mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
Outcome: cited
have drawn attention to further authorities in the course of argument. Most are relevant to particular issues and I will refer to them later in these reasons. There were, however, two passages (among others) of more general application on which counsel for the applicant placed emphasis: In Johnson Tiles Pty Ltd v Esso Australia Ltd [1999] FCA 569, at [12], Merkel J cautioned that pleadings are only a 'means to an end': "the relief to be granted on a pleadings motion is a matter of discretion (see Brambles Holdings Ltd v Trade Practices Commission [1979] FCA 80 ; (1979) 28 ALR 191 at 193). Even if I had acceded to the arguments of Esso to a greater extent than I have in my view the Court's individual docket system of case management and its ability to ensure that the proceeding is conducted in a manner which does not unfairly prejudice any of the parties is such that I would not strike out the pleading. Rather, if complaint is made about any particular aspect being embarrassing or prejudicial the Court has ample power to deal with that aspect so as to avoid prejudice or embarrassment in the course of its management of the case. I am satisfied that the causes of action relied upon have been pleaded in a manner that ensures that Esso understands those causes of action and the substance of the allegations made against Esso . Thus, the pleading is fulfilling its basic function at this stage. In all the circumstances I would decline to exercise my discretion to strike out the statement of claim or any part thereof". In State of Queensland , Drummond J held (at [34]) that the nature of the case itself must determine the standard to which the pleadings are held: "[w]here a claim is based on a clandestine compact between a number of respondents, the applicant can be expected to be unable to give precise particulars of material facts sufficient to support its allegation of the making of that compact. In such cases, the entitlement of the respondents to be apprised before trial of the nature of the applicant's case must be "accommodated to the nature of that case itself"...".
Case: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609
Outcome: referred to
is thus clear that his Honour's decision does not support the absolute proposition for which the applicant contends. Furthermore, it is to be borne in mind that his Honour was dealing with a "market", whether in Australia or in a wider geographic area of which Australia formed part, in the sense identified in the authorities. It is not necessary, for present purposes, to refer in detail to all of those authorities. Although the concept defies absolute precision in definition it "is a metaphor to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly stated by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...".
Case: Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529
Outcome: cited
is thus clear that his Honour's decision does not support the absolute proposition for which the applicant contends. Furthermore, it is to be borne in mind that his Honour was dealing with a "market", whether in Australia or in a wider geographic area of which Australia formed part, in the sense identified in the authorities. It is not necessary, for present purposes, to refer in detail to all of those authorities. Although the concept defies absolute precision in definition it "is a metaphor to describe a range of competitive activities by reference to function, product and geography": see Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193 ; (2003) 131 FCR 529 at 545. The concept was succinctly stated by Fisher J in Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 2) (1979) 26 ALR 609 at 647 where he quoted with approval a passage from a decision of the Trade Practices Tribunal: "The Trade Practices Tribunal considered the concept of market in some detail in Re Queensland Co-operative Milling Association Ltd (1975-6) 8 ALR 481 at 517, where the members said: "A market is the area of close competition between firms or, putting it a little differently, the field of rivalry between them ... Within the bounds of a market there is substitution substitution between one product and another, and between one source of supply and another, in response to changing prices. So a market is the field of actual and potential transactions between buyers and sellers amongst whom there can be strong substitution, at least in the long run, if given a sufficient price incentive"...".
Case: Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510
Outcome: referred to
respondents successfully moved the Court for orders striking out the original statement of claim: see Wright Rubber Products Pty Ltd v Bayer AG [2008] FCA 1510 ("my earlier reasons"). The shortcomings of this original pleading fell into two broad categories: first, that the applicant had failed to identify with sufficient precision the group members whom it wished to represent, and secondly, that the applicant had failed to plead sufficient material facts to establish a cause of action. More particularly, I identified the following deficiencies in the original statement of claim: Group definition Potential group members would have had difficulty ascertaining whether they were members of the group because of the difficulty in determining whether they had bought "Rubber Products"; The definition of "Rubber Products" was inadequate, which in turn affected the entire statement of claim; and The applicant had not pleaded sufficient material facts to establish that it was a member of the group it sought to represent. The Cartel Arrangements The discrete causes of action arising under sub-paragraphs (i) and (ii) of s 45(2)(a) of the Trade Practices Act 1974 (Cth) ("the TPA") had not been pleaded separately. Identification of the Markets The pleading confused references to the global and Australian markets, referring to the global market at times and the Australian market at other times without explaining why; The pleading did not clearly establish the existence of an Australian, as distinct from a global, market; and There were inconsistencies as to whether the market was for "Rubber Chemicals" or "Rubber Products". Giving effect to the arrangements in Australia I granted leave to the applicant to replead its statement of claim. It has done so. The respondents (other than the fourth respondent) complain that the amended statement of claim is also fatally flawed and should be struck out. They have moved the Court for an order under O 11 rule 16 of the Federal Court Rules .
Case: WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252
Outcome: followed
Federal Magistrate found that the Tribunal accurately set out the appellant's claims and evidence before it and the further material provided by the appellant and his representative in October 2007 and January 2008 but noted that it did not make findings on all the issues raised in the material when it rejected the entirety of the appellant's evidence and case because of its adverse credit findings: par [9] above. The Federal Magistrate said that: The Tribunal roundly disbelieved the appellant because of the matters set out in par [9] above and that each of those matters were findings that it was open to the Tribunal to make; Those matters were in the scheme of things important matters which were not peripheral to the issues before the Tribunal, including the very important credit issues. Once the Tribunal found that it did not believe the appellant in relation to these matters it was not illogical for the Tribunal to form the view that the entirety of the appellant's evidence about his conversion was untrue. Once the Tribunal decided that it did not believe the appellant, it was open to the Tribunal simply not to believe any of the rest of his evidence, applying the approach adopted in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at par [49] and WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at par [45]. The Federal Magistrate was satisfied that the reasons the Tribunal gave were sufficient, relying on Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at pars [65]-[67].
Case: Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515
Outcome: followed
relation to the medical evidence, the Federal Magistrate observed that: "the Tribunal was not disbelieving of the Applicant's medical practitioner. The Tribunal was rather saying that whatever illness the Applicant might have been suffering from had not been observed by it to prevent the Applicant giving his evidence" , and said that this was not an error such as was found in Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515. Furthermore, the Federal Magistrate noted that the selection and assessment of independent country information was a matter for the Tribunal. The Federal Magistrate rejected the submission that the Tribunal had required independent corroboration regarding the appellant's claims about his conversion to Christianity and his asserted dissipation of funds after the purported withdrawal of financial support by the Islamic group and was of the opinion that the Tribunal's finding that it was not readily believable that the appellant's financial resources had all disappeared, was unobjectionable and accorded with the facts as they stood. The second aspect of this submission was that the Tribunal had deprived itself of jurisdiction by imposing a requirement on the appellant that he be formally baptised in order to be at risk of persecution as an apostate from Islam. The Federal Magistrate observed that: "...the Tribunal did not at any stage in its reasons for decision assert that it was necessary for the Applicant to have provided independent evidence of his conversion to Christianity or that baptism was necessary for persecution to occur." As to the claim of bias, the Federal Magistrate read the transcript and listened to the audio recording of the hearing. The Federal Magistrate said that the transcript did not show on its face either unfairness to the appellant or a predisposition amounting to a mind not open to argument and that the audio recording did not show any overt hostility on the part of the Tribunal. The Federal Magistrate was satisfied that the Tribunal member was listening attentively to the appellant and that the appellant's answers were coherent, to the point and showed no undue signs of stress with the exception of the last paragraph of his evidence which did suggest "a certain weariness and distress" on the part of the appellant. The Federal Magistrate found that the transcript and the audio recording did not reveal any improper conduct and that even if he accepted that the Tribunal member had turned her back on the appellant (and he made no such finding) that conduct was at worst an unfortunate discourtesy but did not give rise to a finding of bias.
Case: SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418
Outcome: cited
reject the submission that the matters identified by the Full Court in that extract applied to the Tribunal's reasoning in the present case. The Tribunal explained why it had not found the appellant's evidence credible and why he was an unsatisfactory witness. It may be that other tribunals or courts may have approached the issue of the credibility of the appellant's evidence on a different basis and considered different aspects of the appellant's evidence in forming a view on the appellant's credibility but it was not for the Federal Magistrate, nor is it for this Court to undertake that task. As Mansfield J said in SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 at par [55]: "It is not the role of the Court to form a view as to whether it would have reached a different factual conclusion on the evidentiary material."
Case: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Outcome: cited
is also clear from the Tribunal's decision that it had before it, and had taken into account, the Special Rapporteur's Report which had been referred to by the appellant's representative in her submission to the Department on 23 July 2007. The appellant accepted that the Tribunal did not have to make separate findings on each piece of evidence which was placed before it but he submitted that although it was open to the Tribunal to prefer the United States State Department Report on Religious Freedom over the Special Rapporteur's Report, the Tribunal should have set out why it preferred that report over the Special Rapporteur's Report. It was not a jurisdictional error or, indeed any error, for the Tribunal not to give this explanation: see, eg, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 ; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at par [29]; SZALW v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2004] FCA 1690 at pars [18], [19] and [29].
Case: Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294
Outcome: cited
is also clear from the Tribunal's decision that it had before it, and had taken into account, the Special Rapporteur's Report which had been referred to by the appellant's representative in her submission to the Department on 23 July 2007. The appellant accepted that the Tribunal did not have to make separate findings on each piece of evidence which was placed before it but he submitted that although it was open to the Tribunal to prefer the United States State Department Report on Religious Freedom over the Special Rapporteur's Report, the Tribunal should have set out why it preferred that report over the Special Rapporteur's Report. It was not a jurisdictional error or, indeed any error, for the Tribunal not to give this explanation: see, eg, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 ; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at par [29]; SZALW v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2004] FCA 1690 at pars [18], [19] and [29].
Case: Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
Outcome: cited
is also clear from the Tribunal's decision that it had before it, and had taken into account, the Special Rapporteur's Report which had been referred to by the appellant's representative in her submission to the Department on 23 July 2007. The appellant accepted that the Tribunal did not have to make separate findings on each piece of evidence which was placed before it but he submitted that although it was open to the Tribunal to prefer the United States State Department Report on Religious Freedom over the Special Rapporteur's Report, the Tribunal should have set out why it preferred that report over the Special Rapporteur's Report. It was not a jurisdictional error or, indeed any error, for the Tribunal not to give this explanation: see, eg, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 ; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at par [29]; SZALW v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2004] FCA 1690 at pars [18], [19] and [29].
Case: SZALW v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2004] FCA 1690
Outcome: cited
is also clear from the Tribunal's decision that it had before it, and had taken into account, the Special Rapporteur's Report which had been referred to by the appellant's representative in her submission to the Department on 23 July 2007. The appellant accepted that the Tribunal did not have to make separate findings on each piece of evidence which was placed before it but he submitted that although it was open to the Tribunal to prefer the United States State Department Report on Religious Freedom over the Special Rapporteur's Report, the Tribunal should have set out why it preferred that report over the Special Rapporteur's Report. It was not a jurisdictional error or, indeed any error, for the Tribunal not to give this explanation: see, eg, Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 ; (2001) 113 FCR 396 at 423; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 ; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at par [29]; SZALW v Minister for Immigration and Multicultural &amp; Indigenous Affairs [2004] FCA 1690 at pars [18], [19] and [29].
Case: NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Outcome: cited
for the appellant criticised the Tribunal for focussing on the manner in which the appellant came to Australia, namely as an occupational trainee, rather than examining whether the appellant was a genuine convert to Christianity. Counsel relied upon the reasoning in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 ; (2004) 214 ALR 264 and submitted that the present case was an example of the observations of the Full Court at par [115]: "By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59 ; 73 ALD 1 ; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. ..."
Case: Anderson v Western Australia [2003] FCA 1423 ; (2003) 134 FCR 1
Outcome: cited
The applicant relies on O 13 r 2(1) of the Federal Court Rules ('the Rules') which permits the amendment of ' any document in the proceeding '. That applies to a native title determination application, subject to the constraints imposed by ss 64 and 66B of the [2003] FCA 1423 ; Act ( Anderson v Western Australia (2003) 134 FCR 1 at [36] per French J; Strickland v Western Australia [1999] FCA 221 ; (1999) 89 FCR 117 at [9] per Nicholson J). The constraints imposed by ss 64 and 66B are not relevant to the first motion.
Case: Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760
Outcome: cited
Section 251B of the Act reflects the communal character of native title. The authorisation process must be able to be traced to a decision of the native title claim group who adopt that process ( Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 per French J at [44]). A meeting which purports to authorise the replacement of applicants should be attended by persons ' fairly representative of the native title claim [group] concerned ' ( Bolton at [46]). There is no suggestion that this was not the case. The evidence of Jodi Neale, the anthropologist who attended the meeting and on whose research the replacement claim group description is based, is that those in attendance were reasonably representative of the replacement claim group. 24 In summary, the resolutions were made by a group of Njamal people. Those persons were sufficiently representative of the replacement claim group and made the resolutions in accordance with an agreed process. It follows that the decision-making processes required by s 66B have been proved ( Bolton at [42]). 25 By s 64(5) of the Act, if a claimant application is amended to replace the applicant with a new applicant, the amended application must be accompanied by an affidavit sworn by the new applicant attesting to the matters specified in subss 64(5)(a) and (b). Each of the replacement applicants has sworn and filed an affidavit and I am satisfied that s 64(5) has been complied with. 26 The only person opposing this application to replace the applicant is Mr McPhee. He complains that the meeting was ' flawed ' because the members in attendance were not properly informed of matters relevant to their decision. Mr McPhee submits that the Court should not, as a matter of discretion, make orders to replace the applicant. Mr McPhee did not attend the meeting. 39 The withdrawal and conferring of authority for the purposes of a s 66B application must be shown to flow from the claim group ( Bolton at [44]). Once this is established, the actions of the claim group and the means by which it makes decisions is a matter for it. It is not for the Court to interfere with decisions reached in accordance with the Act. It is not for the Court to consider the wisdom of those decisions or whether, in this case, there is merit in Mr McPhee's concerns. It is for him to communicate those concerns, if he wishes to do so, to the other claimants and for the applicant, on receipt of instructions from the claim group, to act as authorised. Upon the making of the orders sought by the first motion, the terms of s 66B of the Act will be satisfied. The Court has a discretion as to whether it should exercise its power under s 66B (subs 66B(2) of the Act; Daniel at [18]). That discretion should be exercised to make the orders sought by the replacement applicant.
Case: Chapman on behalf of the Wakka Wakka People # 2 v State of Queensland [2007] FCA 597
Outcome: cited
Section 66B of the Act provides for a procedure for the replacement of the applicant ( Chapman on behalf of the Wakka Wakka People # 2 v State of Queensland [2007] FCA 597 per Kiefel J at [2]). Under subs 66B(1)(a)(i), members of a claim group who seek to replace an existing applicant must relevantly establish ( Daniel v The State of Western Australia (2002) 194 ALR 278 per French J at [17]) that: (1) There is a claimant application. (2) Each applicant for an order under s 66B is a member of the claim group. (3) The persons to be replaced are no longer authorised by the claim group to make the application and to deal with matters arising in relation to it. (4) The persons making the application under s 66B are authorised by the claim group to make the application and to deal with matters arising in relation to it.