mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 ; (2003) 132 FCR 428 
Outcome: referred to
submits that in order for a " matter " to exist for the purposes of s 39B(1A) of the Judiciary Act , there must be a controversy as to some immediate right, duty or liability to be established by the Court's determination: Re: Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 ; (2003) 132 FCR 428. Owston submits that on ASIC's case, no liability will be established on the part of Owston should ASIC be successful and points to the fact that ASIC does not seek recovery of damages in a representative capacity for shareholders, nor does the pleaded contravention give rise to a civil penalty. It claims that the relief sought is an advisory opinion on a purported contravention of the Act and does not quell any controversy between the parties. Here, Owston relies upon Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 161 ALR 399 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [61] - [62] per Gaudron and Gummow JJ. In Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 ; (2003) 132 FCR 428 Cooper J stated: (a) the word "right" in this context is used in a sense that is wide and loose [12]; and (b) there "need not be a cause of action before the power [under s 21 of the Federal Court Act 1976 (Cth) to make a declaration] may be exercised, provided the subject matter in respect of which the declaration is sought is within the jurisdiction of the court and there is a real controversy to be determined" [14]. I respectfully agree with Cooper J as to this and reject Owston's submission, in effect, that declaratory relief is only available in circumstances where ASIC is suing for damages or a civil penalty, absent which, a "matter" cannot be said to exist. Section 21 of the Federal Court Act also contradicts that submission. It expressly provides that declaratory relief may be granted "whether or not any consequential relief is or could be claimed". In any event ASIC is seeking consequential orders under s 1324B of the Act. In Direct Factory Outlets Pty Ltd v Westfield Management Ltd , there were questions as to whether the applicant had a sufficient interest to bring the proceedings and whether there was utility in the declarations sought. It was said that the applicant had no personal right or interest that it sought to assert or protect in the proceedings, and that any interest it had was purely commercial. By contrast, in this case ASIC as the corporate regulator is charged with enforcement of the Act and has a public interest in pursuing this action against Owston.
Case: Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 
Outcome: cited
v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 was cited by Owston in support of the proposition that the Court may not be "forced to consider a hypothetical situation where its decision will produce no foreseeable consequences for the parties". Jododex is not authority for such a proposition. Rather, this formulation reflects the language of the joint judgment in Ainsworth at p 582 adopting what had been said in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 10 as to a hypothetical question and in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188, as to "foreseeable consequences". It is also the formulation adopted by Gaudron J in Truth About Motorways at [52]. Gibbs J at 435 in Jododex said that the jurisdiction to make a declaration is a very wide one. Jododex is, as was also approved by the majority judgment in Ainsworth, authority, at 437, that the power of superior courts to grant declaratory relief is discretionary which "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise".
Case: IMF (Australia) Ltd v Sons of Gwalia (Administrator Appointed) (2004) 211 ALR 231
Outcome: cited
is defined by "matter(s)" because the Commonwealth's judicial power is derived from Chapter III of the Constitution , which requires jurisdiction to be defined in those terms: IMF (Australia) Ltd v Sons of Gwalia (Administrator Appointed) (2004) 211 ALR 231 at [43]; Litmus Australia Pty Ltd (in liq) v Canty [2006] NSWSC 196 ; (2006) 57 ACSR 71 at [35] citing British American Tobacco Australia Ltd v Western Australia [2003] HCA 47 ; (2003) 217 CLR 30 at [5] [6]. In these proceedings, as was the position in Sons of Gwalia , ASIC relies on the jurisdiction and powers conferred by: (a) s 39B(1A) of the Judiciary Act 1903 , which confers jurisdiction in any matter arising under any laws made by the Parliament; (b) s 21 of the Federal Court of Australia Act 1976 (Cth), which provides that the court "may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed"; and (c) s 1337B(1) of the Corporations Act 2001 (Cth), which confers jurisdiction on the Federal Court "with respect to civil matters arising under the Corporations legislation". Owston also cites Australian Institute of Private Detectives Ltd v Privacy Commissioner [2004] FCA 1440 ; (2004) 139 FCR 394. However in that case the applicant sought declarations "independently of any specific factual allegations" [29] which went "merely to future events or circumstances" which would not quell any existing controversy between the parties to the proceedings [31] and which was, in effect, seeking an advisory opinion [32]. A Full Court of this Court has expressed doubt as to whether an application for a declaration as to the legality of proposed future conduct involves a "matter" within the meaning of ss 75 , 76 and 77 of the Constitution of the Commonwealth: IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator appointed) [2005] FCAFC 75 ; (2005) 143 FCR 274 per Moore and Emmett at [16], [67] and [68]; (cf IMF (Australia) Ltd v Sons of Gwalia (Administrator Appointed) (2004) 211 ALR 231 per then French J at [43]. That, however, is not this case.
Case: JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 
Outcome: cited
jurisdiction to grant declaratory relief is wide. In JN Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 435-436 there is a useful collection of relevant authority to that effect. King CJ, with whom Prior and Perry JJ agreed observed: Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction; Ibeneweka v Egbuna [1964] 1 WLR 219 at 225; Forster v Jododex Australia Pty Ltd esp per Gibbs J at 438; Salmar Holdings Pty Ltd v Hornsby Shire Council [1971] 1 NSWLR 192 per Mason JA at 201. It is not necessary that the plaintiff have a cause of action against the defendant: Guaranty Trust Company of New York v Hannay and Co [1915] 2 KB 536. A statement by Lord Sterndale MR in Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at 507, quoted by Gibbs J in Forster v Jododex at 435, appeared to confine the otherwise unlimited character of the jurisdiction to cases involving "a question of defining the rights of two parties". As was pointed out, however, by Street CJ in Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation [1977] 1 NSWLR 43 at 51, that statement was made "at a time when the declaratory jurisdiction had not achieved the full development manifested in the last 20 or 30 years." By 1970 the Privy Council could say in Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong [1970] AC 1136 at 1158 that to exclude the jurisdiction it must appear "that the questions were purely abstract questions the answers to which were incapable of affecting any existing or future legal rights of the plaintiffs" [emphasis mine]. In Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corporation (above), Street CJ (at 53) repudiated the notion of jurisdictional cut-off points in relation to declaratory relief. Moffitt P said (at 57): The proper conclusion to be drawn concerning the power to make a declaration is that the jurisdiction (in the strict sense) to grant declaratory relief in a properly constituted action is very wide, so that no particular limitation can be pointed to ... I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court's power to grant such relief is "only limited by its own discretion" ( Hanson v Radcliffe at 507), and the boundaries of judicial power: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 581-582.
Case: Litmus Australia Pty Ltd (in liq) v Canty [2006] NSWSC 196 ; (2006) 57 ACSR 71
Outcome: cited
is defined by "matter(s)" because the Commonwealth's judicial power is derived from Chapter III of the Constitution , which requires jurisdiction to be defined in those terms: IMF (Australia) Ltd v Sons of Gwalia (Administrator Appointed) (2004) 211 ALR 231 at [43]; Litmus Australia Pty Ltd (in liq) v Canty [2006] NSWSC 196 ; (2006) 57 ACSR 71 at [35] citing British American Tobacco Australia Ltd v Western Australia [2003] HCA 47 ; (2003) 217 CLR 30 at [5] [6].
Case: Re: Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257
Outcome: applied
submits that in order for a " matter " to exist for the purposes of s 39B(1A) of the Judiciary Act , there must be a controversy as to some immediate right, duty or liability to be established by the Court's determination: Re: Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 ; (2003) 132 FCR 428. Owston submits that on ASIC's case, no liability will be established on the part of Owston should ASIC be successful and points to the fact that ASIC does not seek recovery of damages in a representative capacity for shareholders, nor does the pleaded contravention give rise to a civil penalty. It claims that the relief sought is an advisory opinion on a purported contravention of the Act and does not quell any controversy between the parties. Here, Owston relies upon Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 161 ALR 399 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [61] - [62] per Gaudron and Gummow JJ. The majority of the members of the High Court in Re: Judiciary and Navigation Acts explained that "a matter under the judicature provisions of the Constitution must involve some right or privilege or protection given by law, or the prevention, redress or punishment of some act inhibited by law" (at 266). Owston contends that in light of the statutory scheme there is no right, privilege or protection given to ASIC which is sought to be enforced, nor is the relief sought in the nature of preventative relief, or redress, or a punishment. I do not accept Owston's submissions. In my opinion, the present proceedings fall within the majority's several alternative descriptions of "matter" in Re: Judiciary and Navigation Acts. They concern the rights and protections conferred by s 727 of the Act as well as the redress available under ss 1324B and 1337B of the Act and under s 21 of the Federal Court Act and s 39B(1A) of the Judiciary Act for contraventions of s 727 of the Act. Re: Judiciary and Navigation Acts is not authority for the proposition that for a "matter" to exist, a claim of civil penalty or for recovery of damages or some relief which undoes the wrong must be present, or that somehow the proceedings must ensure finality of litigation by ensuring that there is no real possibility that another plaintiff will commence proceedings in relation to some or all of the issues in the proceedings. Nor is it authority to support a contention that bare declaratory relief which does not meet or aid one of those ends will not ordinarily be granted. Involved in this proceeding is at least the question of the right of investors to receive a prospectus under the provisions of the Act and the corresponding duty of Owston to provide one. Owston is liable to the declaratory relief sought. These are sufficient.
Case: Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 
Outcome: cited
submits that in order for a " matter " to exist for the purposes of s 39B(1A) of the Judiciary Act , there must be a controversy as to some immediate right, duty or liability to be established by the Court's determination: Re: Judiciary and Navigation Acts (1921) 29 CLR 257 at 265; Direct Factory Outlets Pty Ltd v Westfield Management Ltd [2003] FCA 1095 ; (2003) 132 FCR 428. Owston submits that on ASIC's case, no liability will be established on the part of Owston should ASIC be successful and points to the fact that ASIC does not seek recovery of damages in a representative capacity for shareholders, nor does the pleaded contravention give rise to a civil penalty. It claims that the relief sought is an advisory opinion on a purported contravention of the Act and does not quell any controversy between the parties. Here, Owston relies upon Bass v Permanent Trustee Co Ltd [1999] HCA 9 ; (1999) 161 ALR 399 and Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16 ; (2002) 209 CLR 372 at [61] - [62] per Gaudron and Gummow JJ.
Case: Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287 
Outcome: cited
Court has a general power to control its own proceedings which includes a power to stay proceedings: Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287 at 290). It also has power by virtue of O20 r 5 of the Federal Court Rules to stay proceedings which are an abuse of the process of the Court. Proceedings will be an abuse of process if, regardless of the propriety of the person bringing the proceedings, they may be converted into instruments of injustice or unfairness, or are vexatious or oppressive: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
Case: Truth About Motorways Pty Limited v Macquarie Infrastructure Management Limited [2000] HCA 11 ; (2000) 200 CLR 591 
Outcome: cited
accepts that declaratory relief is often given on the motion of a regulator, but it says that usually a declaration is only granted in conjunction with substantive relief which is in its nature either protective such as by the grant of injunctive relief or corrective advertising orders or alternatively a punishment by awarding, for example, civil penalties. It contends that a bare declaration will be made only in rare circumstances, absent other relief that gives effect to a right or obligation. It cites Gaudron J in Truth About Motorways Pty Limited v Macquarie Infrastructure Management Limited [2000] HCA 11 ; (2000) 200 CLR 591 at [52] : There may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention. Ainsworth v Criminal Justice Commission (109) was such a case. But a declaration cannot be made if it "will produce no foreseeable consequences for the parties". (110) That is not simply a matter of discretion. Rather, a declaration that produces no foreseeable consequences is so divorced from the administration of the law as not to involve a matter for the purposes of Ch III of the Constitution . And as it is not a matter for those purposes, it cannot engage the judicial power of the Commonwealth. (See Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582, per Mason CJ, Dawson, Toohey and Gaudron JJ). Forster v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 was cited by Owston in support of the proposition that the Court may not be "forced to consider a hypothetical situation where its decision will produce no foreseeable consequences for the parties". Jododex is not authority for such a proposition. Rather, this formulation reflects the language of the joint judgment in Ainsworth at p 582 adopting what had been said in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 10 as to a hypothetical question and in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188, as to "foreseeable consequences". It is also the formulation adopted by Gaudron J in Truth About Motorways at [52]. Gibbs J at 435 in Jododex said that the jurisdiction to make a declaration is a very wide one. Jododex is, as was also approved by the majority judgment in Ainsworth, authority, at 437, that the power of superior courts to grant declaratory relief is discretionary which "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise".
Case: University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 
Outcome: cited
v Jododex Australia Pty Ltd [1972] HCA 61 ; (1972) 127 CLR 421 was cited by Owston in support of the proposition that the Court may not be "forced to consider a hypothetical situation where its decision will produce no foreseeable consequences for the parties". Jododex is not authority for such a proposition. Rather, this formulation reflects the language of the joint judgment in Ainsworth at p 582 adopting what had been said in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1 at 10 as to a hypothetical question and in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 at 188, as to "foreseeable consequences". It is also the formulation adopted by Gaudron J in Truth About Motorways at [52]. Gibbs J at 435 in Jododex said that the jurisdiction to make a declaration is a very wide one. Jododex is, as was also approved by the majority judgment in Ainsworth, authority, at 437, that the power of superior courts to grant declaratory relief is discretionary which "it is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise".
Case: Walton v Gardiner (1993) 177 CLR 378 
Outcome: cited
Court has a general power to control its own proceedings which includes a power to stay proceedings: Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Ltd [1992] FCA 72 ; (1992) 34 FCR 287 at 290). It also has power by virtue of O20 r 5 of the Federal Court Rules to stay proceedings which are an abuse of the process of the Court. Proceedings will be an abuse of process if, regardless of the propriety of the person bringing the proceedings, they may be converted into instruments of injustice or unfairness, or are vexatious or oppressive: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
first ground of appeal is a restatement of the first ground for judicial review before the Federal Magistrate. It is, as the Federal Magistrate rightly pointed out, no more than a claim to have the Court perform a merits review of the Tribunal's finding. Her Honour dealt extensively with this ground in her reasons. An application for a judicial review of an administrative decision does not give rise to a merits review of the decision: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35. The purpose of the review is to determine whether the Tribunal has exercised its power in accordance with its obligations and, in particular, without jurisdictional error. The Federal Magistrates Court and this Court has limited jurisdiction to determine whether the Tribunal has made jurisdictional error. If no jurisdictional error is shown, then the Tribunal's decision cannot be quashed. It is not entirely clear what is meant by the second ground of appeal. Her Honour said in her reasons that there was no obligation on the Tribunal to require the Tribunal to write to the applicant pursuant to the provisions of s 424A requiring particular documentary evidence to be adduced. That clearly was right. She also said that if the Tribunal was of the opinion that there was a lack of evidence before the Tribunal, that was not information for the purposes of s 424A. That also is clearly right. The second ground must be dismissed. It is also not entirely clear what is meant by the third ground, although an examination of her Honour's reasons does assist. It was put to her Honour as part of the third ground in support of the application for judicial review that the Tribunal had erred in questioning why it was that the appellant husband was not subject to further attacks after the home invasion. The Federal Magistrate rejected the argument that such an approach amounted to a consideration of a hypothetical situation or hypothetical issues. The Tribunal gave consideration to the issue which it identified in considering whether or not the appellant husband's account was credible. It was not a hypothetical issue but it was a reason in the Tribunal's opinion why the appellant husband's account could not be accepted. In my opinion, none of the grounds of appeal have been made out and the appeal must be dismissed. The appellants must pay the respondent's costs. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 21 April 2008 Counsel for the Appellants: Dr J Azzi Solicitor for the Appellants: Davidson James &amp; Associates Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 15, 22, 29 November 2007; 3 March 2008 Date of Judgment: 21 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/499.html
Case: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1
Outcome: cited
Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , the majority said at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instances to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The appellate process is to correct error. If a party is entitled to raise issues for the first time on appeal, the appeal court will become de facto the primary court. That is undesirable. It is particularly undesirable where the appellate jurisdiction of the Court is being exercised by a single judge and any right of appeal from that single judge is to the High Court. If a party is entitled to raise an issue for the first time on appeal in this Court, the High Court will be burdened by applications for leave to appeal from judges sitting alone who have not had their decision reviewed. That must be particularly undesirable from the High Court's point of view. Moreover, to allow new grounds of appeal is to defeat the purpose of the legislation which requires that judicial review of a decision of the Refugee Review Tribunal to be within solely the jurisdiction of the Federal Magistrates Court. If new grounds are advanced on appeal, it effectively means that the jurisdiction is being exercised by this Court. In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 , the Court said that leave to argue a ground of appeal not raised before the trial judge should only be granted "if it is expedient in the interests of justice to do so." After referring to the dicta in Coulton v Holcombe [1986] HCA 33 ; 162 CLR 1 , the Court said that the Court may grant leave if the point which has not been raised in the Court below has merit and there is no real prejudice to the respondent in permitting the point to be ventilated.