mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Taylor v Taylor [1979] HCA 38 ; (1978) 143 CLR 1
Outcome: cited
follows from what I have held, that s 33V of the Federal Court of Australia Act does not apply to the application to discontinue. In the event that this conclusion is incorrect, both parties accepted that it was possible to grant leave for the proceedings to be discontinued and an appropriate order made protecting the rights of persons who were intended to be group members from the consequences of allowing that discontinuance. The sources of power to make those orders would be either ss 22 and 23 or (if I were wrong about the proceedings not being made under Pt IVA) ss 33V(2) , 33Z (1)(g) and s 33ZF of the Federal Court of Australia Act . Each of those sections is sufficient to enable the Court to make a declaration protecting the rights of third parties, being those whom the applicants sought to claim were group members. None of those third parties has been heard or joined. They have had no opportunity to protect their interests. Ordinarily (leaving aside cases or statutes excluding the principles of natural justice or procedural fairness) no-one should have his or her rights affected or destroyed without an opportunity of being heard. This principle was illustrated in the great case of Cooper v Wandsworth Board of Works [1863] EngR 424 ; (1863) 14 CB(NS) 180 [143 ER 414] and remains applicable today: Taylor v Taylor [1979] HCA 38 ; (1978) 143 CLR 1 ; Commissioner of Police v Tanos [1958] HCA 6 ; (1958) 98 CLR 383 at 395 per Dixon CJ and Webb J.
Case: United Mexican States v Cabal (2001) 209 CLR 165
Outcome: discussed
application for leave or special leave to appeal is not an appeal. Rather, it is a proceeding in which an applicant for such leave or special leave is "... no more than an applicant desiring to obtain the Court's leave to commence proceedings in the Court": United Mexican States v Cabal (2001) 209 CLR 165 at 179 [30] per Gleeson CJ, McHugh and Gummow JJ, applying Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122-123 per Barwick CJ, Stephen, Mason and Jacobs JJ. In DJL v The Central Authority [2000] HCA 17 ; (2000) 201 CLR 226 at 248 [47] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said: "An application for special leave "is not in the ordinary course of litigation" and, until the grant of special leave, "there are no proceedings inter partes before the Court ( Collins v The Queen [1975] HCA 60 ; (1975) 133 CLR 120 at 122). Further, the disposition of a special leave application is not the determination of an appeal ( Attorney-General (Cth) v Finch [No 2] [1984] HCA 40 ; (1984) 155 CLR 107 at 115) . The result is that the refusal of an application for special leave does not produce a final judgment of this Court which forecloses the re-opening of the matter in an appropriate and, necessarily, very special case where the interests of justice so require."
Case: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509
Outcome: cited
my opinion this argument should be rejected. The onus of establishing an abuse of process is a heavy one: Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. Most proceedings are brought to obtain a vindication of rights either by a judgment of the Court or a negotiated settlement. I am not satisfied that there has been an abuse of the process of the Court by the applicants in bringing proceedings to seek to achieve such an outcome in the present case. There was no improper purpose of the applicants identified in their submissions, nor any abuse of the process of the Court. If the applicants did have an underlying basis for their claim of unlawful discrimination, they would be entitled to compensation either from a judgment or a settlement. And, merely because the applicants' solicitors recently concluded that the conduct of a representative proceeding would be difficult without the support of the Council, this did not entail that a settlement necessarily could not benefit group numbers. Next, the State argued that the proceedings had been brought in the New South Wales Registry of the Court when Moore J, in the earlier proceedings brought by Mr Wotton, had ordered the transfer of those proceedings to the Queensland Registry. The State argued that these proceedings should be seen as a continuation of the previous interlocutory application and that Mr and Mrs Wotton had flouted Moore J's direction to transfer the proceedings to the Queensland Registry. I reject this argument. These proceedings are new proceedings. The proceedings before Moore J concerned an early stage in the complaint process prior to the Commission having dealt with the complaint. These proceedings arise out of rights said to flow from the rejection of the complaint. In addition, the solicitors for the applicants and their counsel, who are in Sydney, are acting pro bono. I infer that it would be more difficult for them at this stage to conduct the proceedings in Brisbane or elsewhere in Queensland, even though they have travelled to Palm Island to assist the applicants in this and other matters. At the moment I am not satisfied that there was any abuse in commencing the proceedings here, although I have considerable sympathy with the proposition, implicit in the State's submissions, that a venue for trial of the proposed representative proceedings in Queensland would be likely to be more convenient and satisfactory than here. I am not satisfied that the State has established any improper purpose for the institution of these proceedings. On the evidence, the applicants appear to have had a proper purpose to vindicate the rights claimed. I reject the application for indemnity costs.
Case: Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255
Outcome: cited
is a further reason why the application under s 46PO(2) for an extension of time would not amount to representative proceedings. That is because s 33C(1)(c) requires that the claims of all of the group members give rise to a substantial common issue of fact or law. "Substantial" in s 33C(1)(c) means "real or of substance": Wong v Silkfield Pty Ltd [1999] HCA 48 ; (1999) 199 CLR 255 at 267 [28] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ. There is no evidence that the personal circumstances of Mr and Mrs Wotton, or the reasons why they did not make their application (even as a representative proceeding) within 28 days of 12 September 2007 or now seek an allowance of further time to do so, involve any, let alone, substantial, common issue of fact or law that applies to all other group members. The only issues in this matter under s 33C(1)(c) would be factual ones going to why the further time was required. I am not satisfied any substantial common question of fact or law exists so as to satisfy s 33C(1)(c) that the present application to allow further time could be a proceeding under Pt IVA. It has not been argued or suggested that further time could have been allowed because of the late discovery of a factual or legal ground.
Case: Wotton v State of Queensland [2007] FCA 280
Outcome: cited
1 March 2007, shortly before his trial was to commence Mr Wotton lodged a complaint with the Human Rights and Equal Opportunity Commission (as the Australian Human Rights Commission was then called). The complaint alleged, among other matters, that the arrest, charging and prosecution of Mr Wotton contravened or would contravene the Racial Discrimination Act 1975 (Cth). Mr Wotton sought an ex parte injunction under s 46PP of the Human Rights and Equal Opportunity Commission Act to restrain the holding of his criminal trial: Wotton v State of Queensland [2007] FCA 280. Those proceedings purported to be instituted as representative proceedings under Pt IVA of the Federal Court of Australia Act . In refusing the ex parte relief, Moore J noted that there had been considerable delay in the lodging of the complaint with the Commission: Wotton [2007] FCA 280 at [3] - [5] . His Honour said that he would express no view about whether those proceedings could have been brought as representative proceedings. Subsequently, at his trial Mr Wotton was convicted and sentenced to a term of imprisonment. The complaint had been lodged with the Commission on 1 March 2007 by Mr Wotton's solicitors, Messrs Levitt Robinson. It purported to have been made on behalf of Mr Wotton, his co-accused and "all the black residents of Palm Island who were residents of the place on and between 18 and 28 November 2004". The solicitors later supplemented the complaint with further submissions. The Commission accepted the complaint as being a representative complaint made on behalf of class members other than the unnamed co-accused. The complaint was made against the State of Queensland, including the Queensland Police Service, the Office of the Director of Public Prosecutions and the Queensland Court of Appeal. It is not necessary to outline any matter in relation to the Queensland Court of Appeal since nothing was raised in the present proceedings in respect of that court. Some allegations made by Mr Wotton to the Commission were, subsequently, withdrawn by him. On 12 September 2007, the then President, the Hon John von Doussa QC, signed a notice of termination pursuant to s 46PH(2) of the Act on the grounds that he was satisfied that some aspects of the complaint were lacking in substance and or misconceived, in relation to one aspect of the complaint, some other more appropriate remedy was reasonably available to each of the complainants and the subject matter of one aspect of the complaint had been dealt with adequately by another statutory authority. He terminated the complaints against the Office of the Director of Public Prosecutions and the Queensland Court of Appeal on the basis that he was satisfied that those complaints were respectively lacking in substance and misconceived.
Case: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359
Outcome: referred to
Mr Bodenstein complained that the Tribunal should have deferred its consideration of the matter until the determination of the Supreme Court proceedings. No doubt it could have done so. However a failure by it so to do discloses no error, still less jurisdictional error. There may, of course, be circumstances in which a failure to adjourn may result in a breach of s 357A(3) of a kind analogous to a denial of procedural fairness: cf Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 ; (2003) 128 FCR 359 at 365 per Hely J. However, no such issue arises here. The appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 6 February 2009 The first appellant appeared in person. Solicitor for the First Respondent: Mr A Markus of the Australian Government Solicitor Date of Hearing: 28 October 2008 Date of Judgment: 6 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/50.html
Case: Bodenstein v Minister for Immigration [2008] FMCA 630
Outcome: affirmed
This is an appeal from a decision of the Federal Magistrates Court given on 20 May 2008: Bodenstein v Minister for Immigration [2008] FMCA 630. That Court rejected the appellants' application for orders setting aside a decision of the Migration Review Tribunal ("the Tribunal") handed down on 1 August 2007. The Tribunal had affirmed a prior decision by the Minister for Immigration and Citizenship ("the Minister") not to grant the present appellants' application for visas. In my opinion, the appeal should be dismissed with costs. Facts The appellants, whom without any disrespect I shall refer to as the Bodensteins, are Israeli nationals and are a family. Mr Bodenstein arrived in Australia on 2 September 2003. On the same day he lodged an application for a "Temporary Business Entry (Class UC)" visa. That class of visa permits a non-citizen with skills needed by Australian businesses to enter and work temporarily in Australia. The letters "UC" are not an acronym and have no special meaning other than as a class designator. The class UC visa may be granted for a period of up to three months, in which case it is called a Subclass 456 (Business (Short Stay)) visa. Alternatively, it may be granted to permit a stay of more than three months but less than four years, in which case it is called a Subclass 457 (Business (Long Stay)) visa. Mr Bodenstein, and his family as dependents, applied for the Subclass 457 (Business (Long Stay)) visa. The power of the Minister to grant a visa is conferred by s 65 of the Migration Act 1958 (Cth) ("the Act"). It provides: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa.
Case: Dietrich v The Queen (1992) 177 CLR 292
Outcome: considered
the requirements of procedural fairness (or, as it was formerly known, natural justice) required the Bodensteins to be given an opportunity to put their case to the federal magistrate. That opportunity was afforded to them. Although it has been held that in certain circumstances a serious criminal proceeding may be stayed if an accused person is not afforded legal representation, it is apparent that that power is a manifestation of the Court's power to stay an unfair criminal trial: Dietrich v The Queen (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J, 361-362 per Toohey J, 365 per Gaudron J. However, Dietrich is not concerned with civil proceedings. More importantly, it has been held that the rules of procedural fairness in civil proceedings do not extend to requiring the provision of legal representation: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330-331 per Mason CJ, Dawson, Toohey and McHugh JJ; cf Rivera v United States of America [2004] FCAFC 154 at [26] - [28] per Heerey, Sundberg and Crennan JJ.
Case: House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Outcome: referred to
even if that were not so, Mr Bodenstein has shown no error in the way the federal magistrate dealt with the application for referral. Although I express no concluded view on the matter, it is likely that an attack on the exercise of the power in r 12.03 would need to comply with the principles enunciated in House v The King [1936] HCA 40 ; (1936) 55 CLR 499. In particular it would be necessary to show that the federal magistrate approached the exercise of the power on an erroneous basis or took into account some extraneous consideration or failed to take into account some essential matter. This ground must be rejected. Mr Bodenstein's second complaint about the Federal Magistrates Court was that it had exceeded its jurisdiction. In essence his point was that by permitting the Tribunal's decision not to grant the visas to stand, the federal magistrate was effectively pre-emptorily terminating the Supreme Court proceedings because without Mr Bodenstein here to prosecute them they would inevitably be dismissed. I would accept that, generally speaking, the Federal Magistrates Court has no power to dismiss Supreme Court proceedings. However, that is not what the federal magistrate did. Both before and after his decision those proceedings remained on foot. A variant of this argument was that the federal magistrate's decision undermined the exercise by the Supreme Court of its jurisdiction. There may well be some circumstances where the removal of a litigant from the jurisdiction might be a contempt of the court seized with the litigation. However, the removal of an alien by force of federal law could never be a contempt of purely state court proceedings. This ground too must therefore be rejected. The grounds relating to the Tribunal
Case: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309
Outcome: cited
the requirements of procedural fairness (or, as it was formerly known, natural justice) required the Bodensteins to be given an opportunity to put their case to the federal magistrate. That opportunity was afforded to them. Although it has been held that in certain circumstances a serious criminal proceeding may be stayed if an accused person is not afforded legal representation, it is apparent that that power is a manifestation of the Court's power to stay an unfair criminal trial: Dietrich v The Queen (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J, 361-362 per Toohey J, 365 per Gaudron J. However, Dietrich is not concerned with civil proceedings. More importantly, it has been held that the rules of procedural fairness in civil proceedings do not extend to requiring the provision of legal representation: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330-331 per Mason CJ, Dawson, Toohey and McHugh JJ; cf Rivera v United States of America [2004] FCAFC 154 at [26] - [28] per Heerey, Sundberg and Crennan JJ.
Case: Rivera v United States of America [2004] FCAFC 154
Outcome: referred to
the requirements of procedural fairness (or, as it was formerly known, natural justice) required the Bodensteins to be given an opportunity to put their case to the federal magistrate. That opportunity was afforded to them. Although it has been held that in certain circumstances a serious criminal proceeding may be stayed if an accused person is not afforded legal representation, it is apparent that that power is a manifestation of the Court's power to stay an unfair criminal trial: Dietrich v The Queen (1992) 177 CLR 292 at 311 per Mason CJ and McHugh J, 361-362 per Toohey J, 365 per Gaudron J. However, Dietrich is not concerned with civil proceedings. More importantly, it has been held that the rules of procedural fairness in civil proceedings do not extend to requiring the provision of legal representation: New South Wales v Canellis [1994] HCA 51 ; (1994) 181 CLR 309 at 330-331 per Mason CJ, Dawson, Toohey and McHugh JJ; cf Rivera v United States of America [2004] FCAFC 154 at [26] - [28] per Heerey, Sundberg and Crennan JJ.
Case: YAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471
Outcome: referred to
In dealing with the s 424A(1) point, the Federal Magistrate, (citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , which was approved by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609) , held that the Tribunal was not obliged to provide the particular information to the appellant because the information related to the Tribunal's thought processes, and therefore did not attract the operation of s 424A(1). In addressing the appellant's claim that this information related to him personally and was significant, his Honour stated: "The findings in respect of which the Applicant says he should have been informed were general findings not specific to him personally. The circumstances of the White Eagles political movement was plainly a matter of general import, not one wholly specific to him. Although the Applicant claimed to be a leader of the group in Hashuri, nonetheless this was plainly information about a class of persons and not information solely limited to the Applicant himself."
Case: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609
Outcome: referred to
In dealing with the s 424A(1) point, the Federal Magistrate, (citing VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 ; (2004) 206 ALR 471 , which was approved by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609) , held that the Tribunal was not obliged to provide the particular information to the appellant because the information related to the Tribunal's thought processes, and therefore did not attract the operation of s 424A(1). In addressing the appellant's claim that this information related to him personally and was significant, his Honour stated: "The findings in respect of which the Applicant says he should have been informed were general findings not specific to him personally. The circumstances of the White Eagles political movement was plainly a matter of general import, not one wholly specific to him. Although the Applicant claimed to be a leader of the group in Hashuri, nonetheless this was plainly information about a class of persons and not information solely limited to the Applicant himself."
Case: Allanson v Midland Credit Ltd (1977) 16 ALR 43
Outcome: applied
The circumstances which a Court must consider when asked to grant leave have been set out in Allanson v Midland Credit Ltd (1977) 16 ALR 43. In that Full Court decision their Honours observed at 48 that if the issues involved would be better and more comprehensively dealt with in a contested trial of the action in the Supreme Court than if a creditor was required to lodge a proof of debt, a grant of leave should follow. 11 The issues as outlined in the Statement of Claim and in the proposed Amended Statement of Claim establish that there are complex factual issues to be determined which, it is apparent, could be determined more effectively in the Supreme Court proceedings.
Case: Re McMaster; ex parte McMaster (1991) 33 FCR 70
Outcome: referred to
The words ' in respect of' which appear in s 58(3)(b) have been considered judicially: see for example Re McMaster; ex parte McMaster (1991) 33 FCR 70 at 72 and in Trustees Executors and Agency Company Ltd v Reilly [1941] ALR 105 at 106. Such authorities refer to the wide scope of the words ' in respect of' as contained in the relevant subsection. The Court is satisfied that for the purposes of s 58(3)(b) of the Act the claim the subject of the Supreme Court proceedings falls within the purview of s 82 and that the Supreme Court proceedings are in respect of a provable debt. As such this is a proper case for an application for leave under s 58(3)(b) of the Act.
Case: Re Veghelyi; Smith and Others v Official Trustee in Bankruptcy (1993) 45 FCR 413
Outcome: followed
As the Supreme Court proceedings were last before that Court for directions on 29 August 2007, an order is sought for leave to be granted effective from that date. The power of the Court to grant leave pursuant to s 58(3)(b) of the Act includes the power to grant such leave nunc pro tunc : see Re Veghelyi; Smith and Others v Official Trustee in Bankruptcy (1993) 45 FCR 413 at 417. 13 Accordingly the Court considers that the orders sought by Ms Marie Ashdown should be made forthwith and the Court makes the orders as set out above. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy . Associate: Dated: 5 September 2007 Counsel for the Applicant: A. McInerney Solicitor for the Applicant: Lee &amp; Lyons Lawyers Solicitor for the Second Respondent: D. A. Jabbour Date of Hearing: 5 September 2007 Date of Judgment: 5 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1399.html