mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Gordon v Tolcher [2006] HCA 62
Outcome: cited
By reason of the way I propose to proceed, those questions do not require my consideration, although I should say that my preliminary view would be that s 79 of the Judiciary Act , in the circumstances of this case, would allow there to be reliance by this Court on s 66 of the Act: Pederson v Young [1964] HCA 28 ; (1964) 110 CLR 162 at 167-8; John Robertson &amp; Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 80-1 and at 94-5; Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553 at 587-9, 650-1 and 607-9; Gordon v Tolcher [2006] HCA 62 at [4] .
Case: Guglielmin v Trescowthick (No 3) (2005) 220 ALR 535
Outcome: considered
I am informed that there has been an appeal from that decision, but until that appeal is heard and determined, the order of the County Court and the application to VCAT stand as matters of which I should take cognisance. In those circumstances I need to consider, without more, whether or not this action brought by the applicant should be stayed. The principles in relation to a stay were set out, appropriately, in a number of the cases, but conveniently, the principles are set out by Mansfield J in Guglielmin v Trescowthick (No 3) (2005) 220 ALR 535 at [8]-[21]. 15 One starts with the important proposition that it is a fundamental principle that an applicant is entitled to have his or her action tried in the ordinary course of the procedure and business of the Court subject only to the exercise of judicial discretion on proper grounds as part of the Court's inherent powers. In this particular case there is already a question of the proper legal representation of the first respondent and in addition also there are the applications of the first and second respondents to have the whole application dismissed. Necessarily, they are matters that need to be determined before the applicant can go to trial in relation to this matter. If a stay is granted obviously it will affect the process by which the first and second respondents seek to have summary judgment and those matters will be stayed as well, as the whole proceeding being stayed itself. 16 In the unusual circumstances of this case, it is my view that a stay should be granted pending the hearing and determination of the matter before VCAT and I propose to so order. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice MIDDLETON. Associate: Dated: 21 December 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: P Hanks QC with T Cordiner Solicitor for the First Respondent: Russell Kennedy Counsel for the Second Respondent: A O'Brien Solicitor for the Second Respondent: Victorian Government Solicitor Date of Hearing: 20 December 2006 Date of Judgment: 20 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1817.html
Case: John Robertson &amp; Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65
Outcome: cited
By reason of the way I propose to proceed, those questions do not require my consideration, although I should say that my preliminary view would be that s 79 of the Judiciary Act , in the circumstances of this case, would allow there to be reliance by this Court on s 66 of the Act: Pederson v Young [1964] HCA 28 ; (1964) 110 CLR 162 at 167-8; John Robertson &amp; Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 80-1 and at 94-5; Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553 at 587-9, 650-1 and 607-9; Gordon v Tolcher [2006] HCA 62 at [4] .
Case: Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553
Outcome: cited
By reason of the way I propose to proceed, those questions do not require my consideration, although I should say that my preliminary view would be that s 79 of the Judiciary Act , in the circumstances of this case, would allow there to be reliance by this Court on s 66 of the Act: Pederson v Young [1964] HCA 28 ; (1964) 110 CLR 162 at 167-8; John Robertson &amp; Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 80-1 and at 94-5; Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553 at 587-9, 650-1 and 607-9; Gordon v Tolcher [2006] HCA 62 at [4] .
Case: Pederson v Young [1964] HCA 28 ; (1964) 110 CLR 162
Outcome: cited
By reason of the way I propose to proceed, those questions do not require my consideration, although I should say that my preliminary view would be that s 79 of the Judiciary Act , in the circumstances of this case, would allow there to be reliance by this Court on s 66 of the Act: Pederson v Young [1964] HCA 28 ; (1964) 110 CLR 162 at 167-8; John Robertson &amp; Co Ltd (in liq) v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 80-1 and at 94-5; Northern Territory v GPAO [1999] HCA 8 ; (1998) 196 CLR 553 at 587-9, 650-1 and 607-9; Gordon v Tolcher [2006] HCA 62 at [4] .
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1
Outcome: cited
Wilcox J delivered judgment on the complex issues of liability arising in the primary proceedings on 5 September 2005 ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1). In the meantime, Ms Hemming had filed two disclosure affidavits pursuant to Wilcox J's orders of 22 March 2005 whilst Sharman License and Sharman Networks had unsuccessfully sought several stays on various grounds of that same order insofar as it applied to them (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406 per Hely J, delivered 8 April 2005; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441 per Wilcox J, delivered 15 April 2005 and Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505 per Moore J, delivered 28 April 2005). Disclosure affidavits were eventually sworn on behalf of Sharman License and Sharman Networks by Mr Gee on 19 April 2005, which were later superseded by further affidavits sworn also by Mr Gee on 16 June 2005. Sharman License and Sharman Networks had also unsuccessfully sought an enlargement of time in which to file an application for leave to appeal from Wilcox J's orders of 22 March 2005 (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 per Lindgren J, delivered on 17 June 2005).
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406
Outcome: cited
Wilcox J delivered judgment on the complex issues of liability arising in the primary proceedings on 5 September 2005 ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1). In the meantime, Ms Hemming had filed two disclosure affidavits pursuant to Wilcox J's orders of 22 March 2005 whilst Sharman License and Sharman Networks had unsuccessfully sought several stays on various grounds of that same order insofar as it applied to them (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406 per Hely J, delivered 8 April 2005; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441 per Wilcox J, delivered 15 April 2005 and Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505 per Moore J, delivered 28 April 2005). Disclosure affidavits were eventually sworn on behalf of Sharman License and Sharman Networks by Mr Gee on 19 April 2005, which were later superseded by further affidavits sworn also by Mr Gee on 16 June 2005. Sharman License and Sharman Networks had also unsuccessfully sought an enlargement of time in which to file an application for leave to appeal from Wilcox J's orders of 22 March 2005 (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 per Lindgren J, delivered on 17 June 2005).
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441
Outcome: cited
Wilcox J delivered judgment on the complex issues of liability arising in the primary proceedings on 5 September 2005 ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1). In the meantime, Ms Hemming had filed two disclosure affidavits pursuant to Wilcox J's orders of 22 March 2005 whilst Sharman License and Sharman Networks had unsuccessfully sought several stays on various grounds of that same order insofar as it applied to them (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406 per Hely J, delivered 8 April 2005; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441 per Wilcox J, delivered 15 April 2005 and Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505 per Moore J, delivered 28 April 2005). Disclosure affidavits were eventually sworn on behalf of Sharman License and Sharman Networks by Mr Gee on 19 April 2005, which were later superseded by further affidavits sworn also by Mr Gee on 16 June 2005. Sharman License and Sharman Networks had also unsuccessfully sought an enlargement of time in which to file an application for leave to appeal from Wilcox J's orders of 22 March 2005 (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 per Lindgren J, delivered on 17 June 2005).
Case: Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505
Outcome: cited
Wilcox J delivered judgment on the complex issues of liability arising in the primary proceedings on 5 September 2005 ( Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1). In the meantime, Ms Hemming had filed two disclosure affidavits pursuant to Wilcox J's orders of 22 March 2005 whilst Sharman License and Sharman Networks had unsuccessfully sought several stays on various grounds of that same order insofar as it applied to them (see Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 406 per Hely J, delivered 8 April 2005; Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 441 per Wilcox J, delivered 15 April 2005 and Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 505 per Moore J, delivered 28 April 2005). Disclosure affidavits were eventually sworn on behalf of Sharman License and Sharman Networks by Mr Gee on 19 April 2005, which were later superseded by further affidavits sworn also by Mr Gee on 16 June 2005. Sharman License and Sharman Networks had also unsuccessfully sought an enlargement of time in which to file an application for leave to appeal from Wilcox J's orders of 22 March 2005 (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 per Lindgren J, delivered on 17 June 2005).
Case: Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 104 ALR 165
Outcome: cited
Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) stipulates that an appeal shall not be brought from a judgment of the Court constituted by a single judge, being a judgment that is interlocutory in nature, unless the Court or a Judge gives leave to appeal. Although s 24(1A) does not purport to qualify or limit the Court's discretion (see D&eacute;cor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 in the joint reasons for judgment of Sheppard, Burchett and Heerey JJ), the Courts have developed general principles which inform the exercise of the discretion to refuse or grant leave to appeal from an interlocutory judgment. The rationale for those principles is the public interest in the efficient administration of justice, and the maintenance of 'the integrity and vigour of the procedures of the court, including as they do, the immediate involvement of the judge at all stages in the progress of cases to trial' ( Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd (1991) 104 ALR 165 at 173, per Gummow J). One consequence sought to be avoided is the expansion of expensive and delaying pre-trial litigation involved in appeals on issues of practice and procedure, and the concomitant reduction in the authority of the trial judge, should such appeals be frequently entertained ( Bomanite at 176, per French J).
Case: Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170
Outcome: cited
At least for those reasons, this Court has held on a number of occasions that typically a party seeking leave to appeal from an interlocutory judgment ought to establish, first, that in all the circumstances, the decision from which leave is sought to appeal is attended with sufficient doubt to warrant the same being reconsidered by the Full Court, and secondly, that substantial injustice would result if such leave was to be refused, supposing the decision to have been wrong: see D&eacute;cor at 398. That those two questions were the touchstone of exercise of discretion in matters of this kind was common ground between the parties. I observe that it is well accepted that those criteria are not to be applied rigidly or fixedly, and the Court must bear in mind all of the circumstances of the particular case: see in that regard Adam P Brown Male Fashions Proprietary Limited v Phillip Morris Incorporated [1981] HCA 39 ; (1981) 148 CLR 170 at 177, where Gibbs CJ, Aickin, Wilson and Brennan JJ said: 'For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323: "...I am of the opinion that...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a Court of Appeal." ...It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.'
Case: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22 ; (2002) 209 CLR 478
Outcome: cited
The primary submission made by the Music companies as to why leave to appeal ought not to be granted related to the failure of the Sharman applicants to adduce evidence demonstrative of the claim that they would suffer 'substantial injustice', should leave be refused. The Music companies rejected any notion to the effect that the mere fact of Ms Hemming being compelled to swear an affidavit as to disclosure of Sharman Networks' assets, and to attend for cross-examination upon her own disclosure affidavits, without more, amounted to 'substantial injustice', in the sense that such expression has been used in numerous authorities concerned with the grant of leave to appeal. Reference was made to Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22 ; (2002) 209 CLR 478, in which Gaudron, McHugh and Hayne JJ, in a different context, considered that the bare proposition that an order mandating 'trial by judge alone, as opposed to trial by judge and jury, can amount, without more, to a substantial wrong to a party or to a miscarriage of justice, [was] a startling proposition'. The reality of the dilemma in which the Court is placed by the present application is the need for consideration in some depth of the matters to which attention has been drawn by the Sharman applicants, before determining whether leave to appeal ought formally to be granted to appeal in the first place. The Sharman applicants relied upon a further passage from the majority's reasons for judgment in Gerlach at [13], as follows: 'The principles governing the grant of leave to appeal against interlocutory orders are well established...If it is plain that wrong principle was applied by the judge considering the application, it may well be that leave should be granted...'
Case: Den Norske Bank ASA v Antonatos [1999] QB 271
Outcome: cited
Thus in Den Norske Bank ASA v Antonatos [1999] QB 271, Waller LJ (with whom Chadwick and Millett LJJ agreed) said in a passage at 290, upon which the Sharman applicants placed reliance: 'It is finally important to recognise that it is only in exceptional circumstances that cross-examination will be ordered on an affidavit sworn pursuant to a Mareva order: see House of Spring Gardens Ltd v Waite [1985] FSR 173 at 181, per Slade LJ. The anxieties expressed by Scott J in Bayer AG v Winter (No 2) [1986] 1 WLR 540 relating to the court wanting no part of a star chamber process must constantly be borne in mind...' The passage from the reasons for judgment of Slade LJ in House of Spring Gardens, referred to by Waller LJ above, reads as follows: 'I can very well see that on the particular facts of many cases perhaps most cases the court might not consider it "just and convenient" to order the cross-examination of a defendant who has filed an affidavit in purported compliance with a Mareva order, in a case where the plaintiff has not yet seen fit to issue a motion for contempt and is not seeking an order for the swearing of a second affidavit by the defendant concerned...' Whether there has occurred 'purported compliance with a Mareva order' must surely be viewed in terms of substance as well as mere form. Lord Justice Slade made those remarks in the course of overruling the decision of Scott J at first instance, which decision had been to the effect that a court did not have the power under s 37 of the Supreme Court Act 1981 (UK) to make an order requiring cross-examination ancillary to compliance with a Mareva order, in the absence of circumstances whereby a justiciable issue is before the Court in respect of which the evidence of the deponent is relevant to the resolution thereof, for instance where the deponent of the disclosure affidavit was the subject of a contempt motion. The 'anxieties expressed by Scott J', and also referred to by Waller LJ in Den Norske Bank , appear in Scott J's earlier reasons for judgment in Bayer AG v Winter (No 2) [1986] 1 WLR 540. In that latter case, Scott J was concerned with an application seeking orders that the defendant submit to cross-examination on a wide range of matters in aid of earlier Anton Piller and Mareva orders made by the Court. Scott J referred to the scope of the cross-examination contemplated at 543 as follows: 'Mr Prescott [for the plaintiff] made clear that the purpose of his proposed cross-examination of the first defendant is a free-ranging one. He proposes to question him as to the whereabouts of his assets world-wide. He proposes to question him as to his knowledge of and part played in transactions in counterfeit Baygon wherever they may have happened.'
Case: House of Spring Gardens Ltd v Waite [1985] FSR 173
Outcome: cited
Thus in Den Norske Bank ASA v Antonatos [1999] QB 271, Waller LJ (with whom Chadwick and Millett LJJ agreed) said in a passage at 290, upon which the Sharman applicants placed reliance: 'It is finally important to recognise that it is only in exceptional circumstances that cross-examination will be ordered on an affidavit sworn pursuant to a Mareva order: see House of Spring Gardens Ltd v Waite [1985] FSR 173 at 181, per Slade LJ. The anxieties expressed by Scott J in Bayer AG v Winter (No 2) [1986] 1 WLR 540 relating to the court wanting no part of a star chamber process must constantly be borne in mind...' The passage from the reasons for judgment of Slade LJ in House of Spring Gardens, referred to by Waller LJ above, reads as follows: 'I can very well see that on the particular facts of many cases perhaps most cases the court might not consider it "just and convenient" to order the cross-examination of a defendant who has filed an affidavit in purported compliance with a Mareva order, in a case where the plaintiff has not yet seen fit to issue a motion for contempt and is not seeking an order for the swearing of a second affidavit by the defendant concerned...' Whether there has occurred 'purported compliance with a Mareva order' must surely be viewed in terms of substance as well as mere form. Lord Justice Slade made those remarks in the course of overruling the decision of Scott J at first instance, which decision had been to the effect that a court did not have the power under s 37 of the Supreme Court Act 1981 (UK) to make an order requiring cross-examination ancillary to compliance with a Mareva order, in the absence of circumstances whereby a justiciable issue is before the Court in respect of which the evidence of the deponent is relevant to the resolution thereof, for instance where the deponent of the disclosure affidavit was the subject of a contempt motion. The 'anxieties expressed by Scott J', and also referred to by Waller LJ in Den Norske Bank , appear in Scott J's earlier reasons for judgment in Bayer AG v Winter (No 2) [1986] 1 WLR 540. In that latter case, Scott J was concerned with an application seeking orders that the defendant submit to cross-examination on a wide range of matters in aid of earlier Anton Piller and Mareva orders made by the Court. Scott J referred to the scope of the cross-examination contemplated at 543 as follows: 'Mr Prescott [for the plaintiff] made clear that the purpose of his proposed cross-examination of the first defendant is a free-ranging one. He proposes to question him as to the whereabouts of his assets world-wide. He proposes to question him as to his knowledge of and part played in transactions in counterfeit Baygon wherever they may have happened.'
Case: Planet International v Garcia (No 2) (1991) 1 Qd R 426
Outcome: discussed
In respect of that finding, the Sharman applicants referred to Moore J's rationale expressed at [37] of his reasons for judgment and emphasised it as is indicated in non-italics: 'Greater clarity about this matter [being the transfer of funds to TIL on 4 February 2005] may arise from the cross-examination of [Ms Hemming].' From what I have already reviewed, there was ample justification for his Honour to have reached that view of the unusual transactional offshore circumstances in evidence before him. It was submitted however on behalf of the Sharman applicants that so much did not imply that Moore J was satisfied that there had not been compliance with the order of the court to disclose assets by Ms Hemming, which affirmative finding was of course contended by the Sharman applicants to be a prerequisite to the making of an order for cross-examination; I was referred for comparison to Planet International v Garcia (No 2) (1991) 1 Qd R 426, where the following appears at 427 of Thomas J's reasons for judgment: 'In the present case I am satisfied Mr Garcia has not adequately complied with the order of the Court. On the material before me, he has provided a collection of some untruthful statements, non-disclosures and qualifications...' I was also referred, by way of further comparison, to the following observations of the Court of Appeal in England in Motorola Credit Corporation v Uzan (No 2) [2003] EWCA Civ 752 ; [2004] 1 WLR 113 at [147] : 'The piecemeal, late, untruthful and manifestly incomplete disclosure which the defendants gave amply justified the view that cross-examination was just and convenient because it might reveal assets which would make the freezing order more effective.' But of course those respective findings related to differing matters and circumstances, and neither finding was intended to be definitively exemplary, such as to exclude the need for further exploration.