mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Hammond v Commonwealth of Australia [1982] HCA 42 ; (1982) 152 CLR 188
Outcome: considered
Mr Dixon, who appeared on behalf of Mr Hoff, submitted that a more appropriate approach was to consider the principles involved with potential commissions of contempt of Court in relation to an administrative proceeding which might impinge upon a Court proceeding. He referred to Sage v Australian Securities and Investments Commission [2005] FCA 1043 , and to Hammond v Commonwealth of Australia [1982] HCA 42 ; (1982) 152 CLR 188, where Gibbs CJ, with whom Mason and Murphy JJ agreed, said at 196: "The ground of the application for the injunction is that the further examination of the plaintiff, and the making of the report, would constitute a contempt of the County Court before which the criminal proceedings against the plaintiff are pending. To succeed in obtaining an injunction on that ground, the plaintiff must establish that there is a real risk, as opposed to a remote possibility, that justice will be interfered with if the Commission proceeds in accordance with its present intention. The tendency of the proposed actions to interfere with the course of justice must be a practical reality - a theoretical tendency is not enough. So much is recognized by the Builders Labourers' Case . The first question that arises is whether it would be an interference with the due administration of justice if the examination of the plaintiff were to proceed before the Commission. A witness appearing before the Commission is subject to the obligations imposed by s. 6 of the Royal Commissions Act 1902 (Cth) and s. 16 of the Evidence Act 1958 (Vict.)."
Case: Clough v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 
Outcome: referred to
The applicant, Clough Engineering Ltd, by motion seeks an order granting leave to appeal from a judgment, Clough Engineering Ltd v Oil &amp; Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 given on 21 December 2007. The motion is supported by an affidavit of Natalie Jane Wigg sworn 16 January 2008 deposing to the applicant's belief that there are reasonable grounds to appeal. The grounds of appeal are set out in a draft Notice of Appeal dated 16 January 2008. The first respondent, Oil and Natural Gas Corporation Limited ("ONGC") has filed an affidavit sworn on 7 February 2008 by its solicitor Mr Dean Edward Grondal. It contains matters concerning the pending arbitration proceedings commenced in India by Clough against ONGC in which various very substantial claims are made arising from the Construction Contract to which I refer below. 2 Clough and ONGC, are parties to a construction contract ("Construction Contract"). The formal contract was made on 6 January 2005. It is a lump sum contract in excess of US$215 million and is for the development of certain oil and gas fields in the Krishna Godavari Basin located off the coast of the State of Andhra Pradesh in India. Additionally, onshore facilities were to be constructed at Odalarevu, near Amalapuram also in Andhra Pradesh. Clough is an Australian company. ONGC is an Indian company. 3 By instruments dated January 2005 ("performance guarantees"), each of the second to fourth Respondents ("Banks") equally between them guaranteed the payment of 10% of the contract price to ONGC. This equated to a little more than US$21.5 million.
Case: D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Outcome: applied
The well known test generally applied is whether the decision below is attended by sufficient doubt to warrant it being reconsidered by an appellate court and whether substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong: D&eacute;cor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398, 400.
Case: Dunstan v Orr [2007] FCA 873
Outcome: cited
The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich &amp; Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [39] per Lander J with Moore J concurring.
Case: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; [2000] 104 FCR 564
Outcome: followed
In Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; [2000] 104 FCR 564 at 584 [43] French J with whom the other members of the Court agreed, said that a "prima facie case exists for granting leave to appeal" if the judgment, although interlocutory, has the practical operation of finally determining the rights of the parties. 19 Clough contends that for the Court to refuse leave would effectively deny it of the right to appeal from a final decision as to the construction of an important provision of the Construction Contract as well as in relation to the following matters: (a) whether ONGC was entitled under the Construction Contract, on its proper construction, to call on the performance guarantees; (b) whether ONGC acted unconscionably in contravention of s 51AA of the Trade Practices Act 1974 (Cth) ( TPA ) in calling on the performance guarantees, in all of the circumstances; (c) whether Clough was, in fact and demonstrably, in breach of an obligation to renew the performance guarantees and an obligation to provide insurance certificates to ONGC, thereby depriving Clough's prima facie claim (which the primary judge accepted was made out) that Clough was entitled to relief for ONGC's contravention of s 51AA of the TPA ; and (d) whether the performance guarantees are not unconditional but conditional and whether they required ONGC to specify the amount actually payable by the banks, rather than making an umbrella claim for the full amount. 20 I made a final determination as to the proper construction of cl 3.3.3, although the motion then before me was interlocutory in nature: Clough Engineering Ltd [No 3] at [20]-[53]. 40 It submits that this distinguishes this case from those contemplated in Johnson Tiles at [43]. The "practical operation" of the judgment, it says, is not to determine finally the rights of the parties because the proper construction of cl 3.3.3 of the Construction Contract and the entitlement of ONGC to call upon the performance guarantees are all live issues, amongst others, in the arbitration proceedings. Further ONGC, through counsel, undertook to the Court that it would not raise the judgment of this Court as any barrier to those issues being determined again in the arbitration. That is not to say that the judgment of this Court would not be pressed on the Indian Arbitrators by ONGC as carrying considerable weight. 41 The view I take is that the judgment has the practical effect of determining the parties' rights. It is no answer to say that a different result might ensue in a different proceeding in another jurisdiction which could have the result of restoring the position of Clough. 42 In any event, if an appeal were successful it would not be necessary to prosecute that aspect of Clough's claims in the arbitration. The effect, then, of the submission is that the arbitration proceedings provide Clough with a de facto appeal. In my opinion, Clough ought be entitled to exhaust its legal entitlements in this Court.
Case: Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122
Outcome: cited
The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich &amp; Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [39] per Lander J with Moore J concurring.
Case: Yap v Granich &amp; Associates [2001] FCA 1735
Outcome: cited
The judgment, whilst interlocutory, is one on points of substance and not merely practice or procedure. A distinction is drawn between these: Yap v Granich &amp; Associates [2001] FCA 1735 at [6] ; Dunstan v Orr [2007] FCA 873 at [6] ; see also Visy Industries Holdings Pty Limited v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [39] per Lander J with Moore J concurring.
Case: Slaveski v Rotstein [2009] FMCA 443
Outcome: affirmed
appellant, Mr Slaveski, appeals from a judgment of Burchardt FM of the Federal Magistrates Court of Australia published on 6 May 2009. In the judgment below, his Honour dismissed Mr Slaveski's application to set aside a bankruptcy notice served on him on behalf of the respondent company; see Slaveski v Rotstein [2009] FMCA 443. On 1 April 2008, the Magistrates' Court of Victoria made a costs order in favour of the respondent against Mr Slaveski in the sum of $7,115.90. On 13 May 2008, the respondent served a bankruptcy notice on Mr Slaveski in respect of the costs order. On 30 May 2008, Mr Slaveski applied to the Federal Magistrates Court for the bankruptcy notice to be set aside. On that day Registrar Luxton extended the time for compliance with the bankruptcy notice. Several further extensions of time were granted throughout 2008. On 17 November 2008, Registrar Luxton dismissed Mr Slaveski's application to set aside the bankruptcy notice. On that day, Mr Slaveski countered with an application to set aside that dismissal. It was the rejection of that application which has led to the current appeal.
Case: Re Glew; Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331 ; [2003] FCA 373
Outcome: followed
be a claim that may have been set up as a cross-claim, the claim must be a genuine or bona fide claim, with a fair chance of success; see Re Glew; Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 ; (2003) 198 ALR 331 ; [2003] FCA 373 at [9] [11] per Lindgren J. It was open to his Honour below to make that assessment about the merits of the VCAT claim. Mr Slaveski also alleges, wrongly, that the Federal Magistrate did not take into account Mr Slaveksi's application to pay the judgment debt in instalments. However, as his Honour observed, that application is an acknowledgement of the debt.
Case: NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235
Outcome: cited
In the notice of appeal the particular given for illogical reasoning was the Tribunal's conclusion that the resignation was for the purpose of strengthening his claim for refugee status. The Tribunal did not give detailed reasons for its conclusion in that regard. The conclusion is perhaps implicit from the reasoning of the Tribunal regarding the claims and evidence of the appellant. It is not a question of illogical reasoning. Further, mere illogical reasoning does not of itself found jurisdictional error ( NACB v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 235 at [30] ). 15 However, the resignation is only relevant if, contrary to the finding of the Tribunal, the resignation did exist. The Tribunal reached a firm conclusion that the resignation did not exist and gave clear reasons for that conclusion. The finding with respect to s 91R(3) of the Act was not the basis for the Tribunal's conclusion. 16 The assertion that the Tribunal acted capriciously and arbitrarily was not, according to the appellant, an allegation of denial of procedural fairness or an allegation of bias. The basis for this ground was that the former member of the Chinese Embassy, who had applied for refugee status, had had his application granted.
Case: SZIOY v Minister for Immigration [2007] FMCA 1359
Outcome: considered
On the application for review to the Federal Magistrate ( SZIOY v Minister for Immigration [2007] FMCA 1359) the appellant raised a number of grounds as to why the Tribunal decision was affected by jurisdictional error: (a) that the Tribunal took into account an irrelevant consideration; (b) that the Tribunal failed to afford procedural fairness; and (c) that the Tribunal acted capriciously and arbitrarily and formed its assessment of satisfaction on illogical reasoning (at [6]). 9 By way of particulars the appellant said that the Tribunal's conclusion that he had signed the resignation for the purpose of strengthening his claim was illogical (at [8]). A further particular was that the Tribunal had made an incorrect assumption in assuming that the Chinese authorities were unaware of the resignation. 10 Federal Magistrate Nicholls considered the appellant's grounds of review at some length. His Honour found that there was no basis for the assertion that the Tribunal had taken into account an irrelevant consideration (at [13] [14]). In the absence of a transcript of the Tribunal hearing, a copy of which the Registrar had directed the appellant to file, but which was not filed (at [17]), his Honour found there was nothing to support an allegation of a denial of procedural fairness (at [18]). 11 In coming to that conclusion, his Honour independently considered whether the Tribunal had complied with procedural statutory requirements. His Honour considered that the conclusions of the Tribunal were logical. In coming to that conclusion his Honour put aside the question of whether or not illogical reasoning would be sufficient to reveal jurisdictional error (at [20]). 12 In his notice of appeal from the decision of the Federal Magistrate the appellant raises three grounds. In substance, those grounds are: 1. That the Tribunal's conclusions were based on illogical reasoning. 2. That the Tribunal acted capriciously and arbitrarily. 3. That the Tribunal made an incorrect assumption in assuming that the Chinese authorities were unaware of the resignation. 13 The appellant appeared in this appeal in person assisted by an interpreter. When asked for particulars of this ground, the appellant raised factual matters centred around what he says is the current position in China regarding freedom of speech. Those matters are not relevant to the appeal.
Case: Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 , 91 FCR 248
Outcome: followed
Nor has there been any further explanation as to the manner in which it is said that the Appellant has been denied procedural fairness. None can be discerned. Section 425(1) of the Migration Act provides for an applicant to be extended an invitation to appear before the Refugee Review Tribunal. That sub-section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The right conferred by this provision is " clearly an important and central right in the merits review system established by Pt 7 of the Act ": Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5.
Case: Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228 , 43 FLR 129
Outcome: followed
Leave to amend was opposed by Counsel for the Respondent Minister upon the basis that the ground raising " jurisdictional error " was unparticularised (other than alleging a further unidentified " error of law ") and that the grounds either raised no issues different to those in the existing Notice of Appeal , or had no prospects of success. An amendment, such as that proposed, which is ambiguous and raises nothing of substance, will not be permitted: Australian Broadcasting Commission v Parish [1980] FCA 33 ; (1980) 29 ALR 228 , 43 FLR 129. 21 Those submissions of Counsel for the First Respondent were accepted and leave to amend was consequently refused. 22 A further reason for refusing leave to amend was the concern of the Court that the proposed amendments were obviously drafted by someone other than the Appellant, who (not surprisingly) had no knowledge of either what was intended to be conveyed by the concept of " jurisdictional error " or the " information " which, it was contended, should have been conveyed pursuant to s 424A. The Appellant could thus provide no assistance to the Court as to what was intended to be embraced by the proposed amendments which was not otherwise within the existing Notice of Appeal.
Case: Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 , 113 FCR 541
Outcome: followed
Nor has there been any further explanation as to the manner in which it is said that the Appellant has been denied procedural fairness. None can be discerned. Section 425(1) of the Migration Act provides for an applicant to be extended an invitation to appear before the Refugee Review Tribunal. That sub-section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The right conferred by this provision is " clearly an important and central right in the merits review system established by Pt 7 of the Act ": Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5.
Case: Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128
Outcome: followed
Whoever may be the drafter of the Grounds of Appeal , the primary function of this Court is to resolve all such arguments as appropriately arise out of the decision the subject of appeal. The central principle is to do justice between the parties: Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. The " starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided ": SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4 ) [2007] FCA 1035 at [14] per Edmonds J.
Case: Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 , 183 ALR 188
Outcome: followed
Nor has there been any further explanation as to the manner in which it is said that the Appellant has been denied procedural fairness. None can be discerned. Section 425(1) of the Migration Act provides for an applicant to be extended an invitation to appear before the Refugee Review Tribunal. That sub-section provides as follows: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The right conferred by this provision is " clearly an important and central right in the merits review system established by Pt 7 of the Act ": Liu v Minister for Immigration &amp; Multicultural Affairs [2001] FCA 1362 at [44] , [2001] FCA 1362 ; 113 FCR 541 at 552; Amankwah v Minister for Immigration &amp; Multicultural Affairs [1999] FCA 1162 at [13] , [1999] FCA 1162 ; 91 FCR 248 at 251. The invitation to attend an oral hearing " must not be a hollow shell or an empty gesture ": Mazhar v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 1759 at [31] , [2000] FCA 1759 ; 183 ALR 188 at 194 5.
Case: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 228 CLR 294
Outcome: followed
Section 424A(1) employs the term " must " and compliance with that provision is, accordingly, mandatory: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 228 CLR 294 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Case: SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4 ) [2007] FCA 1035
Outcome: followed
Whoever may be the drafter of the Grounds of Appeal , the primary function of this Court is to resolve all such arguments as appropriately arise out of the decision the subject of appeal. The central principle is to do justice between the parties: Londish v Gulf Pacific Pty Ltd [1993] FCA 470 ; (1993) 45 FCR 128. The " starting point is that all of such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided ": SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 4 ) [2007] FCA 1035 at [14] per Edmonds J.
Case: SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 , 235 ALR 609
Outcome: followed
Section 424A(1) employs the term " must " and compliance with that provision is, accordingly, mandatory: SAAP v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] HCA 24 , 228 CLR 294 ; SZBYR v Minister for Immigration &amp; Citizenship [2007] HCA 26 at [13] , [2007] FCA 26 ; 235 ALR 609 at 614 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.