mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169
Outcome: cited
Section 62A of the Act relevantly provides that the applicant in a claimant application may deal with all matters arising under the Act in relation to the application. That includes the amendment of the application from time to time ( Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [12] per French J). 41 The procedural chronology is as follows: &#8226; The description of the replacement claim group is agreed (25 October 2006). &#8226; The replacement claim group resolves that the current applicant ' as a group ' is no longer authorised to deal with the application (25 October 2006). &#8226; The replacement applicant is authorised by the replacement claim group (25 October 2006). &#8226; The first motion is filed (27 February 2007). It lists the replacement applicant as the party moving the Court for orders. &#8226; The first motion is amended to specify the current applicant as the moving party (28 February 2007). &#8226; The Court is moved for orders by the current applicant pursuant to the first motion as amended (21 March 2007 and 28 May 2007). 42 A question arises as to whether the current applicant can move the Court for orders to amend the application in these circumstances. On one view, until the making of orders to replace the current applicant, it remains the applicant in the proceedings and may deal with the application and bring the first motion. On the other hand, however, the unchallenged evidence is that the replacement claim group withdrew the current applicant's authority to deal with the application at the meeting. That would, on its face, include a revocation of the authority to file and prosecute a notice of motion to amend the application.
Case: Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517
Outcome: cited
The adoption of a process of decision-making does not require all members of the claim group to be involved in making the decision. Nor does it require a unanimous vote ( Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 per Stone J at [25]). The members of the claim group should be given every reasonable opportunity to participate in the decision-making process. It cannot, logically, be the case that all, in the sense of each and every member of the claim group must be involved in and agree to the proposed decision. That would, as has been pointed out in Quall v Risk [2001] FCA 378 at [33] per O'Loughlin J include persons who are unable to participate by reason of age, mental capacity or unknown whereabouts and would permit an individual to prevent the progress of a claim. To cancel a meeting merely because one member is unable to attend would also constitute a waste of limited resources. The costs of holding a Njamal community meeting can exceed $13,000.
Case: Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135
Outcome: cited
The proposed technical amendments, broadly and in summary: &#8226; correct typographical errors; &#8226; exclude category B past and intermediate period acts wholly inconsistent with the continued existence, enjoyment or exercise of any native title rights or interests; &#8226; exclude a claim of native title rights and interests conferring exclusive rights over areas in relation to which a previous non-exclusive possession act has been done; &#8226; distinguish between rights and interests claimed over areas where a claim of exclusive possession can be recognised and areas where such a claim cannot be recognised, in accordance with s 190B(9)(c) of the Act; &#8226; delete certain rights and interests claimed, to reflect decisions of the High Court ( Western Australia v Ward [2002] HCA 28 ; (2002) 213 CLR 1) and the Full Federal Court ( Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135) ; and &#8226; better address the requirements of the Act (ss 62(2)(e) and 190B(5)) in describing the native title rights and interests claimed. 11 The technical amendments do not affect the substantive rights and interests claimed and they are supported by the first respondent, the State of Western Australia. There is no evidence that the technical amendments were approved by the replacement claim group. Subject to the procedural matters that I will later outline, however, it is appropriate that the application be so amended. 12 In the second motion, the replacement applicant applies for orders that it replace the current applicant. The replacement involves the removal of 11 persons and the addition of three new persons. Of the 11 persons proposed to be removed, three are deceased and seven consent to being removed. The other is Mr McPhee. There is no opposition to the removal of the deceased applicant members or to the addition of the proposed new members. Six members of the current applicant will remain members of the replacement applicant.
Case: Quall v Risk [2001] FCA 378
Outcome: cited
The adoption of a process of decision-making does not require all members of the claim group to be involved in making the decision. Nor does it require a unanimous vote ( Lawson v Minister for Land and Water Conservation for the State of New South Wales [2002] FCA 1517 per Stone J at [25]). The members of the claim group should be given every reasonable opportunity to participate in the decision-making process. It cannot, logically, be the case that all, in the sense of each and every member of the claim group must be involved in and agree to the proposed decision. That would, as has been pointed out in Quall v Risk [2001] FCA 378 at [33] per O'Loughlin J include persons who are unable to participate by reason of age, mental capacity or unknown whereabouts and would permit an individual to prevent the progress of a claim. To cancel a meeting merely because one member is unable to attend would also constitute a waste of limited resources. The costs of holding a Njamal community meeting can exceed $13,000.
Case: Strickland v Western Australia [1999] FCA 221 ; (1999) 89 FCR 117
Outcome: cited
The applicant relies on O 13 r 2(1) of the Federal Court Rules ('the Rules') which permits the amendment of ' any document in the proceeding '. That applies to a native title determination application, subject to the constraints imposed by ss 64 and 66B of the [2003] FCA 1423 ; Act ( Anderson v Western Australia (2003) 134 FCR 1 at [36] per French J; Strickland v Western Australia [1999] FCA 221 ; (1999) 89 FCR 117 at [9] per Nicholson J). The constraints imposed by ss 64 and 66B are not relevant to the first motion.
Case: X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 ; (2002) 116 FCR 319
Outcome: distinguished
X v Minister for Immigration and Multicultural Affairs [2002] FCA 56 ; (2002) 116 FCR 319, upon which the appellant relied, is clearly distinguishable. There the Tribunal said that because a diary relied on by the appellant had not been translated, it could not take its contents into account. In allowing the appeal and setting aside the Tribunal's decision, Gray J said at [30]-[31]: "It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated. ... What course the Tribunal might take in a particular case will depend on the circumstances of the case. In the present case, it did not have the option of refusing to take into account the diary because it was not in English." Moore J said at [49] and [52]: "the Tribunal did receive the contentious diary and had regard to it but only in a limited and qualified way. That is because the Tribunal did not seek to ascertain what the diary said. ... In effectively rejecting the diary as material supportive of the appellant's case by declining to consider its contents without taking steps that might give meaning (to the Tribunal) to its contents, the Tribunal erred in the way discussed by Gray J. The consequence of the approach the Tribunal adopted was that it ignored relevant material." O'Loughlin J, who dissented in the result, characterised the conduct of the Tribunal as "the refusal ... to have regard to the contents of the diary (and this, effectively, means the refusal ... to arrange for an interpretation of the contents of the diary)": at [41]. 19 In the present case the Tribunal did not refuse to take the letters into account. The appellant accurately explained their content, as appears at [11], and the Tribunal took that into account in the manner there appearing. As Gray J observed, the course to be taken by the Tribunal in a case where a document is presented in untranslated form depends on the circumstances of the case. Here the Tribunal had the benefit of the appellant's explanation of the content of the letters and why they were important to his case, and the Tribunal took what he said into account. As it happens, the explanation was accurate, as appears from [14]. The Tribunal did not fall into the error identified by Moore J of failing to seek to ascertain what the letters said or not taking steps that might give meaning to their contents.
Case: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117
Outcome: distinguished
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 does not assist the appellant. There the Tribunal did not accept a letter as a genuine document because it had been put before the Tribunal at a late stage. The Tribunal was not aware that the latter had been provided to the Immigration Department at an early stage. Thus it failed to take the letter into account. As I have said at [19], that is not this case. 21 The procedural fairness claim also fails. As indicated at [7] to [11] the appellant put his case about the bombing and its consequences. This was repeated in the letters, as the appellant explained to the Tribunal. The passage at [11] shows it was aware, as the appellant had told it, that the letters were contemporaneous with his arrest and detention. The Tribunal's failure to have the documents translated is not a denial of procedural fairness because their content discloses nothing he had not already told the Tribunal.
Case: Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Limited [2008] FCA 1458 ; (2008) 251 ALR 166
Outcome: referred to
applicant has made a series of attempts to draft viable applications and statements of claim. In Auskay International Manufacturing &amp; Trade Pty Ltd v Qantas Airways Limited [2008] FCA 1458 ; (2008) 251 ALR 166 , I struck out the applicant's second amended statement of claim but granted leave to replead. That leave was availed of and further attempts were made to produce an appropriate statement of claim. Unfortunately, I have, today, found it necessary to strike out the applicant's fourth amended statement of claim. Procedurally, there matters rest. On 9 October 2009, I heard argument on a motion, filed by the applicant, for this proceeding to be transferred to the New South Wales District Registry of the Court. The application was opposed by the second, third, fourth, fifth, eighth and ninth respondents. Section 48(1) of the Federal Court of Australia Act 1976 (Cth) ("the Act") provides that: "The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes".
Case: Bialkower v Acohs Pty Ltd (1998) 83 FCR 1
Outcome: cited
is, to say the least, some doubt that an order for contribution could be made in respect of damages awarded under s 82 following a trial held in New South Wales. This is because of the different wording of s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ("the Law Reform Act") which provides for the recovery of contribution from joint tort-feasors. In Bialkower v Acohs Pty Ltd (1998) 83 FCR 1 at 11, the Full Court expressed the view that, because the cause of action under s 82 for a contravention of the TPA is entirely statutory in nature and is not an action in tort, s 5 of the Law Reform Act would not empower the Court to make a contribution order. The TPA itself does not make provision for contribution orders save in respect of damage caused by contraventions of s 52: as to which see Part VIA.
Case: Burke v LFOT Pty Limited [2002] HCA 17 ; (2002) 209 CLR 282
Outcome: cited
may, nonetheless, be scope for contribution claims to be brought in equity: see Burke v LFOT Pty Limited [2002] HCA 17 ; (2002) 209 CLR 282. In that case the High Court held that equitable contribution could be awarded where a respondent had contravened s 52 of the TPA. No award was made, however, because of limitations on the application of the doctrine: see at 294 (per Gaudron A-CJ and Hayne J) and at 300-303 (per McHugh J). It is sufficient for present purposes to observe that a respondent who wished to seek contribution from a fellow respondent following a trial in Sydney would confront far more legal difficulties than would the same respondent in a proceeding which was tried in Melbourne. There is, therefore, a sound basis for the concerns, expressed by some of the respondents, that they would be prejudiced were the present application to transfer the proceeding to succeed. The applicant has chosen to commence this proceeding in the Victoria District Registry. It remains in its early interlocutory stages. Having considered all of the matters raised by the parties, I can see no justification, in the interests of justice, for the proceeding to be transferred to the New South Wales District Registry.
Case: Henderson v Amadio Pty Ltd (No 1) [1995] FCA 1300 ; (1995) 62 FCR 1
Outcome: cited
is also a concern, felt by a number of respondents, that they will be prejudiced if the application is granted. If the matter is tried in Victoria and the applicant succeeds, a respondent will be able to seek contribution from other respondents: see Henderson v Amadio Pty Ltd (No 1) [1995] FCA 1300 ; (1995) 62 FCR 1 at 200-201 (per Heerey J). This is because s 79 of the Judiciary Act 1903 (Cth) picks up certain provisions which are found in ss 23A and 23B of the Wrongs Act 1958 (Vic). By s 23B(1) , "a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage ...". Section 23A(1) provides that s 23B(1) applies to liability arising in "tort, breach of contract, breach of trust or otherwise " (emphasis added). Contribution can, therefore, be ordered where there is a successful claim for damages under s 82 of the TPA .
Case: Markethaven Pty Ltd (subject to Deed of Company Arrangement) v Commonwealth of Australia [2009] FCA 694
Outcome: referred to
principles have been applied in many cases. Not surprisingly, the applicant places reliance on cases such as Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 , Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrator Appointed)(in liquidation) [2009] FCA 227 and Markethaven Pty Ltd (subject to Deed of Company Arrangement) v Commonwealth of Australia [2009] FCA 694 , in which the Court granted applications to transfer proceedings between Registries. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. These factors included the residency of the parties and witnesses, the expense and prejudice likely to be experienced by the respective parties were a transfer to be granted, the similarity of causes of action in a proceeding on foot in the other Registry involving the same parties, and the possibility of interference with a fair trial.
Case: Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrator Appointed)(in liquidation) [2009] FCA 227
Outcome: referred to
principles have been applied in many cases. Not surprisingly, the applicant places reliance on cases such as Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 , Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrator Appointed)(in liquidation) [2009] FCA 227 and Markethaven Pty Ltd (subject to Deed of Company Arrangement) v Commonwealth of Australia [2009] FCA 694 , in which the Court granted applications to transfer proceedings between Registries. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. These factors included the residency of the parties and witnesses, the expense and prejudice likely to be experienced by the respective parties were a transfer to be granted, the similarity of causes of action in a proceeding on foot in the other Registry involving the same parties, and the possibility of interference with a fair trial.
Case: Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382
Outcome: referred to
principles have been applied in many cases. Not surprisingly, the applicant places reliance on cases such as Wyllie Group Pty Ltd v ANZ Securities Ltd [2000] FCA 1382 , Mortimer v Opes Prime Stockbroking Ltd (ACN 086 294 028) (Administrator Appointed)(in liquidation) [2009] FCA 227 and Markethaven Pty Ltd (subject to Deed of Company Arrangement) v Commonwealth of Australia [2009] FCA 694 , in which the Court granted applications to transfer proceedings between Registries. These decisions are of limited assistance given the wide range of variables which confronted the judges who decided them. These factors included the residency of the parties and witnesses, the expense and prejudice likely to be experienced by the respective parties were a transfer to be granted, the similarity of causes of action in a proceeding on foot in the other Registry involving the same parties, and the possibility of interference with a fair trial.
Case: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423
Outcome: referred to
The above orders are an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act and the applicant needs leave to appeal: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. A single Judge has the power to determine the application by reason of s 25(2) of the Federal Court of Australia Act . 7 The applicant was born on 1 December 1963 and is a citizen of the People's Republic of China. He arrived in Australia on 24 October 2004. On 2 November 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 November 2004 a delegate of the Minister refused to grant a protection visa. 8 On 30 December 2004 the applicant applied to the Tribunal for a review of the delegate's decision, and on 17 January 2005 the applicant was invited to attend a hearing before the Tribunal on 23 February 2005. He was told that, without more, the Tribunal could not make a decision in his favour on the basis of the information before it. The applicant did not respond to the hearing invitation by 17 February 2005, and the Tribunal proceeded to deal with his application under s 426A of the Migration Act 1958 (Cth). On 24 February 2005 the Tribunal decided to affirm the delegate's decision and it handed down that decision on 17 May 2005. 9 The applicant claimed that he had a well-founded fear of persecution by reason of his membership of a particular social group or political or religious opinions. This arose, he said, because of his membership of Falun Gong. The applicant claimed that he was the leader of Falun Gong in Tianjin and that he had been given many warnings by the local police. The applicant claimed that in December 1999 he was placed in detention for a period of one month and that in December 2002, after taking part in a demonstration against the local government, he was placed in detention for two months and forced to attend re-education classes. 10 The Tribunal was not satisfied on the information presented to it that the applicant had a genuine fear of persecution or that there was a real chance that he would be persecuted. The Tribunal referred to the information before it as 'very limited, vague and unreliable'.
Case: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: referred to
In order to obtain leave to appeal, the applicant must show that the decision of the Magistrate is attended with sufficient doubt to warrant its reconsideration by this Court and that substantial injustice would result if leave were refused supposing the decision to be wrong. Leave may be granted more readily where substantive rights are at issue, as distinct from cases which involve a point of practice or procedure: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. 15 The Tribunal complied with the requirements of the Migration Act 1958 (Cth), ss 425 , 425A , 426A and it was entitled to proceed to make its decision. It was entitled to conclude that the material before it was not sufficient to make out the applicant's claim. There is no arguable case of jurisdictional error and the decision of the Magistrate is not attended with sufficient doubt to warrant its reconsideration by this Court. In those circumstances, leave to appeal must be refused. 16 The application for leave to appeal is refused. The applicant must pay the first respondent's costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 30 June 2006 Applicant: The applicant appeared in person. Counsel for the Respondent: Ms S Zarucki Solicitor for the Respondent: Clayton Utz Date of Hearing: 8 May 2006 Date of Judgment: 30 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/809.html
Case: Bishop v Bridgelands Securities (1990) 25 FCR 311
Outcome: cited
relevant principles are not controversial. The basic principle, which ought to guide the exercise of discretion, is that "the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation": Bishop v Bridgelands Securities (1990) 25 FCR 311 at 314. This case involved an application for joinder of additional applicants, which raises similar considerations to the present one. ASIC submits that the following factors are also relevant: (a) the state of progression of the proceeding: Knight v Beyond Properties Pty Ltd (No 2) at [25]. (b) the degree to which cost and delay will be minimised by a single trial or by separate trials: Bishop v Bridgelands Securities Ltd at 314; (c) the efficient use of the resources of the parties and the court: Carter v Commissioner of Taxation at [23]; Dean-Willcocks v Air Transit International Pty Ltd at [34]; (d) that it is preferable from a public policy perspective to avoid a multiplicity of hearings: Main-Road Property Group Pty Ltd v Pelligra &amp; Sons Pty Ltd [2007] VSC 43 at [21] ; (e) any relevant public interest in the proceeding: Dean-Willcocks v Air Transit International Pty Ltd at [35]; and (f) the degree of similarity in the transactions alleged in the proceedings this may be a more weighty consideration than the somewhat technical point that the transactions do not form a series: Australian Securities &amp; Investment Commission v Somerville [2008] NSWSC 788 at [42] . SATTVIC'S SUBMISSIONS Limited and unique issues