outcome: referred to
and FGUP submitted that an order for third party discovery ought not to be granted against a foreign entity which is not a party to the proceeding and is not otherwise subject to the jurisdiction of the Court. They point out that there is ample authority in the context of applications for leave to serve subpoenas outside the jurisdiction for the proposition that such leave should not be granted in respect of a non-party foreign entity 'except in the most exceptional circumstances': Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 at [12] per Allsop J. See also Arhill Pty Ltd v General Percival Company (1991) 23 NSWLR 454; Aetna Pacific Securities v Hong Kong Bank of Australia Ltd (20 April 1993, Supreme Court of New South Wales, Giles J, unreported). The cases suggest, they submit, that this will particularly be the case where (as here) the foreign jurisdiction in question is a civil law jurisdiction: Arhill .
Case: Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225
Outcome: cited
was submitted that the circumstances were not within those recognised as being appropriate for the grant of indemnity costs ( Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151). I can see no arguable error of principle in the award of costs on a solicitor/client basis, bearing in mind the basis of the order of dismissal, the effect of which was that the proceeding had never been in appropriate form.
Case: Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
for the applicant recognised the difficulty of upsetting an interlocutory judgment of this kind concerning matters of practice and procedure by the docket judge having an intimate knowledge of the progress of the case. The normal considerations to be taken into account are: (a) whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong ( Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397). However, the exercise of discretion should not be unduly constrained by rigid rules ( Seven Network Limited v News Limited [2005] FCAFC 125).
Case: Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388 
Outcome: cited
J was the docket judge and had management of the proceeding from its inception. Tamberlin J reserved his decision, having had the benefit of argument from counsel for the respondents and counsel for the applicant, although the applicant had represented herself up to that time. His Honour referred to authority and recognised that dismissal of proceedings on either basis required considerable restraint and would be ordered sparingly. As to O 35A r 3(1), his Honour applied the principles outlined by the Full Court in Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388. His Honour concluded that the history of non-compliance by the applicant was such as to indicate an inability or unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period. His Honour took the view that the way in which the litigation had been conducted by the applicant rendered it impossible for the respondents to meaningfully address any case against them. There had been a persistent failure to identify any specific incident which had any connection to discrimination. His Honour was also satisfied that the way in which the proceeding had been conducted amounted to an abuse of process under O 20 r 2, such that the process was an instrument of injustice or unfairness to the respondents. An order for costs on a solicitor/client basis was founded upon the same findings.
Case: Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151
Outcome: cited
was submitted that the circumstances were not within those recognised as being appropriate for the grant of indemnity costs ( Colgate-Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225; Re Wilcox; Ex parte Venture Industries Pty Ltd and Others (No 2) (1996) 72 FCR 151). I can see no arguable error of principle in the award of costs on a solicitor/client basis, bearing in mind the basis of the order of dismissal, the effect of which was that the proceeding had never been in appropriate form.
Case: Seven Network Limited v News Limited [2005] FCAFC 125 
Outcome: cited
for the applicant recognised the difficulty of upsetting an interlocutory judgment of this kind concerning matters of practice and procedure by the docket judge having an intimate knowledge of the progress of the case. The normal considerations to be taken into account are: (a) whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court; and (b) whether substantial injustice would result if leave were refused supposing the decision to be wrong ( Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397). However, the exercise of discretion should not be unduly constrained by rigid rules ( Seven Network Limited v News Limited [2005] FCAFC 125).
Case: The State of Queensland and Anor v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 
Outcome: cited
was submitted that Tamberlin J failed to take into account the fundamental objective of Court process, being to decide cases brought to the Court ( The State of Queensland and Anor v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 154). The judge was conscious of the need to sparingly exercise the powers that he did and had given the applicant every opportunity of outlining her case, over many months. It is also put that the judge erred in failing to consider the other powers of the Court to sanction non-compliance such as the use of costs orders. That argument does not meet the fundamental nature of the problem found by Tamberlin J.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662
Outcome: cited
The Full Court held that certain expert evidence tendered by the applicant had been wrongly excluded: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 239 ALR 662 . The Full Court refused the application of the applicant (Cadbury) for a new trial and remitted the matter to me as the trial judge for the purpose of receiving the wrongly rejected evidence and relevant opposing evidence on behalf of the respondent (Darrell Lea). The further hearing has been fixed to commence on 11 March 2008. 2 By notice of motion dated 7 December 2007 Cadbury seeks orders: (a) That Cadbury have leave to conduct a new survey in accordance with Practice Note 11 (motion pars 1-5 and 9); (b) That Cadbury by 15 February 2008 notify Darrell Lea of form objections (if any) to the affidavit of John Hall sworn 13 January 2006 (motion par 6); (c) That the parties file by specified dates submissions in relation to applications to be made under ss 135 and 136 of the Evidence Act 1995 (Cth) concerning the evidence of Professor Gibbs and Messrs Riches and Stavros (motion pars 7-8, 10 and 12); (d) The parties arrange for any additions to the Court Book (motion par 11); (e) That specified passages from the evidence of the Cadbury witness Mr Nowicki be not admitted (motion par 13); (f) That Cadbury witness Professor Roger Layton be recalled for further re-examination (motion par 14); (g) That specified passages from the cross-examination of certain Darrell Lea witnesses (Mr Lea, Ms McGlinchey, Ms Hurst, Ms Borjeson, Ms Akins and Ms Ettia) be not admitted and that they be available for further cross-examination (motion pars 15-21); 3 Because of the impending Christmas break, the urgency of the matter and the difficulty of arranging a mutually convenient hearing time for counsel and the Court, I directed that the motion be heard on the papers. The parties duly filed detailed written submissions, Cadbury's on 17 December and Darrell Lea's on 19 December.
Case: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102
Outcome: cited
As the Full Court made clear in a second judgment when the matter was brought back on Cadbury's application ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2007] FCAFC 102) there is not to be a new trial of this matter enabling Cadbury to call any evidence and ask any questions which it now thinks would be helpful. The Full Court said (emphasis added): [6] However, the Court did not consider that a new trial was justified. Rather, the Court was of the view that justice would be served by a further hearing before the primary judge, at which Cadbury would have another opportunity of adducing the disputed evidence . [7] The proceeding was remitted on the basis that it would be before the primary judge as though the case were part heard. Thus, it would be a matter for the primary judge to determine the extent to which, after entertaining all proper objections and making rulings on such objections, additional or further evidence should be admitted . That may have the consequence that Darrell Lea would seek to adduce its own evidence in response to the disputed evidence. [8] We indicated in our reasons (at [110]) that, if proper objections were taken to the disputed evidence at the further hearing and the evidence was rejected, it would be open to the primary judge to allow Cadbury to elicit further evidence to overcome the objections . That would be an aspect of the management of the further hearing by the primary judge in the same way as it would have been had his Honour not rejected the disputed evidence in its entirety. That is to say, it would be for counsel for Darrell Lea to make such objections to the admissibility of the disputed evidence on formal grounds as they may consider appropriate. If, in the exercise of his discretion, the primary judge were to permit Cadbury the opportunity of adducing further evidence to overcome any objections, that would be a matter entirely for his Honour at the further hearing. 6 The proposed calling of further evidence of a survey, to be conducted two years after the trial, would be inconsistent with that ruling of the Full Court. On appeal Cadbury sought a new trial. The Full Court rejected that application and removed any doubt on the second hearing. Subsequently the High Court refused Cadbury's application for special leave to appeal. 7 Darrell Lea does not object to the course proposed but asks, reasonably in my opinion, that notice of any such objections be filed by 31 January 2008.
Case: Keith Hercules &amp; Sons v Steedman (1987) 17 FCR 290
Outcome: cited
Cadbury complains of the lack of an oral hearing and alleges there has been a breach of natural justice. However, I am satisfied I have the power to make the direction in question under s 23 of the Federal Court of Australia Act 1976 (Cth). That section confers a general power that may be invoked to facilitate the judicial process for various purposes, including ensuring the convenient, expeditious and fair conduct of legal proceedings: Keith Hercules &amp; Sons v Steedman (1987) 17 FCR 290 at 300. It is an everyday practice in this Court for subsidiary matters, for example questions of costs, to be dealt with on the papers. It can be an efficient and cost-effective procedure without in any way impairing the parties' rights to make an appropriate presentation of their arguments to the Court. Cadbury's written submissions were detailed and covered twelve pages. Darrell Lea's were of eight pages. Having read them, I cannot think of any further questions I would have wished to ask in an oral hearing. I now turn to the orders sought.
Case: SZMTM v Minister for Immigration and Anor [2008] FMCA 1642
Outcome: affirmed
is before me an Application for Leave to Appeal from a judgment of a Federal Magistrate delivered on 8 December 2008 ( SZMTM v Minister for Immigration and Anor [2008] FMCA 1642) in which the Federal Magistrate dismissed with costs an application for judicial review of a decision made by the second respondent, the Refugee Review Tribunal ( the Tribunal ) handed down on 19 August 2008. The Tribunal's decision affirmed a decision of a delegate of the first respondent ( the Minister ) dated 14 April 2008 not to grant a protection visa to the applicant. On 4 November 2008 Driver FM ordered that the applicant's application for judicial review be listed for a preliminary hearing under r 44.12 of the Federal Magistrates Court Rules 2001 ( the FMC Rules ). That hearing took place on 8 December 2008. On that day the learned Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the FMC Rules. The effect of that order was that the decision of the Tribunal was affirmed. Rule 44.12 of the FMC Rules is in the following terms: 44.12 Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed&#8212;dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed&#8212;adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.
Case: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: followed
discretion which the Court has in respect of such an application for leave to appeal is a wide one. However, it must not be exercised idiosyncratically and ordinarily would be informed by the principles articulated and explained by a Full Court of this Court in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. In that case the Court held that, in determining whether leave to appeal should be granted from certain interlocutory decisions made by a judge in a patent case: (1) The decision in question must be demonstrated to be attended with sufficient doubt to warrant it being reconsidered on appeal; and (2) The Court must be satisfied that substantial injustice would be visited upon the applicant if leave is not granted. This is the test which I propose to apply to the application before me in the present case. The applicant is a citizen of the People's Republic of China ( the PRC ). She arrived in Australia on 10 February 2008 on a subclass 456 business visa. On 7 March 2008, the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 14 April 2008 and notified the applicant of that decision by letter dated, incorrectly, 14 December 2007. The reasons which accompanied that letter were dated 14 April 2008. On 9 May 2008, the applicant applied to the Tribunal for a review of that decision. The protection claims which the applicant made originally were set out in a typed statutory declaration expressed in English. This statutory declaration accompanied her application for a protection visa. In that declaration, the applicant claimed that she had escaped from her husband, who was violent towards her, with the help of her friend, Ms Zhang, but that they were both later arrested for anti-revolutionary activities. In the proceedings before the Tribunal the applicant claimed to fear persecution in the PRC on the basis of her political opinions. She also claimed to have been a victim of domestic violence whose problems had been publicised in newspaper articles by a journalist from the Fujian Daily . She claimed that she had been accused of being a counter-revolutionary on account of these articles, and that she had been subsequently detained for one month during which time she had been tortured and interrogated. The applicant appeared at a hearing before the Tribunal on 9 July 2008. At that hearing, she had the assistance of an interpreter qualified to interpret as between Mandarin and English. On 10 July 2008, the Tribunal sent a letter dated that day to Ms Priscilla Yu who was then acting as the migration agent for the applicant. In that letter the Tribunal invited the applicant to comment on and/or respond to information which was then of concern to it and which it considered to be relevant to its consideration of the applicant's application. That letter was issued pursuant to s 424A of the Migration Act 1958 (Cth) ( the Act ).