mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537
Outcome: cited
Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."
Case: Ex parte Fielder Gillespie Ltd [1984] 2 QdR 339
Outcome: cited
Such further or other orders as the Court thinks appropriate. 2 This matter was heard by me on 4 June 2008 and again on 10 June 2008. At the conclusion of the hearing of 4 June 2008, it was clear that, from the perspective of both the applicant and Termicide Pest Control Pty Ltd ("the respondent"), the key issue was whether the Court was prepared to make the orders sought by the applicant in paras 2, 4 and 5 of the amended notice of motion. In relation to the remaining orders sought by the applicant: &#8226; The Court has already granted leave to issue the subpoenas sought in para 1 of the amended notice of motion. The only issue outstanding in relation to these subpoenas was a return date, which could be resolved once the Court had considered whether the trial dates should be vacated; and &#8226; In the event that I was to make the orders sought by the applicant in paras 2, 4 and 5 of the amended notice of motion, any orders as to discovery would properly be the subject of future directions in this matter. 3 During the hearing of 4 June 2008, Mr Peden for the applicant proffered an oral undertaking by the applicant in relation to contact by the applicant and its employees with clients of the respondent. Mr Looney for the respondent however submitted that any such undertaking once committed to writing should, inter alia , extend to associated entities of the applicant. 4 In relation to the proposed attendance at the premises of Vision Glass Recycling, Mr Peden also accepted that any order made by the Court should be such as to maintain confidentiality of process as contemplated in ex parte Fielder Gillespie Ltd [1984] 2 QdR 339 (cf Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228). Mr Looney submitted that any order permitting attendance at the premises of Vision Glass Recycling should contemplate attendance by independent parties. 5 I shall return to these issues later in the judgment. 6 The respondent opposed the orders sought by the applicant. However, Mr Looney for the respondent also submitted that, as it was important to the respondent that the current trial dates remain even if the Court were minded to grant leave to the applicant to further amend the amended statement of claim, the Court could nonetheless refuse to vacate the trial dates, give the respondent leave to amend its defence, and give the respondent liberty to apply in relation to any further evidence the respondent wished to lead.
Case: Ketteman v Hansel Properties Ltd [1987] AC 189
Outcome: cited
Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."
Case: Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128
Outcome: cited
Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."
Case: Smith v Gannawarra Shire Council (2002) 4 VR 344
Outcome: cited
Further, I accept the submission of Mr Peden that there is some public interest in having all issues raised by the applicant properly considered following adequate preparation for trial, hence justifying an adjournment of the trial dates (cf Smith v Gannawarra Shire Council (2002) 4 VR 344). I do not consider that the applicant is in any way seeking to champion the public interest in prosecuting this case, and indeed this was not the applicant's contention. Nonetheless proper resolution of the issues in dispute in this case does, in my view, have public interest implications because: &#8226; Apparently 30,000 premises in south-east Queensland have installed the respondent's product; and &#8226; Determination of issues pertaining to effective building practices in south-east Queensland is an issue of public interest. 37 In my view, the appropriate order is that the trial dates should be vacated, and that the applicant is to bear the costs of the respondent thrown away by vacation of the trial dates subject to an undertaking in a form acceptable to the respondent. 38 In light of the leave granted to the applicant to further amend its amended statement of claim, it is appropriate to make an order pursuant to O 17 of the Federal Court Rules to allow the applicant access to the premises of Vision Glass Recycling, subject to conditions as to confidentiality. In relation to this issue I also accept the submission of the respondent that access to the relevant premises by experts nominated by the applicant be confined to persons who are independent. It is also appropriate that information or knowledge gained by the independent expert and the applicant's legal representatives remain confidential.
Case: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394
Outcome: cited
Conveniently, general principles relevant to the Court granting leave to amend pleadings were summarised recently in the judgment of Edmonds J in SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4) [2007] FCA 1035. In relation to this issue I adopt the following statements of his Honour: " [14] The starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided: Queensland v J L Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 ; Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Although O 13 r 2 of the Federal Court Rules ('the Rules') confers a discretion on the Court as to whether to allow the amendments, it is well-established that an amendment will ordinarily be allowed provided it can be done without harm to the other party which cannot be compensated by an award of costs or an adjournment: The Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394 ; Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. [15] The overriding concerns should be to ensure that all matters in issue upon which the parties seek adjudication are determined in the proceeding and to avoid a multiplicity of proceedings: Caruso Australia Pty Ltd v Portec Australia Pty Ltd [1986] FCA 40. [16] Order 13 r 2(2) of the Rules makes explicit reference to this principle: All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. [17] The general approach is that where a party satisfies the Court that he or she generally desires to amend the pleadings so as to alter an existing claim or to introduce a new claim, leave should be granted unless the proposed amendment is so obviously futile that it would be struck out if it had appeared in the original pleading or would cause substantial injustice which cannot be compensated for in the manner indicated in [14] above: Abela v Giew (1964) 81 WN (Pt 1) (NSW) 344 at 345. [18] It is recognised that the allowance of an amendment before a trial begins (when there is time for a proper defence to be filed) stands in a very different position from amendment towards the end of a trial: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220 per Lord Griffiths."
Case: Hudson v Entsch [2005] FCA 557
Outcome: considered
The Commission also points to Hudson v Entsch [2005] FCA 557 where Dowsett J considered Mr Hudson's opposition to a costs order being made against him on the basis that, inter alia, the matter involved a significant question of public interest. His Honour held that that submission was the most significant and meritorious of Mr Hudson's arguments (at [5]) but that: ...there is great potential danger in allowing individual members of the public to decide that particular issues are of public interest if that means that others must pay for the ensuing litigation. An individual should not be encouraged to think that he or she can litigate without the risk of an order for costs in the event that he or she is unsuccessful, merely because he or she considers that there is some aspect of public interest to be vindicated in the litigation. The question is whether the first respondent or the applicant should bear the first respondent's costs of these proceedings. The applicant started the proceedings; the first respondent had no choice in the matter and resisted them. I consider that the better outcome is that the applicant pay those costs. 14 Mr Smith does not rely solely on the question of public interest in relation to costs. However, the Commission submits that, as in Entsch , Mr Smith started the proceedings and the Commission had no choice but to contest them. Accordingly, the Commission says, the Court should make an order that Mr Smith pay its costs. 15 In response, Mr Smith submits that the evidence before the Tribunal, which was also requested by discovery in his petition, will show that it was the Commission that ' caused my allegation and petition '.
Case: Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627
Outcome: considered
The High Court has addressed costs orders under the Act in Nile v Wood [1988] HCA 30 ; (1988) 167 CLR 133 and Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627.
Case: Australian Securities Commission v Samson (1997) 24 ACSR 555
Outcome: followed
these circumstances it is, I think, appropriate for a warrant to be issued under s 530C. Mr Broberg for the liquidator has provided me with a form of warrant which is based on the form granted in Australian Securities Commission v Samson (1997) 24 ACSR 555. With minor modification, I will direct that the warrant in those terms be issued to be executed at the place of business of the second defendant. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 11 December 2009 Counsel for the Plaintiff: Mr R Broberg Solicitor for the Plaintiff: Irlicht &amp; Broberg Date of Hearing: 1 December 2009 Date of Judgment: 1 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1489.html
Case: YBCF v Minister for Immigration and Citizenship [2007] AATA 1863
Outcome: affirmed
This is an application brought under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act ") for review of a decision of the Administrative Appeals Tribunal ("the Tribunal") which refused an application for reinstatement under s 42A(10) of the AAT Act : see YBCF v Minister for Immigration and Citizenship [2007] AATA 1863. The application for reinstatement was filed in respect of an application to the Tribunal ("the review application") for review of a decision of a delegate of the second respondent which refused the grant of a protection visa to the applicant. The Tribunal's order dismissing the review application was made on 9 September 1996 pursuant to the filing of a notice of withdrawal by the applicant's representative. Since that date, the applicant has been involved in other unsuccessful proceedings seeking a protection visa under the Migration Act 1958 (Cth). 2 Section 42A(10) of the AAT Act enables the Tribunal to reinstate an application to the Tribunal which has been "dismissed in error". Under s 42A(6) , unless there is an order of reinstatement of a dismissed application, that application is taken to be concluded. 3 In relation to the present application for reinstatement, the Tribunal decided that the review application had not been dismissed in error because Mr Jones, the applicant's representative before the Tribunal in 1996, had in fact acted within his instructions when lodging a withdrawal of the review application.
Case: Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172
Outcome: cited
The appellant seeks prerogative relief of the kind issued in the exercise of the Court's original jurisdiction under s 39B(1) of the Judiciary Act 1901 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the FCA. The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia (2001) CLR 507. The question on appeal is whether the FMC decision is affected by some legal, factual or other error : Allesch v Maunz [2000] HCA 40 ; (2000) 203 CLR 172 at [23] . Section 28(1)(a) and (b) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate including that the FMC decision be set aside and the proceeding remitted to the RRT for further determination.
Case: Chey v Minister for Immigration and Citizenship [2007] FCA 871 
Outcome: cited
In assessing a claim of alleged bias, the High Court in Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 426-427 and 435 explained the test for apprehended bias in administrative proceedings in the following terms: "The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof. Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented." See also Chey v Minister for Immigration and Citizenship [2007] FCA 871 (per Kenny J); Rana v Australian Federal Police [2006] FCAFC 169 at [49] - [50] ; Forge v Australian Securities and Investments Commission [2006] HCA 44 ; (2006) 80 ALJR 1606; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at 564-566 (per Hayne J); and Re JRL: Ex parte CJL [1986] HCA 39 ; (1986) 161 CLR 342.
Case: Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424
Outcome: applied
It is not sufficient if a reasonable bystander " has a vague sense of unease or disquiet " ( Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424 (per Weinberg J)).
Case: M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660
Outcome: cited
Additional evidence not before the RRT may, however, be admitted in exceptional cases where the material is required to make good a contention that raises a question of law, as distinct from a question of fact: see Phillips at [31] (per Spender, Madgwick and Finkelstein JJ); and see STKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 546 at [15] and [21]-[22] (per Selway J); M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 at [30] (per Crennan J); NASB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 24 at [54] (per Beaumont, Lindgren and Tamberlin JJ). A failure to provide a party with natural justice is a contention of the type that may, in the discretion of the reviewer, be subject to further material: Percerep v Minister for Immigration and Multicultural Affairs (1998) FCA 1088 at [15] - [16] (per Weinberg J).