mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51
Outcome: followed
The first respondent contends that leave is required for the appellants to raise the first ground of appeal: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] . He further contends that, in any event, as the Tribunal made no relocation finding, no issue arises in connection with whether the Tribunal assessed the issue of relocation properly. 27 With respect to the second ground of appeal, the first respondent submits that the decision to refuse the adjournment application by the Federal Magistrate was made in the exercise of his discretion as trial judge. It was contended that the decision was open to the Federal Magistrate. 29 The first respondent is correct in contending the first ground of appeal was not raised before the Federal Magistrate and, therefore, the appellants require leave: NAJT [2005] FCAFC 134 ; 147 FCR 51. No explanation has been given for the failure to raise this matter in the Federal Magistrates Court. The appellant, of course, was unrepresented both before the Federal Magistrates Court and this Court. In order to determine whether leave should be granted to the appellants to raise this ground on appeal, I shall shortly consider the merits of the ground. As the first respondent asserts, in order to attack any finding of the Tribunal on issues of relocation, there must first be a finding. There was no finding because the question of relocation never arose. It would only have arisen if the appellant had made out his primary contention that the applicant had a well-founded fear of persecution if he were to return to India. I accept, as the first respondent contends, that because the Tribunal made no relocation finding this ground raises no relevant issues on appeal. Leave must be refused. 30 In relation to the second ground of appeal, although it is desirable that applicants in these cases be represented where possible, it is not a matter of right. The Federal Magistrate refused the adjournment application on the grounds that no satisfactory explanation was provided for the late request for the adjournment and that the lack of merits in the case did not warrant any further delay in the matter. No error has been shown in the Federal Magistrate's exercise of discretion. For that reason, this ground also fails. The decision of SZFDE [2007] HCA 35 is not relevant to this ground.
Case: SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052
Outcome: followed
In relation to the third ground of appeal, the first respondent submits that there was no error in the Federal Magistrate's decision, as the appellants were provided with a s 424A letter. The first respondent submits that, in any case, on a joint application such as this one, information provided by one joint applicant need not be provided to other joint applicants: Applicant M47/2004 v Minister for Immigration and Multicultural Affairs [2006] FCA 176 ; SZHTL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1052. 31 Finally, in relation to ground 3, I accept that although it is unnecessary for the evidence of one appellant to be put to another when two appellants submit a joint application for review to the Tribunal (ss 424A(1) and (3)(b); Applicant M47/2004 [2006] FCA 176 ; SZHTL [2006] FCA 1052) , that in any event, the Tribunal put any inconsistencies between the appellants' evidence that it relied upon to the appellants in the letter it sent to them on 20 October 2005. I have identified the matters contained in the letter earlier in these reasons. This third ground of appeal also fails.
Case: AMEV-UDC Finance Ltd v Austin [1986] HCA 63 ; (1986) 162 CLR 170
Outcome: cited
But, before dismissing this aspect of the proceedings entirely, if I were otherwise minded to accede to Intel's arguments, I am of opinion that I should give Unwired one further opportunity to set out in its pleadings the necessary material facts. I do that because it seems to me that this area of the law is one which is undergoing development. As Allsop P observed, it is not the function of single judges or full or appellate courts to depart from decisions of the High Court. However, in O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359 the High Court overruled its earlier decision in Lamson Store Service Co Ltd v Russell Wilkins &amp; Sons Ltd [1906] HCA 87 ; (1906) 4 CLR 672. That had been recently applied by the Court in IAC (Leasing) Ltd v Humphrey [1972] HCA 1 ; (1972) 126 CLR 131. The reformulation of the law as to penalties which commenced with O'Dea 152 CLR 349 and continued with AMEV-UDC Finance Ltd v Austin [1986] HCA 63 ; (1986) 162 CLR 170 may not yet be at an end, albeit it that, as Allsop P noted, it may not be at the stage that Brereton J had suggested. 76 Recently, in Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 ; (2008) 244 ALR 1 , Gleeson CJ, Kirby, Heydon, Crennan and Kiefel JJ discussed the issue of relief against penalties and forfeiture in a cognate way. They referred to AMEV [1986] HCA 63 ; 162 CLR 170 and discussed the interplay which that and subsequent decisions had identified as developing between penalties and forfeitures.
Case: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243
Outcome: referred to
The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed.
Case: BP Refinery Westernport Pty Limited v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: cited
It is not so obvious that it goes without saying, that the redemption premium amount would not be payable to Intel or a note holder if an irremediable event of default had occurred but Unwrited still remained ready, willing and able to continue the WiMAX roll out. And that term is capable of being construed as contradicting the express terms of the deed poll which express no qualification to Unwired's obligation to pay the redemption premium amount under cll 6.2, 6.3 and 9.4 if an irremediable event of default occurrs (such as the de-listing of Unwired as a consequence of a successful takeover offer): BP Refinery Westernport Pty Limited v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266 at 282-283. 36 Accordingly, I am of opinion that Unwired's contentions in pars 43, 50(e) and 54 of its amended defence, that terms should be implied or construed qualifying Intel's entitlement to call for payment of the redemption premium amount, are untenable and have no reasonable prospect of success. 37 Unwired's next group of implied terms or construction arguments sought to interpolate into the deed poll or overall transaction an obligation of Intel to act reasonably and in good faith when exercising its contractual rights to seek payment of the redemption premium amount, in the event of a change in control of Unwired, when Unwired remained ready, willing and able to implement the WiMAX roll out (Amended Defence pars 44, 50(f)).
Case: GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1
Outcome: referred to
In GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 208-209 [920] Finn J, himself an advocate of the implication or importation into all contracts of a duty of good faith and fair dealing, recognised that there was no consensus in Australian law as to whether such a term, or duty, should be included in all contracts. The High Court left that question open in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 301 [40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
Case: Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 ; (2008) 244 ALR 1
Outcome: referred to
Recently, in Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10 ; (2008) 244 ALR 1 , Gleeson CJ, Kirby, Heydon, Crennan and Kiefel JJ discussed the issue of relief against penalties and forfeiture in a cognate way. They referred to AMEV [1986] HCA 63 ; 162 CLR 170 and discussed the interplay which that and subsequent decisions had identified as developing between penalties and forfeitures.
Case: IAC (Leasing) Ltd v Humphrey [1972] HCA 1 ; (1972) 126 CLR 131
Outcome: cited
But, before dismissing this aspect of the proceedings entirely, if I were otherwise minded to accede to Intel's arguments, I am of opinion that I should give Unwired one further opportunity to set out in its pleadings the necessary material facts. I do that because it seems to me that this area of the law is one which is undergoing development. As Allsop P observed, it is not the function of single judges or full or appellate courts to depart from decisions of the High Court. However, in O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359 the High Court overruled its earlier decision in Lamson Store Service Co Ltd v Russell Wilkins &amp; Sons Ltd [1906] HCA 87 ; (1906) 4 CLR 672. That had been recently applied by the Court in IAC (Leasing) Ltd v Humphrey [1972] HCA 1 ; (1972) 126 CLR 131. The reformulation of the law as to penalties which commenced with O'Dea 152 CLR 349 and continued with AMEV-UDC Finance Ltd v Austin [1986] HCA 63 ; (1986) 162 CLR 170 may not yet be at an end, albeit it that, as Allsop P noted, it may not be at the stage that Brereton J had suggested.
Case: Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2007] NSWSC 406
Outcome: considered
Lastly, the parties are at issue as to the plea in pars 74 and 75 of the amended defence, that Unwired's obligation to pay the redemption premium amount is a penalty. In argument, Unwired accepted that it was seeking to rely on a novel argument that the occurrence of an event, namely, the change of control or de-listing, although not a breach of contract for which it was responsible, could still operate as a penalty. It sought to rely upon a recent, but even more recently, reversed, decision of Brereton J in the Supreme Court of New South Wales in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2007] NSWSC 406. That was reversed in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd [2008] NSWCA 310. 68 After an extensive examination of the authorities, Brereton J concluded that a penalty was a contractual obligation to pay, forfeit or suffer the retention of a sum of money or property, agreed in advance to be payable, forfeited or retainable by one party to the other upon or in default of the occurrence of an event, which could be seen as a matter of substance to have been treated by the parties as lying within the area of obligation of the first party (in the sense that it was the first party's responsibility to see to it that the event did not happen) and where the stipulated payment is out of proportion or unrelated to the damage which might be sustained by the other party by reason of a particular occurrence of default: Integral [2007] NSWSC 406 at [74] . 69 Allsop P, with whom Giles and Ipp JJA agreed, apparently in obiter dicta, concluded that Brereton J's "thoughtful" reasons highlighted a potential tension between different approaches in the field, but that the weight of existing authority limited the doctrine of penalties within narrow and clear boundaries. Allsop P said that it was the function of the High Court, and not the Court of Appeal of the Supreme Court of New South Wales or a judge at first instance, to expand that field: Interstar [2008] NSWCA 310 at [159] - [160] .
Case: Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd [2008] NSWCA 310
Outcome: referred to
Lastly, the parties are at issue as to the plea in pars 74 and 75 of the amended defence, that Unwired's obligation to pay the redemption premium amount is a penalty. In argument, Unwired accepted that it was seeking to rely on a novel argument that the occurrence of an event, namely, the change of control or de-listing, although not a breach of contract for which it was responsible, could still operate as a penalty. It sought to rely upon a recent, but even more recently, reversed, decision of Brereton J in the Supreme Court of New South Wales in Integral Home Loans Pty Ltd v Interstar Wholesale Finance Pty Ltd [2007] NSWSC 406. That was reversed in Interstar Wholesale Finance Pty Ltd v Integral Home Loans Pty Ltd [2008] NSWCA 310. 69 Allsop P, with whom Giles and Ipp JJA agreed, apparently in obiter dicta, concluded that Brereton J's "thoughtful" reasons highlighted a potential tension between different approaches in the field, but that the weight of existing authority limited the doctrine of penalties within narrow and clear boundaries. Allsop P said that it was the function of the High Court, and not the Court of Appeal of the Supreme Court of New South Wales or a judge at first instance, to expand that field: Interstar [2008] NSWCA 310 at [159] - [160] .
Case: Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7
Outcome: referred to
In Maniotis v JH Lever &amp; Co Pty Ltd [2006] FCAFC 7 at [72] , Finn, Emmett and Bennett JJ said: "In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] ." (emphasis in original)
Case: Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
Outcome: cited
The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed.
Case: NT Power Generation v Power Water Authority [2004] HCA 48 ; (2004) 219 CLR 90
Outcome: cited
I am of opinion that Unwired's allegations as to what the markets are, have been pleaded so as, at least, to reflect the economy of expression, with which the High Court was able to deal with allegations of market in NT Power Generation v Power Water Authority [2004] HCA 48 ; (2004) 219 CLR 90 at 112 [58] . The nature of a finance market and the width of possible markets which are raised by the letter of 23 August 2005 and Unwired's explanatory memorandum to its shareholders in explanation of this transaction will require close and careful attention, including in relation to issues of markets and market definition. It will be necessary to revisit carefully the further pleadings on these points. 66 However, Unwired's allegations of a contravention of s 46 are arguable and I am not satisfied that they should be dismissed at this time. But, I have real concerns as to their long-term sustainability, having regard to what is written in the letter of 23 August 2005 and the explanatory memorandum. For the moment, I think that the best course is to strike out pars 117-129 with leave to re-plead, so that Unwired can give some clarity to the overall nature of the contravention on which it relies. This is even though, as I have said, it may be perfectly legitimate for it to have pleaded some of those allegations in the form currently expressed. However, the whole pleading of this part of the amended defence should receive attention in a cognate way.
Case: O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359
Outcome: cited
But, before dismissing this aspect of the proceedings entirely, if I were otherwise minded to accede to Intel's arguments, I am of opinion that I should give Unwired one further opportunity to set out in its pleadings the necessary material facts. I do that because it seems to me that this area of the law is one which is undergoing development. As Allsop P observed, it is not the function of single judges or full or appellate courts to depart from decisions of the High Court. However, in O'Dea v Allstates Leasing Systems (WA) Pty Ltd [1983] HCA 3 ; (1983) 152 CLR 359 the High Court overruled its earlier decision in Lamson Store Service Co Ltd v Russell Wilkins &amp; Sons Ltd [1906] HCA 87 ; (1906) 4 CLR 672. That had been recently applied by the Court in IAC (Leasing) Ltd v Humphrey [1972] HCA 1 ; (1972) 126 CLR 131. The reformulation of the law as to penalties which commenced with O'Dea 152 CLR 349 and continued with AMEV-UDC Finance Ltd v Austin [1986] HCA 63 ; (1986) 162 CLR 170 may not yet be at an end, albeit it that, as Allsop P noted, it may not be at the stage that Brereton J had suggested.
Case: Ringrow Pty Limited v BP Australia Pty Limited [2005] HCA 71 ; (2005) 224 CLR 656
Outcome: cited
In Ringrow Pty Ltd v BP Australia Pty Ltd [2005] HCA 71 ; (2005) 224 CLR 656 at 666 [22] , Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ said that in assessing extravagance and oppressiveness, it is necessary to be able to compare the price to be paid, and the value of what is to be transferred as a result of the claimed penalty having become payable. I do not think that Unwired's pleading does articulate, in that way, a clear basis for asserting that a penalty would be incurred by it. I am of opinion that it is necessary to plead more than the merely formulaic words contained in par 74 of Unwired's amended defence. 73 If this point is to be articulated, even in circumstances where ultimately it might have to be struck out, it should be done in a pleading that clearly raises whatever is the triable issue which Unwired ultimately seeks to use to defend itself from liability to pay this amount as a penalty. For these reasons, pars 74 and 75 are not sufficient, in themselves, to bring out the novel claim that Unwired wishes to make and should be struck out. 74 I am concerned that the caution expressed by Allsop P should not be ignored. On the other hand, courts have to be mindful that when a party wishes to raise a test case, at least the elements for the test should be stated clearly in the pleadings. In this way, ultimately, it will be possible to apply the test, as to whether the redemption premium amount is a penalty, assessed on the conventional basis which, as a judge at first instance, I would ordinarily be obliged to apply, or by using some other test to determine whether the proceedings should be dismissed under s 31A , or otherwise stuck out as untenable. The arguments which Intel has put are significant. They carry the weight not only of the previous understanding of the common law of contract but also the operation of the document penalties.
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289
Outcome: cited
In GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2003] FCA 50 ; (2003) 128 FCR 1 at 208-209 [920] Finn J, himself an advocate of the implication or importation into all contracts of a duty of good faith and fair dealing, recognised that there was no consensus in Australian law as to whether such a term, or duty, should be included in all contracts. The High Court left that question open in Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 301 [40] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
Case: Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361
Outcome: cited
The purpose of case management and the docket system adopted by this Court is to enable both the parties and the Court to be informed, from the outset of the case each of the parties intends to advance and to identify the real issues in dispute. This is so that directions can be crafted to enable the efficient management of the litigation, with a view to focusing on and allowing those issues to be tried, and, at the same time, eliminating irrelevant matters quickly and efficiently: White v Overland [2001] FCA 1333 at [3] - [4] per Allsop J (applied by Heydon JA in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 128-129 [28]-[32], Mason P and Young CJ in Eq agreeing); Visible Results Properties Inc v Sushi Train (Australia) Pty Ltd [2005] FCA 1159 at [29] per Allsop J; Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty [2006] FCA 1361 at [15] per myself; Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd [2008] NSWCA 243 at [160] - [162] per Allsop P, with whom Beazley and Campbell JJA agreed.