mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246
Outcome: followed
those orders finally determine all of the substantive rights underpinning the cases brought by Mr Owers and by Ms Tan-Bounkeua (other than in respect of costs), his Honour's orders are final orders and Austcorp has a right to appeal from those orders pursuant to s 24(1) of the Federal Court Act. It does not need leave to appeal (see Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 248, per Gibbs CJ and at 253 254, per Mason J; and see also Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9 ; (1982) 149 CLR 147 at 152 153, per curiam).
Case: Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9 ; (1982) 149 CLR 147
Outcome: followed
those orders finally determine all of the substantive rights underpinning the cases brought by Mr Owers and by Ms Tan-Bounkeua (other than in respect of costs), his Honour's orders are final orders and Austcorp has a right to appeal from those orders pursuant to s 24(1) of the Federal Court Act. It does not need leave to appeal (see Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 248, per Gibbs CJ and at 253 254, per Mason J; and see also Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9 ; (1982) 149 CLR 147 at 152 153, per curiam).
Case: Secretary, Department of Social Security v Lowe [1999] FCA 705 ; (1999) 92 FCR 26
Outcome: followed
1 May 2009, his Honour delivered Reasons for Judgment ( Ackers v Austcorp International Ltd [2009] FCA 432) but did not make any orders giving effect to those reasons on that day. Thus, in form, Austcorp seeks leave to appeal from reasons, not orders. Ordinarily, this is a course of action which the Court will not permit (see Baxter Healthcare Pty Limited v Comptroller-General of Customs (1997) 72 FCR 467 at 483 and the cases cited by Burchett J at 483; and see also Secretary, Department of Social Security v Lowe [1999] FCA 705 ; (1999) 92 FCR 26 at [16] (pp 33 34)). However, in the present case, it is not necessary for me to decide whether leave to appeal from his Honour's reasons should be granted. This is because, subsequent to 1 May 2009, his Honour made various orders on three separate occasions consequent upon the delivery of his reasons on 1 May 2009. During the course of argument before me, Austcorp made clear that it wished to challenge all of the substantive orders made by his Honour after 1 May 2009 by whatever means were considered by the Court to be appropriate. Subject to one matter to which I shall refer shortly, Counsel for the respondents to the present application did not oppose leave to appeal being granted to Austcorp nor did she oppose the making of other appropriate orders to regularise Austcorp's appeal.
Case: Soncini v Registrar of Trade Marks [2001] FCA 333 ; (2001) 109 FCR 548 ; 51 IPR 411
Outcome: cited
application before this Court under s 104 is an application in the original jurisdiction of the Court. Having regard to the powers conferred upon the Court under s 197 of the Act, it is plain that it is not necessary on appeal under s 104 to determine whether the decision of the Registrar was correct when made. In that sense, the appeal proceeding is a hearing conducted "afresh" or de novo (like an appeal proceeding under s 56 of the Act: N.V. Sumatra Tobacco Trading Company v British American Tobacco Australia Services Limited [2008] FCA 1542) on material properly placed before the Court ( Blount Inc. v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50 at 58-9; [1998] FCA 440 ; 40 IPR 498 at 506; Soncini v Registrar of Trade Marks [2001] FCA 333 ; (2001) 109 FCR 548 ; 51 IPR 411 ; Ostrowski-Meissner v Registrar of Trade Marks (2006) 69 IPR 291 at [7] and [8]). Section 197 is in these terms: On hearing an appeal against a decision or direction of the Registrar, the Federal Court may do any one or more of the following: (a) admit further evidence orally, or on affidavit or otherwise; (b) permit the examination and cross-examination of witnesses, including witnesses who give evidence before the Registrar; (c) order an issue of fact to be tried as it directs; (d) affirm, reverse or vary the Registrar's decision or direction; (e) give any judgment, or make any order, that, in all the circumstances, it thinks fit; (f) order a party to pay costs to another party.
Case: Ostrowski-Meissner v Registrar of Trade Marks (2006) 69 IPR 291
Outcome: cited
application before this Court under s 104 is an application in the original jurisdiction of the Court. Having regard to the powers conferred upon the Court under s 197 of the Act, it is plain that it is not necessary on appeal under s 104 to determine whether the decision of the Registrar was correct when made. In that sense, the appeal proceeding is a hearing conducted "afresh" or de novo (like an appeal proceeding under s 56 of the Act: N.V. Sumatra Tobacco Trading Company v British American Tobacco Australia Services Limited [2008] FCA 1542) on material properly placed before the Court ( Blount Inc. v Registrar of Trade Marks [1998] FCA 440 ; (1998) 83 FCR 50 at 58-9; [1998] FCA 440 ; 40 IPR 498 at 506; Soncini v Registrar of Trade Marks [2001] FCA 333 ; (2001) 109 FCR 548 ; 51 IPR 411 ; Ostrowski-Meissner v Registrar of Trade Marks (2006) 69 IPR 291 at [7] and [8]). Section 197 is in these terms: On hearing an appeal against a decision or direction of the Registrar, the Federal Court may do any one or more of the following: (a) admit further evidence orally, or on affidavit or otherwise; (b) permit the examination and cross-examination of witnesses, including witnesses who give evidence before the Registrar; (c) order an issue of fact to be tried as it directs; (d) affirm, reverse or vary the Registrar's decision or direction; (e) give any judgment, or make any order, that, in all the circumstances, it thinks fit; (f) order a party to pay costs to another party.
Case: Intercraft Cabinets Pty Ltd v Sampas Pty Ltd [1998] HCA 30 ; (1998) 16 ACLC 1
Outcome: cited
is true that FCN has failed to identify assets of the company out of which an order for costs might be satisfied. However, on the evidence, FCN is a going concern. FCN has previously satisfied at least one order for costs in litigation between the same parties. The undertaking offered by Mr Lawrence is not decisive of TFN's application in the sense that the offer of the undertaking is determinative of a decision in the exercise of the discretion. It is one important factor to be taken into account. In Intercraft Cabinets Pty Ltd v Sampas Pty Ltd [1998] HCA 30 ; (1998) 16 ACLC 1 at p 8, Malcolm CJ put the principle in these terms: While the fact that those who stand behind the company have offered to guarantee payment of the taxed costs of the appellant is a material consideration, it is not the only consideration. There are other matters to be considered such as the merits of the action, the conduct of the parties and any other matter relevant to the exercise of the discretion, including the proposition that the mere impecuniosity of a plaintiff should not be a bar to the commencement of proceedings. [emphasis added]
Case: Mantaray Pty Ltd v Brookfield Breeding Co. Pty Ltd (1990) 8 ACLC 304
Outcome: cited
Mantaray Pty Ltd v Brookfield Breeding Co. Pty Ltd (1990) 8 ACLC 304 at 306 Byrne J adopted observations of Connolly J (Campbell CJ and Demack J agreeing with Connolly J) in Harpur &amp; Ors v Ariadne Australia Ltd &amp; Ors (1984) 2 ACLC 356 at 362 to the effect that the purpose of an order for security is to require a person to step out from behind the "skirts of the company" and bring his or her own assets into play. Connolly J also observed that, "If however he [or she] is already available for whatever he [or she] is worth, the object of the legislation is seen to be satisfied". In Gentry Bros. Pty Ltd v Wilson Brown &amp; Associates Pty Ltd &amp; Ors (1992) 10 ACLC 1394 at 1399, Cooper J observed that once the shareholders have been exposed to personal liability, the weight to be given to the statutory purpose of an order for security against the corporation is gone. Cooper J described the offer by shareholders to accept personal liability for the costs of the corporation as a factor "weighing heavily" against the making of an order for security "notwithstanding that the worth of the shareholders may ultimately prove insufficient to satisfy any judgment in whole or in part". In KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437 , Beazley J at 445 considered both Mantaray and Gentry and put the principle to be adopted in these terms: ... the offer of security by way of guarantee from the directors or shareholders or other persons interested in the outcome of the litigation [is] a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made.
Case: Harpur &amp; Ors v Ariadne Australia Ltd &amp; Ors (1984) 2 ACLC 356
Outcome: cited
Mantaray Pty Ltd v Brookfield Breeding Co. Pty Ltd (1990) 8 ACLC 304 at 306 Byrne J adopted observations of Connolly J (Campbell CJ and Demack J agreeing with Connolly J) in Harpur &amp; Ors v Ariadne Australia Ltd &amp; Ors (1984) 2 ACLC 356 at 362 to the effect that the purpose of an order for security is to require a person to step out from behind the "skirts of the company" and bring his or her own assets into play. Connolly J also observed that, "If however he [or she] is already available for whatever he [or she] is worth, the object of the legislation is seen to be satisfied". In Gentry Bros. Pty Ltd v Wilson Brown &amp; Associates Pty Ltd &amp; Ors (1992) 10 ACLC 1394 at 1399, Cooper J observed that once the shareholders have been exposed to personal liability, the weight to be given to the statutory purpose of an order for security against the corporation is gone. Cooper J described the offer by shareholders to accept personal liability for the costs of the corporation as a factor "weighing heavily" against the making of an order for security "notwithstanding that the worth of the shareholders may ultimately prove insufficient to satisfy any judgment in whole or in part". In KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437 , Beazley J at 445 considered both Mantaray and Gentry and put the principle to be adopted in these terms: ... the offer of security by way of guarantee from the directors or shareholders or other persons interested in the outcome of the litigation [is] a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made.
Case: Gentry Bros. Pty Ltd v Wilson Brown &amp; Associates Pty Ltd &amp; Ors (1992) 10 ACLC 1394
Outcome: cited
Mantaray Pty Ltd v Brookfield Breeding Co. Pty Ltd (1990) 8 ACLC 304 at 306 Byrne J adopted observations of Connolly J (Campbell CJ and Demack J agreeing with Connolly J) in Harpur &amp; Ors v Ariadne Australia Ltd &amp; Ors (1984) 2 ACLC 356 at 362 to the effect that the purpose of an order for security is to require a person to step out from behind the "skirts of the company" and bring his or her own assets into play. Connolly J also observed that, "If however he [or she] is already available for whatever he [or she] is worth, the object of the legislation is seen to be satisfied". In Gentry Bros. Pty Ltd v Wilson Brown &amp; Associates Pty Ltd &amp; Ors (1992) 10 ACLC 1394 at 1399, Cooper J observed that once the shareholders have been exposed to personal liability, the weight to be given to the statutory purpose of an order for security against the corporation is gone. Cooper J described the offer by shareholders to accept personal liability for the costs of the corporation as a factor "weighing heavily" against the making of an order for security "notwithstanding that the worth of the shareholders may ultimately prove insufficient to satisfy any judgment in whole or in part". In KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437 , Beazley J at 445 considered both Mantaray and Gentry and put the principle to be adopted in these terms: ... the offer of security by way of guarantee from the directors or shareholders or other persons interested in the outcome of the litigation [is] a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made.
Case: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437
Outcome: cited
Mantaray Pty Ltd v Brookfield Breeding Co. Pty Ltd (1990) 8 ACLC 304 at 306 Byrne J adopted observations of Connolly J (Campbell CJ and Demack J agreeing with Connolly J) in Harpur &amp; Ors v Ariadne Australia Ltd &amp; Ors (1984) 2 ACLC 356 at 362 to the effect that the purpose of an order for security is to require a person to step out from behind the "skirts of the company" and bring his or her own assets into play. Connolly J also observed that, "If however he [or she] is already available for whatever he [or she] is worth, the object of the legislation is seen to be satisfied". In Gentry Bros. Pty Ltd v Wilson Brown &amp; Associates Pty Ltd &amp; Ors (1992) 10 ACLC 1394 at 1399, Cooper J observed that once the shareholders have been exposed to personal liability, the weight to be given to the statutory purpose of an order for security against the corporation is gone. Cooper J described the offer by shareholders to accept personal liability for the costs of the corporation as a factor "weighing heavily" against the making of an order for security "notwithstanding that the worth of the shareholders may ultimately prove insufficient to satisfy any judgment in whole or in part". In KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 13 ACLC 437 , Beazley J at 445 considered both Mantaray and Gentry and put the principle to be adopted in these terms: ... the offer of security by way of guarantee from the directors or shareholders or other persons interested in the outcome of the litigation [is] a factor, which could be decisive in a given case, to be considered in determining whether any other form of order for security for costs should be made.
Case: Bodruddaza v Minister for Immigration &amp; Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651
Outcome: cited
It is apparent that the intention was that s 483 apply to all appeals from privative clause decisions. Section 483 was then amended in the 2005 Act ('the 2005 amendments'), presumably because of decisions such as S157 ( Bodruddaza v Minister for Immigration &amp; Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651 at [19] ). Clause 39 of the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 says: Item 27 Section 483 This item repeals section 483 and substitutes a new section. This provides that section 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions (inserted by item 14, Schedule 1). Section 44 of the AAT Act provides that a person may appeal a decision of the AAT on a point of law to the Federal Court. An appeal to the Federal Court under section 44 is available in relation to a non-privative clause decision.
Case: Jong Hak Kim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 31 ; (2004) 38 AAR 304
Outcome: considered
There have, however, been other decisions of the Court where the effect of s 483 has been considered on appeal from the Tribunal and in the context of business visa decisions. In Li-Shien Chen v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1496 at [2] [3] Drummond J noted that it was common ground that that the Tribunal's decision was a privative clause decision and that an appeal against the Tribunal's decision to the Court under s 44 of the AAT Act was not available because of s 483 of the Migration Act (as it was, prior to the 2005 Act). In Jong Hak Kim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 31 ; (2004) 38 AAR 304 , also concerning a business visa decision, Kiefel J noted at [26] that it had been submitted by the Minister that the Court's jurisdiction was under s 39B of the Judiciary Act 1903 (Cth) and not s 44 of the AAT Act because of s 483 of the Migration Act . Her Honour did not reject that submission but did not consider it further. In SHCB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 308 ; (2003) 133 FCR 561 , not a business visa case, the Full Court held at [5] that, if the Tribunal decision was a privative clause decision, there was no right of appeal under s 44 of the AAT Act by reason of the operation of s 483. In Epenisa , Besanko J considered the Court's jurisdiction in an appeal from the Tribunal decision. Noting that the Court had jurisdiction under s 39B of the Judiciary Act and under ss 476A(1)(b) or (c) of the Migration Act , his Honour observed at [8] that there was no right of appeal under s 44 of the AAT Act because of s 483 of the Migration Act .
Case: Koosasi v Minister for Immigration &amp; Multicultural Affairs (2006) 43 AAR 462
Outcome: considered
The applicant also relies on two decisions of the Court which considered appeals on a question of law under s 44 of the AAT Act from business visa decisions of the Tribunal, Koosasi v Minister for Immigration &amp; Multicultural Affairs (2006) 43 AAR 462 and Yang v Minister for Immigration &amp; Multicultural Affairs [2006] FCA 1159. The applicant accepts that neither decision canvassed the effect of s 483, although other aspects of the Court's jurisdiction were discussed. It is likely that the effect of that section on jurisdiction was simply not raised for consideration. In any event, there was no determination that the Court did have jurisdiction despite s 483 of the Migration Act .
Case: Li-Shien Chen v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1496
Outcome: considered
There have, however, been other decisions of the Court where the effect of s 483 has been considered on appeal from the Tribunal and in the context of business visa decisions. In Li-Shien Chen v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1496 at [2] [3] Drummond J noted that it was common ground that that the Tribunal's decision was a privative clause decision and that an appeal against the Tribunal's decision to the Court under s 44 of the AAT Act was not available because of s 483 of the Migration Act (as it was, prior to the 2005 Act). In Jong Hak Kim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 31 ; (2004) 38 AAR 304 , also concerning a business visa decision, Kiefel J noted at [26] that it had been submitted by the Minister that the Court's jurisdiction was under s 39B of the Judiciary Act 1903 (Cth) and not s 44 of the AAT Act because of s 483 of the Migration Act . Her Honour did not reject that submission but did not consider it further. In SHCB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 308 ; (2003) 133 FCR 561 , not a business visa case, the Full Court held at [5] that, if the Tribunal decision was a privative clause decision, there was no right of appeal under s 44 of the AAT Act by reason of the operation of s 483. In Epenisa , Besanko J considered the Court's jurisdiction in an appeal from the Tribunal decision. Noting that the Court had jurisdiction under s 39B of the Judiciary Act and under ss 476A(1)(b) or (c) of the Migration Act , his Honour observed at [8] that there was no right of appeal under s 44 of the AAT Act because of s 483 of the Migration Act .
Case: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Outcome: cited
Third, he points to the scheme of the Migration Act and the legislation which introduced the provisions in question. He submits that, as there is no specific reference to business visa decisions, they are not encompassed by s 483. The applicant submits that, if the intention of Parliament was to remove an existing right of appeal to the Federal Court on a question of law in relation to business visa decisions, this would have been clearly stated ( Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [32] per Gleeson CJ and at [72] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The correct interpretation is, he submits, that s 476A in combination with s 483 limits judicial review of migration decisions but not the right of appeal on a question of law, particularly in relation to business visa decisions by the Tribunal. He submits that, read together, s 483 only applies to the class of decisions referred to in s 476A. 19 There are a number of responses to this submission. Again, there is no differentiation between the subject matter of privative clause decisions or purported privative clause decisions in s 483 and there is no reason to isolate business visa decisions. Parliament chose not to refer to business visa decisions in s 476A and chose to deal globally with privative and purported privative clause decisions in s 483. Further, s 483 makes no reference to s 476A. It does not, for example, commence with the words "on review under s 500". There is no reason to read s 483 as if those words were included so that only decisions the subject of s 476A(1) were excluded from an appeal to the Federal Court under s 44 of the AAT Act. To do so would be to ignore the clear words of s 483 and the note. 22 It is apparent that the intention was that s 483 apply to all appeals from privative clause decisions. Section 483 was then amended in the 2005 Act ('the 2005 amendments'), presumably because of decisions such as S157 ( Bodruddaza v Minister for Immigration &amp; Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651 at [19] ). Clause 39 of the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 says: Item 27 Section 483 This item repeals section 483 and substitutes a new section. This provides that section 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions (inserted by item 14, Schedule 1). Section 44 of the AAT Act provides that a person may appeal a decision of the AAT on a point of law to the Federal Court. An appeal to the Federal Court under section 44 is available in relation to a non-privative clause decision.
Case: SHCB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 308 ; (2003) 133 FCR 561
Outcome: cited
There have, however, been other decisions of the Court where the effect of s 483 has been considered on appeal from the Tribunal and in the context of business visa decisions. In Li-Shien Chen v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 1496 at [2] [3] Drummond J noted that it was common ground that that the Tribunal's decision was a privative clause decision and that an appeal against the Tribunal's decision to the Court under s 44 of the AAT Act was not available because of s 483 of the Migration Act (as it was, prior to the 2005 Act). In Jong Hak Kim v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 31 ; (2004) 38 AAR 304 , also concerning a business visa decision, Kiefel J noted at [26] that it had been submitted by the Minister that the Court's jurisdiction was under s 39B of the Judiciary Act 1903 (Cth) and not s 44 of the AAT Act because of s 483 of the Migration Act . Her Honour did not reject that submission but did not consider it further. In SHCB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 308 ; (2003) 133 FCR 561 , not a business visa case, the Full Court held at [5] that, if the Tribunal decision was a privative clause decision, there was no right of appeal under s 44 of the AAT Act by reason of the operation of s 483. In Epenisa , Besanko J considered the Court's jurisdiction in an appeal from the Tribunal decision. Noting that the Court had jurisdiction under s 39B of the Judiciary Act and under ss 476A(1)(b) or (c) of the Migration Act , his Honour observed at [8] that there was no right of appeal under s 44 of the AAT Act because of s 483 of the Migration Act .