mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095
Outcome: referred to
The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.
Case: Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287
Outcome: referred to
The jurisdictional error in this case may possibly be formulated in other ways. It is well established that the Tribunal must consider all the substantive issues raised by the evidence before it, even if the applicant does not clearly articulate all such claims: see NAZH v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 5 at [51] per Madgwick J; MZWPD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1095 at [69] - [85] per Weinberg J; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [8] per Weinberg, Stone and Jacobson JJ; and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 ; (1999) 90 FCR 287 at 294 per Wilcox and Madgwick JJ. In the present case, it could well be said that the Tribunal did not consider whether the primary decision-maker's perception of what had occurred at the Departmental interview was fundamentally defective because of the mistranslation of Mr Nguyen's statement. As we have seen, this issue was clearly raised on the evidence, including specifically by Mr Nguyen. As this possibility was not the subject of argument, it is unnecessary to consider it further.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2001) 205 CLR 337
Outcome: applied
Mr Spalla argued that, considered together, these factors would suggest to a reasonable lay observer that I had prejudged his credibility and the issues in this case. He suggested that, under the test established in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2001) 205 CLR 337 (" Ebner ") and Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 (" Johnson "), I should disqualify myself from the further hearing in the case. 7 The governing principle in determining whether a judge is disqualified on the ground of apprehended bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The focus of this test is whether an observer might conclude that the judge would decide a case "other than on its legal and factual merits": Ebner at 345 per Gleason CJ, McHugh, Gummow and Hayne JJ. 8 The High Court has emphasised that judges should not be overly hasty in acceding to motions to disqualify. This is because judges "have a duty to exercise their judicial functions when ... they are assigned to cases in accordance with the practice which prevails in the court to which they belong": Ebner at 348. This ensures that litigants do not have the opportunity to select their judges (and that judges do not select their cases).
Case: Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488
Outcome: applied
Mr Spalla argued that, considered together, these factors would suggest to a reasonable lay observer that I had prejudged his credibility and the issues in this case. He suggested that, under the test established in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2001) 205 CLR 337 (" Ebner ") and Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 (" Johnson "), I should disqualify myself from the further hearing in the case. 7 The governing principle in determining whether a judge is disqualified on the ground of apprehended bias is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson at 492 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The focus of this test is whether an observer might conclude that the judge would decide a case "other than on its legal and factual merits": Ebner at 345 per Gleason CJ, McHugh, Gummow and Hayne JJ. 9 In this matter, the applicant has identified no factors which, considered individually or cumulatively, warrant my disqualification. The High Court has stressed that the reasonableness of any complaint of apprehended bias is "to be considered in the context of ordinary judicial practice": Johnson at 493. Thus, events occurring within the ordinary course of litigation will not give rise to an apprehension of bias. As the High Court has explained, "modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx": Johnson at 493. As a case progresses, a judge may make rulings, as needs be, on adjournment applications, the admissibility of evidence, the amendment of pleadings and the like but the fact that the ruling may suit the immediate interests of one side rather than the other does not mean that the judge has formed any concluded view about the ultimate merits of the case. From time to time, a judge may also indicate to counsel that she or he is taking some necessarily tentative view on an issue. The reason for this is most often to allow counsel an opportunity to deal with the problem that the judge perceives, whether rightly or wrongly, to lie in counsel's way.
Case: Antoun v The Queen [2006] HCA 2
Outcome: referred to
As the High Court's judgment in Antoun v The Queen [2006] HCA 2 indicates, there remain limits on the manner in which a judge may conduct a case even allowing for modern case management practices. In the present case, however, the applicant has identified what are for the most part rulings that are commonplace in many trials. 11 Mr Spalla first raised the issue of my decision to continue with the hearing despite the illness of his senior counsel. As the respondents noted, this was a qualified decision. After a colloquy with the applicant's junior counsel (who has apparently over ten year's experience at the bar) I ruled that the hearing should continue in order that the applicant might present his evidence in chief notwithstanding the absence of senior counsel. The applicant's counsel apparently conceded that he could cope with the presentation of evidence in chief although not cross-examination. I ruled that I would adjourn the hearing, if needs be, to allow the applicant the benefit of senior counsel in the cross-examination of the respondents' witnesses. A date was nominated, which was available to the Court, and, on the information before me at that time, gave the applicant a sufficient opportunity to order his affairs. The respondents opposed any adjournment. My decision favoured neither party. It was a straightforward example of case management, which took account of the interests of all parties, as well as broader interests in the timely progression of cases in order that other litigants might also be heard. Decisions such as these are routine and are not proper bases for disqualifying the trial judge. 12 Similar considerations apply to Mr Spalla's complaints about my rulings concerning the admissibility of his affidavit of 1 June 2005 and his application for leave to amend further his notice of motion. The rulings have not been as Mr Spalla wanted.
Case: Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97
Outcome: referred to
Save the Ridge Inc v Commonwealth [2005] FCAFC 203 ; (2005) 147 FCR 97, Black CJ and Moore J said at [15]: 'The formulation of separate or preliminary questions is authorised by O 29, r 2 of the Federal Court Rules 1979 (Cth). But it is a procedure that should be adopted with caution and can be fraught with difficulties.'
Case: Meat Industry Employees' Union and Another v G &amp; K O'Connor [2000] FCA 1760 ; (2000) 104 FCR 80
Outcome: referred to
Australasian Meat Industry Employees' Union and Another v G &amp; K O'Connor [2000] FCA 1760 ; (2000) 104 FCR 80 (' O'Connor '), the Full Court of this Court said at [70]: 'It is sometimes useful to determine, by way of a preliminary question, an issue between parties that, if resolved in a particular way, may terminate the litigation. However, if this is to be done, it is essential the question be firmly grounded on specified facts; whether found by the court, agreed between the parties or alleged in a pleading. Without that, the answer to the question may not only be academic but can have the effect of confusing or misleading the parties, rather than enlightening them.' The Full Court in O'Connor then noted that in the case before it no facts were specified and it was inappropriate to determine the separate question determined at first instance.
Case: Rainsford v Victoria and Another [2005] FCAFC 163 ; (2005) 144 FCR 279
Outcome: applied
in Rainsford v Victoria and Another [2005] FCAFC 163 ; (2005) 144 FCR 279 (' Rainsford '), the Full Court of this Court said at [35]: 'Whilst the use of the separate questions procedure can, in some circumstances, avoid delay and lessen the expense in resolving a proceeding, the cases show that there can also be significant difficulties in adopting the procedure, "especially where no findings of fact have been made and the questions are capable of different interpretations": see Anderson v Wilson [2000] FCA 394 ; (2000) 97 FCR 453 at [28] per Black CJ and Sackville J.' Importantly, in Rainsford , the Full Court said at [36]: 'In order for a court exercising federal jurisdiction to utilise the separate questions procedure, either the parties must agree upon the relevant facts or the court must determine the facts before seeking to decide the question.' (Emphasis applied.) In the current proceeding, Swanline and the respondents have not agreed on the relevant facts necessary to be found to determine the proposed separate questions. Further, Swanline has not placed before the Court in any affidavit the facts which it proposes the Court rely on to answer the proposed separate questions. Swanline submits that the respondents' defence clearly identifies the material facts relevant to the determination of each separate question. However, that is not the case. The relevant parts of the defence merely raise the issues which Swanline wishes to have the Court determine separately. It is no answer to say that the respondents carry the onus of proving the matters pleaded in their defence that bear on the separate questions. The Court is still in the position where the test referred to in Rainsford at [36] is not satisfied.
Case: Reading Pty Limited v Australian Mutual Provident Society and Another (1999) 217 ALR 495
Outcome: cited
those circumstances, I am not satisfied that Swanline has discharged its onus of satisfying the Court that it is 'just and convenient' for the trial to be split in the manner sought; see Reading Pty Limited v Australian Mutual Provident Society and Another (1999) 217 ALR 495 at [9]-[10]. Apart from the difficulty caused by the absence of a factual foundation for the resolution to the proposed separate questions, there are other issues that will need to be addressed if Swanline succeeds on the separate questions. Any potential saving of time and cost may be minimal. In any event, if I am overcautious in refusing the motion for determination of the proposed separate questions, such caution is justified by the fact that the pleadings in the proceeding are not finalised. Swanline has foreshadowed further amendments to its statement of claim. Until the pleadings are complete, it is difficult to assess the true utility of seeking to split the trial. However, as things currently stand, in the absence of a firm factual foundation for the resolution of the proposed separate issues, I consider that Swanline's application pursuant to O 29 r 2 should be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 9 October 2006 Counsel for the Applicant: Mr G Rabe Solicitor for the Applicant: Williams Ellison Pty Ltd Counsel for the Respondents: Ms Cahill Solicitor for the Respondents: Ebsworth &amp; Ebsworth Date of Hearing: 5th October 2006 Date of Judgment: 5th October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1318.html
Case: Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523. 27 Given the extent to which Deumer stands to gain from the proceedings if they are successful, and that the cause of action is apparently the only asset of Cosdean which may enable it to be paid, or to be substantially paid, under its agency agreement with Cosdean, and that in essence it has no real competing external creditors who might participate in any award of damages, I think it is reasonable that Deumer support Cosdean in the prosecution of the claim, or at least that it have the opportunity to do so. It may wish to make its own assessment of Cosdean's prospects of success in the proceedings or of the likely award of any damages, and balance those things against the amount of the further security for costs I have ordered. That is a matter for Cosdean and Deumer. The circumstances are different from those where there are a number of creditors, including small creditors: cf Yandil 3 ACLC 542 at 545; Tullock Ltd v Walker (Unreported, Supreme Court of New South Wales, Yeldham J, 8 December 1976). There is no other evidence of commercial impracticability in Deumer supporting Cosdean in the claim; see Ariss (1996) 2 VR 507 at 515 per Phillips JA.
Case: Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339
Outcome: discussed
In my view, having regard to the nature of the claim and the status of Deumer in relation to Cosdean and its real interest in the outcome of the proceedings, it is reasonable that the circumstances of Deumer should be taken into account on the applications for further security. In BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339 at 344, Anderson J adopted a similar approach. In other circumstances, the capacity of shareholders or directors of a limited liability company to support proceedings have been taken into account, as has the capacity of trustees of trading trusts, trust beneficiaries, members of associations, debenture holders, guarantors and appointors of receivers: see Colbran at [14.7] pp 237-238 and the cases cited there. The present circumstances provide simply another illustration of what may be taken into account, in appropriate circumstances, in addressing an application for security for costs against an impecunious corporate litigant.
Case: Buckley v Bennell Design &amp; Constructions Pty Ltd (1974) 1 ACLR 301
Outcome: cited
Those cases reflect the policy underlying s 1335 that security may be ordered where a company appears to be in no position to provide security from its own resources where, in all the circumstances, it is reasonable that the resources of some other person or entity standing behind the company or of some person or entity for whose practical benefit the proceeding is being conducted should provide the security. The privilege of limited liability should not necessarily exclude those standing to benefit from proceedings by that company from having to provide support to it: Buckley v Bennell Design &amp; Constructions Pty Ltd (1974) 1 ACLR 301 at 303-304. The approach was conveniently expressed in Bell Wholesale 2 FCR 1 at 4 where the Full Court (Sheppard, Morling and Neaves JJ) said: "In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the applicant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means."
Case: Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311
Outcome: discussed
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: Drumdurno Pty Ltd v Braham (1982) 42 ALR 563
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.
Case: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J)
Outcome: cited
That is not confined to persons who control the company, but extends to those who will have the benefit of the proceedings if they succeed: Microcorp Pty Ltd v Terran Computers Pty Ltd (unreported, 26 June 1992, Northrop J); Caruso Australia Pty Ltd v Portec (Aust) Pty Ltd (1984) 1 FCR 311. In Caruso , Toohey J at 314 considered that it was reasonable that the two major and arms length creditors be expected to contribute to any security that may be ordered. See also John Arnold's Surf Shop Pty Ltd (In liq) v Heller Factors Pty Ltd (1979) 22 SASR 20; Pacific Acceptance Corp Ltd v Forsyth (No 2) [1967] 2 NSWR 402; Drumdurno Pty Ltd v Braham (1982) 42 ALR 563; Ariss v Express Interiors Pty Ltd (In Liq) [1996] 2 VR 507 at 508; Attorney-General v Transport Control Systems (NZ) Ltd [1982] 2 NZLR 19 at 20; Memutu Pty Ltd v Lissenden (1983) 8 ACLR 364 at 365-366; Reches Pty Ltd v Tadiran Pty Ltd (1998) 85 FCR 514 at 523.