mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13
Outcome: cited
HREOC has filed a submitting appearance in accordance with the principle in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 at 35-36. 15 The Commonwealth of Australia made submissions in opposition to the grant of leave, as well as in opposition to the applicants' other motions.
Case: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564
Outcome: applied
The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong.
Case: Finikiotis v Sims Partners [2005] FCA 1774
Outcome: applied
The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong.
Case: Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344
Outcome: applied
The Federal Magistrate's decision summarily dismissing the applicants' judicial review application is interlocutory in nature, since it rests on his Honour's finding that the applicants have no reasonable prospects of success. As was said in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [43] per French J (with whom Beaumont and Finkelstein JJ agreed) "[i]f a proceeding is dismissed because it is frivolous or vexatious or because no reasonable cause of action is disclosed the decision is treated as interlocutory": see also Finikiotis v Sims Partners [2005] FCA 1774 at [10] per Lander J and Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 345-346 per Lander J. Interlocutory decisions require leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal must be determined according to the test in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ. The applicants need to establish that, in all the circumstances, the impugned decision is attended by sufficient doubt to warrant it being reconsidered by an appellate court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong.
Case: Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62
Outcome: cited
In Rossetto at [45] I referred to the test in s 31A and observed that it provides ' a more flexible and arguably less stringent test than that of Dey and General Steel', referring to Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In Rossetto at [46] I concluded that, by either test, I was satisfied that the cause of action in that case could not succeed and was liable to be struck out.
Case: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337
Outcome: applied
Mr Priestley then submits that my decision to refuse his first application for recusal was incorrect, as failing to apply the common law test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337. He submits that I made an error of law. 21 Mr Priestley points to Ebner at 363 where Gaudron J noted that the test with respect to the appearance of 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 [he or she] is required to decide" ' (citing Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Mr Priestley says that it is necessary for me first to test his application for my recusal in the way described by the Court in Ebner and to consider the history of the proceedings and all relevant facts and circumstances as a whole to decide whether a perception of bias has arisen. 24 I am fully aware of the test in Ebner and my consideration of Mr Priestley's submissions regarding a reasonable apprehension of bias was in accordance with that test. I do not consider that this ground supports a basis for me to recuse myself. Accordingly, this application for recusal is refused. 25 Mr Priestley makes a further application for me to recuse myself and submits that I had ' not disclosed all relevant circumstances regarding [my] decision to continue hearing this matter '. He argues that I have not complied with the Guide to Judicial Conduct 2007 at paragraph 3.5(f). That paragraph provides that if a judge decides to sit, the reasons for that decision should be recorded in open court, as should the disclosure of all relevant circumstances. 26 The reasons for my decision on applications 1 and 2 have been recorded. Mr Priestley submits that the "relevant circumstances" that require disclosure are the circumstances surrounding my participation as a rule making judge and the process by which O 20 r 5 of the Federal Court Rules was passed. 27 The respondents submit that the rule exists and has been made. The respondents say that the matters that go beyond this fact, such as who actually drafted the rule, are irrelevant. 28 I do not consider that this application contains grounds that support a basis for recusal. Accordingly, this application for recusal is refused.
Case: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125
Outcome: cited
In Rossetto at [45] I referred to the test in s 31A and observed that it provides ' a more flexible and arguably less stringent test than that of Dey and General Steel', referring to Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In Rossetto at [46] I concluded that, by either test, I was satisfied that the cause of action in that case could not succeed and was liable to be struck out.
Case: Johnson v Johnson (2000) 201 CLR 488
Outcome: cited
Mr Priestley points to Ebner at 363 where Gaudron J noted that the test with respect to the appearance of 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 [he or she] is required to decide" ' (citing Johnson v Johnson (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Mr Priestley says that it is necessary for me first to test his application for my recusal in the way described by the Court in Ebner and to consider the history of the proceedings and all relevant facts and circumstances as a whole to decide whether a perception of bias has arisen.
Case: Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70
Outcome: cited
In any event, where the basis for the alleged apprehension of bias applies to all judges of the Court, the doctrine of necessity applies so that a judge of this Court has to hear the application. The doctrine of necessity permits a member of a court who has some interest in the subject matter of the litigation to sit on a case where no judge without such an interest is available to sit ( Laws v Australian Broadcasting Tribunal [1990] HCA 31 ; (1990) 170 CLR 70 per Mason CJ and Brennan J at 88). 15 Accordingly, this application for recusal is refused. 16 After I determined that I would not recuse myself on the ground of bias and/ or reasonable apprehension of bias, Mr Priestley seeks to raise an additional ground as to why I should recuse myself, namely, my role as a rule making judge of this Court.
Case: Priestley v Godwin [2008] FCA 835
Outcome: cited
The respondents in each proceeding have filed and served notices of objections to competency. When the notices came on for hearing before Gyles J, Mr Priestley raised a constitutional issue ('the constitutional issue'). Accordingly, Gyles J did not proceed with the hearing but ordered that s 78B notices be served ( Priestley v Godwin [2008] FCA 835 (' Priestley ') at [3]). 3 Mr Priestley challenges the constitutional validity of s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Act') and O 20 r 5 of the Federal Court Rules which was made in furtherance of that section. Mr Priestley's primary submission is that the judges of the Federal Court were influenced by Parliament to replace the former test in the Federal Court Rules of "no reasonable cause of action" made, he says, under the Court's inherent jurisdiction, with the statutory test contained in s 31A, thereby compromising the independence of the Court. 4 On 11 June 2008 the constitutional issue was listed for hearing on 16 July 2008, before me. On 14 July 2008 Mr Priestley sent a letter to my Chambers requesting that the hearing be ' adjourned for a time and date to be determined by the Federal Court '. The basis for this request was ' the commencement of proceedings in the High Court ' for an order to show cause. I declined to adjourn the hearing and the matter came before me on 16 July 2008. 5 Mr Priestley presses his application for an adjournment, on the basis that he has filed an application in the High Court. That application relates to his objection to any judge of the Federal Court, or any judge that participated in the making of O 20 r 5 of the Federal Court Rules , sitting on his matter. The application to the High Court also relates to the decision of Stone J in Priestley not to recuse herself. Mr Priestley has joined me as a defendant in the High Court proceedings, filed before the first return of these proceedings before me, on the basis of bias and/ or reasonable apprehension of bias. 6 The respondents neither consent to nor oppose the application for adjournment. Although proceedings have been filed in the High Court, no application has been made to remove this matter to the High Court. The proceedings are before me for hearing. The Court has set aside the time for that hearing and the parties are present. The respondents are represented by counsel and solicitors. I see no sufficient reason to adjourn the matter because Mr Priestley has brought an application in the High Court. That application relates, in part, to a prior aspect of these proceedings, specifically Stone J's refusal to recuse herself, and an anticipatory claim concerning me. 7 The application for an adjournment is refused. 8 Mr Priestley has made four applications that I recuse myself from hearing the matter.
Case: Rossetto v Meriton Apartments Proprietary Limited [2006] FCA 1290
Outcome: cited
Mr Priestley submits that I am disqualified from hearing this matter by reason of my specific interest in O 20 r 5 of the Federal Court Rules . Mr Priestley submits that I have made comments in a judgment regarding s 31A of the Act and that I have therefore considered and applied s 31A. He submits that this is a further ground for a reasonable apprehension of bias. He says that in Rossetto v Meriton Apartments Proprietary Limited [2006] FCA 1290 I made comments to the effect that s 31A is a valid law of the Commonwealth and that this shows that there is a reasonable apprehension of bias on my part. 18 In Rossetto at [45] I referred to the test in s 31A and observed that it provides ' a more flexible and arguably less stringent test than that of Dey and General Steel', referring to Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. In Rossetto at [46] I concluded that, by either test, I was satisfied that the cause of action in that case could not succeed and was liable to be struck out.
Case: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41
Outcome: considered
Mr Priestley submits that I should recuse myself from hearing this matter due to a reasonable apprehension of bias. Mr Priestley points to Deane J's statement in Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 74 where his Honour noted that one of the categories of disqualification by reason of appearance of bias was ' disqualification by interest... where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice '. Mr Priestley submits that I have an interest in the proceedings and that I am biased as a rule making judge of the Federal Court. 10 Further, it is Mr Priestley's submission that there is no judge presently sitting on the Federal Court who can sit on his case, either because that judge was also a rule making judge with respect to the impugned rule, or because the judge has applied s 31A of the Act. Although judges have been appointed to the bench since O 20 r 5 was passed, Mr Priestley submits that these judges are also biased as they have applied s 31A of the Act in their judgments. Mr Priestley says that would give rise to a reasonable apprehension of bias on the part of that judge because he or she has therefore been influenced by Parliament. 11 Mr Priestley proffers two alternatives to myself or any other judge of the Court hearing his matter. He submits that the matter could be referred to the High Court under s 40 of the Judiciary Act 1903 (Cth) ('the Judiciary Act ') and that he could apply for a writ of prohibition and ask the High Court to issue s 78B notices in order for the High Court to examine the constitutional validity of s 31A of the Act. The other alternative Mr Priestley proffers is that Parliament appoint a new judge to the Federal Court to sit on his case.
Case: Gilmour v AMP General Insurance (1997) 9 ANZIC 61-372 
Outcome: distinguished
MDRN seeks to narrow the construction of cl 5(e)(v) of the St Paul policy, submitting that it does not operate to deprive an innocent partner of indemnity where loss is the result of the dishonest or fraudulent act of an employee. The point is clearly unarguable. Clause 5(e)(v) specifically excludes indemnity where the loss occurs in those circumstances. The argument would result in the clause having no effect whatsoever. MDRN sought to rely upon the decision of the Full Court of South Australia in Gilmour v AMP General Insurance (1997) 9 ANZIC 61-372. However it is relatively clear that the case did not involve a clause such as cl 5(e)(v). There is nothing in this argument. 611. As I understand it, my findings lead to the conclusion that St Paul is obliged to indemnify MDRN only in the amount of Mr Bengston's claim. However I will invite the parties to make further submissions should they wish to do so. 612. One other matter requires comment. St Paul submits that the fees charged by Mr Jessup are not recoverable by the applicants. The applicants do not claim them as damages. However they were deducted from moneys received by Mr Jessup and so the amount thereof was not passed on to investors. The amount of each claim has been increased as a result of such deduction.
Case: Moloney &amp; Anor v Bells Securities Pty Ltd &amp; Ors [2005] QSC 013
Outcome: cited
The reference to 'Bells case' is to the decision of Chesterman J in Moloney &amp; Anor v Bells Securities Pty Ltd &amp; Ors [2005] QSC 013. In that case his Honour declined to allow as damages the costs of a liquidator appointed in circumstances similar to those in the present case. St Paul's argument seems to be that as the period of the ASIC exemption was to expire on 31 October 2001, a liquidator would have been appointed in any event. It is said to follow that the costs incurred by Mr Jessup were not a consequence, or perhaps a foreseeable consequence, of any conduct on the part of the respondents, particularly MDRN. The applicants did not take this point in argument, but it addresses the measure of damages in their claims against MDRN. 618. In causes of action for misleading and deceptive conduct and negligent misstatement, the relevant measure of damages is designed to put the applicant in the position in which he or she would have been, had the relevant conduct not occurred. That is often achieved by awarding the difference between the value of the property acquired as a result of the relevant conduct and the price paid for it. However there are limits upon the extent of permissible recovery. I accept that for present purposes, the test of reasonable foreseeability provides such limit. Had Project Results discharged its obligation, the loan would have been repaid in 2000. At the time of the relevant conduct it was reasonably foreseeable that the applicants would suffer loss as a result of Project Results failing to meet such obligations. It was also reasonably foreseeable that in that event, the applicants would have to resort to available securities, including Mr Rivett's guarantee, in order to recover their investments and interest. It was similarly foreseeable that, as a result of their conduct, MDRN and the trustee company would be unable to attend to such realization, and that somebody else would have to do so. That was likely to cost money.
Case: Overseas Tankship (UK) Ltd v Morts Dock &amp; Engineering Co Ltd (The Wagon Mound) [1961] AC 388
Outcome: cited
Paragraph 12 of the statement of claim pleads that: 'The [investment summary] represented and contained advice that the application from Rivett for an advance on specified security referred to in the [investment summary] had been approved by the Respondents under its loan application assessment programme, that being in accordance with the procedure referred to in paragraph 10.' 492. Paragraph 10 pleads representations in the brochure and newsletters concerning steps taken in assessing loan applications. Thus it is claimed on behalf of those applicants who received the brochure and/or either or both of the newsletters that they understood the investment summary as referring to one or more of those other documents. See par 39 of the applicants' written submissions. As I understood the applicants' final submissions only those applicants who received the autumn 1999 newsletter now rely on this alleged misrepresentation in the investment summary. It will be convenient to deal with this aspect after I have dealt with the other, more commonly shared, complaints. 493. On pp 3 and 5 of the investment summary there are statements which suggest that all units (ex 54A) or all units in Stage 1 (ex 54B) have been sold. I have previously set out relevant passages from pp 2, 3, 4 and 5 and given my reasons for concluding that a reader would take the statements in ex 54A as referring to pre-sale of all units in Stage 1. See [38]-[46]. The difference in wording between ex 54A and ex 54B is of no consequence in this regard.
Case: South Australia v Johnson (1982) 42 ALR 161
Outcome: cited
In my view it was reasonably foreseeable that as a result of the conduct of the trustee company and MDRN, additional costs would be incurred in realizing the securities. That is sufficient to permit recovery by the applicants from MDRN of the reasonable costs so incurred. See South Australia v Johnson (1982) 42 ALR 161. The prospective expiry of the ASIC exemption played no causal role in the incurrence by the applicants of their costs, nor did it render them too remote to be recoverable in these proceedings. 620. MDRN pleads professional indemnity policies with QBE for the periods from 6 September 1998 to 6 September 1999 (the "1998 policy"), 6 September 1999 to 6 September 2000 (the "1999 policy") and 6 September 2000 to 6 September 2001 (the "2000 policy"). Clause 1.1 of each policy provided: 'QBE agrees to indemnify the insured against legal liability for any Claim for compensation first made against the Insured during the Period of Cover and which is notified to QBE during the Period of Cover, in respect of any civil liability whatsoever and howsoever incurred in the conduct of the Professional Business Practice.' 621. Pursuant to cl 5.1 the period for notification of a claim was extended to include the period of 28 days after the end of the period of cover. Clause 5.2 provided: 'If during the Period of Cover the Insured becomes aware of any fact or circumstance that might give rise to a Claim under this Policy and elects to give notice in writing to QBE of such fact or circumstance, then any Claim which may subsequently arise out of such fact or circumstance shall be deemed to be a Claim made during the Period of Cover PROVIDED ALWAYS THAT such written notice is given to QBE during the same period of cover or within 28 days after its expiry.'