mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Re Cortaus (in Liq); Sheahan v Joye &amp; Ors (No. 2) (1996) 20 ACSR 576
Outcome: distinguished
As to the balance of convenience, it is submitted that only Mr Hong seeks relief by restraining the Commission from calling upon the summons to give evidence. In support of its application, Tristar relies upon the decision of Branson J in Re Cortaus (in Liq); Sheahan v Joye &amp; Ors (No. 2) (1996) 20 ACSR 576 at 578.5, wherein her Honour determined that requiring a person to attend an examination and compulsorily give evidence under oath constituted an infringement of his or her civil liberties. 21 As to the balance of convenience, the Minister submits that the decision in Re Cortaus 20 ACSR 576 was distinguished by Edmond J on the ground that the summonsed parties in Cortaus 20 ACSR 576 were parties to the proceeding itself. 29 The inconvenience to Mr Hong in travelling to New South Wales to answer the summons can be readily disregarded and it is not seriously advanced as a reason relating to the balance of convenience. The Court also gives negligible weight to the consideration that Mr Hong might find it difficult to perform his duties. However the necessity to answer questions and divulge information is relied upon. As was pointed out by Edmonds J, the summonsed parties in Re Cortaus 20 ACSR 576 'were parties to the proceeding itself' (see Tristar Steering [2007] FCA [12]). His Honour was clearly mindful that the summonsed parties were parties to the appeal pending before the Full Court. Such consideration may have substantially dissipated in view of the leave granted to join Mr Hong as a party to the application. 30 Despite this amendment, I consider that the decision of Branson J in Re Cortaus 20 ACSR 576 is distinguishable. Unlike the facts relied upon for the relief claimed in that decision Mr Hong has not complained that his civil liberties might be infringed. Rather his claim for relief is based on entirely different grounds, namely his concern ' about being compelled to give evidence before the Inquiry in that I may be forced to reveal information or produce documents on behalf of Tristar that are of a commercially confidential nature. ' Mr Hong was also concerned that he might be required to reveal information concerning other litigation before this Court which could ' prejudice Tristar's position '.
Case: Tesco Supermarkets Limited v Nattrass [1971] UKHL 1 ; [1972] AC 153
Outcome: referred to
Since Mr Hong was not a party to the proceedings before Edmonds J, the Court on this application has approached the issue of the claim for relief as an entirely new matter, even though Mr Hong has been intimately involved, as Managing Director, in the management of Tristar and as such may be assumed to have been the 'mind of the company' (see: Tesco Supermarkets Limited v Nattrass [1971] UKHL 1 ; [1972] AC 153 at 170). As a consequence, it becomes unnecessary for the Court to determine whether the relief claimed in paragraph [3] of the application before Edmonds J is the same or substantially the same as the relief now claimed. The Court observes that there is a difference only to the extent that the parties were different before his Honour and the prayer for relief before his Honour as set out in Order 3 thereof sought to restrain the issue of any summons, whereas the relief now claimed seeks to restrain the Commission from calling upon the summons. 35 There is one aspect of his Honour's judgment however which is significant, and which would apply with the same effect in relation to the present application, namely the finding at paragraph [7] as follows: 'Moreover, there is no issue that the Commission's report to the Minister cannot affect the legal rights and obligations of Tristar.' Based upon the available evidence, the same observation applies with equal force to Mr Hong. 36 For the reasons referred to above, the Court in the exercise of its discretion, declines to grant the relief claimed by the applicants. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 21 March 2007 Counsel for the Applicants: N. Perram SC, A. Moses, A. Kuklik Solicitor for the Applicant: Moray &amp; Agnew Solicitors Counsel for the Respondent: S. Crawshaw SC, D. Chin Solicitor for the Respondent: Crown Solicitor's Office Date of Hearing: 20 March 2007 Date of Judgment: 21 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/407.html
Case: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7
Outcome: applied
The appeal under s 44(1) of the Administrative Appeals Tribunal Act is only available on a question of law. Counsel for the Company argued that this was not so in the present case. However, the present case is squarely within the proposition stated by the High Court in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 that "the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.
Case: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287
Outcome: applied
The appeal under s 44(1) of the Administrative Appeals Tribunal Act is only available on a question of law. Counsel for the Company argued that this was not so in the present case. However, the present case is squarely within the proposition stated by the High Court in Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7 that "the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law." See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.
Case: J &amp; G Knowles &amp; Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402 at [27]
Outcome: applied
Moreover, the terms of the written agreement quoted at [6] above explicitly contemplate that one of the reasons Mr and Mrs Slade are to get repayment of their loans is for the discharge of their own personal obligations such as mortgages and school fees. There was here something more than a mere causal relationship between the employment and the payment: J &amp; G Knowles &amp; Associates Pty Ltd v Commissioner of Taxation [2000] FCA 196 ; (2000) 96 FCR 402 at [27] . One cannot say that the Mr and Mrs Slade were employees who just happened to get repayments of a loan. Their position may be contrasted with the hypothetical example of an employee of a large public company who invests in publicly listed debentures of the company which are in due course repaid. In such a case the repayment would have nothing to do with the employment. 19 The appeal of the Commissioner should be allowed. It is not necessary to consider the alternative argument, which was confined to the car and entertainment payments. There will be orders that the decision of the Administrative Appeals Tribunal made 31 July 2006 be set aside and that the decision under review therein be affirmed. No order as to costs is sought. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 23 February 2007 Counsel for the Applicant: P Sest Solicitors for the Applicant: Legal Services Branch, Australian Taxation Office Counsel for the Respondent: A Athanasiou Solicitors for the Respondent: Rigby Cooke Date of Hearing: 9 February 2007 Date of Judgment: 23 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/188.html
Case: Applicant S117/2005 v Minister for Immigration &amp; Multicultural Affairs &amp; Anor [2006] FMCA 1169
Outcome: related
is an application for leave to appeal from the decision given on 8 August 2006 by Barnes FM, who declined to make an order nisi on the basis that no arguable case had been established ( Applicant S117/2005 v Minister for Immigration &amp; Multicultural Affairs &amp; Anor [2006] FMCA 1169). The application for leave to appeal from that decision, and the affidavit in support, identified very general grounds of attack upon that decision, but do not tie those grounds back to any part of the reasons of the learned Federal Magistrate. Unsupported by such a reference, those grounds, in themselves, are quite meaningless. I have explained the position to the applicant and he has, quite frankly, said that he is unable to follow the technical legal aspects of this matter. What he is seeking is another tribunal to properly assess his factual claims, and he would like more time as well. As I have indicated to him, the role of this Court is simply to correct errors in the approach of the Federal Magistrates Court, not to deal directly with the decision of the Refugee Review Tribunal. This matter has a long history, which I need not go into, but, as I have explained to the applicant, in the absence of his ability to raise an arguable ground of appeal from the learned Federal Magistrate's decision, I am bound to dismiss his application, which I do. The applicant is to pay the costs of the first respondent. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 14 November 2006 The Applicant appeared in person Solicitor for the First Respondent: Mr J Wright of Sparke Helmore The Second Respondent submitted Date of Hearing: 1 November 2006 Date of Judgment: 1 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1495.html
Case: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1
Outcome: applied
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 ; (2004) 144 FCR 1, the Full Court (Black CJ, French, and Selway JJ) said at [60]: In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17], Selway referred to the observation by Kirby J in Dranichnikov , at 405, that "[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances". He also referred to the observation by von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 that "[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made" (at [16]). Selway J however went on to observe in SGBB (at [17]): 'But this does not mean the application is to be treated as an exercise in 19 th Century pleading.' His Honour noted that the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said: 'The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.' His Honour, in our view, correctly stated the position when he said at (at [18]): 'The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.'
Case: Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366
Outcome: referred to
The expressed aim of the new sub-rule was "to limit the documents that must be discovered to those which are directly relevant to the proceedings" (see the Explanatory Statement for the Amendment). Practice Note 14 was made at about the same time as the amendments. For a detailed discussion of the changes effected by the amendments, I refer to Australian Competition &amp; Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [17] - [23] per Lindgren J. 23 The express provision in the Rules for limited discovery is O 15 r 8 and it provides as follows: Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party.
Case: Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996
Outcome: considered
I recognise that there are observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at [12] - [13] that suggest that the longstanding rule of practice does not apply in this Court whether the order is one for general discovery or for limited discovery and that those observations have been referred to in a general way with approval (see Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 at [12] and [22] per Cooper J; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93 at [7] - [8] per RD Nicholson J; Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at 295 [53]-[54] per Lee J). However, for the reasons I have given, I would not follow those observations where the order is, as in this case, an order for general discovery.
Case: Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284
Outcome: referred to
I recognise that there are observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at [12] - [13] that suggest that the longstanding rule of practice does not apply in this Court whether the order is one for general discovery or for limited discovery and that those observations have been referred to in a general way with approval (see Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 at [12] and [22] per Cooper J; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93 at [7] - [8] per RD Nicholson J; Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at 295 [53]-[54] per Lee J). However, for the reasons I have given, I would not follow those observations where the order is, as in this case, an order for general discovery.
Case: Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335
Outcome: referred to
That approach has been followed in Australia: Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335; Optus Communications Pty Ltd v Telstra Corp Ltd (unreported, Lockhart J, 27 April 1995).
Case: Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041
Outcome: referred to
The applicant submits that the rule of practice identified in GE Capital does not apply under the Rules of this Court. He submits that a party making discovery is not entitled to seal up or mask parts or sections of a document unless he has the consent of the other party or the permission of the Court. He refers to Telstra Corp v Australis Media Holdings (unreported, Supreme Court of New South Wales Equity Division, McLelland CJ in Eq, 10 February 1997) (" Telstra Corp "); Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 (" Gray ") and Fig Tree Developments Ltd v Australian Property Custodian Holdings Ltd [2008] FCA 1041. In Gray , Branson J said (at [15]-[16]): 15 In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules . The Chief Judge there said: "Under the new discovery rules, Pt 23 of the Supreme Court Rules , ... classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making [sic] or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making [sic] certain portions is obtained from the Court. 16 The respondents did not obtain the agreement of the applicant to the masking of portions of their discovered documents, nor did they seek relief from the Court from their prima facie obligations to allow full inspection of their discovered documents. Nonetheless, having regard to the course of argument on the applicant's notice of motion, it seems appropriate now to give consideration to the claim of the respondents that the masking undertaken by them is appropriate in the circumstances and ought to be authorised by the Court.
Case: Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93
Outcome: referred to
I recognise that there are observations of Selway J in Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 ; [2004] ATPR 41-996 at [12] - [13] that suggest that the longstanding rule of practice does not apply in this Court whether the order is one for general discovery or for limited discovery and that those observations have been referred to in a general way with approval (see Westfield Management Ltd v Brisbane Airport Corp Ltd [2004] FCA 611 at [12] and [22] per Cooper J; Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93 at [7] - [8] per RD Nicholson J; Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at 295 [53]-[54] per Lee J). However, for the reasons I have given, I would not follow those observations where the order is, as in this case, an order for general discovery.
Case: Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341
Outcome: referred to
Under the Rules of Court there is express provision for an order for general discovery and for an order for limited discovery. The order for general discovery is no longer of a type that requires discovery of documents relating to any matter in question in the proceeding and the application of the test formulated in The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55 and referred to in Mulley v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. The rule providing for such discovery was amended in 1999 by Federal Court Amendment Rules 1999 (No 6) (Statutory Rules 1999 No 295) (Cth) and replaced with O 15 r 2(3), which was in the following terms: Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case; and (e) documents that the party is required by a relevant practice direction to disclose. Paragraph (e) has since been removed.
Case: Optus Communications Pty Ltd v Telstra Corp Ltd (unreported, Lockhart J, 27 April 1995)
Outcome: referred to
That approach has been followed in Australia: Curlex Manufacturing Pty Ltd v Carlingford Australia General Insurance Ltd [1987] 2 Qd R 335; Optus Communications Pty Ltd v Telstra Corp Ltd (unreported, Lockhart J, 27 April 1995).
Case: Rio Tinto Ltd v Commissioner of Taxation [2005] HCA 1335
Outcome: referred to
An order for limited discovery is, or is becoming, the more usual order made by this Court. In the case of such an order, cases such as Telstra Corp and Gray suggest the rule of practice referred to in GE Capital does not apply because the nature of the order (that is, discovery by classes or categories of documents identified in the order) is such that the party giving discovery does not have to consider questions of relevance to an issue. Had I made such an order in this case, I would have been disposed to follow those cases. Perhaps, as Sundberg J observed in Rio Tinto Ltd v Commissioner of Taxation [2005] FCA 1335 (at [26]), in practical terms the difference between the two approaches will not often be of great significance. In this case it does make a difference because the respondent did not seek to justify the masking of the documents beyond its reliance on the oath of discovery and, although in some cases ( GE Capital is an example) the Court is able to say from its own examination of the masked documents that there are no grounds to think the masked portions are relevant, I am not satisfied that, if I had to address the question, I could reach that conclusion in this case.