mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Reilly v State of Victoria (1991) 5 VIR 1
Outcome: followed
The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton &amp; South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B]. 41 Dr Jessup referred me to the policy considerations that underlie the law's traditional reluctance to grant injunctions that will perpetuate an employment relationship. In particular, he submitted that the law recognises that it would be problematical to enforce the continuation of the relationship if the employer and employee have lost faith and confidence in each other. These policy considerations are discussed by Smith J in Reilly at 22-23. 51 The first order sought corresponds with the form of injunction that was granted in Hill and by Smith J in Reilly . I am satisfied that an injunction in this form is appropriate.
Case: Irani v Southampton &amp; South West Hampshire Health Authority [1985] ICR 590
Outcome: cited
The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton &amp; South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B].
Case: Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737
Outcome: considered
The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton &amp; South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B].
Case: Ahmad et al v The Government of the United States of America [2006] EWHC 2927 (Admin)
Outcome: referred to
Court has before it evidence that the Attorney General of the Republic of Croatia has assured the Attorney General of Australia that he will make a request to the President of the Supreme Court of the Republic of Croatia that the trial of the applicant be held before one of the above four courts having extra-territorial jurisdiction. The assurances so given give rise to the presumption that the Republic of Croatia is acting in good faith: see Ahmad et al v The Government of the United States of America [2006] EWHC 2927 (Admin) per Laws LJ at [74], [76].
Case: Cabal and Another v United Mexican States and Others [2001] FCA 427 ; (2001) 108 FCR 311
Outcome: followed
determining whether 'substantial grounds' exist for believing that there is an 'extradition objection in relation to the offence' , French J (as he then was) in Cabal and Another v United Mexican States and Others (No 2) [2000] FCA 445 ; (2000) 172 ALR 743 (' Cabal (2000)') at 748-49 said: The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). His Honour's observations were cited with approval by the Full Court in Cabal and Another v United Mexican States and Others [2001] FCA 427 ; (2001) 108 FCR 311 (' Cabal (2001)') at [137]-[138].
Case: Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988)
Outcome: referred to
inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process was traditionally exercised to prevent its jurisdiction being used 'for a purpose other than that for which the proceedings are properly designed and exist' : see Spautz v Williams [1983] 2 NSWLR 506 at 539 per Hunt J. In Wiest v Director of Public Prosecutions and Another [1988] FCA 450 ; (1988) 23 FCR 472 , Burchett J at 486-487 quoted his decision in Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988) where his Honour, having reviewed the authorities said: These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse.
Case: Jago v The District Court of New South Wales and Others [1989] HCA 46 ; (1989) 168 CLR 23
Outcome: referred to
applicant relies upon the judgment of Mason CJ in Jago v The District Court of New South Wales and Others [1989] HCA 46 ; (1989) 168 CLR 23. In those proceedings the question arose whether a permanent stay should be granted in view of a delay in the prosecution of six years after the defendant had been charged with certain offences. The High Court of Australia held that the Court's power to prevent abuse of process in criminal proceedings extends to a power to prevent unfairness to the accused. At 30-31 Mason CJ stated: The continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. Finally, it should be observed that the applicant's reliance upon Jago is misplaced as the current proceedings do not relate to a criminal trial: see Vasiljkovic v The Commonwealth of Australia and Others [2006] HCA 40 ; (2006) 227 CLR 614 at 629. Jago was concerned with the power of the High Court to prevent abuses of process in criminal proceedings. This Court is only concerned to determine whether the order of the Magistrate that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences should be upheld.
Case: Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264
Outcome: referred to
Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292 Brennan J said in relation to s 80 of the Constitution : An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence created by or under a law made by the Parliament. See also Re Colina and Another; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 397 per Gleeson CJ and Gummow J.
Case: Pasini v United Mexican States and Others [2002] HCA 3 ; (2002) 209 CLR 246
Outcome: referred to
claim of an abuse of process can be sustained under Chapter III of the Commonwealth of Australia Constitution Act 1901 (Cth) ('the Constitution ') since at no earlier stage prior to the institution of these proceedings has the judicial power of the Commonwealth been invoked: see Pasini v United Mexican States and Others [2002] HCA 3 ; (2002) 209 CLR 246 at 253 per Gleeson CJ, Gaudron, McHugh and Gummow JJ. The Court observes that even if a stay of proceedings could have been warranted of the present proceedings before this Court on the ground of delay, it would not affect the determination of the Magistrate that the applicant was eligible for surrender pursuant to s 19(1) of the Extradition Act, nor would it affect the order under s 19(9) that the applicant be committed to prison to await surrender: see Pasini at 279 per Kirby J.
Case: Rahardja v Republic of Indonesia [2000] FCA 1297
Outcome: followed
Rahardja v Republic of Indonesia [2000] FCA 1297 the Full Court at [56] found that even if Indonesian authorities were more disposed to not prosecute a non-Chinese Indonesian rather than a Chinese Indonesian, such fact did not establish that 'there are substantial grounds for believing that Mr Rahardja may be prejudiced at his trial or punished by reason of his race' (emphasis in original). The Full Court held at [56] that the question whether persons of a different ethnic background would have a better chance of avoiding trial is not a relevant consideration, as ' [t] he question is what will happen at trial or on sentence' .
Case: Re Colina and Another; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386
Outcome: referred to
Kingswell v The Queen [1985] HCA 72 ; (1985) 159 CLR 264 at 292 Brennan J said in relation to s 80 of the Constitution : An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence created by or under a law made by the Parliament. See also Re Colina and Another; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 397 per Gleeson CJ and Gummow J.
Case: Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251
Outcome: referred to
Rogers v The Queen [1994] HCA 42 ; (1994) 181 CLR 251 McHugh J at 286 observed that abuses of process 'usually' fall into three categories, namely where the Court's procedures are invoked for an illegitimate purpose; where the use of the Court's procedures is unjustifiably oppressive to one of the parties; and where the use of the Court's procedures would bring the administration of justice into disrepute.
Case: Sankey v Whitlam and Others [1978] HCA 43 ; (1978) 142 CLR 1
Outcome: referred to
extradition offences with which the applicant is charged cannot be characterised as offences against a Commonwealth law since the offences do not arise under a law made by the Commonwealth Parliament. In Sankey v Whitlam and Others [1978] HCA 43 ; (1978) 142 CLR 1 , the High Court confirmed the need for an exercise of power by the Commonwealth Parliament in enacting legislation before a law can be said to be a Commonwealth law: see Gibbs ACJ at 30-1, Stephen J at 73, Aickin J at 104. Any similarity between the offences with which the applicant is charged in the Republic of Croatia and the possibility of the existence of an equivalent criminal offence in Australia is irrelevant. Section 80 of the Constitution does not apply because the applicant has not been charged with a Commonwealth criminal offence. It follows from the above finding, namely that s 80 of the Constitution does not apply, that there is no requirement under Australian law that the applicant be tried by jury. Accordingly the submission that the applicant has the right to be tried by jury, and that such right will be lost to him if he is tried in the Republic of Croatia, is rejected. It follows that the submission of the applicant that there is no evidence that the Republic of Croatia has the facilities to accommodate a jury trial is irrelevant.
Case: Spautz v Williams [1983] 2 NSWLR 506
Outcome: referred to
inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process was traditionally exercised to prevent its jurisdiction being used 'for a purpose other than that for which the proceedings are properly designed and exist' : see Spautz v Williams [1983] 2 NSWLR 506 at 539 per Hunt J. In Wiest v Director of Public Prosecutions and Another [1988] FCA 450 ; (1988) 23 FCR 472 , Burchett J at 486-487 quoted his decision in Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988) where his Honour, having reviewed the authorities said: These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse.
Case: Vasiljkovic v The Commonwealth of Australia and Others [2006] HCA 40 ; (2006) 227 CLR 614
Outcome: referred to
it should be observed that the applicant's reliance upon Jago is misplaced as the current proceedings do not relate to a criminal trial: see Vasiljkovic v The Commonwealth of Australia and Others [2006] HCA 40 ; (2006) 227 CLR 614 at 629. Jago was concerned with the power of the High Court to prevent abuses of process in criminal proceedings. This Court is only concerned to determine whether the order of the Magistrate that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences should be upheld.
Case: Wiest v Director of Public Prosecutions and Another [1988] FCA 450 ; (1988) 23 FCR 472
Outcome: referred to
inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process was traditionally exercised to prevent its jurisdiction being used 'for a purpose other than that for which the proceedings are properly designed and exist' : see Spautz v Williams [1983] 2 NSWLR 506 at 539 per Hunt J. In Wiest v Director of Public Prosecutions and Another [1988] FCA 450 ; (1988) 23 FCR 472 , Burchett J at 486-487 quoted his decision in Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988) where his Honour, having reviewed the authorities said: These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse.
Case: Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311
Outcome: cited
to purport to give to a Certificate such a status would be Constitutionally impermissible: cf Harris v Caladine (1991) 172 CLR 84. Section 37A(1) of the Family Law Act 1975 (Cth) allowed the judges of the Family Court to make rules delegating to Registrars all or any of the powers of the Court. An order had been made delegating to Registrars certain powers. A Registrar of the Family Court had there made consent orders for the settlement of property. By a majority it was held that the order was valid. Mason CJ and Deane J there held at 95: It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. Dawson J observed at 122: ... a federal court must retain effective supervision and control over the exercise of its functions by its officers. The requirement that a federal court " retain effective supervision and control " has been said to be a " constitutional imperative ": Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 321 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Case: Jageev Pty Limited v Deane (1997) 72 FCR 398
Outcome: cited
seemed, however, to be concurrence with the proposition that the " hearing " was a complete " re-hearing " in the sense that the parties were neither confined to the evidence adduced before the Deputy District Registrar nor the manner in which any factual or legal issues were there sought to be advanced for resolution. It was assumed to be what Davies J has referred to as a " rehearing on the merits ": Jageev Pty Limited v Deane (1997) 72 FCR 398 at 399. For present purposes it is sufficient to note the procedural course that was in fact pursued. Directions were made for the filing of such evidence as was considered by the parties to be appropriate and for that material to be the subject of written submissions filed in advance of a hearing in Court. The materials filed included extensive extracts of the transcript of the proceedings before Branson J and copies of the submissions previously filed. Copies of the affidavits filed in support of the 2 and 5 June 2008 Notices of Motion were also included. A two volume Judge's Bundle of documents was also provided. It was not considered appropriate at the outset to constrain Counsel on behalf of either Dr Wenkart or Mr Pantzer to the manner in which the inquiry before the Deputy District Registrar was conducted. Rather, the more appropriate course was to allow Counsel to identify those factual or legal matters which they wished to have resolved by this Court relevant to the " inquiry " which had been ordered.
Case: Pantzer v Wenkart [2006] FCAFC 140 , 153 FCR 466
Outcome: cited
the purposes of undertaking that " hearing " it is fortunately unnecessary to re-state each of the previous decisions and the disputes thereby resolved. For present purposes it is sufficient to note that on 11 March 2002 Beaumont J made orders by consent, including the following two orders: 1. Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree. ... 5. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith. The property identified in order 5 above is located in Union St, Paddington ("the Paddington property"). The correct construction of these orders has been considered by the Full Court: Pantzer v Wenkart [2006] FCAFC 140 , 153 FCR 466. It is also sufficient for present purposes to further note that on 31 October 2002, Mr Pantzer filed in this Court what was later deemed to be a cross-claim whereby he sought " an order in aid of [the Court's] order made 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of [the Paddington property] ". The difficulty confronting Mr Pantzer, however, was that: the total amount he had received as trustee of Dr Wenkart's estate was $769,191.66 but that: the total amount of authorised payments made by Mr Pantzer to himself by way of remuneration prior to 31 October 2002 was $325,744.60. There had been no agreement as to the " remuneration, costs, charges and expenses to which " Mr Pantzer was entitled in excess of that which had been then authorised. No occasion had thus arisen as at 31 October 2002, the date the deemed cross-claim was filed, for him to seek to exercise his rights as against the Paddington property.