mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: O'Malley v Keelty [2005] FCA 861 ; (2005) 148 FCR 170
Outcome: cited
width of the discretionary powers vested in police officers was emphasised by Madgwick J in O'Malley v Keelty [2005] FCA 861 ; (2005) 148 FCR 170. His Honour said (at 179-180) that: "Organising and assigning priorities in a modern police force are patently complex, difficult, and likely politically controversial matters. Courts should exercise very considerable restraint before intervening in such an area ... [A] court cannot and should not compel a police force to investigate every breach of the law. There are many mysteries in this world. Some of them involve possible commissions of crime. It is not, however, the responsibility of police officers to investigate all of them. Indeed, the role of the police is not to investigate whether, at large, there has been a breach of the law. Rather, their duty is to investigate whether there has been a breach of the law for which an identifiable person might be convicted if prosecuted. The requirements of the AFP Case Categorisation and Prioritisation Model are consistent with this view. I adhere to what I said in Scott (at [69]): except in the context of a coronial inquiry, one must allow that, if there appears to be no serious prospect of obtaining a conviction, it may be a quite reasonable decision, even in a very serious case, by the relevant police officer(s) not to expend resources or further resources on an investigation. Among other matters militating against the prospect of obtaining a conviction will often be the lapse of time since the alleged offence" (emphasis added).
Case: Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 ; (2003) 126 FCR 354
Outcome: referred to
Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 370, Gummow J said that: "... there will be no "matter" if the plaintiff seeks an extension of the court's true function into a domain that does not belong to it, namely the consideration of undertakings and obligations depending entirely on political sanctions. Such non-justiciable issues include agreements and understandings ... between the Australian and foreign governments... Those issues do not give rise to "matters" in the sense necessary for the exercise of federal jurisdiction". This passage was referred to with approval by Black CJ and Hill J in Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3 ; (2003) 126 FCR 354 at 373.
Case: PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372
Outcome: cited
s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others: see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372 at 375 (per Kenny J).
Case: R v Arndel [1906] HCA 7 ; (1906) 3 CLR 557
Outcome: cited
Court has jurisdiction, under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act "), to deal with a proceeding in which the writ of mandamus is sought. The writ is available to compel a public official to perform an act "which the applicant is entitled to have done, and without the doing of which he cannot enforce or enjoy some right which he possesses": R v Arndel [1906] HCA 7 ; (1906) 3 CLR 557 at 566-7 (per Griffith CJ). Put more simply, the writ of mandamus requires a public official to perform a public duty. The applicants can succeed against the AFP only if the AFP has a duty to commence criminal proceedings against the named individuals for the offences which are nominated in the application. I put to one side issues such as whether the AFP, as distinct from individual police officers, can be said to have a duty to initiate prosecutions and whether the powers of the Director of Public Prosecutions might impinge on any common law power a police officer might have had to initiate criminal proceedings. I also put to one side the question of the standing of the applicants to apply for an order that the AFP commence criminal proceedings against persons who are not alleged to have engaged in criminal conduct against any of the applicants. There is a further question, to which I will return, about the effect of the exercise of ministerial discretion in the decision-making processes which must precede the laying of charges of genocide and crimes against humanity.
Case: White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298
Outcome: referred to
s 31A was, as Lindgren J held in White Industries Aust Ltd v Federal Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, designed "to lower the bar for obtaining summary judgment" from the level that had been fixed by the High Court in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91-2 and General Steel Industries Inc. v Commissioner for Railways (N.S.W.) [1964] HCA 69 ; (1964) 112 CLR 125 at 128-130. Although the standard which must be met by a respondent who seeks summary judgment under the FCA Act has been expressed in a variety of different ways, where, as here, an application is made under s 31A, the Court is required to give close attention to the statutory language and to apply that test to the exclusion of all others: see PZ Cussons (International) Ltd v Rosa Dora Imports Pty Ltd [2007] FCA 1642 ; (2007) 74 IPR 372 at 375 (per Kenny J).
Case: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Outcome: cited
relation to Ms George's application for a stay of his Honour's Orders, while I note the principles arising from such cases as Cambridge Credit Corporation (1985) 2 NSWLR 685 brought to my attention by the first, second, third and fourth respondents, I consider that a refusal to order a stay would substantially frustrate any success Ms George would have should her appeal to the Full Court be successful. Accordingly, it is for this reason that I am prepared to exercise my discretion in favour of Ms George and order a stay of the orders of his Honour of 9 February 2009 numbered 1, 2, 3, 4, 5, 6, 9 and 10 pending delivery of judgment in Ms George's appeal. I am not prepared to make an Order in the terms sought by Ms George in para 2 of her amended Notice of Motion as has been observed by both Dowsett J and myself during the course of these proceedings, if there is an error in the decision of the Federal Magistrates Court it is for the Federal Court to review on appeal. Further, as I indicated to the parties at the hearing before me, I am not prepared to make the orders sought by Ms George in paras 4, 5, 6 and 7 of her amended Notice of Motion before me (TS 5 March 2009 86 ll 28-30). Instead, the hearing of those paragraphs is adjourned to a date to be fixed. Finally, I do not consider that it is appropriate that I make an Order in the terms sought by Ms George in para 3 of her amended Notice of Motion, being an order by which she apparently seeks recognition of her reliance on certain material and on Supreme Court Orders. Nor do I consider it either appropriate or desirable that I should make an order in the terms sought by Ms George in para 8 of her amended Notice of Motion, being referable to proceedings in the Supreme Court of Queensland. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 25 March 2009 Solicitor for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr K Kelso Solicitor for the First Respondent: Holman Webb Counsel for the Second and Third Respondents: Mr R Galloway Solicitor for the Fourth Respondent: E Abernethy of Thynne &amp; Macartney Solicitor for the Fifth Respondent: The Respondent was given leave not to appear Date of Hearing: 10 March 2009 Date of Judgment: 25 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/264.html
Case: Croker v Commonwealth of Australia [2007] FCA 1593
Outcome: cited
appeal from orders of a Federal Magistrate pursuant to s 17A Federal Magistrates Act 1999 (Cth), being a summary judgment of the Federal Magistrates Court (cf observations of Buchanan J in Croker v Commonwealth of Australia [2007] FCA 1593) , requires leave of this Court pursuant to s 24(1A) Federal Court of Australia Act 1976 (Cth). In the amended notice of motion the applicant seeks the following orders: Under Federal Court Act 1976 s 29(1) request a stay on court orders dated 9 February 2009 numbered 1, 2, 3, 4, 5, 6, 9, 10 pending the outcome of the Supreme Court matter file number 3747/2008. Request a stay on hearing the notice of appeal dated 18 February 2009 pending the outcome of the Supreme Court matter file number 3747/2008. The appellant relies upon affidavits dated 5 March 2009, 14 February 2009 in the name of Lauren Kay George for the above matter and Supreme Court Orders dated 18 February 2009 and transcripts dated 9 February 2009 and 18 February 2009. The appellant makes application to the court under ss 303 , 29 , 178 , 30 (1)(a)(b), 149 (4), 149J of the Bankruptcy Act 1966 . The appellant be deemed to have been discharged from bankruptcy on 25 February 2009 under s 149(4) of the Bankruptcy Act 1966 .
Case: D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397
Outcome: applied
relevant to the exercise of discretion by the Court in granting leave to appeal are: whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] .)
Case: Fletcher v George &amp; Ors (No 6) [2009] FMCA 69
Outcome: related
the application Ms George seeks leave to appeal from the judgment of a Federal Magistrate of 9 February 2009 and his Honour's Orders 1, 2, 3, 4, 5, 6, 9 and 10 ( Fletcher v George &amp; Ors (No 6) [2009] FMCA 69). The orders of the Federal Magistrate in those proceedings were made pursuant to s 17A Federal Magistrates Act 1999 (Cth), which provides: (1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Case: Harrington v Rich [2008] FCAFC 61
Outcome: applied
relevant to the exercise of discretion by the Court in granting leave to appeal are: whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] .)
Case: Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 530
Outcome: applied
relevant to the exercise of discretion by the Court in granting leave to appeal are: whether the judgment the subject of the appeal was attended by sufficient doubt to warrant it being reconsidered; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. ( D&eacute;cor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 , at 398 399, Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 at 542, Harrington v Rich [2008] FCAFC 61 at [25] .)
Case: SZBYR v Minister for Immigration &amp; Citizenship (2007) 185 ALR 609
Outcome: cited
To the extent that the appellants are submitting that the Tribunal was obliged to have further discussion with them or to provide another hearing, the Tribunal was under no such obligation by reason of s 424A(1) of the Act ( SZBYR v Minister for Immigration &amp; Citizenship (2007) 185 ALR 609, SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713). To the extent that the appellants are saying that the Tribunal had an obligation to notify them of its thought processes after receipt of the comments pursuant to the s 424A(1) letter, the Tribunal was under no obligation to do so ( SZBYR ; VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 123).
Case: SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713
Outcome: cited
To the extent that the appellants are submitting that the Tribunal was obliged to have further discussion with them or to provide another hearing, the Tribunal was under no such obligation by reason of s 424A(1) of the Act ( SZBYR v Minister for Immigration &amp; Citizenship (2007) 185 ALR 609, SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713). To the extent that the appellants are saying that the Tribunal had an obligation to notify them of its thought processes after receipt of the comments pursuant to the s 424A(1) letter, the Tribunal was under no obligation to do so ( SZBYR ; VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 123).
Case: SZKSO &amp; Ors v Minister for Immigration [2007] FMCA 1413
Outcome: considered
The appellants applied for a review of the Tribunal decision ( SZKSO &amp; Ors v Minister for Immigration [2007] FMCA 1413). The appellants relied on a number of grounds including a claim of bias on the part of the Tribunal and a failure to comply with s 424A of the Act. 7 Federal Magistrate Scarlett rejected the appellants' claim that the Tribunal had made its finding with bias (at [21]). His Honour noted that the basis of that claim was that the Tribunal had completely ignored independent evidence submitted to it but observed that this does not constitute bias (at [21]). His Honour noted that it was open to the Tribunal to prefer the evidence of the expert to the evidence of the first appellant (at [19]). 8 In dealing with an alleged failure by the Tribunal to comply with its obligations under s 424A of the Act, the Federal Magistrate concluded that s 424A had been complied with and that that ground failed (at [22]). 9 His Honour also dismissed what appeared to be a claim that the appellants had not been provided with a hearing as required by s 425 of the Act. As his Honour noted, there was no transcript to show that the evidence of the appellants was unduly curtailed or truncated or that they were prevented from anything (at [23]). 10 The appellants appeared in person, assisted by an interpreter, and provided particulars of the bases or the grounds of appeal upon which they relied. The notice of appeal contains three grounds, that the Federal Magistrate: 1. erred in law by incorrectly assessing the appellants' claim that the Tribunal ignored or failed to consider their claim, ignored relevant materials, misstated or misconceived the claim, made a mistake in relation to an important finding of fact and incorrectly assessed the first appellant's credibility; 2. was wrong in finding that the Tribunal considered the appellants' claims properly when the Tribunal made its finding with bias and ignored evidence put to it; and 3. was wrong in finding that the Tribunal complied with its obligations under s 424A of the Act. 11 Before me, the first appellant explained that the appellants were not saying that the Tribunal had failed to consider a claim that had been made to it but rather that the Tribunal did not believe what the first appellant had said. A decision on credibility is a matter for the Tribunal. This ground of appeal does not succeed. 12 The appellants did not point to any matter which the Tribunal ignored other than to assert that the Tribunal preferred the evidence of the expert, which it should not have done because the expert was not familiar with grapes in China. The first appellant also asserted that, while in the response to the s 424A letter the appellants were unable to provide further information about the grape type that they said that they had grown, this information could easily have been found on the internet. The appellants complained that the Tribunal had not found it.
Case: VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 123
Outcome: cited
To the extent that the appellants are submitting that the Tribunal was obliged to have further discussion with them or to provide another hearing, the Tribunal was under no such obligation by reason of s 424A(1) of the Act ( SZBYR v Minister for Immigration &amp; Citizenship (2007) 185 ALR 609, SZJHL v Minister for Immigration and Citizenship [2007] FCA 1713). To the extent that the appellants are saying that the Tribunal had an obligation to notify them of its thought processes after receipt of the comments pursuant to the s 424A(1) letter, the Tribunal was under no obligation to do so ( SZBYR ; VAF v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 123).
Case: Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Outcome: referred to
By virtue of s 43 of the Federal Court of Australia Act 1976 (Cth), the Court may make orders as to costs. The power, which is discretionary, must be exercised judicially: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J. Within this general discretion, it is accepted that costs ordinarily follow the event, with the result that a successful litigant receives costs in the absence of special circumstances justifying some other order: see Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 per Black CJ and French J.
Case: Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Outcome: followed
The usual rule is that costs are payable on a party and party basis, unless the circumstances of the case warrant a departure from the normal course: see Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 (" Colgate-Palmolive ") at 233 per Sheppard J and the Federal Court Rules (Cth), O 62. In that case, Sheppard J considered the circumstances in which indemnity costs might be awarded, referring, amongst other things, to "misconduct that causes loss of time to the Court and to other parties" although, as his Honour concluded, "[t]he question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis": see Colgate-Palmolive at 233-234. The Full Court reconsidered the appropriateness of an indemnity costs award in Re Wilcox: Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 (" Re Wilcox ") at 152-153 per Black CJ and 156-158 per Cooper and Merkel JJ. In Re Wilcox , at 156-157, Cooper and Merkel JJ reiterated Sheppard J's approach, saying: In order to exercise the discretion [regarding costs] judicially the following principles have been accepted by the Court as applicable: (a) the Court ought not to depart from the rule that costs be ordered on a party and party basis unless the circumstances of the case warrant the Court in departing from the usual course; (b) the circumstances which may warrant departure from the usual course arise as and when the justice of the case so requires or where there may be some special or unusual feature in the case to justify the court in departing from the usual course; (c) whilst the circumstances in cases in which indemnity costs have been ordered offer a guide, the question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for costs other than on a party and party basis. See also Abbott v Random House Australia Pty Ltd [1999] FCA 1540 at [5] per Beaumont, Miles and Drummond JJ, quoting the above passage with approval. Even more recently, the Full Court in Hamod v New South Wales [2002] FCA 424 ; (2002) 188 ALR 659 at 665 (per Gray J, with whom Carr and Goldberg JJ agreed) explained the basal principle for an award of indemnity costs in the following terms: Indemnity costs are not designed to punish a party for persisting with a case that turns out to fail. They are not awarded as a means of deterring litigants from putting forward arguments that might be attended by uncertainty. Rather, they serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the Court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs.